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2015 DIGILAW 1334 (RAJ)

Guddu @ Mohd. Riyazudeen v. State of Rajasthan

2015-07-20

M.N.BHANDARI

body2015
JUDGMENT 1. - This bail application has been filed in reference to Section 167(2) Cr.P.C. 2. It is stated that by remand, custody of the accused- applicant can be authorised for maximum period of 60 or 90 days as per Section 167(2) Cr.P.C. In the instant case, the accused-applicant was detained beyond the period of 90 days. It is not only that the charge sheet but cognizance of offence was subsequent to the period of 90 days. Since, cognizance of offence was not taken within the period of 90 days, the accused-applicant is entitled for grant of bail. 3. A reference of judgement of this Court in the case of Shankerlal Nai v. State of Rajasthan reported in 2007 (3) RCC 1217 has been given. In the said case, two earlier judgements of this Court in the case of Roopchand v. State of Rajasthan reported in 1997 Cr.L.R. (Raj.) 774 and in the case of Narayan & Ors. v. State of Rajasthan reported in 1982 RCC 316 were relied. The judgement of this Court in the case of Mahaveer Singh v. State of Rajasthan reported in 1992 RCC 439 has also been listed by learned counsel for the accused-applicant. A prayer is accordingly made to enlarge the accused-applicant on bail. 4. Learned Public Prosecutor has opposed the bail application and submits that charge-sheet in the case was filed within 90 days from the date of remand. The custody of the accused-applicant during the period of investigation was authorised by the remand orders passed from time to time. In view of the above, the custody of the accused-applicant with the Investigating Officer was authorised for the period provided under Section 167(2) Cr.PC. Thus, the plea raised by learned counsel for the accused-applicant is not tenable. 5. It is further stated that charge-sheet was filed prior to filing of bail application, thus even if it was filed beyond the period of 90 days, the right of the accused-applicant vanished with filing of charge sheet. In view of the above, the accused-applicant cannot have a claim in reference to Section 167(2) Cr.P.C. It is also stated that there is no mandate under Section 167(2) of Cr.P.C. to take cognizance within the period, for which, custody is authorized. A separate provision exists to provide limitation for cognizance of offence. In view of the above, the accused-applicant cannot have a claim in reference to Section 167(2) Cr.P.C. It is also stated that there is no mandate under Section 167(2) of Cr.P.C. to take cognizance within the period, for which, custody is authorized. A separate provision exists to provide limitation for cognizance of offence. In view of the above, no ground is made out for acceptance of plea of learned counsel for the accused-applicant. The reference of all the four judgements, given by learned counsel for the accused-applicant, is in ignorance of the provisions of Cr.PC. and the judgements of Hon'ble Supreme Court. 6. I have considered the submissions made by learned counsel for the parties and scanned the matter carefully. 7. The issue for my consideration is as to whether accused-applicant is entitled for bail in reference to Section 167(2) Cr.PC. The facts narrated by learned counsel for the accused-applicant need to be considered first before coming to the legal issue. 8. The accused-applicant was taken in the custody on 29th March, 2015. The charge-sheet is said to have been filed before the Court below on 25th June, 2015. If total days in between are counted even after inclusion of the date of first remand, it comes to 89 days only. In view of the above, it becomes clear that charge-sheet was filed within the period provided under Section 167(2) Cr.PC. In view of the above, the argument of learned counsel for the accused-applicant that charge-sheet was filed beyond the period given under Section 167(2) Cr.P.C. is not made out. 9. The question now comes as to whether cognizance of offence was also required to be taken within the period of 90 days. 10. The bail application does not disclose the date when the cognizance of offence was taken, rather the order sheet of the date of filing of charge-sheet or of subsequent date, have not been enclosed along with the bail application to determine the aforesaid issue. In view of the above, vague ground has been raised in regard to cognizance of offence. This is the factual position of the case. 11. The question now remains as to whether Section 167(2) Cr.PC is for authorisation of custody or mandates cognizance of offence within specified period. For ready reference, Section 167(2) Cr.PC. is quoted hereunder:Section 167 - Procedure when investigation cannot be completed in twenty-four hours (1)........... This is the factual position of the case. 11. The question now remains as to whether Section 167(2) Cr.PC is for authorisation of custody or mandates cognizance of offence within specified period. For ready reference, Section 167(2) Cr.PC. is quoted hereunder:Section 167 - Procedure when investigation cannot be completed in twenty-four hours (1)........... (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, authorise the detention of the accused in such custody as such Magistrate thinks fit, a term not exceeding fifteen days in the whole; and if he has no 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 