Himachal Pradesh High Court
Gopal Singh vs State Of Himachal Pradesh on 26 December, 2018
Author: Sandeep Sharma
Bench: Sandeep Sharma
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
Criminal Revision No. 432 of 2018
Date of Decision: 26.12.2018
.
__________________________________________________________
Gopal Singh .....Petitioner
Versus
State of Himachal Pradesh ...... Respondent
Hon'ble Mr. Justice Sandeep Sharma, Judge.
Whether approved for reporting? 1
Yes.
For the Petitioner : Mr. Ashok Kumar Tyagi, Advocate
For the Respondent : Mr. Dinesh Thakur, Additional Advocate
General, with Mr. Amit Kumar Dhumal,
Deputy Advocate General.
Sandeep Sharma, Judge (oral):
Present Criminal Revision Petition filed under Section 397/401 read with Section 482 of the Code of Criminal Procedure, is directed against the order dated 25.10.2018, passed by learned Special Judge-(II), Solan, District Solan, Himachal Pradesh, in bail application No.28- NL/22 of 2018, whereby application for default bail under Section 167(2) of Cr.P.C. having been filed by the petitioner-
accused, came to be dismissed.
2. Briefly stated facts, as emerge from the record are that on 18.3.2018, bail petitioner alongwith co-accused 1 Whether the reporters of the local papers may be allowed to see the judgment?
::: Downloaded on - 01/01/2019 20:01:14 :::HCHP 2namely, Sohan Singh came to be apprehended by the patrolling party at a place near Sikka Hotel, Baddi Barotiwala .
road, District Solan, H.P., carrying charas. Allegedly, police recovered 1 kg.23 grams of charas from co-accused Sohan Singh, whereas 862 grams of charas was recovered from the possession of the present petitioner. Police after completion of codal formalities, registered FIR No.33 of 2018, dated 19.3.2018 under Section 20 of Narcotic Drugs and Psychotropic Substances, Act ( for short "the Act"), at police Station, Barotiwala, District Solan, Himachal Pradesh against the petitioner as well as co-accused Sohan Singh and since then both the accused are behind the bars. At one point of time, present petitioner approached this Court by way of Cr.MP(M) No.1448 of 2018 filed under Section 439 Cr.P.C., seeking therein regular bail, however same was dismissed as withdrawn with liberty to file appropriate proceedings, in accordance with law vide order dated 26.11.2018.
3. Subsequently, on 1.8.2018 petitioner moved an application under Section 167(2) of Cr.P.C before the learned Special Judge (II) Solan, praying therein for default bail on account of delay in filing the charge-sheet. Petitioner claimed before the learned trial Court that since prosecution failed to ::: Downloaded on - 01/01/2019 20:01:14 :::HCHP 3 file charge-sheet within the prescribed period of 90 days, he is entitled for default bail. However, learned trial Court below .
rejected the prayer on the ground that since commercial quantity came to be recovered from the possession of the bail petitioner as well as co-accused, time for filing charge-
sheet was 180 days and as such, he is not entitled for default bail.
4. Being aggrieved and dissatisfied with the order dated 9.8.2018, petitioner again filed application( Cr.MP(M) No.1195 of 2018) under Section 439 Cr.P.C in this Court, seeking therein regular bail after setting aside the order dated 9.8.2018, passed by the learned Special Judge, Solan, H.P. Learned counsel representing the bail petitioner in that proceedings argued before this Court that no case, if any, is registered under Section 29 of the Act against the bail petitioner and as such, findings returned by the learned trial Court, to the extent that since commercial quantity of contraband was recovered, time for filing charge sheet was 180 days not 90 days, is erroneous and same needs to be set-aside. He also contended before this Court that as per own case set up by the prosecution two different and distinct recoveries were made by the police on 18.3.2018 and only ::: Downloaded on - 01/01/2019 20:01:14 :::HCHP 4 862 grams of charas was allegedly recovered from the conscious possession of the petitioner and as such, .
prosecution could not have been allowed to say that since commercial quantity was recovered from the conscious possession of the petitioner and one FIR was registered, bail petitioner is not entitled to default bail, as envisaged under Section 167(2) after expiry of 90 days.
