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2008 DIGILAW 1705 (RAJ)

Ram Karan @ Ram Varan v. State of Rajasthan

2008-07-15

M.N.BHANDARI

body2008
Honble BHANDARI, J.—Heard learned counsel for the petitioners as well as the learned Public Prosecutor and perused the record of the case. (2). It is contended by learned counsel for the petitioners that a case was registered under Sections 399, 402, 307, 353 of the Indian Penal Code (for short `the I.P.C.), Section 3/25 of the Arms Act and Section 11 of the Rajasthan Dacoity Affected Area Act, 1986 (for short `the Act of 1986). The accused petitioners were arrested on 6.4.08, thus in view of the provisions of Section 167 of the Criminal Procedure Code (for short `the Cr.P.C.), the Magistrate was authorized to detain the accused person in custody pending investigation maximum for the period of 60 days, however, in the present matter, the accused petitioners were detained beyond the statutory period, thus in view of the provisions of Section 167(2)(a)(ii) Cr.P.C., the petitioners were to be released on bail. (3). Learned counsel for the petitioners elaborately argued that under the provisions of Section 307 IPC., punishment is divided in two parts. In the first part, the punishment is with imprisonment of either description for a term which may be extended to ten years, and shall also be liable to fine. In the second part in the same provisions, if hurt is caused to any person by such an act, the offender is liable either to imprisonment of life or punishment which may extend to 10 years imprisonment. (4). It is submitted that in the present matter since no hurt is caused to any person, thus the maximum punishment can be imposed for imprisonment, which may be extended to ten years. Referring to the record, it is also submitted that the allegations as existed in the FIR and otherwise are that the accused opened the fire but nobody was hurt out of that fire, hence, the petitioners are not liable to be punished with punishment of life imprisonment. Referring to the record, it is also submitted that the allegations as existed in the FIR and otherwise are that the accused opened the fire but nobody was hurt out of that fire, hence, the petitioners are not liable to be punished with punishment of life imprisonment. So far as the provisions of Sections 399, 304 and 353 IPC and Section 3/25 of the Arms Act are concerned, the punishment is maxium of ten years under Section 399 IPC and otherwise for other provisions, it is even less than ten years, therefore, argument of learned counsel for the petitioners is that detention during the period of investigation could have been made maximum for the period of 60 days as the Magistrate was not authorize for detention beyond the period of 60 days. (5). Referring to the provisions of Section 167(2) Cr.P.C., it is urged that detention by the Magistrate is authorized even for the period of 90 days, if the offence is punishable with death, imprisonment for life or imprisonment for a term of "not less than ten years". Referring to the judgment of the Honble Apex Court in the case of Rajeev Chaudhary vs. State (NCT) of Delhi reported in (2001) 5 SCC 34 , it is contended that the aforesaid aspect in reference to Section 167 Cr.P.C. was considered by the Honble Apex Court and therein, it was held that for authorizing detention for a period of 90 days, the offence should be punishable with ten years or more, thus on the strength of the aforesaid judgment, learned counsel for the petitioners supported his argument to show that in the instant case, the investigation was required to be completed within the period of 60 days and thereby if the charge-sheet is not filed within the period of 60 days, then petitioner is to be given bail. (6). (6). Referring to the judgment of the trial Court, it is urged by learned counsel for the petitioners that the trial Court had not decided the issue in a specific term as to whether the Magistrate was authorized to order detention of the accused for a period of 60 days or 90 days being the period of investigation rather on hypothetical basis it is observed by the trial Court that even if, the charge-sheet was to be filed within the period of 60 days and thereby the Magistrate was authorized for detention of the accused for a period of 60 days pending investigating, then also the period of 60 days detention of the accused came to an end on 5.6.08 and the application in the present matter was filed for releasing accused on bail on 13.6.08, thus according to the trial Court, the petitioners had foregone their right of bail. According to learned counsel for the petitioners, the approach of the trial Court is wholly erroneous because even on the day of filing of application i.e. on 13.6.08, the investigation was not complete and no charge-sheet was filed, therefore, in view of the judgment of the Honble Apex Court, the petitioners were entitled to be released on bail forthwith. A reference of the judgment of the Honble Apex Court in the case of Uday Mohanlal Acharya vs. State of Maharashtra reported in (2001) 5 SCC 453 is being given wherein also the investigation could not be completed within the period for which the Magistrate was authorized to order for detention of the accused. The accused accordingly moved an application for releasing them on bail, but the prayer of the petitioner was not accepted, thus the accused petitioners therein moved to the High Court and while the application was pending, a charge-sheet was filed. Considering the aspect, the Honble Apex Court came to the conclusion that the right which accrued to the petitioners is not frustrated by mere submission of the charge-sheet after moving the application for releasing the accused on bail in view of the fact that the accused got an indefeasible right to be released on bail when the investigation is not completed within the