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2014 DIGILAW 1014 (PAT)

Rajesh Kumar Singh v. State Of Bihar

2014-09-19

ASHUTOSH KUMAR

body2014
ORDER Heard Mr. Rana Pratap Singh, learned Senior Advocate assisted by Mr. Aruni Singh on behalf of the petitioner, Mr. Roshan Kumar Mishra, learned Advocate for the informant and Ms. Pushpa Sinha –II, learned A.P.P. for the State. The petitioner, by the present application, has sought for quashing of the order dated 24.04.2013 passed by the learned Chief Judicial Magistrate, Khagaria whereby the prayer for default bail under the provision of Section 167(2) of the Code of Criminal Procedure was refused. The petitioner has also challenged the order dated 31.07.2013 passed in Criminal Revision No. 26 of 2013 by the learned Ist Adhoc Additional Sessions Judge, Khagaria, whereby the order refusing the default bail by the learned Chief Judicial Magistrate, Khagaria was affirmed. The petitioner was made accused in Maheshkhunt P.S. Case No. 150 of 2012 dated 17.10.2012 instituted for the offence under Sections 307, 302, 504 and read with Section 34 of the Indian Penal Code. In the aforementioned case, the petitioner surrendered before the Court of learned Chief Judicial Magistrate on 24.01.2013. A period of 90 days was completed on 23.04.2013. On 24.04.2013, an application was filed by the petitioner making a prayer for releasing him on bail in terms of Section 167(2) of the Cr.P.C. as by then charge sheet had not been filed. By way of Annexure-3, the petitioner has brought on record the photo copy of the aforesaid petition filed on his behalf for grant of default bail. Attention of this court was drawn towards the left margin of such petition which discloses that Court Master reported that till 9 a.m., the charge sheet had not been submitted. It has been submitted on behalf of the petitioner that thereafter, the Chief Judicial Magistrate, Khagaria gave a direction to the petitioner to furnish his bail bonds and pursuant to such direction bail bonds were furnished by the petitioner. Santosh Kumar and Ram Chandra Singh chose to become bailers. Photo copy of the bail bonds have also brought on record vide Annexure-4 to this application. Santosh Kumar and Ram Chandra Singh chose to become bailers. Photo copy of the bail bonds have also brought on record vide Annexure-4 to this application. However, from perusal of the order of learned Chief Judicial Magistrate, Khagaria dated 24.04.2013, refusing the prayer of bail of the petitioner in terms of Section 167(2) of the Cr.P.C., it appears that on the right hand column there is a note of the Court Master that the charge sheet alongwith the copy of the case diary has been received at 10 a.m. It appears that when, in the first instance, the learned Chief Judicial Magistrate may have perused the petition for grant of default bail he would have instructed his Court Master to report about the status of the case. Court Master appears to have reported that the charge sheet has not been received till 9 a.m. It appears that possibly on seeing such report, the learned Magistrate may have orally asked the petitioner to furnish his bail bonds. However, no such order appears to be on record to suggest that such an oral observation was made by the learned Chief Judicial Magistrate. Be that as it may, an order was passed on 24.04.2013, refusing the prayer of bail in terms of Section 167 (2) as charge sheet by then had already been submitted. In this connection, a reference has been made by the counsel for the petitioner to the judgment of the Apex Court in the case of Sayed Mohd. Ahmad Kazmi Vs. State (Government of NCT of Delhi) and Others reported in 2012 (12)SCC -1. In the aforesaid case, the petitioner (Sayed Mohd. Ahmad Kazmi) was an accused of unlawful activities (Prevention) Act, 1967. After completion of 90 days in custody, the petitioner (Sayed Mohd. Ahmad Kazmi) had made a prayer for bail in terms of Section 167 (2). Instead of hearing such application, the Chief Metropolitan Magistrate, Delhi adjourned the matter to another date. In the meantime, the State preferred an application for extension of the period of investigation. On receiving such application, the Chief Metropolitan Magistrate after noticing the applicant, extended the time of interrogation and custody for further 90 days with retrospective effect from the 90th day of his first round of custody. This was done as Section 167 (2) of Cr.P.C. stood modified by virtue of Section 43 (d) of the Unlawful Activities (Prevention) Act, 1967. On receiving such application, the Chief Metropolitan Magistrate after noticing the applicant, extended the time of interrogation and custody for further 90 days with retrospective effect from the 90th day of his first round of custody. This was done as Section 167 (2) of Cr.P.C. stood modified by virtue of Section 43 (d) of the Unlawful Activities (Prevention) Act, 1967. Section 43 (d) of the Unlawful Activities (Prevention) Act, 1967 is reproduced below:- “Modified application of certain provisions of the Code- (1) Notwithstanding anything contained in the Code or any other law, every offence punishable under this Act shall be deemed to be a cognizable offence within the meaning of Clause (c) of Section 2 of Code, and „ cognizable case? as defined in that clause shall be construed accordingly. (2) Section 167 of the Code shall apply in relation to a case involving an offence punishable under this Act subject to the modification that in Sub Section (2), - (a) the references to “fifteen days”, “ninety days” and “sixty days”, wherever they occur, shall be construed as references to “thirty days”, “ninety days” and “ninety days” respectively; and (b) after the proviso, the