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2021 DIGILAW 449 (GAU)

M. Rashid Choudhury v. State of Nagaland

2021-07-26

S.HUKATO SWU

body2021
JUDGMENT : 1. This is an application under section 439, CrPC read with section 167(2), CrPC praying for release of accused M. Rashid Choudhury. The accused has been charged for offences under section 420/120 B/466/467/468/469/471, IPC in G.R 73/2019 State Crime P.S. Case No. 02/2019. 2. Learned counsel Ms. Neise Liegise appears for the accused-petitioner and the State-respondent is represented by Mr. K. Angami, learned P.P. 3. The accused was arrested on 22.3.2021 on the strength of warrant issued by the JMFC, Kohima and was produced before the court of JMFC, Kamrup Assam on the same day. The JMFC, Kamrup Assam on the same date granted 48 hours transit remand with effect from 22.3.2021 to 24.3.2021 directing the I.O. to produce the accused before the learned CJM, Kohima on or before 24.3.2021. The accused-petitioner was produced before the learned CJM, Kohima on 24.3.2021 and was further remanded to police custody from 24.3.2021 to 29.3.2021 and 29.3.2021 to 31.3.2021. Thereafter, the accused was remanded to judicial custody. 4. Bail application was filed under section 167(2)(a)(ii) of CrPC before the learned Principal District and Sessions Judge Kohima which was heard on 22.6.2021. The learned Principal District and Sessions Judge rejected the bail on the ground that the 90 days stipulated under section 167(2) of the CrPC is yet to be completed and rejected the bail by observing as follows: “[T]he accused M. Rashid Choudhary was arrested on 22.3.2021 and was first produced on 24.3.2021 on which date he was remanded to police custody. As such, in the instant case, the period of 90 days after exclusion of the first day of remand would commence from 25.3.2021. The charge sheet was filed today. The accused has spent 7 days in custody in the month of March, 30 days in April, 31 days in May and is in the 22nd day of custody in the month of June. Thus, as of date, the accused is in his 90th day of custody and since the charge sheet has already been filed, no case of release of accused on default is made out.” 5. Thus, as of date, the accused is in his 90th day of custody and since the charge sheet has already been filed, no case of release of accused on default is made out.” 5. Being aggrieved by the order passed by the learned Principal District and Sessions Judge the accused is before this court on the following grounds: (a) accused has ought to have been released on bail for indefeasible right had accrued as he was detained in custody for a period of 91 days from 23.3.2021 to 21.6.2021 excluding the first day of remand and the day of filing of the charge sheet. (b) the right of the accused under section 167(2) of the CrPC commences from 23.3.2021 and not on 25.3.2021. The learned Principal District and Sessions Judge, Kohima committed error in computing 25.3.2021 as the first day of remand to give effect to the computation of section 167(2), CrPC for the benefit of the accused-petitioner. 6. The learned counsel for the petitioner submits that the Apex Court in the case of Gautham Naplaka v. National Investigation Agency in Criminal Appeal No. 510 of 2021 arising out of SLP Criminal No. 1796/2021 the Apex Court observed at para 76 as follows “Now, the question may precede as to whether the remand pursuant to the transit remand is to police custody or judicial custody. It cannot be judicial custody as the police is exclusively entrusted with the man no doubt to produce him before the magistrate having jurisdiction. It is, therefore, police custody. If it is police custody then the order of the magistrate granting transit remand would set the clodc ticking in terms of (1986) 3 SCC 141 to complete the period for the purpose of default bail. We would hold that the remand order be transit remand order is one which is passed under section 167 of the CrPC and though it may be for the production of the appellant, it involved authorizing continued detention within the meaning of section 167.” 7. She has, therefore, contended that the learned Principal District and Sessions Judge had committed error in observing that the period of 90 days after exclusion of the first day of remand would commence from 25.3.2021. Therefore, the order dated 22.6.2021 passed by the learned Principal District (and Sessions Judge Kohima was not in conformity with the provision of section 167(2), CrPC. Therefore, the order dated 22.6.2021 passed by the learned Principal District (and Sessions Judge Kohima was not in conformity with the provision of section 167(2), CrPC. The indefeasible right of the accused-petitioner accrued to him the bail petition was heard on 22.3.2021 and charge sheet filed on the same day. Therefore, by application of the provision of the section 167(2), CrPC indefeasible right accrued upon the petitioner and the accused should have been released on bail. 8. Learned P.P., Mr. K. Angami appearing for the State-respondent submits that the petition was filed on 18.6.2021 by the petitioner. It was filed prior to the completion