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2004 DIGILAW 641 (PAT)

Satyanarayan Singh v. State Of Bihar

2004-07-06

M.L.VISA

body2004
Judgment 1. This application by petitioner has been filed under Section 439(2), Code of Criminal Procedure, 1973 (In short "Cr. PC") for cancellation of bail of opposite party No. 2 Sanjay Mahto granted by order dated 19.6.2003 in Parsauni Police Station Case No. 56 of 2002 corresponding to G.R. No. 1493 of 2002 under Sections 304B, 201/ 34, Indian Penal Code by Chief Judicial Magistrate, Sitamarhi. 2. The case of petitioner, in short, is that on 5.11.2002, Chaukidar of village Kathaur came to know in his village that opposite party No.2 alongwith his parent and sister committed murder of his wife by administering poison and in order to get the evidence disappeared disposed of her dead body and he further came to know that about one and half years ago deceased had been married to opposite party No. 2 and after marriage, opposite party No. 2 and his family members used to torture the deceased on account of demand of dowry and finally they committed her murder. The Chaukidar lodged a case against opposite party No.2 and his relations (Annexure-1). The further case of petitioner is that opposite party No.2 surrendered before the Court of learned Chief Judicial Magistrate, Sitamarhi on 10.4. 2003 and on 19.6.2003, he was granted bail by learned Chief Judicial Magistrate, Sitamarhi under Section 167(2), Cr.P.C. on the ground of non-filing of chargesheet within sixty days from the date of his remaining in custody relying upon a decision of a Single Judge of Jharkhand High Court. The case of petitioner is that the Court below, after ignoring the judgment of a Division Bench of this Court that maximum period of sentence is the decisive fact for deciding the period of filing chargesheet while considering grant of bail under Section 167(2), Cr.P.C, has granted bail to opposite party No.2 which is against the principles of law, on this ground as well as on the ground that after release on bail, opposite party No.2 is giving threatening to petitioner who is father of deceased and his family members to withdraw the case or face dire consequence, a fact which has been supported by several witnesses in case diary. It is also the case of petitioner that he and his family members were not informed about the death of deceased and they came to know about it through a report published in the newspapers. It is also the case of petitioner that he and his family members were not informed about the death of deceased and they came to know about it through a report published in the newspapers. Prayer has been made for cancellation of bail granted to opposite party No. 2. 3. Opposite party No.2 has appeared through his lawyer who has submitted that no case of cancellation of bail granted to opposite party No.2 has been made out by petitioner. 4. The learned counsel for the petitioner has submitted" that the impugned order shows that learned Chief Judicial Magistrate granted bail to opposite party No.2 under Section 167(2), Cr.P.C. by relying on a decision of Single Judge of Jharkhand High Court reported in 2002(3) Criminal Law Journal 2507 by which it has been held that in a case under Section 304B, I.P.C. if chargesheet is not submitted within sixty days from the date of custody of an accused, he will be entitled to bail under Section 167(2)(a)(ii), Cr. P.C. He has further argued that learned Chief Judicial Magistrate, Sitamarhi did not consider the decision of a Division Bench of this Court reported in 2003(2) P.L.J.R. 327 by which it has been held that for bail under Section 167(2), Cr.RC, the gravity of the offence has to be seen with reference to the maximum sentence provided. In this case, the decision of Supreme Court reported in (2001)5 S.C.C. 453 (Uday Mohanlal Acharya V/s. State of Maharashtra) which has also been reported in 2001(1) J.L.J.R. 890 S.C. [Reported in 2001(2) PLJR (SC) 182] relied upon by the Single Judge of Jharkhand High Court has also been relied upon. In 2001(1) J.L.J.R. 890 S.C the principle was laid down that when investigation is not completed within the specified period, an accused in custody gets an indefeasible right to be released on bail if he is prepared to furnish bail bond. It was further decided that if such an accused filed a petition for bail under Section 167(2), Cr. RC. before submission of chargesheet and before any order on his petition is passed, chargesheet is submitted, it cannot be said that he has not availed of the right to be released on bail. This was the case on the point of accruing an indefeasible right by an accused in custody for his release on bail under Section 167(2), Cr. RC. before submission of chargesheet and before any order on his petition is passed, chargesheet is submitted, it cannot be said that he has not availed of the right to be released on bail. This was the case on the point of accruing an indefeasible right by an accused in custody for his release on bail under Section 167(2), Cr. RC. in case of non-completion of investigation within stipulated period which may be ninety days. The learned counsel for the petitioner submits that by ignoring the decision of Division Bench of this Court, the learned Chief Judicial Magistrate, Sitamarhi relied upon judgment of a Single Judge of another High Court which is not proper. His further argument is that in another judgment of a Single Judge of Himachal Pradesh High Court reported in 2003 Criminal Law Journal 1668, it has been held that in case of Section 304B, I.P.C. since maximum term of imprisonment being more than ten years of imprisonment, period of ninety days would be applicable for considering the question of release on bail under Section 167 (2), Cr. P.C. According to him on the same point if there are divergent views expressed by different Benches of Single Judge of different High Courts and there is a decision of Division Bench of this High Court covering directly the point in issue, it was not proper for the learned Chief Judicial Magistrate to pass any order ignoring the decision of Division Bench of this Court to which he is subordinate and to base his order on the decision of a Bench of Single Judge of a different High Court when on the said point different view has been expressed by Bench of the Single Judge of another High Court. 5. The learned counsel appearing for opposite party No. 2 concedes the fact that order granting bail to opposite party No. 2 has been passed against the decision of a Division Bench of this Court referred to above. 6. In the judgment of a Single Judge of Jharkhand High Court on the basis of which opposite party No. 2 has been granted bail, it has been observed that because imprisonment under Section 304B, I.P.C. provides that it will be of not less than seven years but it may extend to imprisonment for life so it does not come within the purview of Section 167(2)(a)(ii), Cr. PC. PC. in which only those offences are mentioned in which imprisonment is for life or imprisonment for a term of not less than ten years. According to his Lordship imprisonment for life and imprisonment which may extend to life are different and cannot be equated with other. For the offence under Section 304B, I.P.C, as discussed above, imprisonment of not less than seven years or the imprisonment which may extend to life is provided. It cannot be said that in no case under Section 304B, I.P.C, imprisonment for life can be granted and this will always be less than it. In view of the decision of Division Bench of this Court, referred to above, for the purpose of considering bail under Section 167(2), Cr. PC, maximum punishment has to be considered. For an offence under Section 304B, I.P.C, maximum imprisonment may extend for life. I find that here for determining the question of bail of accused in the present case was ninety days of the period of custody and not sixty days period of custody. For considering bail of accused on the ground of non submission of chargesheet was ninety days and not sixty days from the date of remand of accused in custody. The order granting bail to opposite party No. 2 by learned Chief Judicial Magistrate cannot be said to be a proper order which cannot pass order against the decision of the Division Bench of this Court which was binding on it. 7. In the result, this application is allowed and the bail granted to opposite party No. 2 is hereby cancelled. Opposite party No. 2 is directed to surrender before the Court below forthwith. If opposite party No. 2 does not appear before the Court below forthwith, the Court below will take steps for his arrest and, thereafter, his remand to jail custody.