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2006 DIGILAW 1195 (RAJ)

Nawab Khan @ Nabia v. State of Rajasthan

2006-04-17

GOPAL KRISHAN VYAS

body2006
Judgment Gopal Krishan Vyas, J.-Heard learned Counsel for the petitioner. 2. The petitioner preferred this bail application under Section 439, CrPC for seeking bail on the ground that as per Section 167(2), CrPC the prosecution was to file challan within a period of 180 days but the charge-sheet has been filed against the petitioner after 180 days, therefore, as per Section 167(2) CrPC, read with Section 36 of the N.D.P.S. Act he is entitled to be released on bail. 3. It is further contended that on 10.02.2006, an application for bail was filed and it was prayed that as per Section 167 (2) of the Code of Criminal Procedure because the prosecution has not filed challan within 180 days, the petitioner is entitled to be released on bail and the petitioner is also ready to submit the necessary sureties. It is contended by learned Counsel for the petitioner that the petitioner was arrested by the police on 08.08.2005. During the investigation, heroine was recovered by the S.H.O. and after his arrest no challan has been filed against the petitioner upto 10.02.2006. Learned Counsel for the petitioner further contended that application was to be decided by the trial Court on the same day i.e., 10.02.2006, but the application was not decided and time was granted to the Spl. Public Prosecutor to call the case diary for 13.02.2006; and, 13.02.2006, the bail application was heard and in the meantime challan was filed against the petitioner by the prosecution, therefore, on 17.02.2006, the petitioners bail application was rejected on the ground that the challan has been filed against the petitioner so bail cannot be granted to him by way of consideration of the matter under Section 167(2) of the Code. 4. Learned Counsel for the petitioner next contended that the trial Court has not applied its mind on law and in view of the Judgment of the Supreme Court, reported in 1995 (4) SCC 190 , the petitioner is entitled to the benefit of bail after the prosecution having failed in filing the challan within the stipulated period of 180 days. Learned Counsel for the petitioner next contended that the trial Court has not applied its mind on law and in view of the Judgment of the Supreme Court, reported in 1995 (4) SCC 190 , the petitioner is entitled to the benefit of bail after the prosecution having failed in filing the challan within the stipulated period of 180 days. Reliance has also been placed by learned Counsel for the petitioner on the Judgment s reported in 2001 CrLJ 1832 , 1990 (4) RCC, 1984 RLR 1040 and contention is advanced that the law is settled that in case of application under Section 167(2), CrPC, if the accused is ready to submit surety and till date no challan or charge-sheet has been filed and period of 180 days has already elapsed then, in that case, the right of the accused to bail is indefeasible and his right is required to be enforced. 5. Learned Counsel for the petitioner relied upon the Judgment in the case of Mohamed Iqbal Madar Sheikh & Ors. vs. State of Maharashtra, reported in 1996 (1) SCC 722 , and pointed out that default in submission of charge-sheet within the statutory period renders the accused entitled to bail. Learned Counsel for the petitioner invited attention of the Court towards Paras 10, 11 and 12 of the said Judgment . Paras 10, 11 and 12 of the Judgment read as under;- "It was then submitted that in the present case the appellants have been denied the benefit of proviso (a) to Section 167(2) of the Code of Criminal Procedure (hereinafter referred to as the Code) of their being released on ground of default in submission of the charge-sheet within the statutory period specified. Sub-section (4) of Section 20 of TADA makes the provision of Section 167 of the Code applicable in respect of offences under TADA except that the periods prescribed for the authorised detention in respect of such offences during which the investigation should be completed are different. After the expiry of periods which have been specified in Section 20(4)(b) and Section 20(4)(bb), the accused for an offence under the TADA acquires the right to be released on bail in terms of Proviso (a) to Section 167(2) of the Code. After the expiry of periods which have been specified in Section 20(4)(b) and Section 20(4)(bb), the accused for an offence under the TADA acquires the right to be released on bail in terms of Proviso (a) to Section 167(2) of the Code. It need not be pointed out or impressed that in view of a series