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Jharkhand High Court · body

2023 DIGILAW 979 (JHR)

Amit Kumar v. State of Jharkhand

2023-08-02

SANJAY KUMAR DWIVEDI

body2023
JUDGMENT : Heard Mr. Pandey Neeraj Rai, learned counsel appearing for the petitioner and Mrs. Vandana Singh, learned Sr.S.C.-III for the State. 2. This petition has been filed for quashing of the order dated 21.02.2023, passed in Criminal Revision No. 68 of 2023, by the learned Judicial Commissioner, Ranchi, whereby the learned revisional court has been pleased to dismiss the revision petition, wherein the challenge was made to the order dated 06.02.2023, passed by the learned Judicial Magistrate, 1st Class, Ranchi, wherein she has been pleased to dismiss the MCA No. 855 of 2023, which was filed in connection with Jagarnathpur P.S. Case No. 427 of 2022, pending in the court of learned Judicial Magistrate, 1st Class, Ranchi. 3. Mr. Pandey Neeraj Rai, learned counsel appearing for the petitioner submits that the petitioner is not named in the FIR, which was registered as Jagarnathpur P.S. Case No. 427 of 2022 dated 04.11.2022 for the offences under Section 363 and later on police added Section 302/201 on 06.01.2023 of the Indian Penal Code. He submits that the in course of investigation, the petitioner was taken into custody on 07.11.2022 and since then he is languishing in jail. He further submits that the chargesheet was not submitted within the period of 90 days, as such, in terms of Section 167(2) of the Cr.P.C., the petitioner applied for default bail under that Section before the learned trial court on 06.02.2023 at 1.00 P.M. He further submits that on the same day, the learned court has directed the OC to submit report as to whether the chargesheet has been received or not. He further submits that at 3.35 P.M. on the same day, it was informed to the court that chargesheet has not been submitted. He further submits that at 4.00 P.M. on the same day, it was also informed that the chargesheet has been submitted and considering that the chargesheet has come, the learned court has been pleased to reject the application, filed under Section 167(2) Cr.P.C. by the petitioner. He further submits that the petitioner moved before the learned revisional court in Criminal Revision No. 68 of 2023, wherein the learned revisional court has also been pleased to dismiss the said revision petition by order dated 21.02.2023 relying on the minority view of the case of Uday Mohanlal Acharya Versus State of Maharashtra, reported in (2001) 5 SCC 453 . He further submits that in the said case, it has been held that once the default bail application is filed under Section 167(2) Cr.P.C., it deemed to have “availed of” or enforced his right to be released on default bail. He further submits that in the case of Uday Mohanlal Acharya (Supra) has been considered by the Hon’ble Supreme Court in the case of M. Ravindran Versus Intelligence Officer, Directorate of Revenue Intelligence, reported in (2021) 2 SCC 485 , wherein it has been held that the Uday Mohanlal Acharya’s Case (Supra) is a good law and that still holds the field. He refers to paras-10.1, 15, 16, 18, 18.2, 18.3, 18.6, 18.7 and 25 of the said judgment, which is reproduced hereinbelow:- “10.1. (a) Whether the indefeasible right accruing to the appellant under Section 167(2) CrPC gets extinguished by subsequent filing of an additional complaint by the investigating agency. 15. Based on the abovementioned principles, the majority opinion in Uday Mohanlal Acharya v. State of Maharashtra, (2001) 5 SCC 453 : 2001 SCC (Cri) 760 held that the accused is deemed to have exercised his right to default bail under Section 167(2) CrPC the moment he files the application for bail and offers to abide by the terms and conditions of bail. The prosecution cannot frustrate the object of Section 167(2) CrPC by subsequently filing a charge-sheet or additional complaint while the bail application is pending consideration or final disposal before a Magistrate or a higher forum. Accordingly, this Court granted relief to the appellant-accused in that case. 16. However, it appears that in spite of the conclusions stated by the majority in Uday Mohanlal Acharya [Uday Mohanlal Acharya v. State of Maharashtra, (2001) 5 SCC 453 : 2001 SCC (Cri) 760], there continues to be confusion as to in what specific situations default bail ought to be granted, particularly with respect to paras 13.5 and 13.6 of the decision. Hence, for the purpose of removing all doubts, we find it necessary to clarify the circumstances in which this entitlement may be claimed by the accused. III. The meaning of “if not already availed of” in Sanjay Dutt v. State, (1994) 5 SCC 410 : 1994 SCC (Cri) 1433 18. Hence, for the purpose of removing all doubts, we find it necessary to clarify the circumstances in which this entitlement may be claimed by the accused. III. The meaning of “if not already availed of” in Sanjay Dutt v. State, (1994) 5 SCC 410 : 1994 SCC (Cri) 1433 