Research › Search › Judgment

Chhattisgarh High Court · body

2014 DIGILAW 445 (CHH)

Sonuram v. State of Chhattisgarh

2014-12-05

SANJAY K.AGRAWAL

body2014
ORDER : Sanjay K. Agrawal, J. 1. The petitioners are facing prosecution for commission of offences punishable under Section 10, 13 & 18 of the Unlawful Activities (Prevention) Act, 1967 (henceforth 'the Act, 1967') and Section 25 of the Arms Act as well under Section 3 & 5 of Explosive Substance Act and Section 8(3) of Rajya Vishesh Jan Suraksha Adhiniyam in connection with Crime No. 28/2014 registered at Police Station Bhanupratappur, District Kanker. The jurisdictional police could not complete the investigation of the aforesaid offences against the petitioners herein within the stipulated time of 90 days which expired on 30.04.2014 and, therefore, Public Prosecutor filed an application under Section 43-D(2)(b) of the Act, 1967 indicating progress of investigation and assigning reasons for detention of the petitioners/accused beyond the said period of 90 days and sought further time to complete the investigation and file charge sheet. 2. The trial Magistrate, by its order dated 22.4.2014, allowed the application and extended the said period up to 180 days. 3. Thereafter, the petitioners herein moved an application under Section 167(2) of the Code of Criminal Procedure (for short 'the Code') before the Judicial Magistrate First Class, Bhanupratappur stating that charge sheet against the petitioners were not filed within a period of 90 days and, therefore, they are entitled to be released on bail as indefeasible right has accrued in their favour to be released on bail after the expiry of period of 90 days. The said application was opposed by the public prosecutor relying on the provisions contained in Section 43-D(2)(b) of the Act, 1967 stating that period of 90 days has already been extended by learned Magistrate in exercise of power conferred under Section 43-D(2)(b) of the Act, 1967 and that has not been challenged and it has become final. 4. Learned Magistrate by its order dated 25.06.2014, rejected the petitioners' application under Section 167(2) of the Code holding that period of investigation has already been extended by the said Court in accordance with the provisions contained in Section 43-D(2)(b) of the Act, 1967 and dismissed the revision petition. 5. Questioning the said order, petitioners herein preferred revision before the Additional Sessions Judge, Bhanupratappur. 5. Questioning the said order, petitioners herein preferred revision before the Additional Sessions Judge, Bhanupratappur. Learned Additional Sessions Judge affirmed the order of the trial Magistrate vide order dated 18.07.2014 holding that the period of investigation and filing of challan has already been extended in accordance with the provisions contained in 43-D(2)(b) of the Act, 1967 and dismissed he revision petition. 6. Impugning the legality and correctness of the aforesaid order rejecting their application for grant of bail under Section167(2) of the Code as affirmed by the revisional Court, present petition under Section 482 of the Code has been filed, criticizing the order rejecting their application as bad and unsustainable in law. 7. Urging for the petitioners, Shri Sandeep Yadav, learned counsel would submit that the petitioners have been charged for the various offences including offences under the provisions of the Unlawful Activities (Prevention) Act, 1967 and only Sessions Court is competent to try the said offences after enactment of National Investigation Agency Act, 2008, therefore, only the Court of Session can direct for extension of period of detention of accused from 90 days up to 180 days after first remand by the nearest Magistrate and thus, the extension of period of detention of present petitioners by the learned Magistrate was totally unauthorized and in consequence, the petitioners after period of 90 days, indefensible right has been accrued in their favour under Section 167(2) of the Code, and as such they are entitled to be released on bail and order passed by trial Magistrate as affirmed by revisional Court deserves to be set aside. 8. Urging for the State, Shri Neeraj Jain, learned Govt. 8. Urging for the State, Shri Neeraj Jain, learned Govt. Advocate would submit that learned trial Court, on the application filed by the Public Prosecutor by order dated 22.04.2014, the trial Magistrate has extended the said period up to 180 days after first remand, which has attained finality as the petitioner did not challenge the legality and validity of the order extending the period of detention beyond 90 days up to 180 days in exercise of power conferred under Section 43-D(2)(b)of the Act, 1967 and unless and until order dated 22.04.2014 is challenged and set aside, further detention of the present petitioners after 90 days is valid and in accordance with law and the provisions of Section 167(2)(b) of the Code is not at all attracted and the petitioners are not entitled to be released on bail under Section 167(2) of the Code. 9. I have heard learned counsel appearing for the parties and considered the rival submissions made therein with utmost circumspection. 10. In order to appreciate the point raised at the bar it would be proper to notice the provisions of Section 167(2)(a)(i) of the Code & Section 43-D(2)(b) of the Act, 1967, which state as under:-- "167. 9. I have heard learned counsel appearing for the parties and considered the rival submissions made therein with utmost circumspection. 10. In order to appreciate the point raised at the bar it would be proper to notice the provisions of Section 167(2)(a)(i) of the Code & Section 43-D(2)(b) of the Act, 1967, which state as under:-- "167. Procedure when investigation cannot be completed in twenty-four hours.-- (1) xxx xxx xxx (2) The Magistrate to whom an accused person is forwarded under this section may, whether he has or has not jurisdiction to try the case from time to time, authorize the detention of the accused in such custody as such Magistrate thinks fit, for a term not exceeding fifteen days in the whole; and if he has not 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,-- (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 authorize 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;" And 43-D. Modified application of certain provisions of the Code-- (1) xxx xxx xxx (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) xxx xxx xxx (b) after the proviso, the following provisions 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 the Public Prosecutor indicating the progress of the 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" 11. The question that falls for consideration is whether the prosecution has committed default in terms of provisions of Section 167(2) of the Code read with Section 43-D(2)(b) of the Act, 1967? 12. The question that falls for consideration is whether the prosecution has committed default in terms of provisions of Section 167(2) of the Code read with Section 43-D(2)(b) of the Act, 1967? 12. A plain reading of the facts of the case would show that detention of the present petitioners was extended by order of the Magistrate dated 22.04.2014 beyond 90 days up to 180 days, the petitioners did not challenge that order on any ground whatsoever including that the Magistrate was not competent to order the extension of time of detention of the present petitioners beyond 90 days and allowed the same to be final by not questioning the same in the appropriate proceeding and has simply filed an application under Section 167(2) of the Code stating that indefeasible right has accrued in their favour after the expiry of 90 days and, therefore, they be released on bail in terms of Section 167(2) of the Code. 13. A plain perusal of Section 43-D(2)(b) of the Act, 1967 would show that Section 167(2) of the Code shall apply in relation to a case involving an offence punishable under the Act, 1967 subject to the modification that the detention of the accused persons beyond 90 days can be extended by the Court if satisfied with the report of the public prosecutor. 14. Thus, on the report of the Public Prosecutor, the learned Magistrate has extended the period of detention beyond 90 days up to 180 days; and that has not been questioned by the petitioner before any court of law in appropriate proceeding and allowed it to become final and after extension of period of detention up to 90 days simply filed an application claiming benefit of Section 167(2)(a)(i) of the Code, which the trial Magistrate as well as learned Session Judge did not found favour in absence of challenge to order extending detention period as well as for the reasons that Section43-D(2)(b) has expressly made the provisions of Section 167(2) of the Code applicable while trying the offence punishable under the Act, 1967 subject to proviso inserted in Section 167(2) of the Code by virtue of Section 43-D(2)(b) of the Act, 1967. As a fall out and the consequence of the aforesaid discussion, the petition is held to be devoid of merit and is, therefore, dismissed.