of Judgment s of this Court, this right cannot be defeated by any Court, if the accused concerned is prepared and does furnish bail bonds to the satisfaction of the Court concerned. Any accused released on bail under Proviso (a) to Section 167(2) of the Code read with Section 20(4)(b) or Section 20(4)(bb), because of the default on the part of the investigating agency to conclude the investigation, within the period prescribed, in view of Proviso (a) toSection 167(2) itself , shall be deemed to have been so released under the provisions of Chapter XXXIII of the Code. It cannot be held that an accused charged of any offence, including offences under TADA, if released on bail because of the default in completion of the investigation, then no sooner the charge-sheet is filed, the order granting bail to such accused is to be cancelled. The bail of such accused who has been released, because of the default on the part of the Investigating Officer to complete the investigation, can be cancelled, but not only on the ground that after the release, charge-sheet has been submitted against such accused for an offence under TADA. For cancelling the bail, the well-settled principles in respect of cancellation of bail have to be made out. In this connection, reference may be made to the case of Aslam Babalal Desai vs. State of Maharashtra, 1992(4) SCC 272. The majority Judgment has held that in view of demming provision under Proviso (a) to Section 167(2), the order granting bail shall be deemed to be one under Section 437(1) or Sub-section (2) or Section 439(1) and that order can be cancelled, when a case for cancellation is made out under Sections 437(5) and 439(2) of the Code. But for that, the sole ground should not be that after the release of such accused the charge-sheet has been submitted. The same view was expressed by this Court in the case of Raghubir Singh vs. State of Bihar, 1986 (4) SCC 481 . But for that, the sole ground should not be that after the release of such accused the charge-sheet has been submitted. The same view was expressed by this Court in the case of Raghubir Singh vs. State of Bihar, 1986 (4) SCC 481 . So far the facts of the present case are concerned, Appellants 1 to 6 were taken into custody on 16.01.1993. The charge-sheet was submitted on 30.08.1993; obviously beyond the statutory period under Section 20(4)(b). There is nothing on record to show that provisions of Section 20(4)(bb) were applied in respect of appellants. They had become entitled to be released on bail under Proviso (a) to Section 167(2) of the Code read with Section 20(4)(b) of the TADA. But it is an admitted position that no application for bail on the said ground was made on behalf of the appellants. Unless applications had been made on behalf of the appellants, there was no question of their being released on ground of default in completion of the investigation within the statutory period. It is now settled that this right cannot be exercised after the charge-sheet has been submitted and cognizance has been taken, because in that event the remand of the accused concerned including one who is alleged to have committed an offence under TADA, is not under Section 167(2) but under other provisions of the Code. This has been specifically considered by a Constitution Bench of this Court in the case of Sanjay Dutt vs. State through CBI (II), 1994 (5) SCC 410 . It was said; (SCC Page 444, Para 53). "The indefeasible right of the accused to be released on bail in accordance with Section 20(4)(bb) of the TADA Act read with Section 167(2) of the Code of Criminal Procedure in default of completion of the investigation and filing of the challan within the time allowed, as held in Hitendra Vishnu Thakur, 1994 (4) SCC 602 is a right which enures to, and is enforceable by the accused only from the time of default till the filing of the challan and it does not survive or remain enforceable on the challan being filed. If the accused applies for bail under this provision on expiry of the period of 180 days or the extended period, as the case may be, then he has to be released on bail forthwith. If the accused applies for bail under this provision on expiry of the period of 180 days or the extended period, as the case may be, then he has to be released on bail forthwith. The accused, so released on bail may be arrested and, committed to custody according to the provisions of the Code of Criminal Procedure. The right of the accused to be released on bail after filing of the challan, notwithstanding the default in filing it within the time allowed, is governed from the time of filing of the challan