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2010 DIGILAW 263 (RAJ)

Shiv Bhagwan v. State of Rajasthan

2010-02-02

M.N.BHANDARI

body2010
JUDGMENT Hon'ble BHANDARI, J.-The petitioner seeking cancellation of bail order dated 30.6.2009. On filing of the FIR investigation was conducted and thereupon charge-sheet was filed within a period of 90 days from the date of arrest of the accused respondent. The offence was punishable under Sections 302 & 397/34 of Indian Penal Code (for short' IPC). The trial Court granted bail on the ground that cognizance in the matter was not taken within a period of 90 days from the date of arrest. Thus, in view of the provisions of Section 167(2) of the Criminal Procedure Code (for short 'Cr.P.C.), accused was granted bail. 2. It is urged that in view of the provisions of Section 167 Cr.P.C., investigation was required to be completed within a period of 90 days from the date of arrest and in the present matter, investigation was completed within a period of 80 days itself and charge-sheet was filed on 30.5.2009 whereas arrest of the accused is dated 30.3.2009. The Court below has given wrong interpretation of Section 167(2) Cr.P.C. ignoring the various judgments of the Hon'ble Apex Court and specially recent judgment in the case of Jeewan Kumar Raut & Anr. vs. Central Bureau of Investigation reported in (2009) 7 SCC 526 = 2009(3) RLW 2240 (SC). 3. Learned counsel for accused respondent, on the other hand, submits that there is no illegality in the order rather order was passed based on two judgments of this Hon'ble Court in the cases of Shankerlal Nai vs. State of Rajasthan reported in 2007(3) RCC 1217 and Narain & Ors. vs. State of Rajasthan reported in 1982 (7) RCC 315, this Court had taken a view that in the absence of cognizance of offence within a period of 90 days, accused is entitled for grant of bail in view of the provisions of Section 167(2) Cr.P.C. Learned counsel for accused respondent has, thus, supported his argument based on the aforesaid two judgments. 4. I have considered the rival submissions of the parties and perused the record carefully. 5. Before dealing with the argument, it would be gainful to quote Section 167 of Cr.P.C., which is quoted hereunder for ready reference. “167. 4. I have considered the rival submissions of the parties and perused the record carefully. 5. Before dealing with the argument, it would be gainful to quote Section 167 of Cr.P.C., which is quoted hereunder for ready reference. “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 all accused person is forwarded under this section may, whether he has or not jurisdiction to try the case, from time to time, authorise 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- 1 [(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 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 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. 2[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.] 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. 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. 2 [(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 a 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, and thereupon such Executive Magistrate, may, lot reasons to be recorded in writing, authoress 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 authorized, the accused person shall be released on bail except 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 was 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.] (3) A Magistrate authorizing under this section detention in the custody of the police shall record his reasons for so doing. (4) Any Magistrate other than the Chief Judicial Magistrate making such order shall forward a copy of his order, with his reasons for making it, to the Chief Judicial Magistrate. (4) Any Magistrate other than the Chief Judicial Magistrate making such order shall forward a copy of his order, with his reasons for making it, to the Chief Judicial Magistrate. (5) If in any case triable by a Magistrate as a summons-case, the investigation is not concluded within a period of six months from the date on which the accused was arrested, the Magistrate shall make an order stopping further investigation into the offence unless the officer making the investigation satisfies the Magistrate that for special reasons and in the interests of justice the continuation of the investigation beyond the period of six months is necessary. (6) Where any order stopping further investigation into an offence has been made under sub-section (5), the Sessions Judge may, if he is satisfied, on an application made to him or otherwise, that further investigation into the offence ought to be made, vacate the order made under sub-section (5) and direct further investigation to be made into the offence subject to such directions with regard to bail and other matters as he may specify." 6. Perusal of the provision aforesaid shows that if investigation is not completed within 24 hours, Magistrate can authorize custody for a term not exceeding 15 days. Proviso to sub-section (2) of Section 167 Cr.P.C., however, provides that custody can be authorize beyond the period of 50 days, but it cannot be beyond the period of 60 or 90 days as the case may - be. Authorization of custody is permissible for a period of 90 days is in a case punishable for an imprisonment of 10 years or more otherwise makes custody authorize during the period of investigation is only of 60 days. The case in hand is for an offence under Sections 302 & 397/34 IPC., thus offence is punishable for imprisonment more than 10 years rather life imprisonment or death. 