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2003 DIGILAW 217 (PAT)

Upendra Singh @ Pappu Singh v. State Of Bihar

2003-02-24

P.N.YADAV, S.N.JHA

body2003
Judgment 1. This writ petition under Articles 226 & 227 of the Constitution of India has been filed for release of the petitioner by writ of habeas corpus and for compensation. 2. The petitioner figures as an accused in Dumraon PS Case No. 137/2002 under Section 396 of the Penal Code. On 8.10.2002 at about 3 PM sum of Rs. 10 lacs belonging to the State Bank of India, which was being carried in a jeep, was looted by seven-eight persons after assaulting the driver and the security guard. The security guard died in the occurrence. On the basis of statement of Vinay Kumar Sahay, a Clerk of the State Bank of India, Brahampur Branch, Dumraon PS Case No. 137/2002 was registered against unknown on the same day i.e. 8.10.2002. On 20.10.2002 the petitioner was arrested from his house, produced before the Chief Judicial Magistrate, Buxar and remanded to custody. 3. The case of the petitioner is that the arrest was illegal being in violation of the provisions of Sections 41 and 57 of the Criminal Procedure Code. His forwarding and remand were also illegal in violation of the provisions of Section 167(2) of the Code. It is said that at 3 AM on 20.10.2002 he was arrested without being told the grounds of arrest and kept in the police lock-up where he was threatened and asked to confess which, however, he did not do, After more than 24 hours on 21.10.2002 at 2 PM he was taken to Buxar for his production before the CJM in handcuff without copy of the entries in the case diary. The CJM forwarded him to jail custody without stating in the order as to whether there was sufficient ground for his remand to judicial custody and without considering that there was no arrest memo or inspection memo or seizure list. All this was in violation of the law laid down by the Supreme Court in Joginder Kumar V/s. State of U.P., (1994) 4 SCC 260 , reiterated in D. K. Basu V/s. State of West Bengal, (1997) 1 SCC 416 . His subsequent remand was also illegal. The CJM failed to consider his complaint against the concerned police officer and mechanically passed the order of remand. In any view, as no chargesheet was submitted within 60 days, he was entitled to bail in terms of proviso to Section 167(2) of the Code. 4. His subsequent remand was also illegal. The CJM failed to consider his complaint against the concerned police officer and mechanically passed the order of remand. In any view, as no chargesheet was submitted within 60 days, he was entitled to bail in terms of proviso to Section 167(2) of the Code. 4. Shri Vyas Muni Singh made lengthy submission to substantiate the petitioners case about his arrest, remand etc. being illegal and in violation of the provisions of the Criminal Procedure Code and law laid down by the Supreme Court. He referred to different provisions of the Criminal Procedure Code and decisions of the Supreme Court. In view of the admitted position that in the meantime chargesheet has been submitted against the petitioner on 15.1.2003 and, in fact, cognizance thereon has already been taken, it is not necessary to notice those submissions and deal with them. With the submission of chargesheet and taking of cognizance, the grievance as to illegality in the arrest etc. has become infructuous. As early as in 1953, in the case of Ram Narayan Singh vs. State of Delhi, (which incidentally was cited on behalf of the petitioner), it was observed that in habeas corpus proceeding the Court is to have regard to the illegality or otherwise of the detention at the time of return and not with reference to the initiation of the proceedings and in the facts of the case it was held that the material did show the date when the affidavit on behalf of the Government justifying the detention was filed. In Talib Hussain V/s. State of Jammu and Kashmir, AIR 1971 SC 62 , the Court observed : "In regard to the submission that the petitioner was arrested and deprived of his personal liberty long before the order of his arrest and this invalidate his detention, it is sufficient to point out that in habeas corpus proceedings the Court has to consider the legality of the detention on the date of hearing. If on the date of hearing it cannot be said that the aggrieved party has been wrongfully deprived of his personal liberty and his detention is contrary to law, a writ of habeas corpus cannot issue." 5. If on the date of hearing it cannot be said that the aggrieved party has been wrongfully deprived of his personal liberty and his detention is contrary to law, a writ of habeas corpus cannot issue." 5. It is unnecessary to multiply the decisions on the point which are available in plenty except to refer to a Full Bench decision of this Court in Babu Nandan Mallah V/s State of Bihar 1971 BLJR 1058. Though there was difference of opinion between Untwalia, J. who wrote the majority judgment and Shambhu Prasad Singh, J. on some points, on the question as to what would be the crucial date for considering the validity or otherwise of detention they were unanimous. Untwalia,J. observed as under : "It is usually expected that habeas corpus petition would be heard on the date of return, but if for one reason or other hearing does not take place, then, in my opinion, the appropriate time to find out whether the detention is illegal and a writ of habeas corpus should issue, is the date of hearing of the application." Shambhu Prasad Singh, J. dealing with the question observed as follows : "An application for habeas corpus is admitted with reference to the allegations made in the petition, as they exist on the date of filing of it, but the order is passed with reference to the legality or illegality of the detention on the date of hearing." 6. The case of the respondents, and there is no dispute about it, is that chargesheet had been submitted at the end of investigation so far as the petitioner is concerned, while with respect to others it is still pending. With the submission of the chargesheet and taking of cognizance thereon the stage of the case has changed and it would be futile to go into the question of illegality or otherwise of the arrest and remand of the petitioner. 7. With the submission of the chargesheet and taking of cognizance thereon the stage of the case has changed and it would be futile to go into the question of illegality or otherwise of the arrest and remand of the petitioner. 