specific period. In view of the aforesaid argument, the prayer of learned counsel for the petitioners is to order for release of accused on bail in view of the provisions of Section 167(2) Cr.P.C. (7). Learned Public Prosecutor, on the other hand, submits that the punishment under Sections 307 and 399 IPC is of ten years imprisonment, thus the investigation can be completed within the period of 90 days and thereby Magistrate was very well authorize to order detention of the accused upto the period of 90 days. Learned Public Prosecutor also submits that though it is a case where nobody was hurt so as to show that punishment of the offence involved in the present matter is of life imprisonment, but then in view of the provisions of Section 167(2)(i) and (ii) Cr.P.C. that in the offence where punishment is upto 10 years of imprisonment, investigation can be completed within a period of 90 days, hence, the prayer of the petitioners to release them on bail due to non-completion of the investigation within the period of 60 days, is not a tenable argument. It is further submitted that the case under the provisions of the Act of 1986 has also been registered against the petitioners and in view of the provisions of the aforesaid Act, release of accused is not authorized prior to a period of 180 days, thus referring to the provisions of the Act, alternative argument of learned Public Prosecutor is that even if, it is assumed that the Magistrate was authorized for detention of the accused pending investigation only for the period of 60 days, then also petitioners cannot be ordered to be released prior to period 180 days as provided under the provisions of 1986.Thus, on the strength of the provisions of the Act 1986. Thus, on the strength of the provisions of the Act 1986, the prayer of the learned Public Prosecutor has to reject the application of the petitioner. (8). I have considered the rival submissions made by the parties and perused the record of the case. (9). Thus, on the strength of the provisions of the Act 1986, the prayer of the learned Public Prosecutor has to reject the application of the petitioner. (8). I have considered the rival submissions made by the parties and perused the record of the case. (9). Firstly coming to the facts of the present matter, it is not in dispute that there is no allegation of causing hurt to any person as an outcome of opening fire by the accused petitioners, inasmuch as, even learned Public Prosecutor has also admitted that even in the FIR and otherwise it is not being alleged that due to fire any person was hurt, thus it becomes clear that looking to the facts of the case, the maximum punishment provided under the provisions of Section 307 IPC is only of ten years imprisonment. For ready reference Section 307 IPC is quoted hereunder:- "307. Attempt to murder-Whoever does any act with such intention or knowledge, and under such circumstances that, if he by that act caused death, he would be guilty of murder, shall be punished with imprisonment of either description for a term which may be extended to ten years, and shall also be liable to fine; and if hurt is caused to any person by such act, the offender shall be liable either to [imprisonment for life], or to such punishment as is hereinbefore mentioned. Attempts by life convicts- When any person offending under this section is under sentence of [imprisonment for life], he may, if hurt is caused, be punished with death." (10). The perusal of the Section referred to above shows that the present case falls in the first part of Section 307 I.P.C., which provides maximum punishment of ten years imprisonment of fine. Now coming to the legal issue in reference to Section 167(2) Cr.P.C. to find out as to whether the Magistrate was authorized to order for detention pending investigation for the period of 60 days or 90 days. Now coming to the legal issue in reference to Section 167(2) Cr.P.C. to find out as to whether the Magistrate was authorized to order for detention pending investigation for the period of 60 days or 90 days. It is firstly necessary to refer the provisions of Section 167(2) Corp., which is quoted hereunder for ready reference:- "Section 167(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 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 authorize the detention of the accused 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 exists 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 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 released on bail 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. (2A) Notwithstanding anything contained in sub-section (1) or sub-section (2), 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, may, where a Judicial Magistrate is not available, transmit to the nearest Executive Magistrate, on whom the powers of a Judicial Magistrate or Metropolitan Magistrate have been conferred, a copy of the entry in the diary hereinafter prescribed relating to the case, and shall, at the same time, forward the accused to such Executive Magistrate, an thereupon such Executive Magistrate, may for reasons to be recorded in writing, authorise the detention of the accused person in such custody as he may think fit for a term not exceeding seven days in the aggregate; and on the expiry of the period of detention so authorize, the accused persons shall be released on bail expect where an order for further detention of the accused person has been made by a Magistrate competent to make such order; and, where an order for such further detention is made, the period during which the accused person was detained in custody under the orders made by an Executive Magistrate under this sub-section, shall be taken into account in computing the period specified in paragraph (a) of the proviso to sub-section (2): Provided that before the expiry of the period aforesaid, the Executive