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2001 DIGILAW 582 (MAD)

Hayarunnissa v. State of Kerala

2001-06-07

M.KRISHNAN NAIR

body2001
ORDER: This application for bail is filed by accused Nos. 1 to 3 in Crime No.268 of 2000 of Parippally Police Station. The said crime was registered against the petitioners and others alleging the commission of the offences punishable under Secs.302 and 307 read with Sec.34 of the Indian Penal Code and Sec.57(A) of the Abkari Act. 2. The prosecution allegation is that all accused persons entered into a criminal conspiracy and pursuant to that conspiracy they manufactured illicit arrack mixed with methyl alcohol for being sold to the public for consumption. As a result of the consumption of the poisonous mix ture sold by the accused persons, several persons died and several others sustained grievous injuries. The petitioners were arrested on 24 10.2000 and on 25.10.2000 they were produced before the Judicial First Class Magistrate, Paravoor, who remanded them to the sub-jail. Admittedly a report under Sec.173(2) of the Crl.P.C. against 43 accused including the petitioners was filed before the Magistrate on 22.1.2001. It is stated in the final report that the investigation in respect of three of the accused persons is not completed and therefore they are not sent up for trial. According to the petitioners, though a report purporting to be a final report was filed on 22.1.2001, they are entitled to the benefit of the Proviso to Sec.167(2) of the Crl.P.C. since the investigation against them continued even after the filing of the alleged final report. 3. The application is stoutly opposed by the Public Prosecutor. According to the Public Prosecutor, since the charge sheet was filed before the expiry of the prescribed period, petitioners are not entitled to the benefit of the proviso to Sec.167(2) of the Crl.P.C. 4. The question for consideration is whether the petitioners are entitled to be released on bail in view of the proviso to Sec.167(2) of the Crl.P.C. The proviso to Sec.167(2) lays down that no Magistrate shall authorize the detention of the accused persons in custody pending investigation for an aggregate period of 90 days where the investigation relates to an offence punishable with death, imprisonment for life or imprisonment for not less than 10 years and 60 days where the investigation relates to any other offences and the person concerned is to be released on bail if he is prepared to and does furnish bail. No doubt, if the report under Sec.173(2) of the Code is not submitted within the prescribed period, the accused is entitled to get bail as of right. As observed by the Supreme Court in Uday Mohanlal Acharya v. State of Mahrashtra, 2001 Crl.L.J. 1832, the proviso to Sub-sec.(2) of Sec.167 of the Code is a beneficial provision for curing the mischief of indefinitely prolonging the investigation and thereby affecting the liberty of a citizen. In this case the petitioners were remanded to custody on 25.10.2000 and the report under Sec.173(2) of the Code was filed on 22.1.2001. According to the learned counsel for the petitioners, since the statement of a witness was recorded by the Magistrate under Sec.164 of the Crl.P.C. after the submission of the charge sheet it has to be held that the investigation in the case is not completed. Therefore, according to the learned counsel Sec.167(2) of the Crl.P.C. comes into play. I cannot agree. It is true that in this case the statement of C.W.214 was recorded by the judicial First Class Magistrate, Karunagappally, on 23.1.2001, i.e., after the submission of the charge sheet before the Magistrate. But merely because the statement of a witness is recorded by the Magistrate under Sec.164 of the Crl.P.C. after the filing of the charge sheet it cannot be said that the investigation in the case is not completed. Sec.164 of the Code enables a Magistrate to record a confession or a statement not only in the course of the investigation, but also at any time afterwards. but before the commencement of enquiry or trial. Sec.164(1) of the Crl.P.C. reads as follows: “Any Metropolitan Magistrate or Judicial Magistrate may, whether or not he has jurisdiction in the case, record any confession or statement made to him in the course of an investigation under this chapter or under any other law for the time being in force, or any time afterwards before the commencement of the inquiry or trial.” 5. The words “or at any time afterwards” in Sec.164(1) of the Crl.P.C. denote that if the confession or statement is not recorded in the course of investigation, then it can be recorded at anytime afterwards, but before the commencement of the of enquiry or trial. The words “or at any time afterwards” in Sec.164(1) of the Crl.P.C. denote that if the confession or statement is not recorded in the course of investigation, then it can be recorded at anytime afterwards, but before the commencement of the of enquiry or trial. Since confession or statement can be recorded by a Magistrate under Sec.164 after investigation but before the commencement of the enquiry or trial it cannot be said that recording the statement of a witness by the Magistrate under Sec.164 of the Crl.P.C. after the submission of the charge sheet is part of the investigation. In this case it appears that the learned Magistrate recorded the statement of C.W.214 after the investigation, but before the commencement of enquiry or trial. 6. The learned counsel for the petitioners placed strong reliance on the decision of the Supreme Court in Jogendra Nahak v. State of Orissa, (1999)3 K.L.T. 43 (S.C.) and contended that since Sec.164(1) of the Crl.P.C. does not empower a Magistrate to record the statement of a person unsponsored by the investigating agency, it has to be held that recording the statement of a witness by Magistrate under Sec.164 is part of the investigation. I see no force in this contention also. No doubt, in the decision referred to by the learned counsel it has been held by the Supreme Court that Sec.164(1) of the Code cannot be interpreted as empowering the Magistrate to record the statement of a person unsponsored by the investigating agency. But there is nothing in the decision to indicate that recording the statement of a witness by the Magistrate under Sec.164 of the Code after filing the charge sheet is part of the investigation. In this connection it is also relevant to note the definition of investigation in Sec.2(h) of the Crl.P.C.: “Investigation includes all the proceedings under this Code for the collection of evidence conducted by a Police Officer or by any person (other than a Magistrate) who is authorised by a Magistrate in this behalf.” 7. The learned counsel also placed much reliance on the decision of the Supreme Court in Uday Mohanlal Acharya v. State of Maharashtra, 2001 Crl.L.J. 1832. According to me, the said decision is not applicable to the facts of this case. The learned counsel also placed much reliance on the decision of the Supreme Court in Uday Mohanlal Acharya v. State of Maharashtra, 2001 Crl.L.J. 1832. According to me, the said decision is not applicable to the facts of this case. In that case the accused filed an application for bail after the expiry of the prescribed period and he was prepared to offer and furnish bail. The Magistrate rejected the application on the ground that Sec.167(2) of the Crl.P.C. is not attracted in the case pertaining to MPID Act, 1999. The accused approached the higher forum and in the meanwhile the charge sheet was filed. The Supreme Court held that the indefeasible right of an accused being released on bail does not get extinguished by subsequent filing of the charge sheet. In this case before filing the present application for bail, the investigation was completed and the charge sheet was laid down before the Magistrate. Admittedly the case was committed to the Court of Session and it is now pending trial before the Sessions Court. Under these circumstances the petitioners are not entitled to the benefit of the Proviso to Sec.167(2) of the Crl.P.C. 8. This petition is groundless and it is dismissed.