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2015 DIGILAW 702 (RAJ)

Bhagwan Lal v. State of Rajasthan

2015-03-24

BANWARI LAL SHARMA

body2015
JUDGMENT : Banwari Lal Sharma, J. Petitioner-accused has challenged the impugned order dated 13.10.2014, passed by the learned Special Judge, NDPS Cases No. l, Chittorgarh in Criminal Misc. Case No.226/2014 while invoking revisional jurisdiction vested in this court under Section 401 Cr.P.C. By the order impugned, the Court below dismissed the application filed by the petitioner under Section 167(2) Cr.P.C. wherein he prayed for releasing him on default bail as per provisions under Section 167(2) of the Cr.P.C. 2. The brief facts of the case are that on 12.04.2014, the Station House Officer, Parsoli aong with other police official conducted ‘Nakabandi’ and at about 9:15 P.M., one Bolero bearing registration No.RJ-09 UA3696 was stopped and on search of the said vehicle, 12.5 kgs. opium was found in bags. On this, the petitioner was arrested on 13.04.2014 and FIR No.69/2014 at Police Station Parsoli was registered and petitioner accused was produced before the learned trial court for custody. 3. On 10.10.2014, petitioner-accused preferred an application for releasing him on bail under Section 167(2) Cr.Restating therein that even passing of 180 days after his arrest, prosecution failed to complete investigation and to file charge sheet against the petitioner before the Court, therefore, the Court is not authorised to remand him further and he is entitled for default bail. A copy of application was supplied to learned Special Public Prosecutor, learned Court below instead of deciding the application on same day posted it for 13.10.2014 and on that day, Special Public Prosecutor, learned Special Judge, dismissed the application of the petitioner-accused and allowed the application of Special Public Prosecutor under Section 36(A)(4) of the NDPS Act and extended three days time for filing charge sheet and thereafter charge sheet was filed. Against the order by which the application of petitioner-accused was dismissed, this revision petition has been preferred before this Court. 4. Notice of revision petition was issued to respondent. 5. Heard Mr. Mahesh Thanvi, learned counsel or the petitioner and Mr.Deepak Choudhary, learned Public Prosecutor for the State and perused the impugned order and available record. 6. Learned counsel for the petitioner Mr. Mahesh Thanvi submitted that after completion of 180 days, as per provisions of Section 167(2) Cr.P.C., Police failed to complete investigation and file challan. 5. Heard Mr. Mahesh Thanvi, learned counsel or the petitioner and Mr.Deepak Choudhary, learned Public Prosecutor for the State and perused the impugned order and available record. 6. Learned counsel for the petitioner Mr. Mahesh Thanvi submitted that after completion of 180 days, as per provisions of Section 167(2) Cr.P.C., Police failed to complete investigation and file challan. As per the provisions of Section 167(2) the application should have been decided on the same day but instead of deciding it on same day, learned Court below posted it for 13.10.2014 and on that date, after completion of 180 days prosecution filed an application for extending time which should not have been entertained. He further submits that after expiry of 180 days, the right of bail was accrued in favour of the petitioner-accused and to frustrate that right, such application is not permissible but the learned Court below without considering these aspects wrongly dismissed the application of the petitioner-accused, therefore, the revision petition of the petitioner may be allowed and impugned order may be quashed and set aside and petitioner accused may be released on default bail. Learned counsel for the petitioner relied upon the judgment of Union of India through CBI v. Nirmala Yadav @ Raja Ram Yadav @ Deepak Yadav, 2014(3) Criminal Court Cases 308 (S.C.) : 2014(4) CJ (Cri) (SC) 1099 and Uday Mohan Lal Acharya v. State of Maharashtra, 2001(2) Apex Court Journal 216 (S.C.) : 2001(5) SCC 485. 7. Per contra, learned public Prosecutor supported the impugned order and submitted that application filed by petitioner-accused was premature and after extension of time the Cr.P.C., therefore, this revision petition may be dismissed. 8. I have considered the submission made at the Bar. 9. Before considering the arguments advanced at Bar, I deem it just and proper to go through the relevant provisions. 10. Section 167(2) Cr.P.C. reads as under: "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, for 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 total period exceeding. Ninety days, where the investigation relates to an hence punishable with death, imprisonment for life imprisonment for a term of nor less than ten hours; Sixty days, where the investigation relates to any offence, and, on the expiry of the said period ninety days, or sixty days, as the case may be, the used 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 so released under the provisions of Chapter XXXIII for the purpose of that Chapter. (b) no Magistrate shall authorise detention in any custody under this section unless the accused the produced before him. 