Magistrate shall transmit to the nearest Judicial Magistrate the records of the case together with a copy of the entries in the diary relating to the case which was transmitted to him by the officer in charge of the police station or the police officer making the investigation, as the case may be." (11). The perusal of the provisions of the above quoted Section shows that period of 90 days is provided where the investigation relates to an offence punishable with death, imprisonment for life or imprisonment for a term of not less than ten years. Considering the language of "imprisonment for a term of not less than ten years", it comes out that the imprisonment should be ten years or more. Considering the language of "imprisonment for a term of not less than ten years", it comes out that the imprisonment should be ten years or more. The aforesaid aspect has already been decided by the Honble Apex Court in the case of Rajeev Chaudhary (supra) wherein considering the provisions of Section 386 I.P.C., it was held that punishment being of a period of ten years imprisonment, thus it was held that period of 90 days in view of the provisions of Section 167(2) Cr.P.C. is attracted only in those cases where the imprisonment is of ten years or more. Relevant part of the aforesaid judgment is quoted hereunder for ready reference:- "From the relevant part of the aforesaid sections, it is apparent that pending investigation relating to an offence punishable with imprisonment for a term "not less than 10 years", the Magistrate is empowered to authorize the offence, the period prescribed is 60 days. Hence in cases where offence is punishable with imprisonment for 10 years or more, the accused could be detained upto a period of 90 days. In this context, the expression "not less than" would mean imprisonment should be 10 years or more and would cover only those offences for which punishment could be imprisonment for a clear period of 10 years or more. Under Section 386 punishment provided is imprisonment of either description for a term which may extend to 10 years and also fine. That means, imprisonment can be for a clear period of 10 years or less. Hence, it could not be said that minimum sentence would be 10 years or more. Further, in context also if we consider clause (i) of proviso (a) to Section 167(2), it would be applicable in case where investigation relates to an offence punishable (1) with death; (2) imprisonment for life; and (3) imprisonment for a term of not less than ten years. It would not over the offence for which punishment could be imprisonment for less than 10 yeas. Under Section 386 IPC, imprisonment can very from minimum to maximum of 10 years and it cannot be said that imprisonment prescribed is not less than 10 years." (12). It would not over the offence for which punishment could be imprisonment for less than 10 yeas. Under Section 386 IPC, imprisonment can very from minimum to maximum of 10 years and it cannot be said that imprisonment prescribed is not less than 10 years." (12). From the judgment referred to above, it becomes clear that in the instant case, the maximum punishment being of ten years, thus the Magistrate was authorized for detention pending investigation only for a period of 60 days and thereby the prosecution was under an obligation to file charge-sheet within the period of 60 days and failure to do so gives rise to the petitioners to claim their release on bail. The aforesaid issue was considered even by this Court on earlier occasion in the case of Siyaram vs. State of Rajasthan reported in 2000(3) WLC (Raj.) 380 = RLW 2000(3) Raj. 1753 wherein also the accused therein was involved in the offence under Section 307 IPC as well as under the provisions of Rajasthan Dacoity Affected Area Act, 1986. In the aforesaid case, this Court held that the charge-sheet having not been filed within the period of 60 days, the petitioner was entitled for bail. Thus, in view of the judgments referred to above, the Magistrate was authorized for detention of accused pending investigation only for the period of 60 days. (13). Now, coming to the other issue as to whether the petitioners can be ordered for release on bail in view of provisions of Section 167 of Corp. despite of the fact that even a case is registered under the provisions of Act of 1986. The provisions of the Act of 1986 provides that the accused may not be ordered for release prior to 180 days unless the learned Public Prosecutor is given an opportunity of hearing and otherwise a prima facie case is not made out under the Act of 1986, thus according to the learned Public Prosecutor also, the accused cannot be ordered to be released on bail prior to period of 180 days in view of the provisions of the Act of 1986. This issue came up for consideration before this Court in the case of Seagram (supra) and therein it was held that in view of the provisions of Section 167 Corp., the accused can be released on bail irrespective of the provisions of the Act of 1986.The Court referring the judgment reported in Babul & An. vs. State of Karnataka reported in 1998 Cry. L.J. 16 held that an accused can be given bail if the charge-sheet is not filed within the period of 60 days. (14). The issue in reference to the provisions of the Act of 1986 needs to be elaborated further. The provisions of the Act of 1986 provides that an accused should not be released on bail before a period of 180 days unless prima facie a case is not made out under the provisions of Act of 1986 and Public Prosecutor given an opportunity of hearing, thus the outcome of the provisions of the Act of 1986 is that if a prayer for release on bail is made on the merits of the case, then the provisions of the Act of 1986 has to be taken note of, however, so far as investigation and trail is concerned, procedure is being provided in the Cr.P.C. also and in view of the provisions of Section 