Research › Search › Judgment

Karnataka High Court · body

2008 DIGILAW 769 (KAR)

Vijay Kumar @ Kavla v. State by Anekal Police

2008-12-12

ASHOK B.HINCHIGERI

body2008
Judgment :- Ashok B. Hinchigeri, J. The respondent registered Crime No.71/2008 for the offences punishable under Section 302 and 201 IPC. 2. It is not in dispute that the petitioners have been in judicial custody in connection with Crime No.163/2008 for the offences punishable under Section 399 and 402 IPC. The jurisdictional Court issued body warrant order on 17.05.2008. It is also not in dispute that the said order is received by the jail authorities on 19.05.2008. The charge-sheet ought to have been filed within 90 days from the date of the receipt of the body warrant order. But the same has not been done in the instant case. It is filed on the 92nd day, i.e. 19.08.2008. Meanwhile on the 91st day, the application under Section 167(2) Cr.P.C was filed on behalf of the petitioners. But the said application was rejected by the Magistrate by his order, dt. 23.08.2008. 3. Aggrieved by the said order and agitating his entitlement to statutory bail, this petition is presented. 4. Heard Sriyuths Anees Ali Khan, the learned Counsel appearing for the petitioners and Honnappa, the learned High Court Government Pleader for the respondent. The question that arises for my consideration is: whether an application for the grant of bail under Section 167(2) of the Code of Criminal Procedure has to be allowed on account of the default of the prosecution to file the charge sheet within the prescribed period, uninfluenced by the merits or the gravity of the case. To answer this question, it is necessary to peruse the provisions contained in Section 167(2) of the Code of Criminal Procedure. 5. Section 167(2) of Cr.P.C reads as follows: "167. To answer this question, it is necessary to peruse the provisions contained in Section 167(2) of the Code of Criminal Procedure. 5. Section 167(2) of Cr.P.C reads as follows: "167. Procedure when investigation cannot be completed in twenty-four hours.- .(1) xxx xxx xxx (2) TheMagistrate 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, authorise 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 exists 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;" 6. Theeffect of the afore-extracted proviso is that if the charge sheet is filed beyond the period of sixty days or ninety days, as the case may be, the accused persons are entitled to be released on bail. The object behind the salutary provision is to prevent incarceration of persons accused of offence for an unduly long period without any outer limit. The object behind the salutary provision is to prevent incarceration of persons accused of offence for an unduly long period without any outer limit. In this context, it is worthwhile to refer to the Honble Supreme Courts judgment in the case of Rajnikantjivanlal Patel And Another Vs Intelligence Officer, Narcotic Control Bureau, New Delhi AIR 1990 SC 71 , wherein it is held that the grant of bail under Section 167(2) proviso of Code of Criminal Procedure is legislative command and not Courts discretion. Paragraph 12 of the said judgment is extracted hereinbelow: "12. An order for release on bail under proviso (a) to S.167(2) may appropriately be termed as an order-ondefault. Indeed, it is a release on bail on the default of the prosecution in filing charge-sheet within the prescribed period. The right to bail under S.167(2) proviso (a) thereto is absolute. It is a legislative command and not Courts discretion. If the investigating agency fails to file charge-sheet before the expiry of 90/60 days, as the case may be, the accused in custody should be released on bail. But at that stage, merits of the case are not to be examined. Not at all. In fact, the Magistrate has no power to remand a person beyond the stipulated period of 90/60 days. He must pass an order of bail and communicate the same to the accused to furnish the requisite bail bonds." 7. It is profitable to refer to a Division Benchs judgment of the Gujarat High Court in the case of Surajmalkanaiyalal Soni Vs State of Gujarat 1989 CRI L.J 1678. The portion below the head note (D) of the said judgment is extracted hereinbelow: "Whether a person is entitled to be released on bail in view of the provisions of Section 167(2) of the Cr.P.C. does not depend upon the question whether there is a prima facie case against the accused and whether the offence is of a serious nature. One has only to look to the question whether report under Section 173(2) is submitted to the Court within the prescribed period or not. If it is not submitted within the prescribed period, then the provisions of Section 167(2) of Cr.P.C. come into play and Court cannot look to the merits of the case for refusing bail to such an accused. If it is not submitted within the prescribed period, then the provisions of Section 167(2) of Cr.P.C. come into play and Court cannot look to the merits of the case for refusing bail to such an accused. The accused is entitled to the benefit of Section 167(2) as of right as soon as it is established that report under Section 173(2) of the Code is not submitted to the Court of the Magistrate within the prescribed period. Therefore, in the instant case, the view of the Sessions Judge that though ordinarily a person, will be entitled to the benefit of Section 167(2) of the Code when the charge-sheet is not complete, the applicant was not entitled to the said benefit looking to the fact that he was alleged to have been found in possession of about 10 kgs. of opium, was wrong." 