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2014 DIGILAW 33 (JK)

Jamal Din v. CPO Kishtwar

2014-02-03

JANAK RAJ KOTWAL

body2014
1. This petition seeks invoking of inherent jurisdiction of this Court under Section 561-A of the Code of Criminal Procedure (for short, the Code) to quash order dated 15.10.2012 passed by learned Sessions Judge, Kishtwar in a criminal revision, whereby order dated 15.2.2011 passed by ld. Chief Judicial Magistrate, Kishtwar granting compulsive bail in terms of section 167 (2) of the Code to the petitioner has been set aside. 2. Heard. I have perused the record. 3. Facts necessary for disposal of this revision petition, briefly, are these: 3.1 Petitioner came to be arrested on 16.12.2010 for his involvement in commission of offences under sections 302/109 RPC and 7/27 Arms Act in FIR No. 248/2010 of Police Station, Kishtwar. He was produced before the Magistrate and the initial remand obtained on 17.12.2010. Remand was extended from time to time and ultimately Police filed charge-sheet (challan) against him in the court of ld. Chief Judicial Magistrate, Kishtwar on 15.02.2011. In the meantime, bail application on behalf of the accused seeking compulsive bail in terms of 167 (2) of the Code had been moved on 14.02.2011. Learned Chief Judicial Magistrate took up this bail application too at the time of the filing of the charge sheet on 15.02.2011 and, besides committing the case for trial to the court of Sessions Judge, Kishtwat, ordered release of the accused on bail in terms of section 167 (2) of the Code. In granting bail to the accused, learned Chief Judicial Magistrate held : "At this stage, a bail application on behalf of accused Jamal Din has also been placed on record, alleged to have been moved by accused Jamal Din on 14.2.2011. The challan in the present case against the accused persons is presented today on 15.2.2011. The accused Jamal Din as per the first remand application seems to have been arrested on 16.12.2010. The first remand of the accused was taken by the Investigating agency on 17.12.2010. If the period of remand of the accused is to be reckoned from 17.12.2010, then the period of 60 days would expire on 14.2.2011. Thus, an indefeasible right for bail in favour of the accused u/sec. 167(2) Cr. P.C has accrued. The accused as such is directed to be enlarged on bail provided he shall furnish bail bond in the sum of Rs. Thus, an indefeasible right for bail in favour of the accused u/sec. 167(2) Cr. P.C has accrued. The accused as such is directed to be enlarged on bail provided he shall furnish bail bond in the sum of Rs. 25,000/ and personal bond in the like amount, failing which accused shall be kept in judicial custody." 3.2 State challenged the order dated 15.02.2011 before the ld. Sessions Judge, Kishtwar in a revision petition and the learned Sessions Judge set aside the order. Hence, this petition under section 561-A. Cr. P.C. 4. Section 167 of the Code provides for the procedure as regards detention in custody of an accused when investigation cannot be completed within a period 24 hours as fixed under section 61 of the Code. As per the sub-section (1) of section 167, if after arrest of an accused, investigation is not likely to be completed within the period of 24 hours, the arrested accused is required to be produced before the Magistrate forthwith. Sub-section (2) of section 167 empowers the Magistrate to authorize detention of the accused in Police custody or judicial custody for an initial period not exceeding fifteen days. Proviso (a) to sub-section (2) of 167, however, empowers the Magistrate to authorize detention of the accused beyond the initial period 15 days in custody other than the police custody. The proviso at the same time lays an outer limit of sixty days to the total period of custody permissible under section 167 and provides further that on the expiry of said sixty days accused shall be released on bail, if he is prepared to and does furnish bail. If, however, the charge sheet against the accused in the case in which the arrest has been made is filed in the court within the said 60 days, further detention of the accused in connection with trial of the case would be permissible under and shall be governed by section 344 of the Code. 5. Arrested accused, therefore, gets a statutory right to bail, what is also called as compulsive bail, under proviso (a) to sub-section (2) of section 167 of the Code if charge sheet against him is not presented within the stipulated period of sixty days and in that case no Magistrate is empowered to authorize further detention of the accused either in police custody or otherwise. The only requirement to be fulfilled by the accused in that case is to apply for such bail after the expiry of the stipulated period and before the charge sheet is filed. The right to such bail shall cease to exist and no application shall, however, lie after the charge sheet is filed. 