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2006 DIGILAW 690 (ORI)

NARENDRA BARGE v. STATE OF ORISSA

2006-09-21

A.S.NAIDU

body2006
JUDGMENT : A.S. Naidu, J. - The Petitioners are facing trial for alleged commission of offences under Sections 341/302/34 Indian Penal Code in G.R. Case No. 85 of 2005 pending before the JMFC, Rampur. They had surrendered before the Court below on 16-9-2005 and their prayer for bail having been rejected they had been remanded to custody. It is stated that in spite of completion of 125 days from the date of their remand to custody as no charge-sheet was filed against them they filed an application before the Court below u/s 167(2) Code of Criminal Procedure on 19-1-2006 to be released on bail. Learned Court below after hearing the parties rejected their prayer holding that as they had not been arrested by police nor forwarded to Court, the provisions of Sub-sections (1) and (2) of Section 167 Code of Criminal Procedure was not applicable to their case. Being aggrieved by the order of the JMFC, the Petitioners filed Criminal Revision No. 6/5 of 2006 which was heard and disposed of by the Addl. Sessions Judge, Sonepur. The said revisional Court observed that as charge-sheet had been filed in the meanwhile the Petitioners could not be released on bail under the Proviso (a)(i) to Sub-section (2) of Section 167 Code of Criminal Procedure, more so because the Petitioners had neither been arrested by police nor forwarded to Court and accordingly the requirements of Section 167 were not satisfied. Both the orders of the JMFC and the Addl. Sess. Judge are assailed in this CRLMC by the Petitioners invoking inherent jurisdiction of this Court u/s 482 Code of Criminal Procedure. 2. To appreciate the contention of the Petitioners, it would be prudent to refer to the relevant provisions of Section 167 Code of Criminal Procedure which read as follows: 167. Procedure when investigation cannot be completed in twenty-four hours. Judge are assailed in this CRLMC by the Petitioners invoking inherent jurisdiction of this Court u/s 482 Code of Criminal Procedure. 2. To appreciate the contention of the Petitioners, it would be prudent to refer to the relevant provisions of Section 167 Code of Criminal Procedure which read as follows: 167. Procedure when investigation cannot be completed in twenty-four hours. (1) Whenever any person is arrested and detained in custody, and it appears that the investigation cannot be completed within the period of twenty-four hours fixed by Section 57, and there are grounds for believing that the accusation or information is well-founded, the officer in charge of the police station or the police officer making the investigation, if he is not below the rank of sub-inspector, shall forthwith transmit to the nearest Judicial Magistrate a copy of the entries in the diary hereinafter prescribed relating to the case, and shall at the same time forward the accused to such Magistrate. (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, a term not exceeding fifteen days in the whole; and if he has no jurisdiction to try the case or commit to 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 authorize 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 authorize 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 days; (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 purposes of that Chapter; (b) no Magistrate shall authorize detention in any custody under this Section unless the accused is produced before him; (c) no Magistrate of the second class, not specially empowered in this behalf by the High Court, shall authorize detention in the custody of the police. 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. Explanation II.-If any question arises whether an accused person was produced before the Magistrate as required under paragraph (b), the production of the accused person may be proved by his signature on the order authorizing detention. 3. Explanation II.-If any question arises whether an accused person was produced before the Magistrate as required under paragraph (b), the production of the accused person may be proved by his signature on the order authorizing detention. 3. The first question that needs consideration in this case is whether for applying the provisions of Sub-sections (1) and (2) of Section 167 Code of Criminal Procedure it is always necessary that an accused must have been arrested by police and forwarded to the Court of a Magistrate, or it would suffice if an accused has surrendered before the Court of his own. On a reading of the aforesaid Section, it is manifest that before an order of remand is passed by a Magistrate under the provisions of that Section, the accused must have been arrested and detained in custody and if it appears that the investigation cannot be completed by the police within the period prescribed, the Magistrate, whether he has or has no jurisdiction to try the case, may release him on bail, of course if the accused is prepared to furnish bail. The Section further mandates that every person released on bail under Sub-section (2) shall be deemed to be so released under the provisions of Chapter XXXIII of the Code of Criminal Procedure. 4. The word 'custody' appearing in Section 439 of the Code has been interpreted by the Supreme Court in the case of Niranjan Singh and Another Vs. Prabhakar Rajaram Kharote and Others that no person accused of an offence can move the Court for bail u/s 439 unless he is in custody, which otherwise means that he is in physical control or at least physically present in Court. The accused can be in custody not merely when the police arrests him and produces before the Magistrate and gets a remand to judicial or other custody, he can also be in judicial custody when he surrenders before the Court and submits to its discretion. 