of 90 days as contemplated under section 167(2) of the CrPC. Accused was arrested on 22.3.2021, therefore, computing the days of transit remand included his right to go on bail would accrue only on 20.6.2021. The petitioner filed his application before the completion of 90 days on 18.6.2021 and having filed the petition prematurely he could not get the benefit of the provision of section 167(2), CrPC. The argument forwarded by the learned counsel for the petitioner that she had filed the petition on 18.6.2021 which is Friday and Saturday being a non-working day by the time the bail application is presented it would have been too late since there is the non-working day with Sunday coming in between cannot. Computing the days of remand with effect from 22.3.2021, the petitioner could have filed his petition on 21.3.2021 and still could have been privileged under the provision of section 167(2), CrPC. Therefore, there is no force in the argument presented by the learned counsel for the petitioner. The learned P.P. has placed reliance upon the ruling of the Apex Court in the case of Ravindran v. The Intelligence Officer, Directorate of Revenue Intelligence, Criminal Appeal No. 699 of 2020 arising out of SLP Criminal No. 2333 of 2020 in the criminal appellate jurisdiction of the Supreme Court of India. At para 12.4 the Apex Court has observed as follows:— “Having considered both opinions we have arrived at the conclusion that the majority opinion in Adai Mohan Lal Acharyaa (supra) is the correct interpretation of the decision rendered by the Constitution in Sunjay Dutt (supra), the decision in Sunjay Dutt merely cast a positive corresponding obligation upon the accused to promptly apply for default bail as soon as the prescribed period of investigation expires. As the decision in Hitendra Bishu Tagore (supra) expressly caution, the court cannot suo motu grant bail without considering whether the accused is ready to furnish bail or not. This is an inbuilt safeguard within section 167(2) to insure that the accused is not automatically released from custody without obtaining the satisfaction of the court that he is able to guarantee his presence for further investigation, or fair trial, as the case may be. Further, as the majority opinion in Rakesh Kumar Paul (supra) pointed out, there could be rare occasion where the accused voluntarily forfeits his rights to bail on account of threat to his personal security outside of remand or for some other reasons. The decision in Sunjay Dutt clarifies that once a charge sheet is filed such waiver of the right by the accused becomes final and section 167(2) ceases to apply.” 9. In the light of the above pronouncement of the Apex Court with regard to exercise of indefeasible right under section 167(2) of the CrPC it is a right exercisable in the right moment as and when the right accrues not before the right accrues. For the reasons statecl above, the court could not consider a bail application under section 167, CrPC which was filed before time and prematurely and releasing the accused on bail. 10. The order of the learned Principal District and Sessions Judge, Kohima, dated 22.6.2021 which is impugned is very clear enough to explain the position which reads as “As noted above, the instant application was filed on 18.6.2021 even before the period of 90 days had lapsed and the right to be released on default bail had accrued to the accused. Thus, it is unfortunate to note that a totally wrong and false statement have been made before the court vide paragraph 3 of the instant application since the same was not the position on 18.6.2021. Such false averment is inevitably bound to occur when application for default bail is filed prematurely.” 11. The learned Principal District and Sessions Judge, Kohima was not in error in rejecting the bail. 12. On hearing the learned counsel for the petitioner and also the learned P.P. for the State, it is undisputed that the accused was arrested on 22.3.2021 and charge sheet was filed on 22.6.2021. The learned Principal District and Sessions Judge, Kohima was not in error in rejecting the bail. 12. On hearing the learned counsel for the petitioner and also the learned P.P. for the State, it is undisputed that the accused was arrested on 22.3.2021 and charge sheet was filed on 22.6.2021. There could be irregularity of computation by the learned Principal District and Sessions Judge if the remand period would be considered only at a stage where the accused- petitioner was brought for remand before the learned CJM, Kohima on 25.3.2021. If that was the sole consideration for rejecting the bail then the matter would have been answered in the positive that there was computation error by the learned Principal District and Sessions Judge which influenced him to pass the rejection order dated 22.6.2021 which is now impugned. However, the reading of the observation in the last para of the rejection order passed by the learned Principal District and Sessions Judge suggest that the bail application was presented on 18.6.2021 and by that time petition under section 167(2), CrPC was premature. The conclusion