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Allahabad High Court · body

2020 DIGILAW 1016 (ALL)

Harendra v. State of U. P.

2020-07-10

PANKAJ BHATIA

body2020
JUDGMENT : 1. All these three cases are being decided by this common order as similar questions are involved. 2. The brief facts of the case are that all the three applicants were arrested by the police authorities on 5.2.2020 in connection with the First Information Report dated 4.2.2020, which was registered as Case Crime No. 15 of 2020, under Sections 302, 201 I.P.C., P.S. Harpur Budhat, District Gorakhpur. On the said day of arrest, the Chief Judicial Magistrate, Gorakhpur vide his order dated 5.2.2020 remanded all the three applicants to the police custody and since then they continued to be in police custody. 3. Counsel for the applicants argues that 90 days were completed on 5.5.2020, however, no charge-sheet was filed, as such the applicants filed their bail applications seeking release on default under Section 167(2) Cr.P.C. All the said bail applications were preferred on 8.5.2020. In the case of Ramu, the said bail application was rejected by order dated 12.5.2020 mainly on the ground that as per the case diary, the charge-sheet has been dispatched on 8.5.2020, and thus the applicants right of bail under Section 167(2) stood lost. In respect of applicants Harendra and Rajesh, their bail applications were rejected vide order dated 13.5.2020 on the same ground that as per the case diary, the charge-sheet had been dispatched on 8.5.2020, however the said orders do not record whether the charge-sheet had actually been filed before the Court concerned on 8.5.2020. 4. Counsel for the applicants has heavily relied upon the report called by the Court below from the concerned Office while disposing off the bail applications and the Office in turn filed a report dated 13.5.2020 (Annexure-3 to the affidavit) stating that till 13.5.2020, no charge-sheet had been received in the Office of the Chief Judicial Magistrate, Gorakhpur. However, without any reference of the said report, the Chief Judicial Magistrate proceeded to dismiss the bail applications only on the ground that the public prosecutor had informed that the investigation was completed and the charge-sheet was dispatched on 8.5.2020. 5. Counsel for the applicants has extensively argued that on the completion of 90 days, indefeasible right is created in favour of the accused and any further custody after the completion of 90 days is wholly arbitrary and illegal and is also violative of the rights enshrined under Article 21 of the Constitution. 5. Counsel for the applicants has extensively argued that on the completion of 90 days, indefeasible right is created in favour of the accused and any further custody after the completion of 90 days is wholly arbitrary and illegal and is also violative of the rights enshrined under Article 21 of the Constitution. He further submits that right guaranteed under Article 21 of the Constitution is sacrosanct and can be taken away only by a procedure established by law, in the present case the provisions of Section 167, which authorize the Magistrate to remand the accused for a period of 60 days/90 days (depending on the nature of the offence alleged). He further argued that on the 90th day, the accused are entitled to be enlarged on bail subject to their filing an application and offering to furnish security in terms of the mandate of Section 167(2) of the Cr.P.C. He further argues that delay in disposal of the bail application has been looked down upon by the Supreme Court. He thus argues that well settled law on the question can be crystallized as under that after the completion of 90 days, as soon as the bail application is filed, the crystallized rights of the accused get triggered and they are entitled to be released on bail subject to of course the applicants agreeing to furnish the bail bonds, which as per the counsel for the applicants were duly indicated in the bail application filed. He also admits that in the event, the bail application is filed after the submission of the charge-sheet, even after 90 days, the indefeasible rights gets extinguished. 6. In the present case, as per the records, the bail application was admittedly filed before the charge-sheet reached the Court concerned, which is clearly demonstrable from the report issued by the Office and contained in Annexure-3. 7. Counsel for the applicants has extensively argued placing reliance upon the judgment of Apex Court in the case of Uday Mohanlal Acharya v. State; (2001) 5 SCC 453 as well as Union of India Through General Bureau of Investigation v. Nirala Yadav alias Raja Ram Yadav alias Deepak Yadav; (2014) 9 SCC 457 . 