5. This Court having carefully perused the material adduced on record by the investigating agency vis-a-vis impugned order dated 9.8.2018, passed by learned Court below, whereby plea for grant of default bail made by the petitioner was rejected, remanded the matter back to the learned trial Court with a direction to decide the same afresh taking note of the charge sheet having been filed by the investigating agency. This Court while passing order dated 24.9.2018 clarified that court below while deciding the application afresh shall not be influenced by the fact that charge sheet now stands filed because admittedly application under Section 167(2) Cr.P.C, praying therein for default bail on behalf of the petitioner came to be filed prior to the filing of the charge sheet.
::: Downloaded on - 01/01/2019 20:01:14 :::HCHP 56. Learned Court below pursuant to aforesaid judgment dated 24.9.2018 passed order afresh dated .
25.10.2018 (Annexure P-3), whereby it again rejected the plea for grant of default bail, as prayed for by petitioner under Section 167(2) Cr.P.C.
7. Being aggrieved and dissatisfied with order dated 25.10.2018, passed by learned Special Judge (II), Solan, District Solan, H.P., petitioner has approached this Court in the instant proceedings, seeking therein default bail after setting aside the impugned order dated 25.10.2018, passed by leaned Special Judge (II) Solan, H.P.
8. Having heard learned counsel representing the parties and perused the material available on record vis-a-vis reasoning assigned by the learned Special Judge(II), while passing the impugned order dated 25.10.2018, this Court is inclined to agree with Mr. Ashok Kumar Tyagi, learned counsel representing the petitioner that court below has fallen in grave error while concluding that since commercial quantity of contraband came to be recovered from the conscious possession of the petitioner, time for prosecution to file charge sheet was 180 days not 90 days, as envisaged under Section 36 of the Act. True it is that under Section 36 of the ::: Downloaded on - 01/01/2019 20:01:14 :::HCHP 6 Act, prosecution can file charge-sheet within a period of 180 days, if contraband recovered is of commercial quantity, but .
in the case at hand court below failed to appreciate that it is own case of the prosecution that on 18.3.2018 petitioner alongwith co-accused Sohan Singh was apprehended by the patrolling party at place near Sikka Hotel, Baddi Barotiwala road carrying charas weighing 862 grams. As per prosecution story, two different and distinct recoveries were made by the police on 18.3.2018 near Sikka Hotel, Baddi, Barotiwala. Co-
accused namely Sohan Singh was apprehended/nabbed carrying 1 kg.23 grams of charas, whereas present petitioner was caught carrying 862 grams of charas. Since, two different and distinct recoveries were effected at the spot on the date of alleged incident, a case under Section 20 of the Act came to be registered against the accused. Had the police apprehended both the accused carrying commercial quantity i.e. 1kg 885 grams of charas ( 1 kg 23 grams & 862 grams) they would have been also booked under Section 29 of the Act, which in the present case is missing. It is not in dispute that case against petitioner as well as other co-accused Sohan Singh stands registered under Section 20 of the Act only. It is also not in dispute that prosecution failed to file ::: Downloaded on - 01/01/2019 20:01:14 :::HCHP 7 challan in the instant case within the specified period of 90 days and as such, petitioner immediately after expiry of 90 .
days filed an application under section 167(2) Cr.P.C, seeking therein default bail, but learned Special Judge wrongly denied the same to the petitioner. This Court vide order judgment dated 24.9.2018 passed in Cr.MP(M) No.1195 of 2018 remanded the matter back to the learned Special Judge, clarifying that since two different and distinct recoveries came to be effected on the spot on 19.3.2018, recovery , if any, cannot be claimed to have been made qua the petitioner of commercial quantity because admittedly in the case of the petitioner only 862 grams came to be recovered i.e. intermediate quantity, but learned Special Judge being influenced with the fact that since one FIR stands registered qua both the accused from whom two different and distinct recoveries were made, rejected the prayer having been made by the petitioner for grant of default bail, to which he was entitled after expiry of 90 days.
