Research › Browse › Judgment

Allahabad High Court · body

1984 DIGILAW 728 (ALL)

Sudhakar alias Chunna v. State of U. P.

1984-09-14

P.DAYAL

body1984
JUDGMENT P. Dayal, J. - The facts giving rise to this revision are that the revisionists, namely, Sudhakar alias Chunna, Rajesh Singh, Amar Nath alias Lalla Pande and Virendra Prakash alias Bhago, were arrested on 10th April 1984 in case crime No. 146 of 1984, Police Station, Auraio, district Etawah, for offences punishable under Sections 147, 148, 149 and 302 IPC. An application on their behalf was moved before the Judicial Magistrate I of District Etawah on 9th July, 1984 u/s 167(2) Code of Criminal Procedure that ninety days had expired and charge-sheet was not submitted and that they were prepared to furnish bail bonds. That application was not disposed of on 9-7-1984 and the charge-sheet was submitted on 10-7-1984. The learned Magistrate passed the impugned order dated 13th July, 1984 to the effect that he had taken cognizance of the offence and in view of the provisions of Section 173(8) of the Code of Criminal Procedure the revisionists were not entitled to bail. 2. An important point was raised in this criminal revision to the effect that u/s 397(2) of the Code of Criminal Procedure a revision application was barred against the order, passed by the Judicial Magistrate 1st Class, refusing bail, specially under the circumstances when the provisions of Section 167(2) Code of Criminal Procedure had come into operation. It was contended that the order refusing bail when the prosecuting agency had not completed investigation within the statutory period, was an interlocutory order, as mentioned in Section 397 Code of Criminal Procedure, and the same could not be revised. 3. In this respect the provisions of Section 167 Code of Criminal Procedure have to be considered. Section 167(1) reads as follows;-- Whenever any person is arrested and detained in custody and it appears that the investigation cannot be completed within the period of twenty-four hours fixed by Section 57, and there are grounds fur believing that the accusation or information is well founded, the officer in charge of the police station or the police officer making the investigation, if he is not below the rank of Sub-Inspector, shall forthwith transmit to the nearest Judicial Magistrate a copy of the entries in the diary hereinafter prescribed relating to the case, and shall at the same time forward the accused to such Magistrate. Sub-section (2) of Section 167 reads as follows: The Magistrate to whom an accused person is forwarded under this section may, whether he has or has not jurisdiction to try the case, from time to time authorise the detention of the accused in such custody as such Magistrate thinks fit for a term not exceeding fifteen days in the whole and if he has no jurisdiction to try the case or commit it for trial, and considers further detention unnecessary, he may order the accused to be forwarded to a Magistrate having such jurisdiction; Provided that-- (a) the Magistrate may authorise the detention of the accused person otherwise than in the custody of the police beyond the period of fifteen days if he is satisfied that adequate grounds exist for doing so, but no Magistrate shall authorise the detention of the accused person in custody under this paragraph for a total period exceeding. (i) ninety days, where the investigation relates to an offence punishable with death, imprisonment for life or imprisonment for a term of not less than ten years. (ii) sixty days, where the investigation relates to any other offence, and, on the expiry of the said period of ninety days, or sixty days, as the case may be the accused person shall be released on bail if he is prepared to and does furnish bail, and every person released on bail under this Sub-section shall be deemed to be released under the provisions of Chapter XXXIII for the purposes of that Chapter. Section 397 reads as follows;-- Calling for records to exercise of powers of revision. (1) The High Court or any Sessions Judge may call for and examine the record of any proceeding before any inferior Criminal Court situate within its or his local jurisdiction for the purposes of satisfying itself or himself as to the correctness, legality or propriety of any finding, sentence or order, recorded or passed and as to the regularity of any proceedings of such inferior court and may, when calling for such record, direct that the execution of any sentence or order be suspended and if the accused is in confinement, that he be released on bail or on his own bond pending the examination of the record. Explanation. Explanation. All Magistrates whether executive or Judicial and whether exercising original or appellate jurisdiction, shall be deemed to be inferior to the Sessions Judge for the purposes of this Sub-section and of Section 398. (2) The powers of revision conferred by Sub-section (1) shall not be exercised in relation to any interlocutory order passed in any appeal, inquiry, trial or other proceeding. (3) If an application under this section has been made by any person either to the High Court or to the Sessions Judge, no further application by the same person shall be entertained by the other of them. A separate Chapter No. XXXIII of the Code provides for bails and bail bonds. Section 437 provides that bail may be taken in case of non-bailable offences. 