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2013 DIGILAW 893 (MP)

Babulal v. State of M. P.

2013-08-01

J.K.MAHESHWARI

body2013
JUDGMENT J.K. Maheshwari, J. 1. Being aggrieved by the order dated 30-4-2013 passed by the III Additional Sessions Judge, Mhow in Criminal Revision No. 367/2013 cancelling the bail granted to accused applicant Nos. 1 to 6, this petition has been preferred under Section 482 of Cr.P.C. On perusal of the record, it is apparent that the FIR was lodged on 18-2-2013, and the applicants were taken into custody on the same date, but the challan has been filed on 22-4-2013 on 62nd day for the offences under Sections 399,402 of the IPC and 25 of the Arms Act,. It is also not in dispute that the bail application was filed prior to filing of the challan on 22-4-2013, however, the Trial Court extended benefit of Section 167(2) Proviso thereto. On filing the revision by State Government before the Sessions Court, it was allowed and the order granting bail passed by the Trial Court has been set aside, cancelling the bails of the applicants. However, this petition has been preferred. 2. Learned Counsel for the applicants referring the provisions of Section 167(2), Cr.P.C. [Proviso (a)(ii)] contended that in the present case the said offences relate to the sentence which may be extended to 10 years as prescribed. In such case, the challan ought to be filed within 60 days from the date of arrest, otherwise the accused persons are entitled to seek liberty to statutory bail as per law. The aforesaid issue has been considered by the Hon'ble Apex Court by three Judges Bench in the case of Sayeed Mohd. Ahmed Kazmi v. State, GNCTD and others, reported in 2013 Cri.LJ 200. Reliance has also been placed on the judgment of this Court in the case of Bazeer Khan @ Lalla Khan v. State of M.P., reported in 2013 (2) M.P.H.T. 272 : 2013 Cri.LR (MP) 382. In view of the aforesaid, it is urged that the order passed by the Sessions Judge is contrary to the law laid down by Hon'ble the Apex Court and also by this Court. 3. Shri Deepak Rawal, Govt. Advocate and Shri Sisodiya, Panel Lawyer appearing on behalf of the respondent/State contends that the challan has been filed prior to passing the order of bail on the application filed by the accused persons, however, in such circumstances, the grant of bail under Section 167(2) of Cr.P.C., is not permissible. 3. Shri Deepak Rawal, Govt. Advocate and Shri Sisodiya, Panel Lawyer appearing on behalf of the respondent/State contends that the challan has been filed prior to passing the order of bail on the application filed by the accused persons, however, in such circumstances, the grant of bail under Section 167(2) of Cr.P.C., is not permissible. Reliance has been placed on the judgment of Sadhvi Pragyna Singh Thakur v. State of Maharashtra, reported in (2012) I SCC (Cri) 311. In view of the foregoing, it is submitted that the Sessions Court has not committed any error to cancel the bail granted by the Trial Court by setting aside the same. 4. After hearing learned Counsel for both the parties and on careful reading of Section 167(2) of the Cr.P.C., it is clear that a person who is in custody produced to the Magistrate whether he has or has not jurisdiction to try the case authorised to detain such accused as he thinks fit, by passing the orders time to time, but the period of said order shall not exceed by 15 days. The proviso (a)(ii) of Section 167(2) as amended, makes it clear that in case investigation do not relate to the offence punishable with death imprisonment for life or imprisonment for a term upto 10 years, in other cases, if the investigation has not completed within 60 days, then accused persons shall be released on bail if he applies and prepared to furnish bail bond similar to the provisions specified in Chapter XXXIII of Cr.P.C. 5. In the said context and looking to the facts of the present case, it is to be decided that after filing the application to release the accused on bail and prior to passing the order on such application if charge-sheet is filed then right to get release the accused on bail under Section 167(2)(a)(ii) of the Cr.P.C. is defeated or not. 6. 