9. At this stage, it would be profitable to reproduce Section 36-A(4) of the Act hereinbelow:-
" In respect of persons accused of an offence punishable under Section 19 of Section 24 or Section 27A or for offences involving commercial ::: Downloaded on - 01/01/2019 20:01:14 :::HCHP 8 quantity the references in sub-section (2) of Section 167 of the Code of Criminal Procedure , 1973 (2 of1974) thereof to " ninety days", where .
they occur shall be construed as reference to "
one hundred and eighty days."
Provided that, if it is not possible to complete the investigation within the said period of one hundred and eighty days, the Special Court may extend the said period up to one year on the report of the Public Prosecutor indicating the progress of the investigation and the specific reasons for the detention of the accused beyond the said period of one hundred and eighty days."
10. Bare reading of aforesaid provisions of law, clearly suggests that prosecution can file challan beyond the period of 90 days, which may extend to 180 days qua the offences punishable under Sections 19, 24, 27-A or for offences involving commercial quantity. But in the present case neither case against the petitioner stands registered under Sections 19, 24 and 27-A nor contraband of commercial quantity stands recovered from him, rather it is own case of the prosecution that 862 grams of charas came to be recovered from the conscious possession of the petitioner.
11. This Court finds no force in the arguments of Mr. Dinesh Thakur, learned Additional Advocate General, who ::: Downloaded on - 01/01/2019 20:01:14 :::HCHP 9 while inviting attention of this Court to the FIR lodged against the petitioner as well as co-accused made a serious attempt .
to persuade this Court to agree with his contention that since there is only one FIR stands registered against both the accused, wherein factum with regard to recovery of commercial quantity stands recorded, commercial quantity is deemed to be recovered from the possession of both the accused because on the date of alleged incident 1 Kg. 885 grams of charas in toto came to be recovered from both the accused. This Court is not in agreement with aforesaid argument of learned Additional Advocate General, which otherwise is frivolous/false on the face of it because as per own report submitted by the prosecution two distinct and different recoveries were made by the police on the date of alleged incident, wherein present petitioner was found carrying 862 grams of charas, whereas other co-accused Sohan Singh was found carrying 1 kg. 23 grams of charas.
Otherwise also, there is nothing on record to infer that there was some conspiracy between two these persons, otherwise case under Section 29 of the Act would have been registered against the petitioner and the co-accused.
::: Downloaded on - 01/01/2019 20:01:15 :::HCHP 1012. By now it is well settled that if challan is not filed within the prescribed period of 90 days, accused is entitled to .
default bail as per Section 167(2) of Cr.P.C. It would be profitable to reproduce Section 167(2) Cr.P.C herein:-
"(2) The Magistrate to whom an accused person is forwarded under this section may, whether he has or has not jurisdiction to try the case, from time to time, authorise the detention of the accused in such custody as such Magistrate thinks fit, for a term not exceeding fifteen days in the whole; and if he has no jurisdiction to try the case or commit it for trial, and considers further detention unnecessary, he may order the accused to be forwarded to a Magistrate having such jurisdiction: Provided that-
(a) the Magistrate may authorise the detention of the accused person, otherwise than in the custody of the police, beyond the period of fifteen days; if he is satisfied that adequate grounds exist for doing so, but no Magistrate shall authorise the detention of the accused person in custody under this paragraph for a total period exceeding,-
(i) ninety days, where the investigation relates to an offence punishable with death, imprisonment for life or imprisonment for a term of not less than ten years;1
(ii) sixty days, where the investigation relates to any other offence, and, on the expiry of the said period of ninety days, or sixty days, as the case may be, the accused person shall be released on bail if he is prepared to and does furnish bail, and every person released on bail under this sub- section shall be ::: Downloaded on - 01/01/2019 20:01:15 :::HCHP 11 deemed to be so released under the provisions of Chapter XXXIII for the purposes of that Chapter;]
(b) no Magistrate shall authorise detention of the .
accused in custody of the police under this section unless the accused is produced before him in person for the first time and subsequently every time till the accused remains in the custody of the police, but the Magistrate may extend further detention in judicial custody on production of the accused either in person or through the medium of electronic video linkage.
(c) no Magistrate of the second class, not specially empowered in this behalf by the High Court, shall authorize detention in the custody of the police.