18. One of the relevant decisions dealing with the question of accrual and extinguishment of the right under Section 167(2) is that of the two-Judge Bench in Hitendra Vishnu Thakur [Hitendra Vishnu Thakur v. State of Maharashtra, (1994) 4 SCC 602 : 1994 SCC (Cri) 1087]. In that case, the Court was called upon to construe the scope of Section 20(4)(bb) of the Terrorist and Disruptive Activities (Prevention) Act, 1987 (“TADA”) which is in parimateria with the proviso to Section 36-A(4) of the NDPS Act. The Court held that an accused person seeking bail under Section 20(4) of the TADA read with Section 167(2) has to make an application for such default bail and the court shall release the accused on bail if the period for filing a charge-sheet has expired, after notice to the Public Prosecutor, uninfluenced by the merits of the case. That unless the court grants extension in time based on the report of the Public Prosecutor, the designated court under TADA would have no jurisdiction to deny to the accused his indefeasible right to default bail if the accused seeks and is prepared to furnish the bail bonds as directed by the court. Further that in such a scenario, the court is obligated to decline any request for further remand. However, it was also expressly stated that the court cannot release the accused on its own motion if the accused does not file any such application. 18.2. It appears that the term “if not already availed of” mentioned supra has become a bone of contention as courts have differed in their opinions as to whether the right to default bail is availed of and enforced as soon as the application for bail is filed; or when the bail petition is finally disposed of by the court; or only when the accused actually furnishes bail as directed by the court and is released from custody. 18.3. 18.3. The majority opinion in Uday Mohanlal Acharya [Uday Mohanlal Acharya v. State of Maharashtra, (2001) 5 SCC 453 : 2001 SCC (Cri) 760] clarified this ambiguity by holding that the expression “if not already availed of” used by this Court in Sanjay Dutt [Sanjay Dutt v. State, (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 that case, it has to be held that the accused has enforced 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 is yet to furnish the same. 18.6. However, the Constitution Bench decision in Sanjay Dutt [Sanjay Dutt v. State, (1994) 5 SCC 410 : 1994 SCC (Cri) 1433] cannot be interpreted so as to mean that even where the accused has promptly exercised his right under Section 167(2) and indicated his willingness to furnish bail, he can be denied bail on account of delay in deciding his application or erroneous rejection of the same. Nor can he be kept detained in custody on account of subterfuge of the prosecution in filing a police report or additional complaint on the same day that the bail application is filed. 18.7. The arguments of the State that the expression “availed of” would only mean actual release after furnishing the necessary bail would cause grave injustice to the accused and would defeat the very purpose of the proviso to Section 167(2) CrPC. If the arguments of Mr Lekhi are accepted, there will be many instances where the Public Prosecutor might prolong the hearing of the application for bail so as to facilitate the State to file an additional complaint or investigation report before the court during the interregnum. In some cases, the court may also delay the process for one reason or the other. In such an event, the indefeasible right of the accused to get the order of bail in his favour would be defeated. This could not have been the intention of the legislature. If such a practice is permitted, the same would amount to deeming illegal custody as legal. After the expiry of the stipulated period, the court has no further jurisdiction to remand the accused to custody. This could not have been the intention of the legislature. If such a practice is permitted, the same would amount to deeming illegal custody as legal. After the expiry of the stipulated period, the court has no further jurisdiction to remand the accused to custody. The prosecution would not be allowed to take advantage of its own default of not filing the investigation report/complaint against the appellant within the stipulated period. 25. Therefore, in conclusion: 25.1. Once the accused files an application for bail under the proviso to Section 167(2) he is deemed to have “availed of” or enforced his right to be released on default bail, accruing after expiry of the stipulated time-limit for investigation. Thus, if the accused applies for bail under Section 167(2) CrPC read with Section 36-A(4), NDPS Act upon expiry of 180 days or the extended period, as the case may be, the court must release him on bail forthwith without any unnecessary delay after getting necessary information from the Public Prosecutor, as mentioned supra. Such prompt action will restrict the prosecution from frustrating the legislative mandate to release the accused on bail in case of default by the investigating agency. 