4. It is clear from the provisions of Section 167(2) Code of Criminal Procedure that these provisions are mandatory, and if in a case where an offence has been committed and the accused has been arrested, and investigation is not completed within sixty days or within ninety days from the date of his arrest, as the case may be, the provisions create a substantive right in the accused person to be released on bail and there is no discretion left with the Magistrate except to release the accused on bail if the condition mentioned in Sub-section (2) exists. The said provisions were introduced by the Legislature for the purposes of expediting the investigation and also that the accused is not unnecessarily harassed. It is a right which arises in favour of the accused who has been arrested and detained and no charge sheet having been filed against him within sixty days or ninety days, as the case may be. The decision of the Magistrate permitting him to avail of this right or refusing him this right is a final determination of the question which has nothing to do with the proceedings or the merits of the case. If a charge-sheet is not submitted within sixty days or ninety days, as the case may be, it finally decides the right of an accused and that decision is not left to the discretion of the Magistrate, who has no option but to grant him bail within the ambit of law. If a charge-sheet is not submitted within sixty days or ninety days, as the case may be, it finally decides the right of an accused and that decision is not left to the discretion of the Magistrate, who has no option but to grant him bail within the ambit of law. It has been held since long that u/s 205 of the Government of India Act, 1935, Section 109 of the Code of CPC and Article 133(1) of the Constitution of India that if the rights of the parties in dispute in a suit or proceeding remained to be tried after the order, the order was not final. But in the instant case there was nothing left for the accused to be tried or decided when a statutory right accrued to him and the Magistrate divested him of the availing of that right. 5. It is certain that whatever might be the provisions made by the Legislature in Section 167(2) it has a limited operation to the period between the date of the arrest of the accused and the date of the filing of the charge-sheet. As soon as that date expires, the right of being released on bail is vested in the accused and any order against that provision of law is a final order. Obviously, the accused was not required to move an application u/s 437 of the Code of Criminal Procedure as any order was not passed by the Magistrate. An order passed u/s 437 Code of Criminal Procedure also could be as independent as an order passed u/s 167 Code of Criminal Procedure. 6. It is a determination of a right which has been created by the procedural law in the accused person u/s 167(2) Code of Criminal Procedure who is now entitled to be released on bail if the investigating agency delayed the investigation and failed to file a charge sheet within ninety days. The determination of a right could be done only by the Magistrate before the filing of the charge sheet within that period of sixty or ninety days, as the case may be. 7. Sri S.S. Tewari, appearing for the revisionists relied on the case of Ramsaran Rajaram Kurmi v. State of Maharasthra, 1976 Mh. LJ 432 and on the Division Bench case of Umashanker v. The State of Madhya Pradesh 1983 Crimes 493 . 7. Sri S.S. Tewari, appearing for the revisionists relied on the case of Ramsaran Rajaram Kurmi v. State of Maharasthra, 1976 Mh. LJ 432 and on the Division Bench case of Umashanker v. The State of Madhya Pradesh 1983 Crimes 493 . Reliance was further placed on the case of Hussainara Khatoon and Others Vs. Home Secretary, State of Bihar, Patna, AIR 1979 SC 1377 . 8. The proviso (a) to Section 167(2) of the Code does not even require that the accused has to make a formal written application for exercising the right of being released. All that he has to do is to intimate that he is prepared to furnish bail bonds that may be ordered by the court. If he does intimate the court, whether oral or in writing, the court cannot refuse to pass an order directing the release on bail for want of written application. As held in the case of Hussainara Khatoon (supra) by the Supreme Court, it is the duty of the Magistrate to inform the accused that he has a right to be released on bail under the proviso and if the accused is prepared to furnish bail as ordered and does furnish bail, he has to be released on bail. If a charge-sheet is filed before the expiry of the maximum period for which an accused can be detained in custody u/s 167 Code of Criminal Procedure further remand to custody can be ordered u/s 309 Code of Criminal Procedure as any maximum period for remand is not provided u/s 309 Code of Criminal Procedure. The Magistrate however, cannot postpone the release of an accused under proviso (a) to Section 167(2) Code of Criminal Procedure after the expiry of sixty days or ninety days as the case may be just to enable the police to file a charge-sheet and to alter the detention u/s 167 Code of Criminal Procedure to one u/s 309 Code of Criminal Procedure. 9. In the instant case the accused revisionists had moved an application u/s 167(2) Code of Criminal Procedure on 9th July, 1984 on expiry of the period of ninety days. The Magistrate, instead of passing any order on 9th July, 1984 postponed it to 10th July, 1984 when the charge-sheet was submitted. 9. In the instant case the accused revisionists had moved an application u/s 167(2) Code of Criminal Procedure on 9th July, 1984 on expiry of the period of ninety days. The Magistrate, instead of passing any order on 9th July, 1984 postponed it to 10th July, 1984 when the charge-sheet was submitted. The Magistrate acted in violation of proviso (a) to Section 167(2) Code of Criminal Procedure by postponing the consideration of the application for bail till the charge-sheet was filed and till he had taken cognizance of the case. It is not understandable that under what circumstances the Magistrate waited for the charge-sheet. Hence this revision succeeds. 10. The revision is allowed. The order dated 13th July, 1984 passed by the Judicial Magistrate I, Etawah, dismissing the application for bail of the revisionists, is set aside. Their application for bail is allowed and they shall be released on bail on their each furnishing a personal bond of Rs. 6,000/-(Rupees six thousand) with two sureties each in the like amount to the satisfaction of the Judicial Magistrate I, Etawah.