167 Cr.P.C., during the period of investigation, the Magistrate is authorized for detention of the accused if investigation is not completed within a period of 24 hours and the maximum period provided for detention pending investigation is 60 and 90 days as the case may be, thus for different offences for which trial has to be held, detention pending investigation under the order of the Magistrate is provided only for a specific period and if investigation is not completed within the specific period, the Magistrate is not authorized to order for detention, hence, the question comes that if as per the provisions of the Act of 1986, an accused cannot be released before 180 days, then question remains as to under what provision, an accused can be ordered for detention pending investigation beyond the period of 60 days or 90 days as the case may be. Once, it comes out that pending investigation, Magistrate is not authorized to order for detention beyond the period of 60 days or 90 days as the case may be, then detention beyond the aforesaid given right to the accused to seek bail as per the provisions of Section 167 Cr.P.C. The object of the provisions of Section 167 Cr.P.C. is for seeking early investigation of the matter because an accused cannot be detained indefinitely pending investigation and the said procedural aspect cannot be frustrated by the provisions of the Act of 1986 and it does not in any way effect the provisions of Section 167 Cr.P.C. being a procedural law. In fact, the provisions of the Act of 1986 are applicable in those cases where the investigation is completed as per the provisions of the Cr.P.C. and charge-sheet is filed, then detention becomes legal beyond the period of 60 days or 90 days as the case may be, then in those cases one cannot be ordered to be released on bail before 180 days unless the requirement as provided under the Act of 1986 is fulfilled. Since the issue is otherwise covered by the judgment of this Court in the case of Siyaram (supra), thus I hold that Section 5 of the Act of 1986 cannot affect the right of an accused to seek bail as per the provisions of Section 167(2) Cr.P.C. (15). Coming to the last aspect as to whether immediately on completion of 60 days, if an application under Section 167(2) filed and accused has prepared to furnish a bail, then accused is entitled for bail. The aforesaid issue has already been decided by the Honble Apex Court in the case of Udai Mohanlal Acharya (supra) after making reference of the case of Sanjay Dutt vs. State through CBI reported in (1994) 5 SCC 410 . The Honble Apex Court in the case of Udai Mohanlal Acharya (supra) held that if charge-sheet is not filed within the period specified under the provisions of Section 167(2) Cr.P.C., then on submission of an application for releasing the accused on bail, the accused gets indefeasible right to be released on bail and that right continues even if the matter is brought before the High Court and during the pendency of the case even investigation is completed and charge-sheet is filed. In the case of Udai Mohanlal Acharya (supra), prosecution filed charge-sheet when the matter was pending before the High Court praying for release of petitioner on bail in view of the provisions of Section 167 (2) Cr.P.C. therein Magistrate did not entertain the application of the accused and thereby rejection of the bail application was challenged before the High Court in view of the provisions of Section 167(2) Cr.P.C. and when the matter was pending before the High Court, charge-sheet was filed by the prosecution. According to the Honble Apex Court, subsequent filing of the charge-sheet does not take away the right which has already created and claimed by the accused, thus in view of the aforesaid, the observation of the trial Court to hold that the petitioners have foregone their right to seek bail, once application for that purpose is not filed immediately on 60th days, cannot be accepted. (16). In view of the discussions made above, I am of the view that the petitioners are entitled to be released on bail in view of the provisions of Section 167(2) Cr.P.C. and accordingly, their bail application is accepted and I consider it just and proper to release the accused-petitioners namely, Ram Karan @ Ram Varan s/o Lalpat, Balveer s/o Bhagwat and Shyam Sunder s/o Radhey Shyam on bail under Section 439 Cr.P.C. in FIR No. 194/08 registered at Police Station Bayana, District Bharatpur for offence under Sections 399, 402, 307, 353 IPC., Section 3/25 of the Arms Act and Section 11 of the Rajasthan Dacoity Affected Area Act, 1986 provided, each of them furnishes a personal bond in the sum of Rs. 50,000/- together with one surety in the like amount to the satisfaction of the learned trial Court for their appearance before that Court on all subsequent dates of hearing and as and when called upon to do so. It is, however, made clear that merely release of the petitioners on the ground raised herein would not restrict the trial Court to exercise its power otherwise existing under the provisions of Criminal Procedure Code, accordingly. (17). It is, however, made clear that merely release of the petitioners on the ground raised herein would not restrict the trial Court to exercise its power otherwise existing under the provisions of Criminal Procedure Code, accordingly. (17). It is observed that the trial Court would be entitled to deal with the accused in accordance with the law and observation made in this judgment wound not take away the jurisdiction of the trial Court which otherwise exists on filing of the charge-sheet, inasmuch as, during the pendency of the bail application before this Court, the charge-sheet has already been filed by the prosecution. Hence, the trial Court will have jurisdiction to pass appropriate order with regard to the accused petitioners in accordance with law, if so required.