13. Admittedly, in the case at hand, petitioner was arrested on 19.3.2018 and bail was applied on 1 st August, 2018 and challan was presented on 6 th September, 2018 i.e beyond 90 days. Otherwise there appears to be no application having been filed by the prosecution for extension of time, which otherwise would have not made any difference as far as petitioner is concerned because in that case he was only found carrying intermediate quantity of contraband.
Proviso to Section 167(2) Cr.P.C. creates an indefeasible right in an accused person on account of the 'default' by the investigating agency in the completion of the investigation within the maximum period prescribed or extended, as the case may be, to seek an order for his release on bail. Right to ::: Downloaded on - 01/01/2019 20:01:15 :::HCHP 12 bail under Section 167(2) is absolute, rather there is mandate and not court's discretion that if the investigating agency fails .
to file charge-sheet before the expiry of 90 days or the period as specified under particular Act, the accused in custody should be released on bail and at that stage, merits of the case are not to be examined. Magistrate has no power to remand a person beyond the stipulated period of 90 days or period stipulated under particular act for filing charge-sheet, rather he must pass an order of bail and communicate the same to the accused to furnish the requisite bail bonds.
Similarly, mere filing of charge-sheet, if any, during the pendency of application, if any, filed by accused, praying therein for grant of 'default bail' on account of non filing the charge-sheet within the stipulated period cannot be a ground to deny the bail under Section 167(2)Cr.P.C, because Court while granting bail under Section 167(2) Cr.P.C, is concerned with the period when indefeasible right, if any, on account of default, if any in filing charge-sheet within stipulated period accrues in favour of the accused, who thereafter well within time applied to the Court for grant of 'default bail' under Section 167(2) of the Code. If accused immediately after expiry of statutory period for filing charge-sheet, applies for ::: Downloaded on - 01/01/2019 20:01:15 :::HCHP 13 default bail and application for one reason or other remains pending, default bail cannot be denied on the ground of filing .
charge-sheet subsequently.
14. Reliance is placed upon the judgment rendered by Hon'ble Apex Court in Hitendra Vishnu Thakur and others versus State of Maharashtra and others, (1994)4 Supreme Court Cases 602, wherein it has been held as under:-
20. Section 57 of tile Code of Criminal Procedure provides that a person arrested shall not be detained in custody by the police for a period longer than that which is reasonable but that such period shall not exceed 24 hours exclusive of the time necessary for journey from the place of arrest to the court of the Magistrate in the absence of a special order under Section 167 of the Code. The Constitution of India through Article 22(2) mandates that every person who is arrested and detained in custody shall be produced before the nearest Magistrate within a period of 24 hours of such arrest excluding the time necessary for journey from the place of arrest to that court and that no person shall be detained in custody beyond that period without the authority of the Magistrate. Thus, the Constitution of India as well as the Code of Criminal Procedure expect that an arrested person, who has been detained in custody, shall not be kept in detention for any unreasonable time and that the investigation must be completed as far as possible within 24 hours. Where the investigation of the offence for which accused has been arrested cannot be completed within 24 hours and there are grounds for believing that the accusation or information against the accused is well-
founded, the police is obliged to forward the accused along with the case diary to the nearest Magistrate for further remand of the accused person. The Magistrate, on the production of the accused and the case diary, must scrutinize the same carefully and consider whether the arrest was legal and proper and whether the formalities required by law have been complied with and then to grant further remand, if the Magistrate is so satisfied, The law enjoins upon the investigating agency to carry out the ::: Downloaded on - 01/01/2019 20:01:15 :::HCHP 14 investigation, in a case where a person has been arrested and detained, with utmost urgency and complete the investigation with great promptitude in the prescribed period. Sub-section (2) of Section 167 of the Code lays down that the Magistrate to whom the accused is .