7. The only question which remains alive for consideration is of bail in terms of proviso to Section 167(2) of the Criminal Procedure Code, In Uday Mohanlal Acharya V/s. State of Maharastra, (2001) 5 SCC 453 , it has been held by Majority that on expiry of the period of 90 days or 60 days, as the case may be, an indefeasible right accrues in favour of the accused for being released on bail on account of default by the investigating agency in completion of the investigation within the period prescribed and the accused is entitled to be released on bail, if he is prepared to and does furnish bail as directed by the Magistrate. The petitioner was taken into custody on 20.10.2002 and the chargesheet was submitted against him on 15.1,2003. Earlier on 21.12.2002 i.e. after expiry of 60 days he had filed application for his release on bail in terms of Section 167(2)(a)(ii) Criminal Procedure Code. The moot point for consideration is whether in the instant case investigation was required to be completed for the purpose of Section 167(2) proviso within the period of 60 days or 90 days. Proviso (a) to Section 167(2) lays down. "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 to released under the provisions of Chapter XXXIII for the purpose of that Chapter." 8. It was submitted on behalf of the petitioner that Section 396 of the Penal Code provides for three alternative punishment (a) Death; (b) Imprisonment for life; and (c) Rigorous imprisonment upto ten years and fine. According to the Counsel, three alternative punishments having been prescribed the quantum of punishment in a given case will depend on the allegation against the particular accused. The case having been registered against unknown and there being no sufficient material against the petitioner it cannot be said that in the event of his conviction he would be awarded the extreme punishment of death or even imprisonment for life. As the offence carries the alternative punishment "which may extend to ten years" rigorous imprisonment, the case would come within the purview of Clause (ii) of proviso (a) to Section 167(2) Criminal Procedure Code. He placed reliance on Rajeev Chaudhary V/s. State (NCT) of Delhi, (2001) 5 SCC 34 . Therein it was held that where the offence is punishable with imprisonment for 10 years or more, the accused could be detained upto a period of 90 days. The expression "not less than" in Section 167(2) proviso would mean, in the context of Section 386 IPC, that the imprisonment should be 10 years or more. The punishment of imprisonment for a term "which may extend to ten years" means imprisonment for a period of ten years or less. Hence it could not be said that minimum sentence would be 10 years or more and accordingly such case would fall under Clause (ii) of the proviso to Section 167(2). 9. The above said decision in our opinion is of no help to the petitioner. That was a case under Section 386 of the Indian Penal Code, besides Sections 506 and 120B. Section 386 provides for punishment of imprisonment of either description for a period "which may extend to ten years" and also fine. Section 396 of the Penal Code on the other hand provides sentence of even death. That was a case under Section 386 of the Indian Penal Code, besides Sections 506 and 120B. Section 386 provides for punishment of imprisonment of either description for a period "which may extend to ten years" and also fine. Section 396 of the Penal Code on the other hand provides sentence of even death. In other words the maximum sentence of imprisonment which can be provided for the offence under Section 386 cannot exceed ten years but so far as the offence under Section 396 is concerned the maximum sentence is death, The argument of the Counsel that the lesser punishment "up to ten years imprisonment" may be awarded in a given case may be right but the gravity of the offence has to be seen with reference to the maximum sentence provided. In fact the maximum sentence provided for a particular offence determines the nature of the case-summons case or warrant case-and the jurisdiction of the Court. That apart, on plain reading of Clause (i) of proviso (a) to Section 167(2) Criminal Procedure Code it is clear that where the investigation relates to an offence punishable with death or imprisonment for life, the 90 days rule will apply. Therefore as on 21.12.2002 the petitioner could not be held entitled to grant of bail in terms of proviso to Section 167(2). The chargesheet was admittedly filed within a period of 90 days i.e. on 15.1.2003 and therefore the petitioner cannot claim any benefit of the proviso. 10. In course of hearing, in fairness to the petitioner, it may be stated, submission was also made about the sufficiency or otherwise of the materials justifying submission of chargesheet. We are advisedly not going into that aspect, for, if we do that and make any observation, howsoever carefully made, it may affect the merit of the case. It is open to the petitioner to apply for quashing of the chargesheet and/or order taking cognizance, if so advised, in accordance with law. The present proceeding being one for his release, such an argument, in our opinion, ties outside the scope of the case. Incidentally, we may mention that the arrest of the petitioner was pursuant to the inculpatory confessional statement of co- accused Ravindra Singh on 17.10.2002 and therefore it cannot be said that it was without any basis or reason and for some extraneous consideration. 11. Incidentally, we may mention that the arrest of the petitioner was pursuant to the inculpatory confessional statement of co- accused Ravindra Singh on 17.10.2002 and therefore it cannot be said that it was without any basis or reason and for some extraneous consideration. 11. As regards the claim for compensation, having gone through the case diary, supervision notes we do not find any merit in the claim. The allegations about nondisclosure of grounds, non-compliance of the provisions of the Cr. P.C. or the directions of the Supreme Court etc., have been denied by the respondents in the counter affidavit and having regard to the attending circumstances there is no reason to disbelieve the denial. 12. Besides the decisions referred to above, the petitioners Counsel also placed reliance on decisions reported in 1989 Cr. L.J. 653, AIR 1995 Supreme Court 2083 and AIR 1963 Supreme Court 677, but a bare glance thereof would show that they were rendered in different context and facts. 13. In the result, we do not find any merit in this writ petition which is accordingly dismissed.