Research › Search › Judgment

Madhya Pradesh High Court · body

2012 DIGILAW 1225 (MP)

District Dhandadhikari v. Ghisu Singh

2012-11-27

P.K.JAISWAL

body2012
ORDER : P.K. JAISWAL, J. 1. Being aggrieved by the order dated 26.9.2011 passed by Special Judge NDPS Act, Garoth, in Special Case No. 15/11, whereby learned Special Judge allowed the application under Section 167(2), Cr.P.C., filed by the non-applicants under the default clause, the application has been filed by the applicants -- State for cancellation of bail under Section 439(2) of Cr.P.C. As per prosecution story, on the basis of secret information, one Scorpio Jeep bearing registration No. 17/DA/1444 was intercepted by the police force. They found that driver and one person sitting in front and two other persons were sitting in the one side of middle row out of which one person armed with local revolver (Katta) and another person armed with 12 bore gun. In the last row two persons were sitting and facing to each other. Total six persons were sitting in the said jeep. On interrogation, they disclosed their names as non applicants No. 1 to 6. During search seven mobile phones, 12 -- Bore gun, live cartridges, currency notes and 23 kg affim (opium) was seized in one bag. They were arrested on 28.3.2011 and produced before the Magistrate on 29.3.2011. On 2.4.2011 police remand was taken and they were sent for judicial custody. 2. On 14.9.2011 on behalf of Sub-Divisional Magistrate (Police Garoth) case diary along with report was filed and prayed for further time to file the challan (final report). The learned Special Magistrate NDPS Act, Garoth, after examination of the same granted time to file the final report and fixed the case for 26.9.2011 for filing the final report. 3. It is not in dispute that on 24.9.2011 was Saturday (non-judicial working day) and 25.9.2011 was Sunday, being holiday on 26.9.2011 challan (final report) was filed before the Special Court, Garoth. 4. On 26.9.2011, before filing of challan, an application was moved at 11.15 A.M. on behalf of the non-applicants under Section 167(2) read with Section 439 of Cr.P.C., for release on bail under proviso (a) to Section 167(2) on the default of the prosecution in filing charge--sheet within the prescribed period. 5. The application was filed on the ground that the right to bail under Section 167(2) proviso (a) thereto is absolute. They prayed that the investigating agency failed to file charge-sheet before the expiry of 180 days, the applicants should be released on bail. 5. The application was filed on the ground that the right to bail under Section 167(2) proviso (a) thereto is absolute. They prayed that the investigating agency failed to file charge-sheet before the expiry of 180 days, the applicants should be released on bail. It is also averred that the provisions contained in 167(2) are mandatory and failure of investigating agency in completing the investigation within the prescribed period entitles the accused to be enlarged on bail. 6. The applicants/investigating agency opposed the prayer for grant of bail before the trial Court on the ground that 23 Kg of affim (opium) has been seized from them, which are much more than the commercial quantity and by reasons of the provisions of Section 36(a) of NDPS Act, 1989, particularly proviso to sub-Section 4 of Section 36(a), the period for filing of challan can be extended for a period of one year subject to the prayer and specific reasons assigned by the investigating agency. 7. Learned Special Judge after appreciating the arguments of the parties came to the conclusion that no application for extension of period was filed nor Public Prosecutor ever prayed for extension of time. It is also held that on 26.9.2011 when the challan was filed, the accused persons have completed 182 days and, therefore, they are entitled for grant of bail and allowed their application. 8. It is submitted by learned Government Advocate that 180 days would start from the date of first remand. He further submitted that 25th September, 2011, was holiday. After deducting the said two days the challan was filed in 180th day, after remand of the accused, the learned Special Judge committed an error in computing the period and held that challan was filed on 182nd day and erred in releasing the non-applicants on bail under the default clause. His third contention was that the right under Section 167(2) Cr.P.C. to be released on bail on default if charge-sheet is not filed within 180 days from the date of first remand is not an absolute or indefeasible right. The said right would be lost if charge sheet is filed and would not survive after the filing of charge sheet. His third contention was that the right under Section 167(2) Cr.P.C. to be released on bail on default if charge-sheet is not filed within 180 days from the date of first remand is not an absolute or indefeasible right. The said right would be lost if charge sheet is filed and would not survive after the filing of charge sheet. In other words, even if an application for bail is filed on the ground that charge sheet was not filed within 180 days, but before consideration of the same and before being released on bail, if the charge sheet is filed, the said right to be released on bail would be lost. In support of the said contention, learned Government Advocate drew my attention to the decision of the Apex Court in the case of Pragyna Singh Thakur vs. State of Maharashtra, (2011) 10 SCC 445 . With the aforesaid, learned Government Advocate prayed that this application for cancellation of bail be allowed. 