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2004 DIGILAW 460 (CAL)

SUDHANGSHU SEKHAR BERA v. STATE

2004-07-12

AMIT TALUKDAR, P.K.DEB

body2004
( 1 ) ACCRUAL of a statutory right and scuttling of a vested right forms the subject-matter for disposal in this application under section 439 of the Code of criminal Procedure (for short, the said Code) which otherwise could have been disposed of with a single "yes" or a single "no". ( 2 ) BUT, however, the basic question which has cropped up arrests the attention of the Court and has to be dealt with in its particular perspective. On an assessment of the submission made on behalf of the petitioners and the learned Public Prosecutor and perusing the case diary we are not inclined to accede to the prayer under section 439 of the said Code made on behalf of the petitioners. ( 3 ) HOWEVER, Shri Ganguly for the petitioners has submitted that as already the petitioners are in custody for the last 96 days they are otherwise entitled to statutory bail. This has been very seriously opposed by the learned Public prosecutor, who has raised a question of some interests and as we have stated earlier the same having arrested our attention we proceed to elaborate on the same although in the particular fact situation of the instant case. ( 4 ) LEARNED Public Prosecutor for the State has submitted that although the petitioners have served out the period of detention covering nearly 96 days but as there was an order of Vacation Bench on 01. 6. 2004 in C. R. R. No. 1410 of 2004 staying the investigational proceeding for the period of eight weeks, the investigating Agency could not proceed further and had there been no stay, the report in final form could have been submitted within the period contemplated. He has submitted that ******** varied the interim order on 05. 7. 2004 permitted the accused persons to exercise their right to pray for bail. Learned Public prosecutor submitted that the period covered by the stay should be given to the investigating Agency and it should be excluded for the purpose of computing the period of 90 days. ( 5 ) WE find from the order-sheet in C. R. M. No. 3630 of 2004 that the learned sessions Judge on 08. 6. 2004 in Cr. Misc. ( 5 ) WE find from the order-sheet in C. R. M. No. 3630 of 2004 that the learned sessions Judge on 08. 6. 2004 in Cr. Misc. Case No. 703 of 2004 that since the high Court had stayed the operation of further proceeding of G. R. Case No. 81 of 2004 of the Court of the learned Sub-Divisional Judicial Magistrate, Contai for the period of eight weeks the learned Sessions Judge declined to exercise his power and rejected the prayer for bail. ( 6 ) ORDINARILY the submission of Shri Ganguly is of some consequence that on expiry of the statutory period the petitioners ought to have earned an order of bail in default as the Investigating Agency did not file the report in final form after the statutory period was over. ( 7 ) BUT, this position has to be seen in the light of the objection of the learned public Prosecutor that the period of stay covering from 01. 6. 2004 to 05. 7. 2004 until such time the learned Single Judge varied the interim order clarifying that the stay order would not affect the exercise of the power of bail for the learned Trial Court this period should be excluded for computing the statutory period as enshrined in section 167 of the said Code. ( 8 ) LEARNED Public Prosecutor who referred to Sections 470 and 468 of the said Code and submitted that the Legislature in their wisdom had incorporated the said provisions to combat such situation. He submitted that the exclusion of time for the purpose of computing limitation and taking of cognizance having been set out in the Code, although on a different context, the principle can be applied in the present situation. ( 9 ) TRUE, the statutory period has elapsed and the petitioners have gathered a right given to them under the statute while the same cannot be denied at the same time the vested right of the Investigating Agency to investigate into the offence as provided under the Code has also been abrogated for the period for which the stay order was granted by the Vacation Bench until such time it was clarified by a learned Single Judge, cannot be lost sight of. While dealing with a section the Court cannot do violence to the same by reading and interpreting in a way which the Legislature did not contemplate; but at the same time the court cannot like a post-office endorse an infraction or compliance in a mechanical manner. It has to always further the legislative intent in a purposed manner so as to reconcile the conflicting interests of the parties without causing injury to either of them. ( 10 ) IF section 167 clause (2) sub-clause (a) (i) of the said Code is read in its plain language Shri Ganguly is quite correct and the petitioners are entitled to be set free forthwith. Alas! If we see Explanation I thereof, we are sorry, we are not in a position to accede to the submission of Shri Ganguly, however, weighty it may be. In view of Explanation I which clearly shows that even if the statutory period has expired the accused shall be detained in custody so long as he does not furnish his bail bond. ( 11 ) THIS position should be understood in