authorise 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 authorise 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; (ii) sixty days, where the investigation relates to any other offence and, on the expiry of the said period of ninety days, or sixty days, as the case may be, the accused person shall be released on bail if he is prepared to and does furnish bail, and every person released on bail under this sub-section shall be deemed to be to released under the provisions of Chapter XXXIII for the purposes of that Chapter;] [(b) no Magistrate shall authorise detention of the accused in custody of the police under this section unless the accused is produced before him in person for the first time and subsequently every time till the accused remains in the custody of the police, but the Magistrate may extend further detention in judicial custody on production of the accused either in person or through the medium of electronic video linkage;]; (c) no Magistrate of the second class, not specially empowered in this behalf by the High Court, shall authorise detention in the custody of the police. [Explanation I - For the avoidance of doubts, it is hereby declared that, notwithstanding the expiry of the period specified in paragraph (a), the accused shall be detained in custody so long as he does not furnish bail.] [Explanation II. - If any question arises whether an accused person was produced before the Magistrate as required under clause (b), the production of the accused person may be proved by his signature on the order authorising detention or by the order certified by the Magistrate as to production of the accused person through the medium of electronic video linkage, as the case may be.] [Provided further that in case of a woman under eighteen years of age, the detention shall be authorised to be in the custody of a remand home or recognised social institution.]" 12. The provision quoted above does not show limitation for cognizance of offence. It in fact, authorises the period of detention during the course of investigation. In the instant case, the investigation was completed with filing of charge-sheet within the period, for which, custody was authorised by the learned Magistrate and was as per the provisions. After filing of the charge sheet, the Court is competent to pass order for the custody during the pendency of the case. The issue as to whether such an order was passed or not, is not before this Court either through pleadings or by the documents. 13. Whether cognizance of offence is required to be taken within the period prescribed under Section 167(2) of Cr.P.C. 14. The aforesaid issue has already been answered by the Hon'ble Apex Court in the case of Suresh Kumar Bhikamchand Jain v. State of Maharashtra & Anr. reported in (2013) 3 SCC 77 . The relevant para of the said judgement is quoted hereunder for ready reference : "18. None of the said cases detract from the position that once a charge-sheet is filed within the stipulated time, the question of grant of default bail or statutory bail does not arise. As indicated herein above, in our view, the filing of charge-sheet is sufficient compliance with the provisions of Section 167(2)(a)(ii) in this case. Whether cognizance is taken or not is not material as far as Section 167 Code of Criminal Procedure is concerned. As indicated herein above, in our view, the filing of charge-sheet is sufficient compliance with the provisions of Section 167(2)(a)(ii) in this case. Whether cognizance is taken or not is not material as far as Section 167 Code of Criminal Procedure is concerned. The right which may have accrued to the Petitioner, had charge-sheet not been filed, Is not attracted to the facts of this case. Merely because sanction has not been obtained to prosecute the accused and to proceed to the stage of Section 309 of Code of Criminal Procedure, it cannot be said that the accused is entitled to grant of statutory bail, as envisaged In Section 167 of Code of Criminal Procedure. The scheme of the Code of Criminal Procedure is such that once the investigation stage is completed, the Court proceeds to the next stage, which is the taking of cognizance and trial. An accused has to remain in custody of some court. During the period of investigation, the accused is under the custody of the Magistrate before whom he or she is first produced. During that stage, under Section 167(2) Code of Criminal Procedure, the Magistrate is vested with authority to remand the accused to custody, both police custody and/or judicial custody, for 15 days at a time, up to a maximum period of 60 days in cases of offences punishable for less than 10 years and 90 days where the offences are punishable for over 10 years or even death sentence. In the event, an investigating authority fails to file the charge-sheet within the stipulated period, the accused is entitled to be released on statutory bail. In such a situation, the accused continues to remain in the custody of the Magistrate till such time as cognizance is taken by the Court trying the offence, when the said Court assumes custody of the accused for purposes of remand during the trial in terms of Section 309 Code of Criminal Procedure. The two stages are different, but one follows the other so as to maintain a continuity of the custody of the accused with a court." 