only by the provisions relating to the grant of bail applicable at that stage." As such now it is not open to the appellants to claim bail under Proviso (a) to Section 167(2) of the Code. Admittedly charge-sheet has been submitted against the appellants, and they are in custody on the basis of orders of remand passed under other provisions of the Code and at this stage Proviso (a) to Section 167(2) shall not be applicable. During hearing of the appeal, it was pointed out by the Counsel appearing on behalf of the appellants that some Courts in order to defeat the right of the accused to be released on bail under Proviso (a) to Section 167(2) after expiry of the statutory period for completion of the investigation, keep the applications for bail pending for some days so that in the meantime, charge-sheets are submitted. Any such act on the part of any Court cannot be approved. If an accused charged with any kind of offence becomes entitled to be released on bail under Proviso (a) toSection 167(2), that statutory right should not be defeated by keeping the applications pending till the charge-sheets are submitted so that the right which had accrued is extinguished and defeated. So far the present case is concerned, we are informed by the Counsel for the appellants that a petition for grant of bail on merit had been filed which was rejected on 22.03.1993. But admittedly no petition for grant of bail after the expiry of the statutory period for submission of the charge-sheet had been filed. There is no statement that any application for grant of bail had been filed on behalf of the appellants under Proviso (a) to Section 167(2) after the expiry of the statutory period which application was kept pending till 30.08.1993. There is no statement that any application for grant of bail had been filed on behalf of the appellants under Proviso (a) to Section 167(2) after the expiry of the statutory period which application was kept pending till 30.08.1993. Now the appellants have forfeited their right to be released on bail under Proviso (a) to Section 167(2) as they are in custody on basis of orders for remand passed under other provisions of the Code. In such a situation, we are left with no option but to dismiss these appeals. However, we direct that the trial of the appellants be expedited." 6. It is true that as per the provisions of law, if the charge-sheet is not filed within the stipulated time the accused who is in custody has indefeasible right to be released on bail. The pre-condition is that according to the facts it must be obvious that time stipulated by law for filing the challan has expired. Therefore, in the present case, it is to be seen whether charge-sheet has been filed after expiry of 180 days or not. 7. According to the petitioner, FIR was registered against him with the Police Station Shiv (Barmer) under Section 489-B and 489-C, IPC, read with Section 3/25, Arms Act and the said FIR was numbered at 101 dated 08.08.2005. It is the case of the petitioner that during investigation on 08.08.2005 recovery of heroine was also made upon the information given by the petitioner in FIR No. 101/2005. Another case was registered against the petitioner with Police Station Ramsar under Section 8/21 and 22 of the N.D.P.S. Act with regard to recovery of 14 packets of heroine upon the information given by the petitioner. According to the recovery memo the said recovery has been shown in FIR No. 58/2005 dated 08.08.2005, registered at Police Station Ramsar. If the said recovery is made in FIR No. 58/2005 then obviously time is required to be calculated from 08.08.2005 while treating the petitioner in custody and 180 days expired on 04.02.2006 and the application was filed by the petitioner on 10.02.2006 and, on that date, 186 days had already elapsed but till that date no challan in the case was filed. After filing of the application, the trial Court called for the case diary and, in the meantime, challan was filed on 13.02.2006 and the application for bail was decided on 17.02.2006 after filing of the challan by the prosecution on 13.02.2006. As per the provisions of law and the Judgment s cited by learned Counsel for the petitioner, it is argued that it was the duty of the Court to ask the petitioner to furnish bail bonds because the prosecution had not filed challan within 180 days as provided under Section 167(2) of the Code in the present Case. 8. It is vehemently argued that the learned trial Court was required to decide the bail application on 10.02.2006 the day on which the petitioner filed the application and submitted that he was ready to furnish the bail bonds and challan has not been filed by the prosecution within the stipulated time as it was mandatory to release the petitioner on bail on account of non-compliance of the provisions of Section 167(2) of the Code of Criminal Procedure. 