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2016 DIGILAW 1320 (RAJ)

Dharmchand S/o Sh. Ishwar Ram v. State of Rajasthan through Public Prosecutor

2016-09-09

P.K.LOHRA

body2016
ORDER : 1. Accused-petitioner has laid the instant misc. petition, under Section 482 Cr.P.C. read with Section 483 Cr.P.C., ventilating his afflictions against impugned orders dated 28th of May 2016 and 8th of June 2016, passed by Addl. Chief Judicial Magistrate, Nokha, Bikaner (for short, ‘learned trial Court’) and Additional Sessions Judge (Women Atrocities) Cases, Bikaner (for short, ‘learned Court below’) respectively, under sub-sec.(2) of Section 167 Cr.P.C. 2. Succinctly stated, facts of the case are that complainant Bhagirath Soni lodged an FIR at Police Station Nokha, District Bikaner against petitioner and two others charging them for offences under Section 498A, 304-B and 120-B IPC. The FIR was registered on 20th of February 2016 bearing No. 80/2016 and considering seriousness of the offences, which were non-bailable, the accused-petitioner was apprehended and produced before learned trial Court on 28th of February 2016. The learned trial Court, thereafter, upon consideration of application of prosecution for remand, remanded the petitioner to judicial custody upto 8th of March 2016 which was extended from time to time. In that background, as per petitioner, when charge-sheet in the matter is not filed within 90 days in adherence of the mandatory provision contained in sub-sec.(2) proviso (a) (i) of Section 167 Cr.P.C, he made endeavour before the learned trial Court for enlarging him on bail. The learned trial Court considered the submissions of the accused and by its order dated 28th of May 2016 declined the prayer on the anvil of sub-sec.(2) of Section 167 Cr.P.C. as well as on merits. While adverting to merits of the case, the learned trial Court observed that petitioner is charged for a serious offence under Section 304-B IPC, therefore, it is not desirable to enlarge him on bail. The plea sought to be raised by the petitioner by taking shelter of mandatory provision under sub-sec.(2) of Section 167 Cr.P.C. is also examined by the learned trial Court. In the backdrop of facts and circumstances of the case, for declining the said prayer learned trial Court observed that charge-sheet in the matter was filed within the stipulated period of 90 days, i.e. on 26th of May 2016. 3. In the backdrop of facts and circumstances of the case, for declining the said prayer learned trial Court observed that charge-sheet in the matter was filed within the stipulated period of 90 days, i.e. on 26th of May 2016. 3. Feeling aggrieved by the order of learned trial Court, petitioner made endeavour for seeking bail before the learned Court below by submitting an application under Section 167(2) read with Section 439 Cr.P.C. The learned Court below, by its order dated 8th of June 2016, while fully concurring with the learned trial Court, rejected the bail application of the petitioner. Therefore, the petitioner has approached this Court by way of this petition. 4. With a view to substantiate his plea on the anvil of mandatory provision contained under sub-sec.(2) of Section 167 Cr.P.C., it is averred in the petition that factum of submission of charge-sheet before the learned trial Court is not discernible from the order-sheets of the learned trial Court inasmuch as order-sheets dated 26th of May 2016 and 1st of June 2016 clearly and unequivocally indicate that result of the investigation is awaited. For substantiating his positive assertion, petitioner has also placed on record certified copy of order-sheets dated 26th of May 2016 and 1st of June 2016. 5. That apart, it is also submitted by the petitioner that certified copy of the final report, allegedly submitted before the learned trial Court on 26th of May 2016, nowhere reveals any endorsement of the Court that the same was presented on 26th of May 2016. Categorizing this sort of discrepancy ‘irreconcilable’, the petitioner has made an attempt to castigate the prosecution for manipulation and maneuvering to get the charge-sheet filed by antedating it in order to thwart right of the petitioner accrued under sub-sec.(2) of Section 167 Cr.P.C. For assailing impugned orders, precisely, the same grounds are elaborated by the petitioner in the petition craving desired reliefs. 6. On behalf of respondent State, reply to the misc. petition is submitted. In the reply, the State has urged with full emphasis that charge-sheet in the matter was filed before learned trial Court on 26th of May 2016, i.e. within the stipulated period of 90 days, and therefore, no case for interference is made out. 6. On behalf of respondent State, reply to the misc. petition is submitted. In the reply, the State has urged with full emphasis that charge-sheet in the matter was filed before learned trial Court on 26th of May 2016, i.e. within the stipulated period of 90 days, and therefore, no case for interference is made out. Adverting to the merits of the case, it is also submitted by the State that after thorough investigation, the investigating agency has prima facie found that offence under Sections 498A, 304B and 120B IPC is made out against the petitioner, as such even on merits petitioner is not entitled for the reliefs claimed. 