15. In the aforesaid judgement, Hon'ble Apex Court has referred Constitutional Bench's judgement in the case of Sanjay Dutt v. State reported in (1994) 5 SCC 410 . Therein, the similar issue was dealt with. The two stages are different, but one follows the other so as to maintain a continuity of the custody of the accused with a court." 15. In the aforesaid judgement, Hon'ble Apex Court has referred Constitutional Bench's judgement in the case of Sanjay Dutt v. State reported in (1994) 5 SCC 410 . Therein, the similar issue was dealt with. In view of the judgement aforesaid, the plea taken by learned counsel for the accused-applicant about cognizance of offence beyond the period of 90 days is not tenable. The limitation given under Section 167(2) Cr.PC. is for authorisation of detention of the accused during the course of investigation. Once, the investigation is completed, the mandate of Section 167(2) Cr.P.C. no more remains. It would, however, be necessary to refer Section 468 Cr.PC., which provides limitation for the cognizance of offence. The said provision is also quoted hereunder for ready reference : "468. - Bar to taking cognizance after lapse of the period of limitation 1. Except as otherwise provided elsewhere in this Code, no Court, shall take cognizance of an offence of the category specified in Sub-Section (2), after the expiry of the period of limitation. 2. The period of limitation shall be - (1) Six months, if the offence is punishable with fine only; (2) One year, if the offence is punishable with imprisonment for a term not exceeding one year; (3) Three years, if the offence is punishable with imprisonment for a term exceeding one year but not exceeding three years. (4) For the purposes of this section, the period of limitation, in relation to offences which may be tried together, shall be determined with reference to the offence which is punishable with the more severe punishment or, as the case may be, the most severe punishment." 16. The provision quoted above refers limitation for cognizance of offence. If Section 167(2) Cr.P.C. is applied even for limitation to take cognizance of offence, it would be in conflict with the provision, quoted above. 17. In view of the above, the plea raised by learned counsel for the accused-applicant is not tenable even on the legal grounds apart from on facts. The reference of four judgements of this Court in the case of Shankerlal Nai (supra), Roopchand (supra), Mahaveer Singh (supra) and Narayan & Ors. 17. In view of the above, the plea raised by learned counsel for the accused-applicant is not tenable even on the legal grounds apart from on facts. The reference of four judgements of this Court in the case of Shankerlal Nai (supra), Roopchand (supra), Mahaveer Singh (supra) and Narayan & Ors. (supra) has been given but in the light of the Constitutional bench's judgement in the case of Sanjay Dutt (supra) and subsequent judgement in the case of Suresh Chand Bhikamcharid (supra), I find all the four judgements to be in ' conflict with the judgement of the Hon'ble Supreme Court, thus cannot be relied. 18. If seems that counsel appearing in those cases did not bring to the notice of this Court the judgement of Hon'ble Apex Court in the case of Sanjay Dutt (supra). This Court in another judgement dealt with the issue. It was in the cases of Shiv Bhagwan v. State of Rajasthan & Anr. reported in (2010) 2 ILR (Raj.) 462 and Ajay Sharma v. State of Rajasthan reported in 2007(1) ILR (Raj.) 621 . The relevant paras of those judgements are quoted hereunder for ready reference : "Shiv Bhagwan (Supra) 6. Perusal of the provision aforesaid shows that if investigation is not completed within 24 hours, Magistrate can authorise custody for a term not exceeding 15 days. Proviso to Sub-section (2) of Section 167 Cr.P.C, however, provides that custody can be authorised beyond the period of 15 days, but it cannot be beyond the period of 60 or 90 days as the case may be. Authorization of custody is permissible for a period of 90 days in a case punishable with an imprisonment of 10 years or more, otherwise makes custody authorised during the period of investigation is only of 60 days. The case in hand is for an offence under Sections 302 & 397/34 IPC, thus offence is punishable for imprisonment more than 10 years rather life imprisonment or death. 7. In view of the aforesaid the Magistrate was competent to authorise custody for a period of 90 days during the period of investigation. In the present matter investigation was completed within a period of 80 days as charge-sheet was filed on 30.5.2009 whereas petitioner was arrested on 10.3.2009 whereas petitioner was arrested on 10.3.2009. 