is that the petition was not rejected solely on the ground of computing the period of investigation with effect from 25.3.2021 but the application was rejected on other ground as well. This leads us to the question whether the accused-petitioner has the right to file a preemptive bail application which could be considered for an event and a right which would accrue to him on a future date. In my considered opinion it is a statutory provision, thus, the courts are not at liberty to give a new interpretation to the provisions thereby expanding the time provided or shortening the time as mandated under the statute. It is a mandated period which must be strictly computed and the courts are not at liberty to give a liberal interpretation in the matter. If the courts venture to do so, it would take the role of legislative function which is prohibited. We are conscious of the constitutional provision which sedulously protects the liberty of citizen. However, a caution to function within the limit of the provision of the Constitution and statute must always be kept in mind. I am, therefore, of the view that the right to default bail could be presented only when the mandated 90 days has lapsed and not before. 13. However, a caution to function within the limit of the provision of the Constitution and statute must always be kept in mind. I am, therefore, of the view that the right to default bail could be presented only when the mandated 90 days has lapsed and not before. 13. CrPC 167(2) Explanation I provides: For 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. 14. The Explanation is clear enough, even if the period specified has expired, if no petition is filed the accused shall be detained. The Explanation does not give the right of the petitioner of filing a petition prior to the expiry of the mandated period. If that be the case the concerned Magistrate would be compelled to release the accused even if he does not furnish bail on expiry of the specified period. However, the Legislature has not contemplated for incorporating such provision and has made the position clear by the Explanation I. There is no indication whatsoever that a default bail could be filed preemptively. 15. The above is the position of law. The procedure does not permit to file a petition to preempt a right to default bail under section 167(2), CrPC prior to the completion of the specified period. The right only accrues to furnish bail on completion of the specified period and prior to filing of the charge sheet, not otherwise. If one does not file within the interregnum period of completion of specified period and filing of charge sheet, it will amount to waiver of the right. Sadhevi Pragyna Singh Thakur v. State of Maharashtra, (2011) 10 SCC 445 is a reminder that the right under section 167(2), CrPC is not an indefeasible right. The right would be lost if charge sheet is filed and would not survive after the filing of charge sheet. Therefore, the right under section 167(2), CrPC is a right to be availed at the appropriate time and not otherwise. It is a right to be exercised between the two events of completion of 60/90 days and non filing of the charge sheet. Not before completion of 60/90 days period or after filing of the charge sheet. 16. Therefore, the right under section 167(2), CrPC is a right to be availed at the appropriate time and not otherwise. It is a right to be exercised between the two events of completion of 60/90 days and non filing of the charge sheet. Not before completion of 60/90 days period or after filing of the charge sheet. 16. In our case, the petitioner has filed the petition prior to completion of 90 days and failed to file a petition of default bail after completion of 90 days prior to filing of charge sheet, the petitioner has, thus, missed the bus in both occasions when his right survived. 17. In the instant case, the petitioner right would have accrued on 19.6.2021 and 20th being Sunday, the petitioner could have presented his default bail application on 21.6.2021 prior to the State-respondents filing charge sheet on 22.6.2021. However, this was not the case and I am of the view that the petitioner could not file a petition prior to his right having been accrued and claim that he should be released under that statutory provision of law. 18. There may be cases where the courts delay in hearing the bail application although petition has been filed after the lapse of statutory period with the intent of frustrating the application and denying the accused-petitioner of the right to go on bail by allowing the State- respondents to file charge sheet by keeping the hearing of bail in abeyance. In such cases the accused-petitioner's right could be protected. However, facts presented are not of that nature. Therefore, there is no reason to find fault with the learned Principal District and Sessions Judge for delay in hearing the application which would influence this court to grant relief to the accused-petitioner. 19. For all reasons enumerated above, I find no merit in the present bail petition and is accordingly rejected. 20. Bail petition stands disposed of.