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Karnataka High Court · body

2015 DIGILAW 915 (KAR)

Saleem v. State of Karnataka

2015-08-13

A.N.VENUGOPALA GOWDA

body2015
ORDER 1. This petition is directed against the order dated 06.06.2015 passed in Spl. Case No. 72 of 2015 (Crime No. 144 of 2015), pending in the Court of the Prl. Sessions Judge, Mangaluru, D.K. 2. The essential facts are that the petitioner is arraigned as accused No. 1 in Crime No. 144 of 2015 by the Rural Police Station, Mangaluru, for the offences under S.8(c), 20(b)(ii)(A) of the Narcotic Drugs and Psychotropic substances Act, 1985. The petitioner was apprehended on 01.04.2015 and since then, is in judicial custody. An application filed under S.439 Cr. P.C. seeking bail on merit was dismissed by an Order dated 02.05.2015. The Investigating Officer having not filed the charge-sheet, on or before 31.05.2015, as required under S.167(2)(a)(ii) of Cr. P.C. an application was filed under S.167(2)(a)(ii) of Cr. P.C. to grant the statutory bail. The charge-sheet was filed by the Police on 03.06.2015. The Trial Judge despite finding, that the decision in Rajeev Chaudhary vs. State (NCT) of Delhi, 2001 Crl. L.J. 2941 is applicable and S.167(2)(a)(ii) of Cr. P.C. also is applicable and even after arriving at the finding, that the Investigating Officer should have filed the charge-sheet within 60 days, by making a reference to the decision in Sadhwi Pragyan Singh Thakur vs. State of Maharashtra, (2011) 4 Crimes 135 (SC), has dismissed the application by holding as follows: “19. In the present case, the charge sheet came to be filed when the application under S.167(2) of Cr. P.C. filed by the accused No. 1 was pending for consideration. Therefore, I am of the opinion that the accused No. 1 is not entitled for bail under S.167(2)(a)(ii) of Cr. P.C.” 3. Sri S. Vishwajith Shetty, learned advocate, contended that the right of release of the accused on bail, for non filing of charge-sheet within the stipulated period having been guaranteed under law, the Trial Judge, despite having come to the conclusion that the charge-sheet ought to have been filed within 60 days and also having noticed that the charge-sheet was not filed within the stipulated period, committed illegality in dismissing the application. He submitted that the decision in Sadhwi (supra), has no application and the error committed in dismissing the application is apparent on the face of the order. He submitted that the decision in Sadhwi (supra), has no application and the error committed in dismissing the application is apparent on the face of the order. He further submitted that the indefeasible right available to the accused could not have been denied, merely on account of the application filed under S.439 Cr. P.C. to grant bail on merit was dismissed on 02.05.2015 or on the ground that the charge sheet was filed during the pendency of the application filed under S.167(2)(a)(ii) of Cr. P.C. Placing reliance on the decisions in Uday Mohanlal Acharya vs. State of Maharashtra, (2001) Crl. L.J. 1832 and Sayed Mohd. Ahmed Kazmi vs. State, GNCTD and Others, AIR 2013 SC 152 , he contended that the petitioner is entitled to be released on bail. 4. Sri B. Visweswaraiah, learned HCGP, on the other hand made submissions in support of the impugned order. He contended that the decision in Sadhwi’s case being applicable, the Trial Judge is justified in dismissing the application and hence, no interference in this petition is called for. 5. The facts, dates and events, noticed supra, are not in dispute. 6. In Union of India vs. Thamisharasi and Others, (1995) 4 SCC 190 , the material facts are, that the accused were arrested on 27.06.1994 and produced before the Magistrate, who granted remand from time to time. Complaint against the accused was not filed within the maximum period of 90 days of the arrest specified in the proviso to sub-section (2) of Section 167 Cr. P.C. as the total period for which the accused can be remanded to custody during investigation. Accordingly, the accused claimed to be released on bail as of right on expiry of the period of 90 days and they were directed to be released on bail on that ground alone. Prayer of the prosecution for cancellation of the bail, having been rejected by the High Court, Apex Court was approached for relief by the prosecution. Accordingly, the accused claimed to be released on bail as of right on expiry of the period of 90 days and they were directed to be released on bail on that ground alone. Prayer of the prosecution for cancellation of the bail, having been rejected by the High Court, Apex Court was approached for relief by the prosecution. The question of law raised for decision is, Whether the proviso to sub-section (2) of Section 167 of the Code of Criminal Procedure, 1974 can be invoked by an accused arrested for commission of an offence under the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as “the NDPS Act”), to claim release on bail on the expiry of the total period specified therein if the complaint is not filed within that period? 