9. It is contended by learned Counsel for the petitioner that even though the petitioner has been shown arrested, in fact, in FIR No. 58/2005, the petitioner has been arrested on 18.08.2005; but, the fact remains that both recovery and registration of the FIR No. 58/2005 at Police Station Ramsar are dated 08.08.2005 and the recovery was effected in pursuance of the information given by the petitioner under Section 27 of the Evidence Act. The recovery memo also bears FIR No. 58/2005, therefore, the petitioner is required to be treated as deemed to be arrested in FIR No. 58/2005 because the recovery of 14 packets of heroine in FIR No. 58/2005 is dated 08.08.2005. It cannot be said that the petitioner was arrested on 18.08.2005 because as per the recovery memo the recovery was made on 08.08.2005 when he was under police remand in connection was FIR No. 101/2005, P.S. Shiv. It is also submitted that application was also filed by the S.H.O., P.S. Gadara Road before the Judicial Magistrate, Barmer for allowing hand-cuffing during investigation and, in that application, both FIR No. 58/2005 and 101/2005 have been mentioned. Therefore, the petitioner is required to be treated under arrest in FIR No. 58/2005 also. 10. It is also submitted that application was also filed by the S.H.O., P.S. Gadara Road before the Judicial Magistrate, Barmer for allowing hand-cuffing during investigation and, in that application, both FIR No. 58/2005 and 101/2005 have been mentioned. Therefore, the petitioner is required to be treated under arrest in FIR No. 58/2005 also. 10. The learned Public Prosecutor contended that the contention of the Counsel for the petitioner is not acceptable that he is required to be treated under arrest in FIR No. 58/2005 on 08.08.2005 for offence under Sections 8/21 and 22 of the N.D.P.S. Act registered at P.S. Ramsar. While submitting the record of the case, pointing out certified copies filed by the petitioner that in fact the information received by the SHO, Police Station Shiv, Shri Hema Ram, the case was registered against the petitioner under Sections 498-B and 489-C, IPC, read with section 3/25, Arms Act in which, upon search, fake currency amounting to Rs. 4,95,500/-was found in possession of the accused petitioner and after completion of the search/recovery of the currency by the SHO Hema Ram, the case was registered at Police Station Shiv upon the information given by the SHO Shri Hema Ram. After registering the case against the petitioner for offences under Sections 489-B and 489-C, IPC, read with Section 3/25, Arms Act, as per the order of the Superintendent of Police, Barmer because the SHO, P.S. Shiv Shri Hema Ram was the complainant in FIR No. 101/2005, the investigation was handed over to the SHO, Police Station Gadra Road, Shri Kishan Singh. By the orders of the Superintendent of Police, Shri Kishan Singh, C.I., S.H.O Police Station Gadara Road commenced further investigation in the matter. During the course of investigation in FIR No. 101/2005, on the information given by the petitioner under Section 27 of the Evidence Act that he is in possession of 14 packets of heroine also and he is ready to get recovered the said contraband which is lying in his room in village Naya Garariya. Upon this informantion Shri Kishan Singh, SHO, P.S. Gadara Road took the petitioner to his village Naya Garariya where the said heroine was recovered as per the information given by the petitioner. Accordingly, the recovery memo was prepared and other proceedings was also drawn in compliance of the provisions of the N.D.P.S. Act. Upon this informantion Shri Kishan Singh, SHO, P.S. Gadara Road took the petitioner to his village Naya Garariya where the said heroine was recovered as per the information given by the petitioner. Accordingly, the recovery memo was prepared and other proceedings was also drawn in compliance of the provisions of the N.D.P.S. Act. Since the said recovery of heroine was made in village Naya Gagariya situated in the jurisdiction of Police Station Ramsar, therefore, all the documents were submitted by Investigating Officer Shri Kishan Singh of FIR No. 101/2005 before the Police Station Ramsar and the second FIR No. 58/2005, P.S. Ramsar was registered in relation to offences under Sections 8/21 and 22 of the N.D.P.S Act and all the documents of recovery as well as information memo and compliance of Section 42 were placed