7. Mr. Vineet Jain, learned counsel for the accused-petitioner, has strenuously urged that legislature has envisaged mandatory provision under sub-sec.(2) of Section 167 Cr.P.C. for maximum period of detention of an accused and if final report is not filed by the investigating agency within that stipulated period, accused is entitled to be released on bail upon his furnishing requisite bail bonds. Elaborating his submissions, learned counsel would contend that in the instant case order-sheets of the learned trial Court speak volumes about the fact that final report/charge-sheet in the matter against the petitioner was not filed by 1st of June 2016 and therefore both the impugned orders are vulnerable and petitioner is liable to be enlarged on bail after expiry of his detention beyond 90 days, in terms of sub-sec.(2) of Section 167 Cr.P.C. Lastly, learned counsel submits that it is a clear case of manipulation at the behest of investigating agency in projecting submission of final report before the learned trial Court within the stipulated period to jeopardize the petitioner of his sacrosanct fundamental right of personal liberty, which cannot be countenanced in the backdrop of peculiar facts and circumstances of the instant case. 8. Per contra, learned Public Prosecutor has vehemently argued that the insinuations hurled by petitioner against the investigating agency are bereft of any merit inasmuch as charge-sheet in the matter was filed before the Court within the stipulated period of 90 days. Learned Public Prosecutor would contend that the statement of facts recorded concurrently by both the Courts below, that charge-sheet in the matter against petitioner was filed on 26th of May 2016, cannot be made subject matter of judicial review in exercise of inherent powers of this Court. Learned Public Prosecutor would contend that the statement of facts recorded concurrently by both the Courts below, that charge-sheet in the matter against petitioner was filed on 26th of May 2016, cannot be made subject matter of judicial review in exercise of inherent powers of this Court. Elaborating his submissions, learned Public Prosecutor has urged that there is a strong presumption about correctness and truthfulness of the facts recorded in a judicial order and mere oral assertion by the counsel for the petitioner cannot alter the trite legal position founded on principles of practice and procedure. Learned Public Prosecutor has lastly urged that order-sheet dated 26th of May 2016 recorded by the trial Court overleaf the challan submitted by the investigating agency, duly signed by the Presiding Officer of the trial Court, speak volumes about the fact that same was presented before the Court on 26th of May 2016. He, therefore, submits that mere non-mentioning of filing of charge-sheet in the order-sheets dated 26th of May 2016 and 1st of June 2016, which were drawn in the main file of the case, cannot alter the factual position to the detriment of the prosecution for enlarging accused-petitioner on bail under the default clause. 9. I have heard learned counsel for the petitioner as well as learned Public Prosecutor for the State. I have also perused the impugned orders and thoroughly scanned the entire record of the case. 10. Legislative provision under sub-sec.(2) of Section 167 Cr.P.C. is engrafted with some laudable objects to see that a person arrested by the police does not languish unnecessarily in prison awaiting completion of investigation. A bare reading of the provision makes it abundantly clear that it is mandatory in nature and in the event of failure of investigating agency in completing investigation within the stipulated period accused is entitled to be released on bail. Therefore, the basic intent of legislation is to ordain the investigating agency to carry out investigation in a case, where a person is arrested and under detention, with utmost urgency and complete it with promptitude in the prescribed period. Supreme Court, in Union of India through CBI Vs. Therefore, the basic intent of legislation is to ordain the investigating agency to carry out investigation in a case, where a person is arrested and under detention, with utmost urgency and complete it with promptitude in the prescribed period. Supreme Court, in Union of India through CBI Vs. Nirmala Yadav [ (2014) 9 SCC 457 ], examined the rigor of proviso to sub-sec.(2) of Section 167 Cr.P.C. and observed as follows: “When the charge-sheet is not filed and the right has ripened earning the status of indefeasibility, it cannot be frustrated by the prosecution on some pretext or the other. The accused can avail his liberty only by filing application stating that the statutory period for filing of the challan has expired, the same has not yet been filed and an indefeasible right has accrued in his favour and further he is prepared to furnish the bail bond.” 11. The legal position is no more res integra that under default clause, proviso to sub-sec.