25.2. The right to be released on default bail continues to remain enforceable if the accused has applied for such bail, notwithstanding pendency of the bail application; or subsequent filing of the charge-sheet or a report seeking extension of time by the prosecution before the court; or filing of the charge-sheet during the interregnum when challenge to the rejection of the bail application is pending before a higher court. 25.3. However, where the accused fails to apply for default bail when the right accrues to him, and subsequently a charge-sheet, additional complaint or a report seeking extension of time is preferred before the Magistrate, the right to default bail would be extinguished. The Magistrate would be at liberty to take cognizance of the case or grant further time for completion of the investigation, as the case may be, though the accused may still be released on bail under other provisions of the CrPC. 25.4. Notwithstanding the order of default bail passed by the court, by virtue of Explanation I to Section 167(2), the actual release of the accused from custody is contingent on the directions passed by the competent court granting bail. 25.4. Notwithstanding the order of default bail passed by the court, by virtue of Explanation I to Section 167(2), the actual release of the accused from custody is contingent on the directions passed by the competent court granting bail. If the accused fails to furnish bail and/or comply with the terms and conditions of the bail order within the time stipulated by the court, his continued detention in custody is valid.” 4. Learned counsel appearing for the petitioner further submits that the case of Uday Mohanlal Acharya (Supra) was further considered in the case of Bikramjit Singh Versus State of Punjab, reported in (2020) 10 SCC 616 . He further submits that the case of Bikramjit Singh (Supra) has further been considered in the case of M. Ravindran (Supra) in para-22.4. On these grounds, learned counsel appearing for the petitioner submits that the both the courts have erred in law and both the orders deserve to be set aside. 5. On the other hand, Mrs. Vandana Singh, learned Sr.S.C.-III appearing for the respondent-State submits that so far as law with regard to Section 167(2) is concerned that has been elaborately considered in the case of Uday Mohanlal Acharya (Supra) and still holds the field and that has also been considered by the Hon’ble Supreme Court in the case of M. Ravindran (Supra). She further submits that in conclusion at para-25 of the said judgment, the things have been clarified and if the bail application is filed under Section 167(2) Cr.P.C. and the chargesheet is submitted later on, the default bail is a Rule. She further submits that in para-25.3, it has been further clarified that the chargesheet is submitted and once the application is not filed under Section 167(2) Cr.P.C., the matter would have been otherwise, the said application can be rejected. 6. She further submits that in para-25.3, it has been further clarified that the chargesheet is submitted and once the application is not filed under Section 167(2) Cr.P.C., the matter would have been otherwise, the said application can be rejected. 6. In view of the above submissions of learned counsel appearing for the parties, it appears that the FIR was registered on 04.11.2022 and the petitioner was taken into custody on 07.11.2022 and after completion of 90 days, the petitioner filed an application under Section 167(2) Cr.P.C. for default bail at 01.00 P.M. on 06.02.2023 and on the same day, the report was called from the OC by the learned court with regard to chargesheet and at 3.35 P.M., it was informed that the chargesheet has not been submitted, however, on the same day at 4.00 P.M., it was informed that the chargesheet has been submitted and thereafter the learned court has been pleased to reject the application filed by the petitioner, under Section 167(2) Cr.P.C., which is not maintainable. It appears that the controversy in hand has set at rest in the case of Uday Mohanlal Acharya (Supra), which has been further considered by the Hon’ble Supreme Court in the case of M. Ravindran (Supra), where in para-25.1, it has been held that once the accused files an application for bail under the proviso to Section 167(2) he is deemed to have “availed of” or enforced his right to be released on default bail, accruing after expiry of the stipulated time-limit for investigation. Admittedly, in the case in hand, the petitioner has already filed an application under Section 167(2) Cr.P.C., however, later on at 04.00 P.M., the chargesheet was filed. 7. Explanation-I of the said Section has been considered in para19 in the case of M. Ravindran (Supra), wherein it has been held that Explanation-I is only a safeguard to ensure that the accused is not immediately released from custody without complying with the bail order. 