before the SHO, P.S. Ramsar and upon those documents FIR No. 58 dated 08.08.2005 was registered and while registering the said FIR, a note was also marked by the SHO, P.S. Ramsar that because he is registering the case upon the so called recovery made upon the information given during the investigation in FIR No. 101/2005, therefore, upon those documents of recovery, information and compliance of the provisions of the NDPS Act, FIR No. 58/2005 will be mentioned in red ink. The said note was made after registering the FIR which is obvious from the FIR itself . Thereafter, because the petitioner was under police remand in FIR No. 101/2005 in connection with alleged offences under Sections 489-B and 489-C, IPC, read with Section 3/25, Arms Act and, therefore, it was not possible for arrest the petitioner in FIR No. 58, and after sending the petitioner to judicial custody in FIR No. 101/2005 by the concerned Magistrate, application was moved by the SHO Ramsar to the concerned Court and, upon order passed by the concerned Court, the petitioner was arrested in FIR No. 58/2005 on 18.08.2005 from District Jail, Barmer which is obvious from the arrest memo itself . Thus, though the petitioner was arrested in connection with FIR No. 101/2005 by Police Station Shiv but during investigation of that case another information was given with regard to heroine in possession of the petitioner and the said contraband was recovered from another place within the jurisdiction of Police Station Ramsar, therefore, FIR No. 58/2005 of Police Station Ramsar was registered against the petitioner for offences under Sections 8/21 and 22 of the N.D.P.S. Act. It is true that the said recovery was made as per the information given by the petitioner during investigation in FIR No. 101/2005 but the said recovery made in pursuance of the information of the petitioner during the course of investigation shall be the subject-matter of FIR No. 58/2005, P.S. Ramsar once the said FIR No. 58/2005 was registered by the Police Station Ramsar and, therefore, note was appended by the SHO, P.S. Ramsar on the FIR itself and because the petitioner was in custody in connection with FIR No. 101/2005, P.S. Shiv, therefore, after completion of the period of police remand and sending of the petitioner to judicial custody, the petitioner was arrested on 18.08.2005 in FIR No. 58/2005 from District Jail, Barmer. As such, challan presented by the Police on 13.02.2006 was within 180 days. Upon this factual matrix emerging in the case, the ground agitated by learned Counsel for the petitioner for the benefit of bail on account of default in filing the challan within the stipulated period is neither tenable nor can it be sustained. 11. There is no dispute with regard to provisions of Section 167(2) of the Code of Criminal Procedure that in the event of non-filling of challan within the stipulated time of 180 days an indefeasible right accrues to the accused-petitioner for release on bail. It is also not disputed that in contravention of Section 167(2) of the Code as per the Judgment of the Supreme Court it is incumbent upon the Court to release the accused on bail due to failure of the prosecution in filing the challan within the stipulated period. It is also not disputed that in contravention of Section 167(2) of the Code as per the Judgment of the Supreme Court it is incumbent upon the Court to release the accused on bail due to failure of the prosecution in filing the challan within the stipulated period. It must, however, be borne in mind that while passing such order the Court is duty-bound to consider the record and first calculate the days while taking the date of arrest into account, therefore, upon the facts emerging in the present case, it cannot be disputed that the petitioner was under police remand in connection with FIR No. 101/2005 of Police Station Shiv (Barmer) till 18.08.2005 and, thereafter, the petitioner was sent in judicial custody of District Jail, Barmer. It is true that during the course of investigation in FIR No. 101/2005, the accused gave information with regard to there being contraband heroine in his possession; but, upon recovery of the contraband from his possession, upon submitting the recovery memo, information memo and after compliance of provisions of the NDPS Act by the Investigating Officer of FIR No. 101/2005, fresh FIR No. 58/2005 was registered against the petitioner for offences under the NDPS Act at Police Station Ramsar and petitioner was arrested on 18.08.2005. Thus the time is required to be calculated from 18.08.2005 for ascertaining the period of default, if any, in filing the