6. Supreme Court in the three-Judge Bench decision in Uday Mohanlal Acharya v. State of Maharastra, AIR 2001 SC 1910 , while interpreting sub-section (2) of section 167 along with proviso (a) has held in para 6 of the reporting: "There cannot be any dispute that on expiry of the period indicated in the proviso to sub section (2) of S. 167 of the Code of Criminal Procedure the accused has to be released on bail if he is prepared to and does furnish the bail. Even though a Magistrate does not possess any jurisdiction to refuse bail when no charge sheet is filed after expiry of period stipulated under the proviso to sub section (2) S. 167 and even though the accused may be prepared to furnish the bail required, but such furnishing of bail has to be in accordance with the order passed by the Magistrate. In other words, without the order of the Magistrate the legislative mandate engrafted in proviso to sub section (2) of S. 167 cannot be given effect to and there lies the rub." 7. A comparative reading of order granting bail dated 15.02.2011 passed by the learned Chief Judicial Magistrate and the impugned order dated 15.10.2012 refusing the bail, passed by the learned Sessions Judge would show that two Judicial Authorities were in the same wave length as for as accrual of the right to compulsive bail under proviso (a) to sub-section (2) of section 167 of the Code is concerned but they differed in their approach in counting the stipulated period of sixty days. 8. Ld. Chief Judicial Magistrate counted the sixty days' period from the date of the initial remand, that is, 17.12.2010, inclusive of the said day. To say otherwise, learned Chief Judicial Magistrate took 17.12.2010 as the first day and thereby 14.02.2011 as sixtieth day and held that indefeasible right to bail has accrued as the charge sheet was presented on 15.2.2011, which, as per the calculation made by the learned Chief Judicial Magistrate should be the sixty-first day. 9. To say otherwise, learned Chief Judicial Magistrate took 17.12.2010 as the first day and thereby 14.02.2011 as sixtieth day and held that indefeasible right to bail has accrued as the charge sheet was presented on 15.2.2011, which, as per the calculation made by the learned Chief Judicial Magistrate should be the sixty-first day. 9. Learned Sessions Judge, briefly and correctly stated the legal position that provision in sub-section (2) of section 167 is mandatory and a duty is caste upon a Magistrate to grant bail if the charge sheet is not presented within sixty days. Further that the statutory right ceases to exist if the accused does not apply for bail on the expiry of the sixty days and in the meantime charge sheet is presented in the court. Learned Sessions Judge also took note that application on behalf of the accused was filed before filing of the charge sheet. Learned Sessions Judge referred without disapproval to the view taken by the learned Chief Judicial Magistrate that accused came to be arrested on 16.12.2010, first remand was granted on 17.12.2010, reckoned the from 17.10.2010 sixty days expired on 14.02.2011 and that the charge sheet was presented on 15.2.2011, that is, on sixty first day. 10. Ld. Sessions Judge, while stating the legal position that sixty days period is to be reckoned from the date of initial remand and not from the date of arrest, however, posed a question to himself, whether the day of remand is to be included or excluded, emphasizing that if first day of remand is to be included, the order passed by the Chief Judicial Magistrate is perfectly legal and if it is to be excluded then the order is required to be set aside. 11. Learned Sessions Judge, as the impugned order would show, did not record his view as to whether the first day of remand should be included or excluded while calculating the period of 60 days. Nonetheless, learned Sessions Judge, while referring to a judgment of this Court in Azhar Ahmad Tak and anr. v. State and ors. 2010 (1) JKJ [HC] 209, and applying the same held that the charge sheet was presented on sixtieth day and therefore, was within statutory period and the accused was not entitled to compulsive bail. Ld. Sessions Judge, thus, excluded the first day of remand. 