forwarded may authorize his detention in such custody, as he may think fit, for a term specified in that section. The proviso to subsection (2) fixes the outer limit within which the investigation must be completed and in case the same is not completed within the said prescribed period, the accused would acquire a right to seek to be released on bail and if he is prepared to and does furnish bail, the Magistrate shall release him on bail and such release shall be deemed to be grant of bail under Chapter XXXIII of the Code of Criminal Procedure. The said chapter comprises of Sections 436 to 450 but for our purposes It is only Sections 437 and 439 of the Code which are relevant. Both these sections empower the court to release an accused on bail. The object behind the enactment of Section 167 of the Code was that the detention of an accused person should not be permitted in custody pending investigation for any unreasonably longer period. However, realizing that it may not be possible to complete the investigation in every case within 24 hours or even 15 days, as the case may be, even if the investigating agency proceeds with utmost promptitude, Parliament introduced the proviso to Section 167(2) of the Code prescribing the outer limit within which the investigation must be completed. Section 167 read with Section 20(4) of TADA, thus, strictly speaking is not a provision for "grant of bail"
but deals with the maximum period during which a person accused of an offence may be kept in custody and detention to enable the investigating agency to complete the investigation and file the charge-sheet, if necessary, in the court. The proviso to Section 167(2) of the Code read with Section 20(4)(b) of TADA, therefore, creates an indefeasible right in an accused person on account of the 'default' by the investigating agency in the completion of the investigation within the maximum period prescribed or extended, as the case may be, to seek an order for his release on bail. It is for this reason that an order for release on bail under proviso (a) of Section 167(2) of the Code read with Section 20(4) of TADA is generally termed as an "order-on-default" as it is granted on account of the default of the prosecution to complete the investigation and file the challan within the prescribed period. As a consequence of the amendment, an accused after the ::: Downloaded on - 01/01/2019 20:01:15 :::HCHP 15 expiry of 180 days from the date of his arrest becomes entitled to bail irrespective of the nature of the offence with which he is charged where the prosecution falls to put up challan against him on completion of the investigation. With the amendment of clause (b) of sub-
.
section (4) of Section 20 read with the proviso to sub-
section (2) of Section 167 of CrPC an indefeasible right to be enlarged on bail accrues in favour of the accused if the police fails to complete the investigation and put up a challan against him in accordance with law under Section 173 CrPC. An obligation, in such a case, is cast upon the court, when after the expiry of the maximum period during which an accused could be kept in custody, to decline the police request for further remand except in cases governed by clause (bb) of Section 20(4). There is yet another obligation also which is cast on the court and that is to inform the accused of his right of being released on bail and enable him to make an application in that behalf. (Hussainara Khatoon case versus Home Secy., State of Bihar, (1980) 1 SCC 98). This legal position has been very ably stated in Aslam Babalal Desai v. State of Maharashtra (1992)4 SCC 272, where speaking for the majority, Ahmadi, J. referred with approval to the law laid down in Rajnikant Jivanlal Patel v. Intelligence officer, Narcotic Control Bureau, New Delhi' (1989) 3 SCC 532, wherein it was held that (SCC p. 288, para 9) "The right to bail under Section 167(2) proviso
(a) thereto is absolute. It is a legislative command and not court's discretion. If the investigating agency fails to file charge-sheet before the expiry of 90/60 days, as the case may be, the accused in custody should be released on bail. But at that stage, merits of the case are not to be examined.
Not at all. In fact, the Magistrate has no power to remand a person beyond the stipulated period of 90/60 days. He must pass an order of bail and communicate the same to the accused to furnish the requisite bail bonds."
21. Thus, we find that once the period for filing the charge- sheet has expired and either no extension under clause (bb) has been granted by the Designated Court or the period of extension has also expired, the accused person would be entitled to move an application for being admitted to bail under sub-section (4) of Section 20 TADA ::: Downloaded on - 01/01/2019 20:01:15 :::HCHP 16 read with Section 167 of the Code and the Designated Court shall release him on bail, if the accused seeks to be so released and furnishes the requisite bail. We are not impressed with the argument of the learned counsel for .