6. The said issue has been considered by Hon'ble the Apex Court by a three Judges Bench in the case of Uday Mohanlal Acharya v. State of Maharashtra, 2001 AIR SCW 1500, and ruled out as thus:-- Where after expiry of period of 60 days for filing challan the accused filed an application for being released on bail and was prepared to offer and furnish bail, however, the Magistrate rejects application on erroneous interpretation about non-application of Section 167(2) of Cr.P.C., to case pertaining to MPID Act of 1999 and accused approaches higher forum and in meanwhile charge-sheet is filed, the indefeasible right to accused being released does not get extinguished by subsequent filing of charge-sheet. The accused can be said to have availed of his right to be released on bail on date he filed application for being released on bail and offers to furnish bail. Such an accused, who thus is entitled to be released on bail in enforcement of his indefeasible right will, however, have to be produced before the Magistrate on a charge-sheet being filed in accordance with Section 209 of Cr.P.C., and the Magistrate must deal with him in the matter of remand to custody subject to the provisions of the Code relating to bail and subject to the provisions of cancellation of bail. 9. A three Judges Bench of the Apex Court in Sayed Mohd. Ahmed Kazmi (supra), has ruled that filing of the charge-sheet during pendency of application for statutory bail does not affect the right of the accused to bail under Section 167(2) of Cr.P.C. 7. Recently, a three Judges Bench of Hon'ble the Apex Court has further considered the said issue in the case of Sayed Mohd. Ahmed Kazmi (supra), relying upon the Constitutional Bench judgment of the Supreme Court in the case of Sanjay Dutt v. State through CBI, (1994) 5 SCC 410 , and reiterated the same proposition of law. The relevant paragraphs are reproduced as thus:-- 19. In support of his submissions, Mr. Ahmed Kazmi (supra), relying upon the Constitutional Bench judgment of the Supreme Court in the case of Sanjay Dutt v. State through CBI, (1994) 5 SCC 410 , and reiterated the same proposition of law. The relevant paragraphs are reproduced as thus:-- 19. In support of his submissions, Mr. Pracha referred to and relied upon a three Judge Bench decision of this Court in Uday Mohanlal Acharya v. State of Maharashtra, (2001) 5 SCC 453 : AIR 2001 SC 1910 : 2001 AIR SCW 1500, wherein while referring to the earlier decision of this Court in the case of Sanjay Dutt v. State through CBI, (1994) 5 SCC 410 : 1994 AIR SCW 3857, this Court interpreted the expression 'if not already availed of to mean that the Magistrate has to dispose of an application under Section167(2) forthwith and on being satisfied that the accused had been in custody for the specified period, that no charge-sheet had been filed and that the accused was prepared to furnish bail, the Magistrate is obliged to grant bail, even if after the filing of the application by the accused a charge-sheet had been filed. Mr. Pracha submitted that so long as an application was pending before a charge-sheet had been filed after the expiry of the stipulated period for filing of charge-sheet, the accused had an indefeasible right to be released on statutory bail, as contemplated under the proviso to Section 167(2), Cr.P.C. Mr. Pracha submitted that the aforesaid decision was ad idem with the facts of the instant case, wherein the appellant's application for grant of statutory bail was pending on the day when the appellant's custody was declared to be illegal by the Additional Sessions Judge. 24. Having carefully considered the submissions made on behalf of the respective parties, the relevant provisions of law and the decision cited, we are unable to accept the submissions advanced on behalf of the State by the learned Additional Solicitor General, Mr. Raval. There is no denying the fact that on 17th July, 2012, when C.R. No. 86 of 2012 was allowed by the Additional Sessions Judge and the custody of the appellant was held to be illegal and an application under Section 167(2), Cr.P.C. was made on behalf Of the appellant for grant of statutory bail which was listed for hearing. Raval. There is no denying the fact that on 17th July, 2012, when C.R. No. 86 of 2012 was allowed by the Additional Sessions Judge and the custody of the appellant was held to be illegal and an application under Section 167(2), Cr.P.C. was made on behalf Of the appellant for grant of statutory bail which was listed for hearing. Instead of hearing the application, the Chief Metropolitan Magistrate adjourned the same till the next day when the Public Prosecutor filed an application for extension of the period of custody and investigation and on 20th July, 2012 extended the time of investigation and the custody of the appellant for a further period of 90 days with retrospective effect from 2nd June, 2012. Not only is the retrospectivity of the order of the Chief Metropolitan Magistrate untenable, it could not also defeat the statutory right which had accrued to the appellant on the expiry of 90 days from the date when the appellant was taken into custody. Such right, as has been commented upon by this Court in the case of Sanjay Dutt (supra), and the other cases cited by the learned Additional Solicitor General, could only be distinguished once the charge-sheet had been filed in the case and no application has been made prior thereto for grant of statutory bail. It is well-established that if an accused does not exercise his right to grant of statutory bail before the charge-sheet is