12. v. State and ors. 2010 (1) JKJ [HC] 209, and applying the same held that the charge sheet was presented on sixtieth day and therefore, was within statutory period and the accused was not entitled to compulsive bail. Ld. Sessions Judge, thus, excluded the first day of remand. 12. The brief question arising for consideration, thus, would be, whether first day of remand, that is, 17. 12. 2010, could have been excluded? 13. That the period of sixty days as stipulated under proviso (a) to sub-section(2) of section 167 of the Code is to be reckoned from the first day of the initial remand after the arrest is no more res integra as for as this court is concerned and is now a well settled principle of law. Question in this regard came up for consideration before the Supreme Court in Chaganti Satyanarayana and ors. v. State of Andrha Pradesh, AIR 1986 SC 2130 . Question arose in following circumstances: 13.1 Appellants (accused) were arrested on 19.7.1985 and produced before the magistrate on 20.7.1985. They were initially remanded to judicial custody for a period of fifteen days and thereafter remand was extended from time to time. Charge sheet was presented on 17.10.1985. On the application of the appellants, learned Magistrate released them on compulsive bail holding that the nineteen days stipulated under proviso to sub-section (2) section 167 (Central Code) have to be reckoned from the date of arrest and not from the date of remand and so computed, charge sheet had not been filed on nineteenth day but on 91st day and therefore, held the appellants entitled to bail. The State challenged the order in a revision petition before the High Court and the High Court allowed the petition holding that period of 90 days envisaged by proviso to sub-section (2) section 167 has to be computed only from the date of remand and therefore, cancelled the bail. 14. Correctness of this order was challenged before the Supreme Court in an appeal. Supreme Court after what it termed as `critical examination' of the scope and effect of proviso (a) to sub-section (2) of section 167 of the Code held that the total period of ninety days or sixty days can begin to run only from the date of remand. Correctness of this order was challenged before the Supreme Court in an appeal. Supreme Court after what it termed as `critical examination' of the scope and effect of proviso (a) to sub-section (2) of section 167 of the Code held that the total period of ninety days or sixty days can begin to run only from the date of remand. It would be useful quote para 18 of the reporting: "The words used in proviso (a) are "no Magistrate shall authorize the detention of the accused person in custody," "under this paragraph", " for a total period exceeding i.e. 90 days/60 days". Detention can be authorized by the Magistrate only from the time the order of remand is passed. The earlier period when the accused is in custody of a police officer in exercise of his powers under S. 57 cannot constitute detention pursuant to an authorization issued by the Magistrate. It therefore, stands to reason that the total period of 90 days or 60 days can begin to run only from the date of order of remand. 15. Their Lordships after according consideration to the judgments relied upon on behalf of the appellants has further observed in para 32 of the quoting: "From what we have stated above, it is obvious that this Court has not expressed itself in any of the three decisions, either directly or indirectly, upholding proposition that for computing the total period of detention prescribed in clauses (i) & (ii) of proviso (a) to Section 167(2) of the Code, the date of arrest and not the date of production of the accused before the Magistrate should be taken as starting point. In light of our findings, we are clearly of the view that the contention of the appellants cannot be sustained. The ld. Single Judge, it must therefore be held, has acted correctly in allowing the petition filed by the State for cancellation of the bail granted to the appellants." 16. In light of our findings, we are clearly of the view that the contention of the appellants cannot be sustained. The ld. Single Judge, it must therefore be held, has acted correctly in allowing the petition filed by the State for cancellation of the bail granted to the appellants." 