following proviso’s shall be inserted, namely: Provided further that if it is not possible to complete the investigation within the said period of ninety days, the court may if it is satisfied with the report of a public prosecutor indicating the progress of investigation and the specific reasons for the detention of the accused beyond the said period of ninety days, extend the said period up to one hundred and eighty days: Provided also that if the police officer making the investigation under this Act, requests for the purposes of investigation, for police custody from judicial custody of any person in judicial custody, he shall file an affidavit stating the reasons for doing so and shall also explain the delay, if any, for requesting such police custody.” In this context, the Apex Court held that the right to be released on default bail was an indefeasible right of the accused and the same could not have been taken away with retrospective effect and by allowing the extension petition of the State. In the present case, petitioner is not an accused under any special law and the provision of Section 167 (2) (unamended) applies to the facts of this case. In Sanjay Dutt Vs. In the present case, petitioner is not an accused under any special law and the provision of Section 167 (2) (unamended) applies to the facts of this case. In Sanjay Dutt Vs. State Through C.B.I. Bombay reported in (1994) 5 SCC, page 410, the Apex Court analyzed the provisions of default bail in connection with TADA Act. Section 20 of the TADA Act prescribes the modified application of the Code of Criminal Procedure indicated therein. The effect of sub Section (4) of Section 20 is to apply section 167 of the Code of Criminal Procedure in relation to a case involving an offence punishable under the TADA Act subject to the modifications indicated therein. One of the modifications made in Section 167 of the Code by Section 20 (4) of the TADA Act is to require the investigations in any offence under the TADA Act to be completed within a period of 180 days with the further proviso that the Designated Court is empowered to extend that period up to one year if it is satisfied that it is not possible to complete the investigation within the said period of 180 days, 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 180 days. This gives rise to the right of the accused to be released on bail on expiry of the said period of 180 days or the extended period on default to complete the investigation within the time allowed. In Hitendra Vishnu Thakur Vs. State of Maharashtra the conclusion of the Court was summarized, as under : (SCC Page 635, Para 30) “In conclusion, we may (even at the cost of repetition) say that an accused persons seeking bail under Section 20(4) has to make an application to the court for grant of bail on grounds of the default of the prosecution and the court shall release the accused on bail after notice to the public prosecutor influenced by the gravity of the offence on the prosecution case since Section 20 (8) does not control the grant of a bail under Section 20 (4) of TADA and both the provision operate in a separate and independent fields. It is, however, permissible for the public prosecutor to resist the grant of bail by seeking an extension under clause (bb). It is, however, permissible for the public prosecutor to resist the grant of bail by seeking an extension under clause (bb). In this view of the matter, it is immaterial whether the application for bail on the ground of default under Section 20 (4) is filed first or the report as envisaged by clause (bb) is filed by the Public Prosecutor first so long as both are considered while granting or refusing bail. If the period prescribed by clause (b) of Section 20 (4) has expired and the Court does not grant an extension on the report of the Public Prosecutor made under clause (bb), the court shall release the accused on bail as it would be an indefeasible right of the accused to be so released. Even that the court grants an extension under clause (bb) but the charge sheet is not filed within the extended period, the court shall have no option but to release the accused on bail, if he seeks it and is prepared to furnish the bail as directed by the court. Moreover, no extension under clause (bb) can be granted by the Designated Court except on a report of the Public Prosecutor nor can extension be granted for reasons other than those specifically contained in clause (bb), which must be strictly construed”. In the aforementioned case, it was held that the Designated Court would have “no jurisdiction to deny to an accused his indefeasible right to be released on bail on account of the default of the prosecution to file the charge sheet within the prescribed time if an accused seeks and is prepared to furnish the bail bond as directed by the court and that a „notice? to the accused is required to be given by the Designated Court before it grants any extension under the further proviso beyond the prescribed period of 180 days for completing the investigation. It was, therefore, held by the Bench that the indefeasible right accruing to the accused in such a situation is enforceable only prior to the filing of the charge sheet and it does not survive or remain enforceable on the charge sheet being filed, if already not availed of. It was, therefore, held by the Bench that the indefeasible right accruing to the accused in such a situation is enforceable only prior to the filing of the charge sheet and it does not survive or remain enforceable on the charge sheet being filed, if already not availed of. Once the charge sheet 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 charge sheet. The custody of the accused