the appellant that on the expiry of the period during which investigation is required to be completed under Section 20(4) TADA read with Section 167 of the Code, the court must release the accused on bail on its own motion even without any application from an accused person on his offering to furnish bail. In our opinion an accused is required to make an application if lie wishes to be released on bail on account of the 'default' of the investigating prosecuting agency and once such an application is made, the court should issue a notice to the public prosecutor who may either show that the prosecution has obtained the order for extension for completion of investigation from the court under clause (bb) or that the challan has been filed in the Designated Court before the expiry of the prescribed period or even that the prescribed period has actually not expired and thus resist the grant of bail on the alleged ground of 'default'. The issuance of notice would avoid the possibility of an accused obtaining an order of bail under the 'default' clause by either deliberately or inadvertently concealing certain facts and would avoid multiplicity of proceedings. It would, therefore, serve the ends of justice if both sides are heard on a petition for grant of bail on account of the prosecution's 'default'. Similarly, when a report is submitted by the public prosecutor to the Designated Court for grant of extension under clause (bb), its notice should be issued to the accused before granting such an extension so that an accused may have an opportunity to oppose the extension on all legitimate and legal grounds available to him. It is true that neither clause (b) nor clause (bb) of sub-section (4) of Section 20 TADA specifically provide for the issuance of such a notice but in our opinion the issuance of such a notice must be read into these provisions both in the interest of the accused and the prosecution as well as for doing complete justice between the parties. This is a ::: Downloaded on - 01/01/2019 20:01:15 :::HCHP 17 requirement of the principles of natural justice and the issuance of notice to the accused or the public prosecutor, as the case may be, would accord with fair play in action, which the courts have always encouraged and even .
insisted upon. It would also strike a just balance between the interest of the liberty of an accused on the one hand and the society at large through the prosecuting agency on the other hand. There is no prohibition to the issuance of such a notice to the accused or the public prosecutor in the scheme of the Act and no prejudice whatsoever can be caused by the issuance of such a notice to any party. We must as already noticed reiterate that the objection to the grant of bail to an accused on account of the 'default' of the prosecution to complete the investigation and file the challan within the maximum period prescribed under clause (b) of sub-section (4) of Section 20 TADA or within the extended period as envisaged by clause (bb) has to be limited to cases where either the factual basis for invoking the 'default' clause is not available or the period for completion of investigation has been extended under clause (bb) and the like. No other condition like the gravity of the case, seriousness of the offence or character of the offender etc. can weigh with the court at that stage to refuse the grant of bail to an accused under sub-section (4) of Section 20 TADA on account of the 'default' of the prosecution.
15. Reliance is also placed upon the judgment rendered by Hon'ble Apex Court in Sanjay Dutt versus State through C.B.I. Bombay (II), (1994)5 Supreme Court Cases 410, wherein it has been held as under:-
"47. Learned Additional Solicitor general, in reply, agreed entirety with the above submission of Shri Sibal and submitted that principle enunciated by then Division Bench in Hitendra Vishnu Thakur (1994)4 Supreme ::: Downloaded on - 01/01/2019 20:01:15 :::HCHP 18 Court Cases 602, must be so read. However, the grievance of the learned Additional Solicitor General is that the direction for grant of bail by the Division Bench in .
Hitendra Vishnu Thakur,on the facts of that case, is not in consonance with such reading of that decision and indicates that the indefeasible right of the accused to be released on bail on expiry of the time allowed for completing the investigation survives and is enforceable even after the challan has been filed, without reference to the merits of the case or the material produced in the court with the challan. He further submitted that it should be clarified that the direction to grant bail under this provision on this ground alone in Hitendra Vishnu Thakur after the challan had been filed was incorrect. Such a clarification, he urged, is necessary because the decision in Hitendra Vishnu Thakur is being construed by the Designated Courts to mean that the right of the accused to be released on bail in such a situation is indefeasible in the sense that it survives and remains enforceable, without reference to the facts of the case, even after the challan has been filed and the court has no jurisdiction to deny the bail to the accused at any time if there has been a default in completing the investigation within the time allowed.
Bail is being claimed by every accused under the TADA Act for this reason alone in all such cases. This is the occasion for seeking a fresh decision of this question by a larger Bench.