9. On the other hand, Shri Z.A. Khan, learned Senior Advocate with Shri Ashish Vyas and Shri Gaurav Shrivastava, Advocate as well as Shri Manoj Saxena, Advocate for the non applicants argued that challan was filed on 182nd day and that too after filing of application under Section 167(2) Cr.P.C. It is submitted that the non applicants having exercised their rights under the proviso to Section 167(2), Cr.P.C. prior to filing of challan and indefeasible right has accrued in favour of the non applicants and, therefore, learned trial Court rightly allowed the application and released them on bail. Reliance was placed on Sanjay Dutt vs. State through C.B.I. Bombay (II) 1994 SCC (Cri) 1433, Uday Mohanlal Acharya vs. State of Maharashtra, 2001 SCC (Cri) 760, Mohammed Iqbal Madar Sheikh & Ors. vs. State of Maharashtra, 1996 SCC (Cri) 202. They also placed reliance on the decision of Gwalior Bench in the case of Rammu vs. State of M.P. MPWN Note No. 66 and submitted that prosecution cannot claim benefit of Saturday and Sunday being holiday. It is also submitted that the challan need not to be filed in the Court and it could be filed before the Magistrate and that the prosecution cannot claim the benefit of Saturday and Sunday being a holiday. It is also submitted that the challan need not to be filed in the Court and it could be filed before the Magistrate and that the prosecution cannot claim the benefit of Saturday and Sunday being a holiday. In respect of latest decision of the Supreme Court in the case of Pragyna Singh Thakur (Supra) it is submitted by learned counsel for the non applicants that the view taken by the constitutional Bench of the Apex Court in the case of Sanjay Dutt (Supra) and Uday Mohalal Acharya (Supra) decision of latter Bench of two judges, earlier decision of the larger Bench is binding on this Court. They supported their arguments with the decision of Constitutional Bench of the M.P. High Court in the case of Jabalpur Bus Operators Association & Ors. vs. State of M.P. & Ors. 2003 (1) MPLJ 513 . 10. I have heard the arguments of the learned counsel for the parties at length and perused the record of the case. 11. It is not in dispute that when the application for grant of bail under Section 167(2) of Cr.P.C. was filed at that time, no charge-sheet was filed, but before the consideration of the same, the charge-sheet was filed. It is also not in dispute that charge sheet was filed on expiry of the period of 180 days. 12. Paragraphs 48 and 49 of the decision of the Constitution Bench of the Hon'ble Supreme Court in the case of Sanjay Dutt (Supra), is relevant which reads as under:- 48. We have no doubt that the common stance before us of the nature of indefeasible right of the accused to be released on bail by virtue of Section 20(4)(bb) is based on a correct reading of the principle indicated in that decision. The indefeasible right accruing to the accused in such a situation is enforceable only prior to the filing of the challan and it does not survive or remain enforceable on the challan being filed, if already not availed of. Once the challan has been filed, the question of grant of bail has to be considered and decided only with reference to the merits of the case under the provisions relating to grant of bail to an accused after the filing of the challan. Once the challan has been filed, the question of grant of bail has to be considered and decided only with reference to the merits of the case under the provisions relating to grant of bail to an accused after the filing of the challan. The custody of the accused after the challan has been filed is not governed by Section 167 but different provisions of the Code of Criminal Procedure. If that right had accrued to the accused but it remained unenforced till the filing of the challan, then there is no question of its enforcement thereafter since it is extinguished the moment challan is filed because Section 167 Cr.P.C. ceases to apply. The Division Bench also indicated that if there be such an application of the accused for release on bail and also a prayer for extension of time to complete the investigation according to the proviso in Section 20(4)(bb), both of them should be considered together. It is obvious that no bail can be given even in such a case unless the prayer for extension of the period is rejected. In short, the grant of bail in such a situation is also subject to refusal of the prayer for extension of time, if such a prayer is made. 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. It is settled by Constitution Bench decisions that a petition seeking the writ of habeas corpus on the ground of absence of a valid order of remand or detention of the accused, has to be dismissed, if on the date of return of the rule, the custody or detention is on the basis of a valid order. (See Naranjan Singh Nathawan v. State of Punjab 14; Ram Narayan Singh v. State of Delhi 15 and A.K. Gopalan v. Government of India 16.) 