7. The Apex Court has held as follows: “10. The limitations on granting of bail specified in clause (b) of sub-section (1) of Section 37 come in only when the question of granting bail arises on merits. By its very nature the provision is not attracted when the grant of bail is automatic on account of the default in filing the complaint within the maximum period of custody permitted during investigation by virtue of sub-section (2) of Section 167 Cr. P.C. The only fact material to attract the proviso to sub-section (2) of Section 167 is the default in filing the complaint within the maximum period specified therein to permit custody during investigation and not the merits of the case which till the filing of the complaint are not before the court to determine the existence of reasonable grounds for forming the belief about the guilt of the accused. The learned Additional Solicitor General submitted that this belief can be formed during investigation by reference to the contents of the case diary even before the charge-sheet has been filed. This is fallacious. Till the complaint is filed the accused is supplied no material from which he can discharge the burden placed on him by Section 37(l)(b) of the N.D.P.S. Act. In our opinion, such a construction of clause (b) of sub-section (1) of Section 37 is not permissible.” “13. This is fallacious. Till the complaint is filed the accused is supplied no material from which he can discharge the burden placed on him by Section 37(l)(b) of the N.D.P.S. Act. In our opinion, such a construction of clause (b) of sub-section (1) of Section 37 is not permissible.” “13. Accordingly, provision in Section 37 to the extent it is inconsistent with Section 437 of the Code of Criminal Procedure supersedes the corresponding provisions in the Code and imposes limitations on granting of bail in addition to the limitations under the Code of Criminal Procedure as expressly provided in sub-section (2) of Section 37. These limitations on granting of bail specified in sub-section (1) of Section 37 are in addition to the limitations under Section 437 of the Code of Criminal Procedure and were enacted only for this purpose; and they do not have the effect of excluding the applicability of the proviso to sub-section (2) of Section 167 Cr. P.C. which operates in a different field relating to the total period of custody of the accused permissible during investigation. 14. In our opinion, in order to exclude the application of the proviso to sub-section (2) of Section 167 Cr. P.C. in such cases an express provision indicating the contrary intention was required or at least some provision from which such a conclusion emerged by necessary implication. As shown by us, there is no such provision in the N.D.P.S. Act and the scheme of the Act indicates that the total period of custody of the accused permissible during investigation is to be found in Section 167 Cr. P.C. which is expressly applied. The absence of any provision inconsistent therewith in this Act is significant. 15. A comparison with the relevant provisions of the Terrorist and Disruptive Activities (Prevention) Act, 1987 (for short "the TADA Act") is useful. Section 20 therein provides for modified application of certain provisions of the Code of Criminal Procedure. Sub-section (4) of Section 20 specifies the modification with which Section 167 Cr. P.C. is applied, to a person accused of an offence under the TADA Act. One of the modifications expressly made therein is by the provision for a longer total period of permissible custody during investigation. A corresponding provision is absent in the N.D.P.S. Act. Sub-section (4) of Section 20 specifies the modification with which Section 167 Cr. P.C. is applied, to a person accused of an offence under the TADA Act. One of the modifications expressly made therein is by the provision for a longer total period of permissible custody during investigation. A corresponding provision is absent in the N.D.P.S. Act. Thereafter sub-sections (8) and (9) of Section 20 are provisions corresponding to sub-sections (1) and (2) of Section 37 of the N.D.P.S. Act. This similarity between the two Acts is striking and in this context the absence in the N.D.P.S. Act of a provision like sub-section (4) of Section 20 of TADA Act assumes further significance and supports the construction we have made of Section 37 of the N.D.P.S. Act. The TADA Act is a stringent statute to meet an extraordinary situation as is the N.D.P.S. Act. It is also significant that notwithstanding the substitution of Section 37 in the N.D.P.S. Act in its present form by Act 2 of 1989 subsequent to the enactment of the TADA Act, there is nothing in Section 37 of the N.D.P.S. Act similar to sub-section (4) of Section 20 of the TADA Act even though there is striking similarity of the provision with sub-sections (8) and (9) of Section 20 of the TADA Act. In our opinion, the legislative intent of not excluding the applicability of the proviso to sub-section (2) of Section 167 Cr. P.C. in cases of arrest made for commission of offences under the N.D.P.S. Act, is quite evident.” (Emphasis is supplied) 8. In Union of India through CBI vs. Nirala Yadav, (2014) 9 SCC 457 , the respondent, arraigned as an accused, for the offences punishable under Ss. 302, 304, 353, 323, 149, 148 and 147 of IPC, S.27 of Arms Act and S.49(2)(b) of the Prevention of Terrorism Act, having been arrested and sent to judicial custody on 05.12.2006, as the charge-sheet was not filed before the lapse of statutory period of 90 days, on 14.03.2007, filed an application, under S.167 (2) Cr. P.C. for release on bail, on the foundation that in the absence of charge-sheet on record, he is entitled to be admitted to bail after completion of 90 days from the date of his arrest. The CBI filed an application under S.49(2)(b) of POTA, seeking extension of time for a period of 30 days. P.C. for release on bail, on the foundation that in the absence of charge-sheet on record, he is entitled to be admitted to bail after completion of 90 days from the date of his arrest. The CBI filed an application under S.49(2)(b) of POTA, seeking extension of time for a period of 30 days. No order was passed on either of the said applications. The charge-sheet was filed on 23.06.2007. On 03.04.2007, the