the light of the order of stay which resulted in the suspension of the proceeding and non-inclination of the learned sessions Judge to consider the prayer for bail. As such, unless the bond was furnished ever after the statutory period was over it cannot be said that the said detention has become illegal as a wholesome construction of section 167 of the said Code in its totality shows that the detention stage beyond the statutory period does not become ipso facto illegal which would be very clear from the contents in sub-clause (ii) as it reads : ". . . . . . . . . . . . . . . . . . . . . the accused person shall be released on bail if he is prepared to and does furnish bail,. . . . . . . . . . . . . . . . . . . " ( 12 ) THE emphasis if he is prepared to and does furnish bail cannot be read isolatedly. . . . . . . the accused person shall be released on bail if he is prepared to and does furnish bail,. . . . . . . . . . . . . . . . . . . " ( 12 ) THE emphasis if he is prepared to and does furnish bail cannot be read isolatedly. To better appreciate the submission of Shri Ganguly as the statutory order of bail in view of sub-clause (ii) has to be amalgamated within the provision of Chapter XXXIII of the said Code containing the power of bail and bonds (i. e. , sections 437 and 439 etc ). Once there is an embargo on exercise of such power the Magisterial discretion to exercise the statutory right under section 167 of the said Code also remains scuttled. ( 13 ) FOR the purpose of proper discussion the provisions of section 167 of the said Code are quoted hereinbelow :"167. Once there is an embargo on exercise of such power the Magisterial discretion to exercise the statutory right under section 167 of the said Code also remains scuttled. ( 13 ) FOR the purpose of proper discussion the provisions of section 167 of the said Code are quoted hereinbelow :"167. (1) (2) 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, authorize 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 so released under the provisions of Chapter 'xxxiii for the purposes of that Chapter; (b) * * * * (c) * * * * explanation I.- For the avoidance of doubts, it is hereby declared that, notwithstanding the expiry of the period specified in paragraph (a), the accused shall be detained in custody so long as he does not furnish bail". ( 14 ) FROM a clinical analysis of the aforesaid section it appears that once the statutory period is over in this case under sub-clause (i) the petitioners have earned a statutory right in ordinary circumstances but as, being rightly pointed out by the learned Public Prosecutor, there was an order of stay in the interregnum period and the same, we are told at the Bar, is still in force barring the clarification of the learned Single Judge that the exercise of power of bail could only be done, has in our humble view taken out a slice from the legal right of the Investigating Agency to investigate into the allegations in G. R. Case No. 81 of 2004 and after forming an opinion submit its report in the final form as stipulated in sub-section (2) of section 173 of the said Code. ( 15 ) WE cannot lose sight of the fact that if the Investigating Agency had in an unfettered manner without being crippled by judicial tailoring of the Investigation allowed to proceed in its charted path who knows as to whether the report in final form may have been submitted in terms of sub-section (2) of section 173 of the said Code before the concerned Magistrate within the stipulated period. ( 16 ) ON account of staying of the investigational proceeding as shown by the learned Public Prosecutor for the period of 8 weeks on and from 01. 6. 2004 obviously they were precluded from carrying out their function under section 172 of the said Code and the period covering the same has to be excluded by necessary implication in the peculiar fact situation of the instant case for the purpose of computing the period of 90 days contained in sub-clause (i) of clause (1) of section 167 of the said Code. ( 17 ) AFTER all, filing of a chargesheet and collecting the materials and apprehending the accused are all parts of investigational process. In the event the same is stalled as a necessary consequence of the aforesaid procedure, the entire procedure is also brought to an abrupt fault *******_ ( 18 ) TAKING into account the above position in the particular fact situation of the instant case it is held that the statutory period of 90 days cannot be said to have come to an end as calculated by Shri Ganguly. ( 19 ) EXTENSION of time has to be understood in the given situation, as suggested by the learned Public Prosecutor, since the position has been clarified by the learned Single Judge on 05. 7. 2004 as submitted by Shri Ganguly it is only now apposite that the learned Sub-Divisional Judicial Magistrate concerned will take into account the entire scenario of the matter and proceed with the matter in the light of our aforesaid discussion in accordance with law. ( 20 ) SINCE both the applications (C. R. M. No. 3630 of 2004 and C. R. M. No. 3277 of 2004) are interrelated and have been heard together they are being disposed of by this single order which will govern the fate of either of them. Applications rejected. Applications rejected.