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2000 DIGILAW 441 (PAT)

Anand Deo Singh v. State Of Bihar

2000-03-16

ASHOK KUMAR VERMA, NAGENDRA RAI

body2000
Judgment Nagendra Rai, J. 1. The petitioner is the same in both the cases and the questions of law involved therein are also the same and as such both have been heard together and are being disposed of by this common judgment. 2. In both the cases, the petitioner has challenged the orders dated 18.1.2000 passed by the Special Judge, Central Bureau of Investigation, Patna, in Special Case No. 61 of 1996 arising out of R.C. Case No. 58-A of 1996 and Special Case No. 59 of 1996 arising out of R.C. Case No. 57-A of 1996, both registered under Sections 409, 419, 420, 167, 467, 471, 472, 424, 120-B of the Indian Penal Code and Sections 13 (2), read with 13 (1) (c) and (d) of the Prevention of Corruption Act, by which the prayer made on behalf of the petitioner to release him on bond as provided under Section 88 of the Code of Criminal Procedure (hereinafter referred to as the Code) has been rejected. 3. Cr WJC No. 76 of 2000 arises out of Special Case No. 61 of 1996 and Cr WJC No. 77 of 2000 arises out of Special Case No. 59 of 19%. 4. A public cry was laised with regard to misappropriation of huge sum of public money in the Animal Husbandary Department, Government of Bihar. Some cases were instituted before the Bihar Police. The matter was brought before this Court in CWJC Nos. 1675/96, 1642/96, 1644/96, 1656/96, 471/96 (R), 459/% (R), 602/96 (R), 675/96 (R) and 687/% (R) and a Division Bench of this Court, by order dated 19.3.1996, directed the Central Bureau of Investigation (hereinafter referred to as the CBI) to investigate the cases with regard to misappropriation of Government funds by the officials and suppliers of the Animal Husbandry Department, Government of Bihar. The said order was challenged before the Supreme Court in SLP (Civil) No. 5811 of 1996 and the same was affirmed with modification that the investigations of the cases already registered are to be taken by the CBI. In pursuance of the said direction, investigations of a large number of cases pending with regard to misappropriation of public fund in the Animal Husbandry Department were taken by the CBI. 5. FIR No. 25/96 dated 16.3.1996 was registered on the basis of information given by one, Sachidanand Sinha, Sub-divisional Officer, Simdega, Distt. In pursuance of the said direction, investigations of a large number of cases pending with regard to misappropriation of public fund in the Animal Husbandry Department were taken by the CBI. 5. FIR No. 25/96 dated 16.3.1996 was registered on the basis of information given by one, Sachidanand Sinha, Sub-divisional Officer, Simdega, Distt. Gumla with regard to misappropriation of Govt. fund in the Animal Husbandry Department within Simdega Sub-Division, which was taken over by the CBI and was numbered as R.C. Case No. 58-A/96, which gave rise to Spl. Case No. 61/96. 6. Gumla P.S. Case No. 53 dated 11.3.1996 was lodged on the basis of an information given by Janakji Kant Sharan, Executive Magistrate, Gumla and the same was taken over by the CBI and was numbered as R.C. Case No. 57 A of 1996, which gave rise to Special Case No. 59 of 1996. 7. In both the cases, the allegations are that the public servants in connivance with the suppliers and others misappropriated the public money by creating forged and fabricated documents. 8. The petitioner is a Veterinary Doctor and at the relevant time he was posted as T.V.O. Mobile and had also worked for some time as Assistant Piggery Development Officer, Simdega. He was not named as an accused in the FIRs of the aforesaid two cases. However, during investigation, the Police found hand of the petitioner also in the alleged offences and, thereafter, submitted charge-sheets in both the cases. In Special Case No. 61 of 1996, charge-sheet was submitted on 7.9.1996 and the Special Judge on the same day took cognizance and issued summons against the accused, who were on bail and non-bailable warrant of arrest against other accused persons including the petitioner, who had not appeared during investigation. In Special Case No. 59 of 1996, the charge-sheet was submitted on 12.10.1999 against the petitioner and others and the Special Judge, CBI, took cognizance on the same day and issued non-bailable warrant against the petitioner and others, who had not appeared during investigation and processes against those, who were on bail. 9. The petitioner surrendered before the Special Judge, South Bihar, Patna, on 18.1.2000 in both the cases and filed an application under Section 88 of the Code making a prayer therein to release him on execution of bond as provided under the said Section. 9. The petitioner surrendered before the Special Judge, South Bihar, Patna, on 18.1.2000 in both the cases and filed an application under Section 88 of the Code making a prayer therein to release him on execution of bond as provided under the said Section. The Special Judge, by his orders dated 18.1.2000, has rejected the said prayer of the petitioner as aforementioned. 10. Learned counsel for the petitioner submitted that once the petitioner has appeared before the Special Judge in obedience to the process having been issued by it, the Special Judge should have taken recourse to the provision of Section 88 of the Code by asking him to execute a bond for his appearance instead of rejecting the said prayer and remanding him to judicial custody. The rejection of the prayer of the petitioner to dispose of the matter in terms of the provision of Section 88 of the Code has curtailed the fundamental right guaranteed to the petitioner under Article 21 of the Constitution of India. He further submitted that as the petitioner co-operated during investigation, the Special Judge was not justified in remanding him without coming to the conclusion that a fair trial was not possible without remand of the petitioner. He also contended that Section 204 of the Code, which empowers the Magistrate to issue process after taking cognizance, confers an arbitrary and unbridled power to the Court without laying down any guideline and as such the said provision has to be declared ultra vires. 