challan by the prosecution within the stipulated period. The record reveals that the prosecution filed the challan on 13.02.2006 in relation to offences allegedly committed by the petitioner under Sections 8/21 and 22 of the NDPS Act and, therefore, it cannot by any stretch of imagination be said that challan was filed by the prosecution beyond the statutory time of 180 days. 12. Strangely enough, the trial Court has observed in the impugned order that recovery was made on 08.08.2005, therefore, the petitioner was required to be treated as deemed to have been arrested on 08.08.2005. On this observation, argument was advanced by learned Counsel for the petitioner that once the Court reached the said finding the time for filing the challan ought to be considered from 08.08.2005 and as such it is clear that the prosecution failed to file the challan within the stipulated period. 13. On this observation, argument was advanced by learned Counsel for the petitioner that once the Court reached the said finding the time for filing the challan ought to be considered from 08.08.2005 and as such it is clear that the prosecution failed to file the challan within the stipulated period. 13. It is true that finding is given in the impugned order of rejection of bail that recovery was made on 08.08.2005, therefore, the petitioner would be treated to be in custody with effect from 08.08.2005; but, it is strange that this finding is obviously contrary to the record of the case. Admittedly, the petitioner was arrested in FIR No. 58/2005, P.S. Ramsar which is obvious from the arrest-memo itself . It is also true that one accused cannot be treated arrested in two or more FIRs simultaneously. Of course the petitioner was in police custody prior to 18.08.2005 in connection with FIR No. 101/2005, P.S. Shiv and after completion of investigation from him, he was remanded to judicial custody by the order of the concerned Magistrate. Thereafter, however, specific permission was sought from the concerned Court by the SHO, P.S. Ramsar for arresting the accused from judicial custody in connection with FIR No. 58/2005, P.S. Ramsar and after taking permission from the concerned Magistrate in whose jurisdiction FIR No. 101/2005 was filed, the accused was arrested vide arrest-memo dated 18.08.2005. Therefore, on the face of documentary evidence on record, it is obvious that the petitioner was arrested in FIR No. 58/2005, P.S. Ramsar on 18.08.2005. Thus the finding of the trial Court in the impugned rejection order of bail cannot restrict the eyes of the Court to see the documents on record. 14. It is also clarified that Criminal Procedure Code does not contain any provision for calculating the days for the purpose of releasing accused on bail under proviso to Section 167(2) of the Code. Therefore, as per the Judgment , reported in 1984, CrLJ 79, Section 9 of the General Clauses Act is to be applied for calculating the days. The ordinary rule in this regard is to exclude the first day and include the last day. Here, in this case, admittedly the petitioner was arrested on 18.08.2005 in FIR No. 58/2005, P.S. Ramsar. Therefore, as per the Judgment , reported in 1984, CrLJ 79, Section 9 of the General Clauses Act is to be applied for calculating the days. The ordinary rule in this regard is to exclude the first day and include the last day. Here, in this case, admittedly the petitioner was arrested on 18.08.2005 in FIR No. 58/2005, P.S. Ramsar. At present, only this aspect of the matter need be gone into for calculating the time for the purpose of ascertaining the right of the accused under the proviso to Section 167(2) of the Code. The period referred to in proviso to Section 167(2) is to be calculated from the day the Magistrate authorised the detention of the accused by way of arrest. Therefore, the argument advanced by the Counsel for the petitioner has no force. 15. It is significant to mention here that it is the duty of the Court to consider the facts of the case in entirety and with objectivity. From the facts revealed from the record of the case, there cannot be any dispute that the petitioner was arrested on 18.08.2005 in connection with FIR No. 58/2005, P.S. Ramsar and challan in the case was filed on 13.02.2006, therefore, the petitioners claim for bail under Section 167(2), CrPC, is not satisfied. Huge recovery of contraband heroine was made from the petitioner on his information and the case set out by the petitioner for bail having not been made out under Section 167(2), CrPC. I am not inclined to grant bail to the petitioner. 16. The bail application of the petitioner is accordingly dismissed.