8. 7. Counsel for the applicants has extensively argued placing reliance upon the judgment of Apex Court in the case of Uday Mohanlal Acharya v. State; (2001) 5 SCC 453 as well as Union of India Through General Bureau of Investigation v. Nirala Yadav alias Raja Ram Yadav alias Deepak Yadav; (2014) 9 SCC 457 . 8. Learned A.G.A. on the other hand has placed reliance upon the judgment of the Apex Court in the case of Pragyna Singh Thakur v. State of Maharashtra; (2011) 10 SCC 445 to argue that the applicants were not entitled for default bail. 9. The Supreme Court in the case of Union of India Through General Bureau of Investigation v. Nirala Yadav alias Raja Ram Yadav alias Deepak Yadav (Supra) extensively considered the entitlement of benefit under the proviso to Section 167 (2) Cr.P.C. and referred to all the cases prior to the said decision including the decision in the case of Pragyna Singh Thakur (Supra). The Apex Court impliedly overruled the earlier judgment of the Court in the case of Pragyna Singh Thakur (Supra) holding that it was a departure from the settled law and was based upon the minority view, in the case of Uday Mohanlal Acharya (Supra), the Supreme Court also held that it is the majority view that is to be followed where as in the case of Pragyna Singh Thakur (Supra), minority view was relied upon. The relevant paragraphs in the case of Union of India Through General Bureau of Investigation v. Nirala yadav alias Raja Ram Yadav alias Deepak Yadav (Supra) are quoted hereinbelow:- “24. Thereafter the Court culled out six conclusions which are necessary to be reproduced. They are: (Uday Mohanlal Acharya case [ (2001) 5 SCC 453 : 2001 SCC (Cri) 760], SCC pp. 473-74, para 13) “(1) Under sub-section (2) of Section 167, a Magistrate before whom an accused is produced while the police is investigating into the offence can authorise detention of the accused in such custody as the Magistrate thinks fit for a term not exceeding 15 days on the whole. 473-74, para 13) “(1) Under sub-section (2) of Section 167, a Magistrate before whom an accused is produced while the police is investigating into the offence can authorise detention of the accused in such custody as the Magistrate thinks fit for a term not exceeding 15 days on the whole. (2) Under the proviso to the aforesaid sub-section (2) of Section 167, the Magistrate may authorise detention of the accused otherwise than in the custody of police for a total period not exceeding 90 days where the investigation relates to offence punishable with death, imprisonment for life or imprisonment for a term of not less than 10 years, and 60 days where the investigation relates to any other offence. (3) On the expiry of the 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 furnishes the bail as directed by the Magistrate. (4) When an application for bail is filed by an accused for enforcement of his indefeasible right alleged to have been accrued in his favour on account of default on the part of the investigating agency in completion of the investigation within the specified period, the Magistrate/court must dispose of it forthwith, on being satisfied that in fact the accused has been in custody for the period of 90 days or 60 days, as specified and no charge-sheet has been filed by the investigating agency. Such prompt action on the part of the Magistrate/court will not enable the prosecution to frustrate the object of the Act and the legislative mandate of an accused being released on bail on account of the default on the part of the investigating agency in completing the investigation within the period stipulated. Such prompt action on the part of the Magistrate/court will not enable the prosecution to frustrate the object of the Act and the legislative mandate of an accused being released on bail on account of the default on the part of the investigating agency in completing the investigation within the period stipulated. (5) If the accused is unable to furnish the bail as directed by the Magistrate, then on a conjoint reading of Explanation I and the proviso to sub-section (2) of Section 167, the continued custody of the accused even beyond the specified period in para (a) will not be unauthorised, and therefore, if during that period the investigation is complete and the charge-sheet is filed then the so-called indefeasible right of the accused would stand extinguished. (6) The expression ‘if not already availed of’ used by this Court in Sanjay