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 paragraph (b), the production of the accused person may be proved by his signature on the order authorising detention. If any question arises whether an accused person was produced before the Magistrate as required under paragraph (b), the production of the accused person may be proved by his signature on the order authorising detention. (2A) Notwithstanding anything contained in sub-section (1) or sub-section (2), the officer in charge of the police station or the police officer making the investigation, if he is not below the rank of a sub-inspector, may where a Judicial Magistrate is not available, transmit to the nearest Executive Magistrate, on whom the powers of a Judicial Magistrate of Metropolitan Magistrate have been conferred, a copy of the entry in the diary shall, at the same time, forward the accused to such Executive Magistrate, and thereupon such Executive Magistrate, may, for reasons to be recorded in writing, authorise the detention of the accused person in such custody as he may think fit for a term not exceeding seven days in the aggregate; and, on the expiry of the period of detention so authorised, the expiry of the period of detention so authorise, the accused person shall be released on bail except where an order for further detention of the accused person has been made by a Magistrate competent to make such order; and, where an order for such further detention is made, the period during which the accused person was detained in custody under the orders made by an Executive Magistrate under this sub-section, shall be taken into account in computing the period specified in paragraph (a) of the proviso to sub-section (2); Provided that before the expiry of the period aforesaid, the Executive Magistrate shall transmit to the nearest Judicial Magistrate the records of the case together with a copy of the entries in the diary relating to the case which was transmitted to him by the officer in charge to the police station or the police officer making the investigation, as the case may be." Section 36 of the NDPS Act reads as under: (1) Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974),- (a) All offences under this Act which are punishable with imprisonment for a term of more than three years shall be triable only by the Special Court constituted for the area in which the offence has been committed or where there are more Special Courts than one for such area, by such one of them as may be specified in this behalf by the Government; (b) Where a person accused of or suspected of the commission of an offence under this Act is forwarded to a Magistrate under sub-section (2) or subsection (2A) of section 167 of the Code of Criminal Procedure, 1973 (2 of 1974), such Magistrate may authorise the detention of such person in such custody as he thinks fit for a period not exceeding fifteen days in the whole where such Magistrate is a Judicial Magistrate and seven days in the whole where such Magistrate is an Executive Magistrate ; Provided that in cases which are triable by the Special Court where such Magistrate considers- (i) When such person is forwarded to him as aforesaid; or (ii) Upon or at any time before the expiry of the period of detention authorised by him, that the detention of such person is unnecessary, he shall order such person to be forwarded to the Special Court having jurisdiction; (c) The Special Court may exercise, in relation to the person forwarded to it under clause (b), the same power which a Magistrate having jurisdiction to try a case may exercise under Section 167 of the Code of Criminal Procedure, 1973 (2 of 1974), in relation to an accused person in such case who has been forwarded to him under that section. (d) A Special Court may, upon perusal of police report of the facts constituting an offence under this Act or upon complaint made by an officer of the Central Government or a State Government authorised in this behalf, take cognizance of that offence without the accused being committed to it for trial. (2) When trying an offence under this Act, a Special Court may also try an offence other than an offence under this Act, with which the accused may, under the Code of Criminal Procedure, 1973 (2 of 1974), be charged at the same trial. (3) Nothing contained in this section shall be deemed to affect the special powers of the High Court regarding bail under Section 439 of the Code of Criminal Procedure, 1973 (2 of 1974), and the High Court may exercise such powers including the power under clause (b) of sub-section (1) of that section as if the reference to "Magistrate" in that section included also a reference to a "Special Court" constituted under section 36. (4) In respect of persons accused of an offence punishable under section 19 or section 24 or section 27 A or for offences involving commercial quantity the references in sub-section (2) of section 167 of the Code of Criminal Procedure, 1973 (2 of 1974) thereof to "ninety days", where they occur, shall be construed as reference to "one hundred and eighty days": Provided that, if it is not possible to complete the investigation within the said period of one hundred and eighty days, the Special Court may extend the said period upto one year 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 one hundred and eighty days. (5) Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974), the offences punishable under this Act with imprisonment for a term of not more than three years may be tried summarily. 11. (5) Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974), the offences punishable under this Act with imprisonment for a term of not more than three years may be tried summarily. 11. From the conjoint reading of the above provisions, it is clear that in NDPS Cases where illegal contraband is recovered from the accused, charge sheet should have been filed within 180 days from the date of first remand of the accused and that period can be extended by the Court on application of prosecution, if it considers fit upto one year but that application should be filed before expiry of period of 180 days. 12. The Hon'ble Supreme Court in Union of India through CBI v. Nirala Yadav (Supra) has observed as under: "41. Coming to the facts of the instant case, we find that prior to the date of expiry of 90 days which is the initial period for filing the charge-sheet, the prosecution neither had filed the charge-sheet not had it filed an application - for extension. Had an application for extension been filed, then the matter, would have been totally different. After the accused respondent filed the application, the prosecution submitted an application seeking extension of time for