48. We have no doubt that the common stance before us of the nature of indefeasible right of the accused to be released on bail by virtue of Section 20(4) (bb) is based on a correct reading of the principle indicated in that decision.::: Downloaded on - 01/01/2019 20:01:15 :::HCHP 19
The indefeasible right accruing to the accused in such a situation is enforceable only prior to the filing of the challan and it does not survive or remain enforceable on .
the challan being filed, if already not availed of. Once the challan has been filed, the question of grant of bail has to be considered and decided only with reference to the merits of the case under the provisions relating to grant of bail to an accused after the filing of the challan. The custody of the accused after the challan has been filed is not governed by Section 167 but different provisions of the Code of Criminal Procedure. If that right had accrued to the accused but it remained unenforced till the filing of the challan, then there is no question of its enforcement thereafter since it is extinguished the moment challan is filled because Section 167 Cr. P.C. ceases to apply. The Division Bench also indicated that if there be such an application of the accused for release on bail and also a prayer for extension of time to complete the investigation according to the proviso in section 20(4) (bb), both of them should be considered together. It is obvious that no bail can be given of the even in such a case unless the prayer for extension of the period is rejected. In short, the grant of bail in such a situation is also subject to refusal of the prayer for extension of time, if such a prayer is made. If the accused applies for bail under this provisions on expiry of the period of 180 days or the extended period, as the case may be, then he has to be released on bail forthwith. The accused, so released on bail may be arrested and committed to custody according to the provisions of the Code of Criminal Procedure. It is settled by Constitution Bench decisions that a petition seeking the writ of habeas corpus on the ground of absence of a valid ::: Downloaded on - 01/01/2019 20:01:15 :::HCHP 20 order of remand or detention of the accused, has to be dismissed, if on the date of return of the rule, the custody or detention is on the basis of a valid order. (See Naranjan .
Singh Nathawan v. The State of Punjab, [1952] SCR 395;
Ram Narayan Singh v. The State of Delhi and Others, [1953] SCR 652 and A.K. Gopalan v. The Government of India, [1966] 2 SCR 427).
49. This is the nature and extent of the right of the accused to be released on bail under Section 20(4) (bb) of the TADA Act read with Section 167 Cr. P.C. in such a situation. We clarify the decision of the Division Bench in Hitendra Vishnu Thakur case (supra) accordingly, and if it gives a different indication because of the final order made therein, we regret our inability to subscribes to that view.
53 (2)(b) The "indefeasible right" of the accused to be released on bail in accordance with Section 20(4)(bb) of the TADA Act read with Section 167(2) of the Code of Criminal Procedure in default of completion of the investigation and filing of the challan within the time allowed, as held in Hitendra Vishnu Thakur is a right which ensures to, and is enforceable by the accused only from the time of default till the filing of the challan and it does not survive or remain enforceable on the challan being filed. If the accused applies for bail under this provision on expiry of the period of 180 days or the extended period, as the case may be, then he has to be released on bail forthwith. The accused, so released on bail may be arrested and committed to custody according to-the provisions of the Code of Criminal Procedure. The right of the accused to be released on bail after filing on the challan, notwithstanding the default in filing it within the ::: Downloaded on - 01/01/2019 20:01:15 :::HCHP 21 time allowed, as governed from the time of filing of the challan only by the provisions relating to the grant of bail applicable at the stage. "
.
16. Reliance is also placed upon the judgment rendered by Hon' ble Apex Court in Rakesh Kumar Paul versus State of Assam, 2017(9) SCALE 24, wherein it has been held as under:-
38. This Court also dealt with the decision rendered in Sanjay Dutt and noted that the principle laid down by the Constitution Bench is to the effect that if the charge sheet is not filed and the right for 'default bail' has ripened into the status of indefeasibility, it cannot be frustrated by the prosecution on any pretext. The accused can avail his liberty by filing an application stating that the statutory period for filing the charge sheet or challan has expired and the same has not yet been filed and therefore the indefeasible right has accrued in his or her favour and further the accused is prepared to furnish the bail bond.