49. This is the nature and extent of the right of the accused to be released on bail under Section 20(4)(bb) of the TADA Act read with Section 167 Cr.P.C. in such a situation. We clarify the decision of the Division Bench in Hitendra Vishnu Thakur 2. This is the nature and extent of the right of the accused to be released on bail under Section 20(4)(bb) of the TADA Act read with Section 167 Cr.P.C. in such a situation. We clarify the decision of the Division Bench in Hitendra Vishnu Thakur 2. Accordingly, and if it gives a different indication because of the final order made therein, we regret our inability to subscribe to that view. 13. Section 36A(4) of NDPS Act, 1985 reads as under:- (4) In respect of persons accused of an offence punishable under Section 19 or Section 24 or Section 27A or the offence involving commercial quantity the reference in sub-section (2) of section 167 of the Cr.P.C., 1973 (2 to 1974), thereof to "ninety days", where they occur, shall be constructed as reference to "one hundred and eighty days". Provided that, if it is not possible to complete the investigation within the said period of one hundred and eighty days, the Special Court may extend the said period up to one year on the report of the Public Prosecutor indicating the progress of the investigation and the specific reasons for the detention of the accused beyond the said period of one hundred and eighty days. 14. The principle laid down in Sanjay Dutt case has been retreated by the Supreme Court in the case of State of Madhya Pradesh vs. Rusttam, 1995 SCC (Cri) 830, paragraph 4 is relevant which reads as under:- 4. We may also observe that the High Court's view in entertaining the bail petition after the challan was filed was erroneous. The matter show stands settled in Sanjay Dutt v. State I which case Hitendra Vishnu Thakur v. State of Maharashtra has aptly been explained away. The Court is required to examine the availability of the right of compulsive bail on the date it is considering the question of bail and not barely of the date of the presentation of the petition for bail. This well-settled principle has been noticed in Sanjay Dutt case on the strength of three Constitution Bench cases -- Naranjan Singh Nathawa v. State of Punjab, Ram Narayan Singh v. State of Delhi and A.K. Gopalan v. Govt. of India. This well-settled principle has been noticed in Sanjay Dutt case on the strength of three Constitution Bench cases -- Naranjan Singh Nathawa v. State of Punjab, Ram Narayan Singh v. State of Delhi and A.K. Gopalan v. Govt. of India. On the dates when the High Court entertained the petition for bail and granted it to the accused-respondents, undeniably the challan stood filed in court, and then the rights as such was not available. 15. Similar is the view taken by the three judges bench of the Apex Court in the case of Dr. Bipin Shantilal Panchal vs. State of Gujarat, 1996 (1) SCC 718 , paragraph 4 is relevant which reads as under: 4. The learned counsel, appearing for the appellant, urged that the statutory period prescribed by proviso (a) to sub-section (2) of Section 167 of Code of Criminal Procedure during which the appellant could have been kept in custody, pending investigation, had expired, because of which the appellant should have been released on bail and at that stage there was no question of application of Section 37 of the Act. Recently, this Court has considered the question of applicability of proviso to sub-section (2) of Section 167 of the Code in respect of an accused under N.D.P.S. Act in the case of Union of India vs. Thamisharasi & Ors. 1995 (4) SC 253 and it has been held that Section 37 does not exclude that application of the proviso to sub-section (2) of Section 167 of the Code, even in respect of persons who are accused for offences under N.D.P.S. Act. But it is an admitted position that the charge-sheet has been filed on 23.5.1994 and now the appellant is in custody on the basis of orders of remand passed under the other provisions of the Code. But it is an admitted position that the charge-sheet has been filed on 23.5.1994 and now the appellant is in custody on the basis of orders of remand passed under the other provisions of the Code. Whether the accused who was entitled to be released on bail under proviso to sub-section (2) of Section 167 of the Code, not having made an application when such right had accrued, can exercise that right at a later of the proceeding, has been examined by a Constitution Bench of this Court in the case of Sanjay Dutt v. State through C.B.I. Bombay (II), (1994) 5 SCC 410 and it has been said: 53(2)(b)--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 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 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 filling of the challan only by the provisions relating to the grant of bail applicable at that stage. Therefore, if an accused person fails to exercise his right to be released on bail for the failure of the prosecution to file the charge-sheet within the maximum time allowed by law, he cannot contend that he had an indefeasible right to exercise it at any time notwithstanding the fact that in the meantime the charge-sheet is filed. Therefore, if an accused person fails to exercise his right to be released on bail for the failure of the prosecution to file the charge-sheet within the maximum time allowed by law, he cannot contend that he had an indefeasible right to exercise it at any time notwithstanding the fact that in the meantime the charge-sheet is filed. But on the other hand if he exercises the right within the time allowed by law and is released on bail under such circumstances, he cannot be rearrested on the mere filing of the charge-sheet, as pointed out in Aslam Babalal Desai vs. State of Maharashtra, (1992) 4 SCC 272. 