5. The ratio of the aforesaid decision of the Supreme Court has been followed by a Division Bench of this Court in the case of The State Vs. 5. The ratio of the aforesaid decision of the Supreme Court has been followed by a Division Bench of this Court in the case of The State Vs. Maguni Charan Sahu and Others, wherein it has been held a Magistrate can release an accused on bail in a case where he has voluntarily surrendered before him, inasmuch as when an accused surrenders to the jurisdiction of the Court and agrees to abide by the judicial direction, the Magistrate has full jurisdiction to deal with his case for bail u/s 437 Code of Criminal Procedure. 6. The position of law is thus clear that for the purpose of bail or remand u/s 167(2) arrest of an accused by police or arrest under order of a Magistrate or voluntary surrender of the accused before Court and subjecting to its jurisdiction have been considered to be at part and of similar consequence. Therefore, when an accused voluntarily surrenders and submits himself to the jurisdiction of a Court and the Magistrate passes an order remanding him to custody of police or judicial custody, as the case may be, then Section 167(2) Code of Criminal Procedure would be mitigated. This view of mine is fortified by a decision of this Court in the case of State of Orissa v. Surendra Kumar Das ' Surendra ' Belu, reported in 1993 (2) OLR 326 . In view of the aforesaid authoritative pronouncements, the conclusion arrived at by the Courts below that as the Petitioners had neither been arrested nor produced before the Magistrate were not entitled to the benefit of Section 167 Code of Criminal Procedure was not correct. 7. The next question that falls for consideration is as to whether filing of charge-sheet against an accused after the period prescribed u/s 167 Code of Criminal Procedure is over will extinguish the right of the accused to be released on bail in consonance with the said Section. A similar point came for consideration before the Supreme Court in the case of Udaya Mohanlal Acharya v. State of Maharashtra, reported in 2002 (22) OCR (SC) 1, whereafter discussing the points of law it was held as follows: (i) u/s 167(2), a Magistrate can authorize detention of accused in police custody for a term not exceeding 15 days in the whole. (ii) Under the proviso to Section 167(2), the Magistrate may authorize detention of the accused otherwise than in police custody, for a total period not exceeding 90 days depending on the offence. (iii) On expiry of 90 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 to complete investigation within the time prescribed, if he is prepared to and furnishes bail as directed by the Magistrate. (iv) When an application for bail is filed by the accused for enforcement of his indefeasible right alleged to have accrued in his favour, the Magistrate/Court must dispose it of forthwith, on being satisfied that the accused has been in custody for the period of 90 days or 60 days, as the case may be, and no charge-sheet has been filed. (v) If the accused is unable to furnish bail, as directed by the Magistrate, then the continued custody of the accused even beyond the specified period in para (a) will not be unauthorized and if charge-sheet is filed during that period then the 'indefeasible' right would stand extinguished. 8. Considering the facts of the present case in the touchstone of the aforesaid decision, this Court finds that in fact the Petitioners had surrendered before the Magistrate on 16-9-2005. The offences alleged to have been committed by them being under Sections 341/302/34 Indian Penal Code, the prescribed period of submission of charge-sheet was 120 days. Admittedly the accused-Petitioners had moved for bail on 19-1-2006 by which date a period of 125 days had been over. Thus a right for being granted bail had accrued to the Petitioners by the said date which could not be extinguished on charge-sheet being filed against them on a subsequent date. 9. In view of the aforesaid clear position of law, I have no hesitation to hold that the conclusion arrived at by the Courts below was not correct and it is a fit case where the Petitioners were to be released on bail. Accordingly I allow this CRLMC and quash the impugned orders of the Courts below. I direct that the Petitioners be released on bail in connection with G.R. Case No. 85 of 2005 pending before the JMFC, Rampur on their executing bond for Rs. Accordingly I allow this CRLMC and quash the impugned orders of the Courts below. I direct that the Petitioners be released on bail in connection with G.R. Case No. 85 of 2005 pending before the JMFC, Rampur on their executing bond for Rs. 25,000.00 (twenty-five thousand) each with two local sureties each for the like amount to the satisfaction of the JMFC with conditions that they shall not misuse the liberty granted to them by this order, shall not indulge in any criminal activity, shall not threaten or coerce the prosecution witnesses, shall regularly appear before the Court belowbelow on each date the case against them is posted and shall report at the concerned police station every Sunday at 11.00 a.m. Violation of any of the above conditions will entail cancellation of bail.