filed, he loses his right to such benefit once such charge-sheet is filed and can thereafter, only apply for regular bail. 8. In view of the foregoing law laid down by the judgments of Hon'ble the Apex Court, it is clear that after lapse of the period of 60 days in the offences where the punishment may extend to 10 years similar to this case, and if the charge-sheet is not filed within 60 days, the right to get release the accused on bail is available if he applies for the same. On submitting the application for enforcement of the statutory bail to the accused, even if the charge-sheet is filed later, but prior to passing the order by the Court, it would not defeat his right of bail merely by filing charge-sheet after submitting bail application. On submitting the application for enforcement of the statutory bail to the accused, even if the charge-sheet is filed later, but prior to passing the order by the Court, it would not defeat his right of bail merely by filing charge-sheet after submitting bail application. This Court in the case of Bazeer Khan (supra) has also reiterated the same proposition of law relying upon the judgment of the Supreme Court in the case of Sayed Mohd. Ahmed Kazmi (supra). 9. In the case of Sadhvi Pragyna Singh Thakur (supra), the fact remains that the charge-sheet was filed on 90th day itself. The other observations made in the said judgment by the two Judges Bench of Hon'ble the Apex Court would not be binding in the context of aforementioned two judgments of three Judges Bench. As per the Full Bench of this Court in the case of Jabalpur Bus Operators Association, Jabalpur and others v. State of Madhya Pradesh and another, reported in 1993 (2) MPJR 479 , it is clear that the prior or subsequent judgment of the Larger Bench of the Apex Court would prevail over to the judgment of two Judges' Bench and binding. It is to be further observed here that while deciding the case of Sayed Mohd. Ahmed Kazmi (supra), referring the earlier judgment of Constitutional Bench in the case of Sanjay Dutt (supra), Court observed that it is well-established, if an accused does not exercise his right to get statutory bail before filing the charge-sheet, he looses his right to get such benefit on filing the charge-sheet. Thus, as contemplated under Section 167(2) Proviso (a)(ii), it is clear that if the accused exercises his right for grant of statutory bail prior to filing the charge-sheet the benefit to release him on bail is available even if the charge-sheet is filed prior to passing the order on such application by the Court, but in case prior to filing the charge-sheet if the application has not been filed to release the accused on bail then such right shall not be available and the accused may apply for regular bail which may be considered as per merits of the case. 10. 10. In view of the foregoing legal discussions and on going through the facts of this case, it is clear that the applicants were taken into custody on 18-2-2013 itself for the offences under Sections 399 and 402 of IPC read with Section 25 of the Arms Act,. For the said offences the punishment, as prescribed, may be extended up to 10 years. Thus, the challan ought to be filed upto 19th of April, 2013 within the period of 60 days. Admittedly, the challan in the present case has been filed on 22nd of April, 2013 but prior to filing the challan, the accused filed the application under Section 167(2) of the Cr.P.C., seeking benefit of the statutory bail. The Trial Court extended the benefit of bail to the applicants allowing their application, the said order was set aside by the Revisional Court. In view of the analytical discussions of the language of Section 167(2), Cr.P.C., Proviso (a)(ii) and as per the two judgments of the three Judges Bench in the case of Uday Mohanlal Acharya (supra) and Sayed Mohd. Ahmed Kazmi (supra), it is to be held that after exercising the right by moving an application seeking statutory bail by the accused, if the challan is filed later, it would not affect the indefeasible right accrues to the applicants to release them on bail. Thus, the Trial Court has rightly granted the benefit of bail to the applicants, and Revisional Court without considering the aforesaid proposition of law passed the order impugned which is hereby set aside. Accordingly, the petition filed by the applicants is hereby allowed. In view of the foregoing discussions, it is a fit case to invoke the jurisdiction under Section 482 of the Cr.P.C. and in consequence the order impugned passed by the Revisional Court stands set aside upholding the order of the Trial Court. In result thereto the applicants were rightly derived the benefit of statutory bail as specified under Section 167(2), Proviso (a)(ii) of Cr.P.C. Thus, the bail bond furnished by them as per the order passed by the Trial Court shall continue during the trial. C.C. as per rules.