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2018 DIGILAW 94 (KAR)

Krishna S/O Rathnam v. State Of Karnataka

2018-01-11

K.N.PHANEENDRA

body2018
ORDER : Notice to be issued to Respondent No.2 is dispensed with. 2. Heard the learned counsel for the petitioner-Krishna and the learned SPP-II for the Respondent-State. 3. In Crime No.392/2007 on the file of the Child Friendly Court, Bengaluru Urban District, petitioner, who is the sole accused, has filed an application under Section 167(2) of Cr.PC. seeking grant of statutory bail for the offences punishable under Sections 363, 376, 342 and 506 of IPC and also under Sections 4, 5 & 6 of the POCSO Act, 2012. The said application came to be rejected by the learned Trial Judge only on the ground that, during the pendency of the said application, the charge sheet has been filed. Therefore, indefeasible right of the accused has come to an end on the expiry of the period prescribed under Section 167(2) of Cr.P.C. i.e., till filing of the charge sheet and after filing of the charge sheet, the court has to look into entire charge sheet papers to find out prima facie case against the accused or not and to dispose of the said application on merits of the case. Relying upon a decision of the Hon’ble Apex Court in Sanjay Dutt Vs. State of Maharashtra reported in 1994 AIR SCW 3852, the trial Court has rejected the said bail application in such manner. 4. Though the trial Court has also relied upon various rulings and it has come to the conclusion that the charge sheet has been filed by the police on 92nd day and on that day, the application was already filed by the accused for statutory bail. The fact remains that, before expiry of 90 days, the police have not filed the charge sheet, as observed by the trial Court itself. Further, added to that, application was already pending before the court on that day for his release under Section 167(2) of Cr.PC. 5. Learned counsel for the petitioner has relied upon a ruling of the Hon’ble Apex Court in Criminal Special Leave Appeal No.2009/2017 vide judgment dated 16.08.2017 between Rakesh Kumar Paul Vs. State of Assam, wherein the Hon’ble Apex Court has in detail considered Sanjay Dutt’s case as noted above and has come to the conclusion at Para 28 to the effect that, “The accused does not have to make out any grounds for grant of bail. He does not have to file a detailed application. State of Assam, wherein the Hon’ble Apex Court has in detail considered Sanjay Dutt’s case as noted above and has come to the conclusion at Para 28 to the effect that, “The accused does not have to make out any grounds for grant of bail. He does not have to file a detailed application. All he has to aver in the application is that, since 60/90 days have expired and charge sheet has not been filed within that period, he is entitled to bail and he is willing to furnish bail bond. His indefeasible right cannot be defeated by filing charge sheet, after the accused has offered to furnish bail’. Further, the court has also observed at para 29 that, “This court in large number of judgments, has held that, the right to legal aid is also fundamental right. Legal aid has to be competent legal aid and, therefore, it is the duty of the counsel representing the accused whether they are paid counsel or legal aid counsel to inform the accused that on the expiry of the statutory period of 60/90 days, they are entitled to ‘Default Bail’. In my view, the learned Magistrate should also not encourage wrongful detention and must inform the accused of his right. In case the accused still does not want to exercise his right, then he shall remain in custody, but if he chooses to exercise his right and is willing for furnish bail, he must be enlarged on bail.” It is also relevant to quote here that, at Para 30 of the said decision at subpara (4), the Hon’ble Apex Court has further observed that, “Right to statutory bail is an indefeasible right and this right must be exercised by the accused by offering to furnish bail.” The court has also observed that, when such an application is filed, the same has to be disposed of on the same day or forthwith. 6. This observation made by the Hon’ble Apex Court is the indication that, the right of the accused in claiming statutory bail is virtually equitable protection to the constitutional right of liberty as guaranteed under the Constitution. There should not be any unlawful detention by any court except by exercising due procedure contemplated under law. 6. This observation made by the Hon’ble Apex Court is the indication that, the right of the accused in claiming statutory bail is virtually equitable protection to the constitutional right of liberty as guaranteed under the Constitution. There should not be any unlawful detention by any court except by exercising due procedure contemplated under law. Therefore, the procedure contemplated under law, particularly under Section 167(2) of Cr.PC., which creates absolute indefeasible right in favour of the accused, should be zealously safeguarded by the court. Therefore, it makes abundantly clear from the above said decision that, once the application is filed before the court, before filing of the charge sheet by the police, within the statutorily stipulated period, then the court need not look into the charge sheet filed thereafter by the Police. The merits or demerits of the case is of no consequence while exercising powers under Section 167(2) of Cr.PC. 7. In this particular case, it is evident from the records that the accused was arrested on 31.07.2017 on or before 90 days, challan has not been submitted by the concerned police. On the 92nd day itself, i.e. on 30.10.2017, the accused has made an application under Section 167(2) of Cr.PC. and it appears on the same day, thereafter the charge sheet has been filed by the police. The learned Sessions Judge has not even considered, whether the charge sheet was filed first or the application was filed first. Therefore, when the learned Sessions Judge has come to the conclusion that the application was already pending, the charge sheet has been filed by the jurisdictional Police, the learned Sessions Judge has no option to consider whether the charge sheet was filed first or the application was filed first. Therefore, when the learned Judge has come to the conclusion that the application was already pending and thereafter the charge sheet has been filed by the jurisdictional Police, it was the duty of the jurisdictional court to consider the application. When the charge sheet is filed thereafter, the learned Sessions Judge should not have looked into the merits of the case on the basis of the charge sheet. 8. In the above circumstances, I am of the opinion that the trial Court has committed serious error in rejecting the application on considering the merits of the case on the basis of the charge sheet. Hence, the petitioner shall succeed. 9. 8. In the above circumstances, I am of the opinion that the trial Court has committed serious error in rejecting the application on considering the merits of the case on the basis of the charge sheet. Hence, the petitioner shall succeed. 9. In view of the above said observation, I proceed to pass the following: ORDER The petition is allowed. Consequently, the order dated 13.11.2017 passed by the Child Friendly Court at Bengaluru Urban District, viz., LIV Additional City Civil and Sessions Court (CCH55), Bengaluru Urban District, in Crime No.392/2017 for the offences punishable under Sections 363, 376, 342 & 506 of IPC and also under Sections 4, 5 & 6 of POCSO Act, 2012 is hereby set aside. Consequently, the application filed by the petitioner/accused-Krishna herein, under Section 167(2) of Cr.P.C. is hereby allowed. Consequently, the petitioner/accused shall be released on bail in connection with Crime No. 392/2017 registered against him for the offences punishable under Sections 363, 376, 342 and 506 of IPC and also under Section 4, 5 & 6 of POCSO Act, 2012, subject to he executing a personal bond for a sum of Rs.1,00,000/(Rupees One Lakh only) with two solvent sureties for the like sum to the satisfaction of the trial Court. The trial Court is also at liberty to impose any other reasonable conditions at the time of releasing the petitioner/accused on bail. The accused shall be released, if he is not required in any other case.