after the charge sheet 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 remain unenforced till the filing of the charge sheet, then there is no question of its enforcement thereafter since it is extinguished the moment charge sheet 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 would 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. This was 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 167Cr.P.C. in such a situation. This principle has been reiterated in the following decision of the Apex Court. State of MP V. Rustam and Others 1995 Supp. (3) SCC 221, para 4, (2) Dr. Bipin Shantilal Panchal V. State of Gujrat (1996) 1 SCC 718 para 4 : ( AIR 1996 SC 2897 : 1996 AIR SCW 734). This principle has been reiterated in the following decision of the Apex Court. State of MP V. Rustam and Others 1995 Supp. (3) SCC 221, para 4, (2) Dr. Bipin Shantilal Panchal V. State of Gujrat (1996) 1 SCC 718 para 4 : ( AIR 1996 SC 2897 : 1996 AIR SCW 734). It may be mentioned that this judgement was delivered by a three Judge Bench of this Court (3) Dinesh Dalmia V. CBI (2007) 8 SCC 770 para 39 : ( AIR 2008 Sc 78 : 2007 AIR SCW 6112), and (4) Mustaq Ahmed Mohammad Isak and others V. State of Maharashtra (2009) 7 SCC 480 para 12: ( AIR 2009 SC 2772 : 2009 AIR SCW 4202). In Udai Mohanlal Acharya Vs. State of Maharashtra, the Hon’ble judges (per majority recorded their conclusion as hereunder :- “1. Under sub-Section (2) of Section 167, of Magistrate before whom an accused is produced while the police is investigating into the offence can authorize detention of the accused in such custody as a Magistrate thinks fit for a term not exceeding 15 days on the whole. 2. Under the proviso to the aforesaid sub Section (2) of Section 167, the Magistrate may authorize detention of the accused otherwise than in the custody of the police for a total period not exceeding 90 days where the investigation relates to offence punishable with death, imprisonment for life or imprisonment for a term of not less than 10 years, and 60 days where the investigation relates to any other offence. 3. On the expiry of the said period of 90 days or 60 days, as the case, may be, and indefeasible right accrues in favour of the accused for being released on bail on account of default by the investigating agency in the completion of the investigation within the period prescribed and the accused is entitled to be released on bail, if he is prepared to an furnishes the bail as directed by the Magistrate. 4. 4. When an application for bail is filed by an accused for enforcement of his indefeasible right alleged to have been accrued in his favour on account of default on the part of investigating agency in completion of investigation within the specified period, the Magistrate/Court must dispose of it forthwith, on being satisfied that in fact the accused has been in custody for the period of 90 days or 60 days, as specified and no charge sheet has been filed by the investigating agency. Such prompt action on the part of Magistrate/ Court will not enable the prosecution to frustrate the object of the Act and the legislative mandate of an accused being released on bail on account of the default on the part of the investigating agency in completing the investigation within the period stipulated. 5. If the accused in unable to furnish the bail as directed by the Magistrate, then on a conjoint reading of Explanation I and the proviso to sub Section (2) of Section 167, the continued custody of the accused even beyond the specified period in para (a) will not be unauthorized, and therefore, if during that period the investigation is complete and the charge sheet is filed then the so-called indefeasible right of the accused stand extinguished. 6. The expression “ if not already availed of” used by this Court in Sanjay Dutt case must be understood to mean when the accused files an application and is prepared to offer bail on being directed. In other words, on expiry of the period specified in para (a) of the proviso so sub Section (2) of Section 167 if the accused files an application for bail and offers also to furnish the bail on being directed that it has to be held that the accused has availed of his indefeasible right even though the Court has not considered the said application and has not indicated the terms and conditions of bail, and the accused has not furnished the same”. In Sadhvi Pragyna Singh Thakur V. The State of Maharashtra reported in AIR 2011 SC (supp) 755) analyzing all such decisions rendered by the Apex Court, it was stated in para – 23 “From the discussion made above, it is quite clear that even if an application for bail is filed on the ground that charge sheet was not filed within 90 days, 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 be only on merits”. (emphasis added) ---------- ---------- ---------- The object of incorporating the provision of Section 167 (2) is to see that a person arrested by the police does not languish unnecessarily awaiting completion of investigation. However, the indefeasible right of the accused to be released on default bail cannot be frustrated by the machination of the State. No necessary adjournment in such cases should be given by the Court, lest the time interregnum may be utilized to the disadvantage of the accused. In the case in hand, on the day when application under Section 167 (2) was filed, charge sheet was submitted by 10 a.m. After the submission of charge sheet, there was no question of any default bail and if at all, bail could be granted, it could only be on the merits of the case and not otherwise. On the basis of the aforementioned discussion, the present application is held to be misconceived and is thus, rejected.