Dutt case[ (1994) 5 SCC 410 : 1994 SCC (Cri) 1433] must be understood to mean when the accused files an application and is prepared to offer bail on being directed. In other words, on expiry of the period specified in para (a) of the proviso to sub-section (2) of Section 167 if the accused files an application for bail and offers also to furnish the bail on being directed, then it has to be held that the accused has availed of his indefeasible right even though the court has not considered the said application and has not indicated the terms and conditions of bail, and the accused has not furnished the same.” 25. Elaborating further, the Court held that: (Uday Mohanlal Acharya case [ (2001) 5 SCC 453 : 2001 SCC (Cri) 760], SCC p. 474, para 13) “13. … if the charge-sheet is filed subsequent to the availing of the indefeasible right by the accused then that right would not stand frustrated or extinguished necessarily, therefore, if an accused is entitled to be released on bail by application of the proviso to subsection (2) of Section 167 CrPC, makes the application before the Magistrate, but the Magistrate erroneously refuses the same and rejects the application and then the accused moves the higher forum and while the matter remains pending before the higher forum for consideration a charge-sheet is filed, the so-called indefeasible right of the accused would not stand extinguished thereby, and on the other hand, the accused has to be released on bail.” “44. At this juncture, it is absolutely essential to delve into what were the precise principles stated in Uday Mohanlal Acharya case [ (2001) 5 SCC 453 : 2001 SCC (Cri) 760] and how the two-Judge Bench has understood the same in Pragyna Singh Thakur [ (2011) 10 SCC 445 : (2012) 1 SCC (Cri) 311]. We have already reproduced the paragraphs in extenso from Uday Mohanlal Acharya case [ (2001) 5 SCC 453 : 2001 SCC (Cri) 760] and the relevant paragraphs from Pragyna Singh Thakur [ (2011) 10 SCC 445 : (2012) 1 SCC (Cri) 311]. Pragyna Singh Thakur [ (2011) 10 SCC 445 : (2012) 1 SCC (Cri) 311] has drawn support from Rustam [1995 Supp (3) SCC 221 : 1995 SCC (Cri) 830] case to buttress the principle it has laid down though in Uday Mohanlal Acharya case [ (2001) 5 SCC 453 : 2001 SCC (Cri) 760] the said decision has been held not to have stated the correct position of law and, therefore, the same could not have been placed reliance upon. The Division Bench in para 56 which has been reproduced hereinabove, has referred to para 13 and the conclusions of Uday Mohanlal Acharya case[ (2001) 5 SCC 453 : 2001 SCC (Cri) 760]. We have already quoted from para 13 and the conclusions. 45. The opinion expressed in paras 54 and 58 in Pragyna Singh Thakur [ (2011) 10 SCC 445 : (2012) 1 SCC (Cri) 311] which we have emphasised, as it seems to us, runs counter to the principles stated in Uday Mohanlal Acharya [ (2001) 5 SCC 453 : 2001 SCC (Cri) 760] which has been followed in Hassan Ali Khan [ (2011) 10 SCC 235 : (2012) 1 SCC (Cri) 256] and Sayed Mohd. Ahmad Kazmi [ (2012) 12 SCC 1 : (2013) 2 SCC (Cri) 488]. The decision in Sayed Mohd. Ahmad Kazmi case [ (2012) 12 SCC 1 : (2013) 2 SCC (Cri) 488] has been rendered by a three-Judge Bench. Ahmad Kazmi [ (2012) 12 SCC 1 : (2013) 2 SCC (Cri) 488]. The decision in Sayed Mohd. Ahmad Kazmi case [ (2012) 12 SCC 1 : (2013) 2 SCC (Cri) 488] has been rendered by a three-Judge Bench. We may hasten to state, though in Pragyna Singh Thakur case [ (2011) 10 SCC 445 : (2012) 1 SCC (Cri) 311] the learned Judges have referred to Uday Mohanlal Acharya case [ (2001) 5 SCC 453 : 2001 SCC (Cri) 760] but have 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 case [ (2009) 7 SCC 480 : (2009) 3 SCC (Cri) 449]. 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. 46. At this juncture, it will be appropriate to refer to the dissenting opinion by B.N. Agarwal, J. in Uday Mohanlal Acharya case [ (2001) 5 SCC 453 : 2001 SCC (Cri) 760]. The learned Judge dissented with the majority as far as interpretation of the expression "if not already availed of" by stating so: (SCC p. 481, paras 29-30) "29. My learned Brother has referred to the expression 'if not already availed of' referred to in the judgment in Sanjay Dutt case [ (1994) 5 SCC 410 : 1994 SCC (Cri) 1433] for arriving at Conclusion 6. According to me, the expression 'availed of' does not mean mere filing of application for bail expressing therein willingness of the accused to furnish the bail bond. According to me, the expression 'availed of' does not mean mere filing of application for bail expressing therein willingness of the