16. Having regard to the circumstances in which compulsive bail was granted by the learned Magistrate in Chaganty Satyanarayana (supra) and principle of law laid down by the Supreme Court, it would admit of no doubt to state that the period of sixty days as stipulated under proviso (a) to sub-section (2) of section 167 (2) of the Code begins and shall be computed from the first day of initial remand after arrest of the accused. To say bit more clearly, the first day of the stipulated period of sixty days would be the first day of the initial remand. To say that the first day of the initial remand is to be excluded would go in conflict with the settled position that the period of sixty days commences from the date of initial remand 17. The above position of law continues to hold ground till date and has never been diluted, much less altered. In a recent judgment dated 23.09.2011 rendered by the Supreme Court in Sadhvi Pragyan Singh Thakur v. State of Maharashtra, Cr. Appeal No. 1845 of 2011, date of arrest was alleged and found to be 23.10.2008 and date of remand was 24.10.2008. Charge sheet produced on 20.1.2009 was taken to have been filed on 89th day meaning thereby that the first day of remand, that is, 24.10.2008 was taken as day one of the stipulated period of ninety days. 18. I may also observe in this context that a calendar day as a unit of time is the interval between one midnight and another. So a fraction of a day for which the accused remains in custody after initial remand is a day for the purpose of proviso (a) to section 167 (2) of the Code. 19. In view of the clear position of law on the point, learned Sessions Judge, Kishtwar can be said to have erred in excluding the first day of initial remand (that, is, 17.12.2010) while computing the stipulated period of sixty days and holding that the charge sheet was presented on sixtieth day. 19. In view of the clear position of law on the point, learned Sessions Judge, Kishtwar can be said to have erred in excluding the first day of initial remand (that, is, 17.12.2010) while computing the stipulated period of sixty days and holding that the charge sheet was presented on sixtieth day. View taken by the learned Sessions Judge, therefore, cannot sustained and is liable to set aside, whereas view taken by the learned Chief judicial Magistrate that sixty days were complete on 14.2.2011 and thereby charge sheet was presented on sixty first day and right to compulsive bail had accrued to the accused (petitioner ) has to prevail. 20. Reliance on judgment of this Court in Azhar Ahmad Tak's case (supra) by the learned Sessions Judge was not appropriate because question as regards exclusion/inclusion of the first day of remand in stipulated period of sixty days had not been raised for consideration before the learned Single Judge of this Court in that case. Not even the question whether the period of sixty days shall be reckoned from date of arrest or from the date of remand was raised in that case. Question arising in that case was the time of making the application for compulsive bail. Learned Single Judge, while taking note of legal position that such an application is required to be filed on expiry of stipulated period and such right survives for availing until filing of the charge sheet, had found that application for bail was moved after filing of the charge sheet but by that time the right to compulsive bail had forfeited with the filing of the charge sheet. 21. It may, however, be pointed out that in that case, accused was arrested on 13.12.2008 and remand was also secured on the same day. Charge sheet was filed on 02.02.2009 and counted from 13.12.2009, it was sixty second day. Learned Judge, however, took it as admitted position that charge sheet has been produced on sixty first day as the sixtieth day was Sunday. Reference to sixtieth or sixty first day by the learned Jude obviously is obiter of the judgment and cannot be taken as finding of the court that charge sheet was filed on sixty first day and thereby to say that this court had excluded the first day of remand, that is, 03.12.2008. 22. Reference to sixtieth or sixty first day by the learned Jude obviously is obiter of the judgment and cannot be taken as finding of the court that charge sheet was filed on sixty first day and thereby to say that this court had excluded the first day of remand, that is, 03.12.2008. 22. For all that said and discussed above, order dated 15.10.2012 passed by the learned Sessions Judge, Kishtwar is set aside and it is ordered that the petitioner (accused) be released on bail in compliance with the order dated 15.02.2011 passed by the learned Chief Judicial Magistrate, Kishtwar. 23. A copy of this order be forwarded to Sessions Judge, Kishtwar for information.