(2) of Section 167 Cr.P.C., accused cannot claim any special right to remain on bail if the investigating agency feels that he has committed a serious offence and charge-sheet is filed, inasmuch as, in such circumstances bail granted to the accused under proviso (a) to sub-sec.(2) of Section 167 Cr.P.C. can be cancelled. Reliance in this behalf can be profitably made to a decision of Supreme Court in Rajnikant Jivanlal & Anr. Vs. Intelligence Officer, Narcotic Control Bureau, New Delhi [(1989) 3 SCC 532]. Same view is reiterated by this Court in Matlub Vs. State & Ors. (2006 CRI.L.J. 1102). 12. It is also worthwhile to observe that invocation of provisions (i) & (ii) of Section 167(2) Cr.P.C. by the accused ipso facto eclipses upon filing of charge-sheet within the period stipulated regardless of any other infirmity in launching of prosecution. My this view is fortified by a judgment of Supreme Court in Suresh Kumar Bhikamchand Jain Vs. State of Maharashtra & Anr. [ (2013) 3 SCC 77 ], wherein the Court has observed: “In our view, grant of sanction is nowhere contemplated under Section 167 CrPC. What the said section contemplates is the completion of investigation in respect of different types of cases within a stipulated period and the right of an accused to be released on bail on the failure of the investigating authorities to do so. What the said section contemplates is the completion of investigation in respect of different types of cases within a stipulated period and the right of an accused to be released on bail on the failure of the investigating authorities to do so. The scheme of the provisions relating to remand of an accused, first during the stage of investigation and, thereafter, after cognizance is taken, indicates that the legislature intended investigation of certain crimes to be completed within 60 days and offences punishable with death, imprisonment for life or imprisonment for a term of not less than 10 years, within 90 days. In the event, the investigation is not completed by the investigating authorities, the accused acquires an indefeasible right to be granted bail, if he offers to furnish bail. Accordingly, if on either the 61st day or the 91st day, an accused makes an application for being released on bail in default of charge-sheet having been filed, the court has no option but to release the accused on bail. The said provision has been considered and interpreted in various cases, such as the ones referred to hereinbefore. Both the decisions in Natabar Parida case and in Sanjay Dutt case were instances where the charge-sheet was not filed within the period stipulated in Section 167(2) CrPC and an application having been made for grant of bail prior to the filing of charge-sheet, this Court held that the accused enjoyed an indefeasible right to grant of bail, if such an application was made before the filing of the charge-sheet, but once the charge-sheet was filed, such right came to an end and the accused would be entitled to pray for regular bail on merits. 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 hereinabove, 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 CrPC 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. Whether cognizance is taken or not is not material as far as Section 167 CrPC 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 had not been obtained to prosecute the accused and to proceed to the stage of Section 309 CrPC, it cannot be said that the accused is entitled to grant of statutory bail, as envisaged in Section 167 CrPC. The scheme of the CrPC 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) CrPC, 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 CrPC. 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.” 13. Now, switching on to the merits of the case, it would be worthwhile to examine both the impugned orders in conjunction with the relevant record of the case. 14. After examining impugned order on the touchstone of relevant record of the case, it is heartening to note that the learned trial Court has thrown judicial discipline to the winds in maintaining two parallel proceedings in the matter. 14. After examining impugned order on the touchstone of relevant record of the case, it is heartening to note that the learned trial Court has thrown judicial discipline to the winds in maintaining two parallel proceedings in the matter. The order-sheets of the Court dated 26th of May 2016 and 1st of June, 2016 clearly and unequivocally reveal that final report in the matter has not been filed. The order-sheets of both these dates, as per certified copy, in vernacular, read as under: 26-5-16 APP miŒ eqfYte /keZpUn J/C ls miŒ ughA J/C dh vof/k fnukad 01-06-16 rd c<+kbZ tkrh gSA urhtk is'k ugha fd;kA dkxtkr bartkj urhtk fnukad 01-06-16 dks is'k gksA ,l-Mh ofj"B flfoy U;k;k/kh'k ,oa mij eq[; U;kf;d eftLVªsV uks[kk ¼chdkusj½ 01.06.10 APP miŒ eqfYte /keZpUn J/C ls miŒ ughA J/C dh vof/k fnukad 9-6-16 rd c<+kbZ tkrh gSA urhtk is'k ugh fd;kA dkxtkr bartkj urhtk fnukad 01-06-16 dks is'k gksA ofj"B flfoy U;k;k/kh'k ,ao mij eq[; U;kf;d eftLVsªV uks[kk ¼chdkusj½ 15. There is yet another fallacy in maintaining judicial records by