accused to furnish the bail bond. What will happen if on the 61st day an application for bail is filed for being released on bail on the ground of default by not filing the challan by the 60th day and on the 61st day the challan is also filed by the time the Magistrate is called upon to apply his mind to the challan as well as the petition for grant of bail? In view of the several decisions referred to above and the requirements prescribed by clause (a)(ii) of the proviso read with Explanation I to Section 167(2) of the Code, as no bail bond has been furnished, such an application for bail has to be dismissed because the stage of proviso to Section 167(2) is over, as such right is extinguished the moment the challan is filed. 30. In this background, the expression 'availed of' does not mean mere filing of the application for bail expressing thereunder willingness to furnish bail bond, but the stage for actual furnishing of bail bond must reach. If the challan is filed before that, then there is no question of enforcing the right, howsoever valuable or indefeasible it may be, after filing of the challan because thereafter the right under default clause cannot be exercised." On a careful reading of the aforesaid two paragraphs, we think, the two-Judge Bench in Pragyna Singh Thakur case [ (2011) 10 SCC 445 : (2012) 1 SCC (Cri) 311] has somewhat in a similar matter stated the same. As long as the majority view occupies the field it is a binding precedent. That apart, it has been followed by a three-Judge Bench in Sayed Mohd. Ahmad Kazmi case [ (2012) 12 SCC 1 : (2013) 2 SCC (Cri) 488]. Keeping in view the principle stated in Sayed Mohd. As long as the majority view occupies the field it is a binding precedent. That apart, it has been followed by a three-Judge Bench in Sayed Mohd. Ahmad Kazmi case [ (2012) 12 SCC 1 : (2013) 2 SCC (Cri) 488]. Keeping in view the principle stated in Sayed Mohd. Ahmad Kazmi case [ (2012) 12 SCC 1 : (2013) 2 SCC (Cri) 488] which is based on three-Judge Bench decision in Uday Mohanlal Acharya case [ (2001) 5 SCC 453 : 2001 SCC (Cri) 760], we are obliged to conclude and hold that the principle laid down in paras 54 and 58 of Pragyna Singh Thakur case [ (2011) 10 SCC 445 : (2012) 1 SCC (Cri) 311] (which has been emphasised by us: see paras 42 and 43 above) does not state the correct principle of law. It can clearly be stated that in view of the subsequent decision of a larger Bench that cannot be treated to be good law. Our view finds support from the decision in Union of India v. Arviva Industries India Ltd. [ (2014) 3 SCC 159 ]. 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[ (1996) 1 SCC 718 : 1996 SCC (Cri) 200] but on a studied scrutiny of the same we find that 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 CrPC 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) CrPC. 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.” 10. Thus, following the law as clarified by the Apex Court in Nirala Yadav (Supra) I have no hesitation in rejecting the contention of the learned A.G.A., which is based upon the judgment in the case of Pragyna Singh Thakur (Supra). 11. All these questions were also considered by the High Court of Patna in the judgment in the case of Baharan Ali v. State of Bihar; Judgment dated 10.4.2018 passed in Criminal Revision No. 276 of 2018 wherein the Single Judge of the Patna High Court considered the entire law and held that on the date of filing of the application, if no charge-sheet is filed, an indefeasible rights is crystallized in favour of the accused for being released on statutory bail. 12. I am in respectful agreement with the said view. 13. 12. I am in respectful agreement with the said view. 13. Thus, on the facts of the case that the applications for default bail were filed prior to the filing of the charge-sheet and following the law as laid down by the Supreme Court in the case of Union of India Through General Bureau of Investigation v. Nirala Yadav alias Raja Ram Yadav alias Deepak Yadav (Supra), I am of the view that the applicants were entitled to be enlarged on statutory bail and non-grant of statutory bail and the rejection of the application for grant of statutory bail was wholly untenable in law. 14. Accordingly, all the three applications are allowed. The applicants, Harendra, Ramu and Rajesh are directed to be released on statutory bail subject to such terms and conditions, as may be imposed by the Court concerned. 15. Copy of the order downloaded from the official website of the Allahabad High Court shall be accepted as a true copy of this order.