8. In view of the two judgments of the Hon’ble Supreme Court in the case of Uday Mohanlal Acharya (Supra) and also in the case of M. Ravindran (Supra), it appears that the case is fully covered in the light of said two judgments. 8. In view of the two judgments of the Hon’ble Supreme Court in the case of Uday Mohanlal Acharya (Supra) and also in the case of M. Ravindran (Supra), it appears that the case is fully covered in the light of said two judgments. The court further finds that the learned Judicial Magistrate has rejected the application filed under Section 167(2) Cr.P.C. and thereafter the learned revisional court has also rejected the revision petition taking the minority view of the case of Uday Mohanlal Acharya (Supra) and that too relying upon the incorrect submission of learned P.P. 9. Section 167(2) Cr.P.C. was also the subject matter in the case of Ritu Chhabaria Versus Union of India & Ors., reported in 2023 0 Supreme (SC) 416, wherein the Hon’ble Supreme Court in paras-33 and 34 held as follows:- “33. In the instant case, it is clear from the facts that during the pendency of the investigation, supplementary chargesheets were filed by the Investigation Agency just before the expiry of 60 days, with the purpose of scuttling the right to default bail accrued in favour the accused. This factual position was missed by the trial court, and instead of offering default bail to the accused, the trial court mechanically accepted the incomplete chargesheets filed by the Investigating Agency, and further continued the remand of the accused beyond the maximum period specified. The Investigating Agency and the trial court, thus, failed to observe the mandate of law, and acted in a manner which was manifestly arbitrary and violative of the fundamental rights guaranteed to the accused. 34.Even at the cost of repetition, we find it pertinent to mention that the right of default bail under Section 167(2) of the CrPC is not merely a statutory right, but a fundamental right that flows from Article 21 of the Constitution of India. The reason for such importance being given to a seemingly insignificant procedural formality is to ensure that no accused person is subject to unfettered and arbitrary power of the state. The process of remand and custody, in their practical manifestations, create a huge disparity of power between the investigating authority and the accused. The reason for such importance being given to a seemingly insignificant procedural formality is to ensure that no accused person is subject to unfettered and arbitrary power of the state. The process of remand and custody, in their practical manifestations, create a huge disparity of power between the investigating authority and the accused. While there is no doubt in our minds that arrest and remand are extremely crucial for the smooth functioning of the investigation authority for the purpose of attaining justice, however, it is also extremely important to be cognizant of a power imbalance. Therefore, it becomes essential to place certain checks and balances upon the Investigation Agency in order to prevent the harassment of accused persons at their hands.” 10. In view of the above, it appears that the petitioner has already filed the application under Section 167(2) Cr.P.C. and the case of the petitioner is fully covered in the light of two judgments of Hon’ble Supreme Court in the cases of Uday Mohanlal Acharya (Supra) and M. Ravindran (Supra). Thus, the order dated 21.02.2023 passed in Criminal Revision No. 68 of 2023 by the learned Judicial Commissioner, Ranchi, as well as the order dated 06.02.2023, passed by the learned Judicial Magistrate, 1st Class, Ranchi, in MCA No. 855 of 2023, in connection with Jagarnathpur P.S. Case No. 427 of 2022, pending in the court of learned Judicial Magistrate, 1st Class, Ranchi, are not in accordance with law, in view of the fact that it has already been informed to the court that by 3.35P.M. the chargesheet was not submitted and in view of that the provisions of Section 167(2) Cr.P.C. was already complied with, as by that time itself, the learned court was required to pass the order, however, the learned court has erred in law and rejected the application filed under Section 167(2) Cr.P.C. by well knowing the fact that the chargesheet was submitted at 4.00 P.M. 11. Accordingly, the order dated 21.02.2023 passed in Criminal Revision No. 68 of 2023 by the learned Judicial Commissioner, Ranchi, as well as the order dated 06.02.2023, passed by the learned Judicial Magistrate, 1st Class, Ranchi, in MCA No. 855 of 2023, in connection with Jagarnathpur P.S. Case No. 427 of 2022, pending in the court of learnedJudicial Magistrate, 1st Class, Ranchi, are hereby, set aside. The petitioner shall be provided the benefit of default bail under Section 167(2) Cr.P.C., subject to the condition put by the learned trial court in view of Explanation-I of Section 167(2) Cr.P.C. 12. Let this order be communicated to the learned court through FAX at the cost of the petitioner.