the learned trial Court inasmuch as order-sheet dated 1st of June 2016 is unsigned and over writing in it is clearly visible. Contrary to the aforementioned recitals in the parallel order-sheets recorded by the learned trial Court, overleaf the covering letter of charge-sheet, learned trial Court has drawn order-sheet on 26th of May 2016 with the recitals that challan has been filed, followed by another order-sheet dated 1st of June 2016 reiterating the same version. Curiously, both these order-sheets are signed by the same Presiding Officer of the learned trial Court. The recitals of both these order-sheets, in vernacular, read as under: 26-5-16 pkyku psd gksdj fnŒ 01-6-16 dks is'k gksA ,l-Mh- ofj"B flfoy U;k;k/kh'k ,oa mij eq[; U;kf;d eftLVsªV uks[kk ¼chdkusj½ 01-06-16 pkyku psd gksdj fnŒ 9-6-16 dks is'k gksA ,l-Mh- ofj"B flfoy U;k;k/kh'k ,oa mij eq[; U;kf;d eftLVsªV Ukks[kk ¼chdkusj½ 16. Therefore, taking into consideration this sort of perfunctory action of the learned trial Court, I am constrained to record my indignation against the Presiding Officer of learned trial Court and Reader of the Court in maintaining judicial records. 17. Judicial Services are required to be treated different from other wings of the society inasmuch as a judicial officer discharges a very sacrosanct duty which requires highest integrity imbibed with optimum level of moral values and independence. 17. Judicial Services are required to be treated different from other wings of the society inasmuch as a judicial officer discharges a very sacrosanct duty which requires highest integrity imbibed with optimum level of moral values and independence. I am aghast to note that in the certified copy issued by the Court next date of hearing is shown as 9th of June 2016 whereas the original order-sheet with overwriting indicates next date of hearing as 29th of June 2016, which is not compatible with order-sheet dated 01.06.2016 recorded overleaf covering letter of charge-sheet. This sort of conduct may be by the Reader of the Court, clearly tantamount to interpolation of judicial record. Any act of judicial officer dehors the ethos of judicial discipline cannot be countenanced as the same may at times lead to eroding public faith in justice delivery system or atleast shake its trust in the adjudicatory process. In all fairness, it is expected of a judicial officer to discharge his duties with utmost honesty, sincerity, diligence and in strict adherence of the prescribed norms and procedure for enabling reinforcement of efficacy of judiciary amongst litigants as well as toiling masses. 18. While reiterating the aforementioned observations, judicial scrutiny of the impugned orders, for bestowing desired reliefs to the petitioner, in the instant case is not desirable in isolation to the entire record of the case. The order-sheets recorded by the learned trial Court overleaf the covering letter of the charge-sheet, filed against the accused petitioner, clearly and unequivocally reveal that it was filed within the period stipulated under proviso (i) of Section 167 (2) Cr.P.C., can very well impress this Court for recording its satisfaction about legality and propriety of the impugned orders. Indisputably, the genesis of this unsavoury situation is total inapt conduct of the proceedings by the learned trial Court culminating into the present litigation, but then a fortuitous circumstance or inadvertency cannot be a plausible ground for invoking default clause under Section 167(2) Cr.P.C. to enlarge petitioner on bail in the case. Moreover, it is trite that statement of facts recorded in a judicial order cannot be disbelieved by the Court and there is a strong presumption about prima facie authenticity and truthfulness of such statement of facts. Moreover, it is trite that statement of facts recorded in a judicial order cannot be disbelieved by the Court and there is a strong presumption about prima facie authenticity and truthfulness of such statement of facts. The grounds, urged by the petitioner, for dislodging this presumption are falling short of the legal requirements, has also convincingly persuaded me not to interfere with the impugned orders. 19. Upon examining the impugned orders in exercise of inherent powers of this Court under Section 482 Cr.P.C., in my view, impugned orders do not suffer from the vice of abuse of process of any Court. In the backdrop of peculiar facts and circumstances of the instant case, I also feel dissuaded to exercise extraordinary inherent powers to interfere with the impugned orders for securing the ends of justice. As regards power of superintendence of this Court, envisaged under Section 483 Cr.P.C., the Court feels that necessary directions are required to be issued to the learned trial Court for dealing such matters properly taking a vow to ensure maintaining judicial discipline scrupulously. 20. The upshot of above discussion is that the instant petition is dismissed subject to the observations made hereinabove. 21. A copy of this order may be forwarded to District & Sessions Judge, Bikaner for information and necessary action. 22. Record of the case be sent back forthwith.