7. In view of the aforesaid the Magistrate was competent to authorise custody for a period of 90 days during the period of investigation. In the present matter investigation was completed within a period of 80 days as charge-sheet was filed on 30.5.2009 whereas petitioner was arrested on 10.3.2009 whereas petitioner was arrested on 10.3.2009. The Court below, however, accepted the bail application based on two judgements in the cases of Shankerlal Nai and Narayan & Co. (supra) decided by this Court. In those judgements, it was held that period of 60 days or 90 days as the case may be would be determined till the cognizance is taken. The view aforesaid is contrary to the catena of judgements of the Hon'ble Apex Court on the issue. Even if language of Section 167 Cr.P.C. is taken note of, authorisation of the custody is during the period of investigation and it does not make a mention of cognizance. Once a charge-sheet is filed, investigation comes to an end and thereafter, custody of the accused is to be governed under the order of the Court i.e., either he is granted bail or refused the same at the time of filing of the charge-sheet. In any case, provision of Section 167(2) Cr.P.C is not attracted in those cases where investigation is completed within the time specified. In the case of Jeewan Kumar Raut (supra), Hon'ble Apex Court referring to the earlier judgement in the case of Sanjay Dutt v. State reported in (1994) 4 SCC 410 , came to the conclusion that charge-sheet has to be filed within the time specified and failure to do so may entail the bail in favour of the accused. Paras 32 & 33 of the aforesaid judgement are quoted hereunder for ready reference : 32. For the views we have taken, we are of the opinion that stricto sensu Sub-section (2) of Section 167 of the Code would not apply in a case of this nature. Even assuming for the sake of argument that Sub-section (2) of Section 167 of the Code requires filing of a report within 90 days and the complaint petition having been filed within the said period, the requirements thereof stand satisfied. 33. Even assuming for the sake of argument that Sub-section (2) of Section 167 of the Code requires filing of a report within 90 days and the complaint petition having been filed within the said period, the requirements thereof stand satisfied. 33. Appellant 2 having been arrested on 10.2.2008 and Appellant 1 having surrendered on 17.2.2008 as also the complaint petition having been filed on 29.4.2008, the requirement of Sub-section (2) of Section 167 of the Code stands satisfied. In Sanjay Dutt v. State this Court held : 53. (2)(b) The 'Indefeasible right' of the accused to be released on bail in accordance with Section 20(4) (bb) of 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 enures 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 filing of the challan only by the provisions relating to the grant of bail applicable at that stage. Only because the court itself took a long time in taking cognizance of the offence i.e. after the expiry of the period of 90 days, the same would not mean that any new right would be created in favour of the appellants thereby. Ajay Sharma (supra) 6. Only because the court itself took a long time in taking cognizance of the offence i.e. after the expiry of the period of 90 days, the same would not mean that any new right would be created in favour of the appellants thereby. Ajay Sharma (supra) 6. In this regard, though the Single Bench of this court in Beni Madhava's case (supra) and in Mahaveer Singh's case (supra) have held that the process of investigation is not complete till the magistrate examines the police report filed under Section 173 Cr.P.C. and takes cognizance of an offence under Section 190 Cr.P.C. and in such situation where cognizance has not been taken detention of the accused can be authorised under Section 167 Cr.P.C. It was further observed that the period under proviso to Section 167(2) Cr.P.C. has to be computed from the date of arrest till the magistrate passes an order under Section 190 Cr.P.C. Similar view has also been taken by the Single Bench of Bombay High Court in Khimbhadhur Palsiram Thapa v. State of Maharashtra 1989 (3) Crimes 543 , but this Issue has thoroughly been examined by the Division Bench of this court in the case of Nizzu (supra) wherein ratio of judgement in Beni Madhava's case (supra), was also disapproved and it was observed in para 5 as under - A bare reading of Section 167 Cr.P.C. will show that its various sub-sections deal with different situations. But one thing is clear that the procedure mentioned in the said section Is attracted only when the investigation cannot be completed within the period prescribed. Sub-section (i) of Section 167 Cr.P.C. will be attracted to a situation when any person is arrested and detained in custody and it appears to the investigating officer that the investigation cannot be completed within 24 hours. In such a situation, it is incumbent on the Officer Incharge of the police station or the police officer making the investigation, to forthwith transmit to the nearest Judicial Magistrate a copy of the entries in the diary relating to the case but also to forward the accused to such Magistrate. Sub-section (2) of Section 167 Cr.PC. thereafter comes into picture and it authorises any Magistrate, whether having jurisdiction in the matter or not, to order detention of the accused in such custody as he thinks fit, but in any case, the detention cannot exceed fifteen days. Sub-section (2) of Section 167 Cr.PC. thereafter comes into picture and it authorises any Magistrate, whether having jurisdiction in the matter or not, to order detention of the accused in such custody as he thinks fit, but in any case, the detention cannot exceed fifteen days. Then, proviso to sub-section (2) of Section 167 Cr.P.C. comes into play and it prescribes different period of detention of the accused to be ordered by the Magistrate, depending on the sentence(s) which for the offences, with which the accused is charged, can be ultimately passed under the various sections of the Indian Penal Code. A reading of the aforesaid Section 167 Cr.P.C. would