7. In view of the aforesaid the Magistrate was competent to authorize custody for a period of 90 days during the period of investigation. In the present matter investigation was completed within a period of 80 days as charge-sheet was filed on 30.5.2009 whereas petitioner was arrested on 10.3.2009 whereas petitioner was arrested on 10.3.2009. The Court below, however, accepted the bail application based on two judgments in the cases of Shankerlal Nai and Narayan & Co. (supra) decided by this Court. In the present matter investigation was completed within a period of 80 days as charge-sheet was filed on 30.5.2009 whereas petitioner was arrested on 10.3.2009 whereas petitioner was arrested on 10.3.2009. The Court below, however, accepted the bail application based on two judgments in the cases of Shankerlal Nai and Narayan & Co. (supra) decided by this Court. In those judgments, it was held that period of 60 days or 90 days as the case may be would be determined till the cognizance is taken. The view aforesaid is' contrary to the catena of judgments of the Hon'ble Apex Court on the issue. Even if language of Section 167 Cr.P.C. is taken note of, authorization of the custody is during the period of investigation and it does not make a mention of cognizance. Once a charge-sheet is filed, investigation comes to an end and thereafter, custody of the accused is to be governed under the order of the Court i.e., either he is granted bail or refused the same at the time of filing of the charge-sheet. In any case, provisions of Section 167(2) Cr.P.C. is not attracted in those cases where investigation is completed within the time specified. In the case of Jeewan Kumar Raut (supra), Hon'ble Apex Court referring to the earlier judgment in the case of Sanjay Dutt vs. State reported in (1994) 4 SCC 410, came to the conclusion that charge-sheet has to be filed within the time specified and failure to do so may entail the bail in favour of the accused. Paras 32 & 33 of the aforesaid judgment are quoted hereunder for ready reference:- 32. For the views we have taken, we are of the opinion that stricto sensu sub-section (2) of Section 167 of the Code would not apply in a case of this nature. Even assuming for the same of argument that sub-section (2) of Section 167 of the Code requires filing of a report within 90 days and the complaint petition having been filed within the said period, the requirements thereof stand satisfied. 33. Appellant 2. having been arrested on 10.2.2008 and Appellant 1 having surrendered on 17.2.2008 as also the complaint petition having been filed on 29.4.2008, the requirement of sub-section (2) of Section 167 of the Code stands satisfied. In Sanjay Dutt vs. State this Court held: 53. 33. Appellant 2. having been arrested on 10.2.2008 and Appellant 1 having surrendered on 17.2.2008 as also the complaint petition having been filed on 29.4.2008, the requirement of sub-section (2) of Section 167 of the Code stands satisfied. In Sanjay Dutt vs. State this Court held: 53. (2)(b) The' indefeasible right' of the accused to be released on bail in accordance with Section 20(4)(bb) of 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 is a right which ensures 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 extend 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. Only because the court itself took a long time in taking cognizance of the offence i.e. after the expiry of the period of 90 days, the same would not mean that any new right would be created in favour of the appellants thereby." 8. In view of the judgment of the Hon'ble Apex Court, judgment of this High Court are per-incurium, thus cannot be relied upon. 9. In view of the aforesaid, bail so granted in favour of the accused respondent is based on wrong interpretation of the law and in ignorance of the judgment of the Hon'ble Apex Court, thus bail order cannot be allowed to be stand, hence, deserves to be cancelled. 10. 9. In view of the aforesaid, bail so granted in favour of the accused respondent is based on wrong interpretation of the law and in ignorance of the judgment of the Hon'ble Apex Court, thus bail order cannot be allowed to be stand, hence, deserves to be cancelled. 10. At this stage, learned counsel for accused respondent submits that bail application was filed on many other grounds, which were not considered in view of the consideration of the only issue in reference to Section 167(2) Cr.P.C. It is prayed that petitioner may be given liberty to maintain a fresh bail application before the Court below on other grounds so available to the accused. 11. In view of the discussion made above, I am of the view that application seeking cancellation of the bail deserves to be allowed and accordingly bail so granted to the accused vide order dated 30.6.2009 stands cancelled with consequences to follow. The petitioner would, however, be at liberty to maintain fresh bail application on all other available grounds as was taken earlier and are now available.