8. It is also worthwhile to refer to the Honble Supreme Courts decision in the case of Mohd. Salimkhan vs State of Uttar Pradesh AIR 1982 SC 1096 . The relevant portion of the said judgment is extracted hereinbelow: "...we are left with no alternative but to release the petitioner from jail custody. We are constrained to observe that as the liberty of the subject was involved in this case it is extremely regrettable that the State should act in such a casual or cavalier manner and was even unable to produce any evidence or document to show why the petitioner was detained without trial for a period of about three years." 9. It is not in dispute that under the provisions of law invoked, the offences are punishable with death or life imprisonment. Therefore the case on hand falls within the ambit of Section 167(2) proviso (a) (i) of the Code, meaning the charge-sheet ought to have been filed within 90 days. The said provisions have not been complied with in the instant case. The petitioners have acquired the indefeasible right to be released on bail on account of non-filing of the charge sheet within the prescribed outer limit. 10. As is evident from the impugned order itself, the filing of application for bail under Section 167(2) of the Code of Criminal Procedure is prior to the filing of the charge sheet. The petitioners have acquired the indefeasible right to be released on bail on account of non-filing of the charge sheet within the prescribed outer limit. 10. As is evident from the impugned order itself, the filing of application for bail under Section 167(2) of the Code of Criminal Procedure is prior to the filing of the charge sheet. It is also not in dispute that the body warrant came to be issued, as the petitioners have been in judicial custody in connection with some other case, viz. Crime No.163 of 2008. The Magistrate dismissed the bail application for two reasons- (a) the petitioners are not arrested in this case (CC No.991 of 2008 arising from Crime No.71 of 2008); (b) the offences alleged are of heinous nature. 11. I find that both these reasons are unsustainable. The delay of even one day in filing the charge sheet entitles the accused to bail under the default clause; the right can be exercised by the accused at any time till the conclusion of the trial and is not defeated by any lapse of time or by the subsequent filing of the charge sheet or by a remand to any judicial custody or otherwise. 12. In the instant case, the period prescribed for filing of charge sheet commences on the date of receipt of the body warrant order by the jail authorities (19th May, 2008 in the instant case). The catena of decisions, to which I have made a reference hereinabove, clearly lay down the position that an order for release on bail under proviso (a) to Section 167(2) of the Code of Criminal Procedure is virtually an order passed on the default committed by the prosecution. Notwithstanding the accused facing the allegation of the commission of heinous or grave offence, he is entitled to be released on bail. 13. On the respondent committing the default, petitioners further incarceration will have to be necessarily held to be illegal. Hence, I grant bail to the petitioners subject to the following conditions: a) Each of the petitioners shall execute a bond for Rs.1,00,000/ -(Rupees one lakh only) with two local, solvent sureties for the like sum to the satisfaction of the investigating officer. b) The petitioners shall not tamper with the prosecution witnesses. c) The petitioners shall be regular in attending the Trial Court. 14. b) The petitioners shall not tamper with the prosecution witnesses. c) The petitioners shall be regular in attending the Trial Court. 14. Needless to observe that it is open to the respondent to seek the cancellation of the bail being granted herein, if there exists special reasons for doing so. In making this observation I am fortified by the Honble Supreme Courts judgment in the case of Aslambabulal Desai Vs. State of Maharashtra 1992 SCC (Crl) 870. Further more, granting of bail in Crime No.71/2008 should not be construed as granting of bail in Crime No.163/2008 or other criminal cases, which are registered against the petitioners. I amplify that this order would enure to the benefit of the petitioners, only if they are not required in any other criminal case. 15. This criminal petition is allowed.