16. The Apex Court has taken the same view in the case of Dinesh Dalmia v. CBI (2007) 8 Supreme Court Cases 770, paragraph 29 is relevant which reads as under:- 29. The statutory scheme does not lead to a conclusion in regard to an investigation leading to filing of final form under Sub-section (2) of Section 173 and further investigation contemplated under Sub-section (8) thereof Whereas only when a charge sheet is not filed and investigation is kept pending, benefit of proviso appended to Sub-section (2) of Section 167 of the Code would be available to an offender; once, however, a charge sheet is filed, the said right ceases. Such a right does not revive only because a further investigation remains pending within the meaning of Sub-section (8) of Section 173 of the Code. 17. The principle laid down by the Apex Court in the case of Sanjay Dutt (Supra) has been reiterated in the case of Mustaq Ahmed Mohammed Isak & Ors. v. State of Maharashtra (2009) 7 SCC 480 . 18. In the case of Uday Mohanlal Acharya vs. State of Maharashtra, (Supra), a three Judges Bench of the Hon'ble Supreme Court considered the meaning of the expression "if not already availed of used by the Apex Court in the decision rendered in Sanjay Dutt (Supra) in paragraph 48 and held that if an application for bail is filed before the charge sheet is filed, the accused could be said to have availed his right under Section 167(2) of Cr.P.C. even though the Court has not considered the said application and granted him bail under Section 167(2) of Cr.P.C. 19. From the above discussion, it is quite clear, even if application for bail is filed on the ground that charge sheet was not filed within 180 days, but before the consideration of the same and before being released on bail, if charge sheet is filed, the said right to be released on bail, can only be on merits. Thus, I am of the considered view that the right under Section 167(2) Cr.P.C. to be released on bail on default if charge sheet is not filed within 180 days from the date of first remand is not an absolute or indefeasible right. This is the view taken by the Apex Court in the case of Pragyna Singh Thakur (Supra). Thus, the contention of the learned counsel for the non applicants that the view taken by the Division Bench of the Apex Court in the case of Pragyna Singh Thakur (Supra) is contrary to the decision of the earlier larger and constitutional Bench decision in the case of Uday Mohanlal Acharya (Supra) and Sanjay Dutt (Supra) is incorrect. 20. The view taken by the Apex Court in the case of Pragyna Singh Thakur (Supra) is based on earlier decision of the constitutional and larger Bench of Apex Court and, therefore, there is no conflict of decision of the Apex Court and thus, the decision cited by the non applicants in the case of Jabalpur Bus Operators Association & Ors. (Supra) will not be applicable in the facts and circumstances of the present case. 21. Having regard to the totality of the facts and circumstances of the case and the law laid down by the Apex Court in the Pragyna Singh Thakur (Supra), I am of the considered view that learned Special Judge committed a legal error in not considering the fact that at the time of consideration of application filed by the non-applicants under Section 167(2) charge sheet was filed and thus, he has to decide the application only on merits. The learned Special Judge acted contrary to the legal principles laid down by the Constitution Bench and larger Bench of the Apex Court in the case of Sanjay Dutt (Supra), Uday Mohanlal Acharya and the law laid down recently in the case of Pragyna Singh Thakur (Supra) and has erred in allowing the application under the default clause. 22. The learned Special Judge acted contrary to the legal principles laid down by the Constitution Bench and larger Bench of the Apex Court in the case of Sanjay Dutt (Supra), Uday Mohanlal Acharya and the law laid down recently in the case of Pragyna Singh Thakur (Supra) and has erred in allowing the application under the default clause. 22. For the above mentioned reasons, the impugned order dated 26.9.2011 passed by the Special Judge granting bail to the non applicants is liable to be set aside and is accordingly set aside. The non-applicants are directed to surrender before the concerned trial Court within a period of three weeks from the date of order, failing which appropriate steps will be taken by the Special Judge for their arrest and submit its report to the Registry of this Court within six weeks. With the aforesaid, M. Cr. C. No. 8913/2011 is allowed and disposed of.