11. Learned counsel appearing on behalf of the CBI, on the other hand, submitted that Section 88 falls within Chapter VI of the Code, which deals with the processes to compel appearance and once the accused appears before the Court, then the Court has to consider as to whether in view of the nature of the allegations, the accused is to be remanded to custody or should be released on bail or even in bailable cases, he may pass an order for execution of bond for appearances. In a case like this, where there are serious allegations of misappropriation of public money to the tune of several crores of rupees, the learned Special Judge rightly did not accede to the prayer made on behalf of the petitioner. He further submitted that Section 88 of the Code has no application in this case. In a case like this, where there are serious allegations of misappropriation of public money to the tune of several crores of rupees, the learned Special Judge rightly did not accede to the prayer made on behalf of the petitioner. He further submitted that Section 88 of the Code has no application in this case. He also submitted that Section 204 of the Code, which deals with the issue of process, contains a sufficient guideline to be followed by the Magistrate the time of issue of process. The Magistrate has been empowered to issue summons or warrants according to the nature of the crime and as such the said provision cannot be assailed on the ground urged on behalf of petitioner. 12. Article 21 of the Constitution of India provides that no person shall be deprived of his life and liberty without the procedure prescribed by law. The procedure, which has to be prescribed by law, should be just, fair and reasonable. The Code deals with the procedure to be followed with regard to offences punishable under the Penal Code and other Acts to which the provision of the Code is applicable. It is too late to argue at this stage that the procedure provided by the Code is not just and fair. 13. The moot question to be considered is as to whether the petitioner should have been asked to execute a bond for his appearance under Section 88 of the Code when he appeared and was ready to furnish bond. To decide this question, relevant provisions of the Code have to be considered. Under Section 41 of the Code, the Police may arrest any person without a warrant and without an order of the Magistrate in cognizable cases, but the Police cannot detain a person for more than 24 hours as provided under Section 57 of the Code unless there is an order of the Magistrate under Section 167 of the Code authorising detention. After arrest and detention in custody of the accused by the Police, if the investigation cannot be completed within 24 hours as provided under Section 57 of the Code and the Police has ground to believe that the accusation or information is well-founded then it has to produce the accused before the nearest Magistrate, who will remand the accused under Section 167 of the Code either to the police custody or judicial custody or the Magistrate may instead of remanding the accused release him on bail as provided under Chapter XXXIII of the Code after taking into consideration the nature and gravity of the offence and other relevant considerations. In case, investigation is not completed within the statutory period as provided under Section 167 of the Code, the accused shall be released and the said release will be treated to be released on bail under Chapter XXXIII of the Code dealing with the bails. After submission of the final form, if cognizance is taken then process has to be issued under Section 204 of the Code and the Magistrate will issue summons in summons-cases and warrants in warrant-cases unless he decides to issue summons in place of warrant in warrant-cases also. 14. After cognizance, if accused is not on bail, then he has to be remanded to custody during inquiry or trail under Section 309 of the Code. The Court has no inherent power to remand an accused in custody at any stage. The Apex Court in the case of Matabar Paridda and others V/s. State of Orissa, 1995 2 SCC 220, has held that the Court has no inherent power to remand an accused to custody unless the power is conferred by law. Thus, an accused if not on bail has to be remanded either under Section 167 of the Code or under Section 309 of the Code as the situation may be. 15. Chapter VI of the Code deals with the process to compel the appearance. Part A deals with summons, Part B deals with Warrant of arrest, Part C deals with proclamation and attachment and Part D deals with Other rules regarding processes. 15. Chapter VI of the Code deals with the process to compel the appearance. Part A deals with summons, Part B deals with Warrant of arrest, Part C deals with proclamation and attachment and Part D deals with Other rules regarding processes. Section 88 falls in Part D of the said Chapter, according to which, if an accused is present in the Court and for whose appearance or arrest, the Court is empowered to issue a summons or warrant, men the Court may require such person to execute bond for appearance. 