Spl. Judge extended the time of filing the charge-sheet i.e. till date of such filing, i.e., 23.06.2007 and rejected the bail application. Being unsuccessful in getting admitted to bail, the accused approached the High Court and after referring to the decision in Hitendra Vishnu Thakur vs. State of Maharashtra, (1994) 4 SCC 602 and by placing reliance on the dictum in Uday Mohanlal Acharya (supra), it has been held, that the right had already accrued to the accused on 14.03.2007, when he moved the application for grant of bail and, accordingly, admitted the accused to bail on certain conditions. The said order was questioned in the Apex Court by placing reliance on decision in Sadhwi (supra), amongst others. After referring to the earlier decisions of the Apex Court, including the decisions relied upon (supra), by the learned advocates on both sides in the present petition, with regard to the law laid down in the decision in Sadhwi, it has been held as follows: “45. The opinion expressed in paragraph 54 and 58 in Pragyna Singh Thakur vs. State of Maharashtra, (2011) 10 SCC 445 , which we have emphasised, as it seems to us, runs counter to the principles stated in Uday Mohanlal Acharya vs. State of Maharashtra, (2001) 5 SCC 453 , which has been followed in Union of India vs. Hassan Ali Khan, (2011) 10 SCC 235 and Sayed Mohd. Ahmad Kazmi vs. State (Govt. of NCT of Delhi), (2012) 12 SCC 1. The decision in Sayed Mohd. Ahmad Kazmi’s case has been rendered by a three-Judge Bench. Ahmad Kazmi vs. State (Govt. of NCT of Delhi), (2012) 12 SCC 1. The decision in Sayed Mohd. Ahmad Kazmi’s case has been rendered by a three-Judge Bench. We may hasten to state, though in Pragyna Singh Thakur’s case the learned Judges have referred to Uday Mohanlal Acharya’s case but as stated the principle that even if an application for bail is filed on the ground that the charge-sheet was not filed within 90 days, but before the consideration of the same and before being released on bail, if the charge-sheet is filed the said right to be enlarged on bail is lost. This opinion is contrary to the earlier larger Bench decisions and also runs counter to the subsequent three-Judge Bench decision in Mustaq Ahmed Mohammed Isak vs. State of Maharashtra, (2009) 7 SCC 480 . We are disposed to think so, as the two-Judge Bench has used the words “before consideration of the same and before being released on bail” the said principle specifically strikes a discordant note with the proposition stated in the decisions rendered by the larger Benches. With reference to the facts of the said case and while dismissing the appeal, it has been held as follows: 47. 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 nor had it filed an application for extension. Had an application for extension been filed, then the matter would have been totally different. After the respondent-accused 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 vs. State of Gujarat, (1996) 1 SCC 718 , 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. 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. 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 ourselves to say so, the prosecution exhibited sheer negligence in 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. (Emphasis supplied) 9. In the present case, the attention of the learned Sessions Judge having not been invited to the decision in Nirala Yadav’s case, the Sessions Judge, by applying the ratio of law in Sadhwi, has denied bail to the petitioner. 10. Undisputedly, the application filed by the petitioner on 31.05.2015, under Section 167(2)(a)(ii) of Cr. P.C. to grant the statutory bail was left undecided by the learned Trial Judge, till the charge sheet was filed on 03.06.2015. The order in question rejecting bail was passed on 06.06.2015. 11. The delay on the part of the Trial Judge in not deciding the application filed on 31.05.2015, till 06.06.2015, cannot be appreciated. The petitioner having acquired the right for grant of statutory bail on 31.05.2015 and having filed the application, the consideration could not have been postponed. The subsequent filing of the charge sheet by the prosecution on 03.06.2015, does not take away the right of the petitioner to the grant of statutory bail. The petitioner having acquired the right for grant of statutory bail on 31.05.2015 and having filed the application, the consideration could not have been postponed. The subsequent filing of the charge sheet by the prosecution on 03.06.2015, does not take away the right of the petitioner to the grant of statutory bail. The reason for denial of bail by the Sessions Judge, extracted in para 2 supra, is contrary to the settled proposition of law by the Apex Court, in the cases of (1) Uday Mohanlal Acharya, (2) Sayed Mohd. Ahmed Kazmi (3) Nirala Yadav, noticed supra. 12. Having regard to the position of law laid down in the decisions of the Apex Court, noticed supra and applying the same to the facts and circumstances of the present case, it is clear that the prescribed period in paragraph (a) of the proviso to sub-section (2) of Section 167 of Cr. P.C. having expired on 31.05.2015 and the accused having filed the application for being released on bail, the learned Trial Judge has erred in refusing the prayer for grant of bail. In view of the above, the petition is allowed and the impugned order is quashed and it is hereby directed that the petitioner be released on bail on such terms and conditions to the satisfaction of the Trial Judge and further the Trial Judge would be entitled to deal with the accused in accordance with law so as to ensure his presence at the time of trial, since the charge-sheet has already been filed.