show that the said section will only apply to the investigation of the case and detention of the accused can be authorised only during the investigation of the case and not thereafter. It is the mandate of the Legislature as contained in sub-section (1) of Section 173 Cr.P.C. that every investigation under this Chapter 12 shall be completed without unnecessary delay and under sub-section (2) of Section 173 Cr.P.C. as soon as the investigation is completed, the Officer Incharge of the Police Station shall forward to the Magistrate empowered to take cognizance of the offence on a police report, a report in the form prescribed by the State Government stating various facts, name of the accused etc. as contained in clauses (a) to (g) of sub-section (2) of Section 173 Cr.P.C. Therefore, from a joint reading of Sections 167 and 173 Cr.P.C. it is clear that the state of investigation comes to an end no sooner the report is forwarded by the Officer Incharge of the Police Station to the Magistrate. The learned Single Judge in the case of Beni Madhav (supra) has extended the investigation even after the filing of the police report under Section 167, on the ground that even after the submission of the report under section 173 Cr.P.C. it is open to the Magistrate to direct further investigation under sub-section (2) of Section 156 Cr.P.C. With due respect to the learned Judge, we are unable to agree with him. No doubt, Section 173 (8) Cr.P.C. does not preclude further investigation in respect of offence after a report under sub-section (2) of Section 173 Cr.P.C. has been forwarded to the Magistrate and the Officer Incharge of the police station obtains further evidence, oral or documentary, and forwards it to the Magistrate, a further report or reports regarding such evidence in the form prescribed but we are of the opinion that it does not mean that the investigation can be said to be still pending. It can, therefore, be concluded that proviso to Sub-section (2) of Section 167 Cr.P.C. will not apply to a case where after the completion of the investigation, the Officer Incharge of the Police Station has forwarded to the Magistrate, report u/sub-sec. (2) of Section 173 Cr.P.C. and, therefore, merely because after the investigation report or the charge-sheet has been filed within the prescribed period by the Officer Incharge of the Police Station but cognizance of the offence has not been taken by the Magistrate, it cannot be said that under proviso to sub-section (2) of Section 167 Cr.P.C. the accused will be entitled for being released on bail." The Division Bench further observed - We also hold that in a case where the charge- sheet is filed within the prescribed period, the provisions of the proviso to sub-section (2) of Section 167 Cr.P.C. are not attracted and the accused does not become entitled to bail. 7. The provision of Section 167(2) Cr.P.C. was also examined by the Hon'ble Apex Court in Uday Mohanlal Acharya v. State of Maharashtra, 2001(2) ACJ 216 (S.C.) : ( 2001 5 SCC 453 , in which after considering the judgement of Constitution Bench delivered in the case of Sanjay Dutt v. State through CBI, (1994) 5 SCC 410 , it was held that on-the expiry of the said period of ninety days or sixty days, as the case may be, prescribed under the proviso to Sub-section (2) of Section 167 Cr.P.C, an indefeasible right accrues in favour of the accused for being released on bail on account of default of the Investigating Agency in completion of the investigation within the specified period. In the judgement delivered by the Supreme Court in Sanjay Dutt's case (supra) it was observed that the indefeasible right of the accused does not survive or remain enforceable on the challan being filed, if already not availed of. In the judgement delivered by the Supreme Court in Sanjay Dutt's case (supra) it was observed that the indefeasible right of the accused does not survive or remain enforceable on the challan being filed, if already not availed of. 8. In the light of these authoritative pronouncements of Hon'ble the Apex Court and Division Bench of this court, the position is amply clear that indefeasible right envisaged under Sub-section (2) of Section 167 Cr.PC. of bail, is only available when charge-sheet has not been filed within the prescribed period from the date of arrest of the accused, and the proviso to Sub-section (2) of Section 167 Cr.P.C. is not attracted and also the accused does not become entitled to bail on the ground that cognizance has not been taken within the stipulated period." 19. Ir, view of the discussion made above, I do not find that a case is made out to grant bail to the accused-applicant. Accordingly, this bail application is dismissed. 20. Before parting with the judgement, it would be necessary to comment that time and again, reference of four judgements of this Court in the case of Shankerlal Nai, Roopchand, Mahaveer Singh and Narayan & Ors. is given in ignorance to the judgements of Hon'ble Apex Court, which is not a proper practise of the Advocates because reference of any judgement of this Court in conflict with the judgement of Hon'ble Apex Court on the same issue, cannot be considered to be healthy practise, thus the Bar is directed to keep the aforesaid in mind and should not refer the judgements, which are directly in conflict with the judgement of Hon'ble Apex Court or subsequently reversed. *******