16. Chapter XXXIII deals with the provision of bail. In a case of bailable offences, if any person is arrested or detained without warrant by an officer-in-charge of the Police Station or brought before the Court and is ready to give bail, then the Court instead of taking bail from such person will discharge him on his executing a bond without sureties for his appearance. In case of non-bailable offence, if an accused is arrested or detained without warrant by a Police Officer or appears or is brought before the Court, then as provided under Section 437 of the Code, ordinarily he shall be released on bail unless his case is covered by clauses (i) and (ii) of Section 437 (1) of the Code. After investigation is complete and the cognizance is taken and the accused has not been released on bail, then he has to be remanded to custody under Section 309 of the Code. 17. Thus, a bare conspectus of the aforesaid provisions shows that the Police has power to arrest a person in a cognizable case but it cannot keep him in custody beyond 24 hours unless authorised by the Magistrate. If the investigation is not completed within 24 hours, then the accused has to be produced before the Magistrate under Section 167 of the Code and the Magistrate will either release him on bail or remand him to custody. During inquiry or trial if the accused is in custody and not released on bail, then remand has to be made under Section 309 of the Code. Section 88 falls under Part D of Chapter VI of the Code, which deals with the process to compel appearance. Once an accused appears before the Magistrate then his case has to be considered in accordance with the provision regarding remand and bail. Section 88 falls under Part D of Chapter VI of the Code, which deals with the process to compel appearance. Once an accused appears before the Magistrate then his case has to be considered in accordance with the provision regarding remand and bail. An accused cannot claim as a matter of right that as he is ready to execute bond under Section 88 of the Code, he may be allowed to execute a bond for his appearance instead of being remanded to custody or released on bail as the case may be. If the submission advanced on behalf of the petitioner that once an accused appears and is ready to furnish bond under Section 88 of the Code, the Magistrate has no option but to take a bond for his appearance and release him, is accepted, then that will made the provision of remand and bail as provided under the Code as redundant and otiose. Take example, if a person, accused for an offence punishable with death or imprisonment for life and there are materials to connect him with the crime, appears before a Magistrate and requests him to release on execution of bond for his appearance under Section 88 of the Code and the same is allowed, then the provision of Section 437 (1) (i) of the Code will become redundant as it provides that if there is reasonable ground for believing that the accused has been guilty of an offence punishable with death or imprisonment for life, such accused shall not be released on bail by the Magistrate. 18. In my considered view, Section 88 of the Code is an enabling provision, which vests a discretion in the Magistrate to exercise power under said section asking the person to execute a bond for appearance only in bailable cases or in trivial cases and it cannot be resorted to in a case of serious offences. Section 436 of the Code itself provides that bond may be asked for only in cases of bailable offences. 19. At this stage, I would like to refer to two decisions of the Allahabad High Court relied upon by the learned counsel for the petitioner in support of his submission, namely, Ram Chandra V/s. State of U.P., 1977 Criminal Law Journal 1783 and Vishwanath Jilolka V/s. 1st Munsif Lower Criminal Court, Bahraich, 1989 Criminal Law Journal 2082. 19. At this stage, I would like to refer to two decisions of the Allahabad High Court relied upon by the learned counsel for the petitioner in support of his submission, namely, Ram Chandra V/s. State of U.P., 1977 Criminal Law Journal 1783 and Vishwanath Jilolka V/s. 1st Munsif Lower Criminal Court, Bahraich, 1989 Criminal Law Journal 2082. In my considered view, none of the cases has any relevancy in this case. 20. In Ram Chandras case (supra), it was held that if an accused has surrendered during investigation, he could not be taken into custody under Section 167 of the Code because it is only when an accused is arrested by the Police and is forwarded to the Magistrate, the Magistrate can authorise his detention under Section 167 of the Code. Such is not the case here. Here, the investigation is complete and after that the petitioner surrendered before the Court. In that very case itself, it has been held that under Section 309 of the Code, the Magistrate can remand an accused to custody only if he has taken cognizance of the offence committed by him and as such the aforesaid observation in the said case negatives the submission advanced on behalf of the petitioner. 21. In Jiloklas case (supra), the matter arose out of a complaint case, with regard to an offence under Sections 420 and 406 of the Indian Penal Code and dealing with the said matter, it was held that in a complaint case if the accused appears or is brought before the Magistrate or Court in response to of summons or warrant, the proper procedure to be followed is laid down under Section 88 of the Code. I have grave doubt regarding the proposition laid down in the said case, but as the present one is a Police case and the said point does not arise for consideration in this case, I am not expressing any opinion on the said proposition. 22. Section 204 of the Code deals with the issue of process and it clearly provides that if the Magistrate comes to conclusion that there is sufficient ground for proceeding then he has to issue summons in summons-case and warrant in warrant-case and even in warrant-case if he is of the view that summons has to be issued at first instance, he is empowered to do so. Enough guideline has been provided therein to exercise discretion for issue of process. Thus, there is no force in the submission advanced on behalf of the petitioner regarding vires of Section 204 of the Code. 23. Thus, there is no legal infirmity in the orders passed by the Special Judge, South Bihar, Patna, in both the cases. Accordingly, I find no merit in both the applications and they are, accordingly, dismissed. However, it will be open for the petitioner in both the cases to move the Court concerned for grant of bail. Ashok Kumar Verma, J. 24 I agree.