filing of the charge sheet. Mr. P.K. Dey, learned counsel for the appellant would submit that the same is permissible in view of the decision in Bipin Shantilal Panchal (supra) but on a studied scrutiny of the same we find the said decision only dealt with whether extension could be sought from time to time till the completion of period as provided in the statute i.e., 180 days. It did not address the issue what could be the effect of not filing an application for extension prior to expiry of the period because in the factual matrix it was not necessary to do so. In the instant case, the day the accused filed the application for benefit of the default provision as engrafted under proviso to sub-section (2) of section 167 Cr.P.C. the Court required the accused to file a rejoinder affidavit by the time the initial period provided under the statute had expired. There was no question of any contest as if the application for extension had been filed prior to the expiry of time. The adjournment by the learned Magistrate was misconceived. There was no question of any contest as if the application for extension had been filed prior to the expiry of time. The adjournment by the learned Magistrate was misconceived. He was obliged on that day to deal with the application filed by the accused as required under Section 167(2) Cr.P.C. We have no hesitation in saying that such procrastination frustrates the legislative mandate. A Court cannot act to extinguish the right of an accused if the law so confers on him. Law has to prevail. The prosecution cannot avail such subterfuges to frustrate or destroy the legal right of the accused. Such an act is not permissible. If we permit to ourselves to say so, the prosecution exhibited sheet negligence is not filing the application within the time which it was entitled to do so in law but made all adroit attempts to redeem the cause by its conduct." 13. In the matter of Uday Mohan Lal Acharya (Supra) Hon'ble Supreme Court while considering the provisions of Section 167(2) observed as under: "Having prescribed the maximum period what would be the consequences thereafter has been indicated in the proviso to sub-section (2) of section 167. On the expiry of said period of 90 days or 60 days, as the case may be, an 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 and does furnish the bail as directed by the Magistrate. The proviso is unambiguous and clear and stipulates that the accused shall be released on bail if he is prepared to and does furnish the bail (Sic.) which the investigation and thereby affecting the liberty of a citizen." 14. In the present case, it is not disputed that petitioner-accused was arrested on 13.04.2014 for offence under Section 8/18 of the NDPS Act and was produced before the Magistrate on same day. Thereafter, on 10.10.2014 he moved an application under Section 167(2) Cr.P.C. for his release on default bail/compulsive bail as the charge sheet was not filed till that date. In the present case, it is not disputed that petitioner-accused was arrested on 13.04.2014 for offence under Section 8/18 of the NDPS Act and was produced before the Magistrate on same day. Thereafter, on 10.10.2014 he moved an application under Section 167(2) Cr.P.C. for his release on default bail/compulsive bail as the charge sheet was not filed till that date. Therefore, an application was filed on 181st day (including the day of producing before Magistrate for remand and day of filing of application) after the first remand of petitioner-accused before the Magistrate for default bail and till that date, prosecution did not submit any application for extension of time. As such, the right of default bail was accrued in favour of the petitioner accused as per the legal proposition rendered in Union of India through CBI v. Nirala Yadav (supra), and as per the provisions enshrined under Section 36(A)(4) of the NDPS Act, the application for extension of time should have been preferred before expiration of statutory period for filing application and which was not filed by the prosecution but was filed after the application of petitioner-accused which cannot be frustrate the right of accused accrued already in his favour, therefore, learned trial Court dismissed the application of petitioner wrongly treating it premature. For the sake for arguments if the first or last day is excluded and it is taken that it was filed on 180th day even theft, since it was not decided on that day and was posted for 13.04.2014 and it was the 183th day from the date of first remand of petitioner, therefore right was accrued in his favour and he should have been released on default bail. 15. From the perusal of the bare language of above Section, it is clear that this provision is mandatory, therefore, learned Special Judge should have allowed the application of petitioner and release him on default bail but instead of releasing him, learned trial Court allowed the application for extension time for filing the charge sheet. Therefore, the order impugned is not sustainable and deserves to be quashed and set aside. 16. Accordingly, this revision petition is allowed and the impugned order dated 13.10.2014 passed by learned Special Judge, NDPS Cases No. 1 Chittorgarh, is hereby quashed and set aside. Therefore, the order impugned is not sustainable and deserves to be quashed and set aside. 16. Accordingly, this revision petition is allowed and the impugned order dated 13.10.2014 passed by learned Special Judge, NDPS Cases No. 1 Chittorgarh, is hereby quashed and set aside. The application of the petitioner under Section 167(2) Cr.P.C. is allowed and it is ordered that petitioner be released on bail provided he furnishes two sureties of Rs. 1,00,000/- each with a personal bond of Rs. 2,00,000/- to the satisfaction of the learned trial Court with stipulation that he shall appear before the trial Court on each and every date of hearing and whenever called upon to do so and with other usual conditions.