46. It was submitted that as of today, a charge sheet having been filed against the petitioner, he is not entitled to 'default bail' but must apply for regular bail - the 'default bail' chapter being now closed. We cannot agree for the simple reason that we are concerned with the interregnum between 4th January, 2017 and 24th January, 2017 when no charge sheet had been filed, during which period he had availed of his indefeasible right of 'default bail'. It would have been another matter altogether if the petitioner had not applied for 'default bail' for whatever reason during this interregnum. There could be a situation (however rare) where an accused is not prepared to be bailed out perhaps for his personal security since he or she might be facing some threat outside the correction home or for any other reason. But then in such an event, the accused voluntarily gives up the indefeasible right for default bail and having forfeited that right the accused cannot, after the charge sheet or challan has been filed, claim a resuscitation of the indefeasible right. But that is not the case insofar as the petitioner is concerned, since he did not give up his indefeasible right for 'default bail' ::: Downloaded on - 01/01/2019 20:01:15 :::HCHP 22 during the interregnum between 4th January, 2017 and 24th January, 2017 as is evident from the decision of the High Court rendered on 11th January, 2017. On the contrary, he had availed of his right to 'default bail' which could not have been defeated on 11th January, 2017 and .
which we are today compelled to acknowledge and enforce.
109(26). In Uday Mohanlal Acharya's case (supra) the Court culled out six guidelines, which are as follows:
"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 ::: Downloaded on - 01/01/2019 20:01:15 :::HCHP 23 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.
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 v. State through CBI, (1994) 5 SCC 410, 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."
110(27). A reading of the aforesaid judgments leaves no manner of doubt that if an accused files an application for grant of default bail and is willing to furnish bail then he is deemed to have exercised his right to avail of bail and this right cannot be defeated by filing the charge-sheet thereafter.
::: Downloaded on - 01/01/2019 20:01:15 :::HCHP 2411(28). The right to get 'default bail' is a very important right. Ours is a country where millions of our countrymen are totally illiterate and not aware of their rights. A Constitution Bench of .
this Court in the case of Sanjay Dutt (supra) has held that the accused must apply for grant of 'default bail'. As far as Section 167 of the Code is concerned, Explanation I to Section 167 provides that notwithstanding the expiry of the period specified (i.e. 60 days or 90 days, as the case may be), the accused can be detained in custody so long as he does not furnish bail. Explanation I to Section 167 of the Code reads as follows:
"Explanation I.- For the 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." This would, in my opinion, mean that even though the period had expired, the accused would be deemed to be in legal custody till he does not furnish bail. The requirement is of furnishing of bail.
This would, in my opinion, mean that even though the period had expired, the accused would be deemed to be in legal custody till he does not furnish bail. The requirement is of furnishing of bail. 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, he is entitled to bail and is willing to furnish bail. This indefeasible right cannot be defeated by filing
17. Reliance is also placed upon the judgment rendered by Hon'ble Apex Court in Union of India through Central Bureau of Investigation versus Nirala Yadav ::: Downloaded on - 01/01/2019 20:01:15 :::HCHP 25 alias Raja Ram Yadav Alias Deepak Yadav, 2014(9) Supreme Court Cases 457, wherein it has been held as .
under:-
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 accused respondent 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 (supra) but on a studied scrutiny of the same we find 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. 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.
::: Downloaded on - 01/01/2019 20:01:15 :::HCHP 2618. Consequently, in view of the above, this Court .
has no hesitation to conclude that Court below erred in denying the default bail to the accused, who immediately after expiry of 90 days had applied for default bail and as such, he deserves to be released on default bail.
19. Recently, the Hon'ble Apex Court in Criminal Appeal No. 227/2018, Dataram Singh vs. State of Uttar Pradesh & Anr decided on 6.2.2018 has r held that freedom of an individual cannot be curtailed for indefinite period, especially when his guilt has not been proved. It has further held by the Hon'ble Apex Court in the aforesaid judgment that a person is believed to be innocent until found guilty. The Hon'ble Apex Court has held as under:-
2. A fundamental postulate of criminal jurisprudence is the presumption of innocence, meaning thereby that a person is believed to be innocent until found guilty. However, there are instances in our criminal law where a reverse onus has been placed on an accused with regard to some specific offences but that is another matter and does not detract from the fundamental postulate in respect of other offences. Yet another important facet of our criminal jurisprudence is that the grant of bail is the general rule and putting a person in jail or in a prison or in a correction home (whichever expression one may wish to use) is an exception.
Unfortunately, some of these basic principles appear to have been lost sight of with the result that more and more persons are being incarcerated and for longer periods. This does ::: Downloaded on - 01/01/2019 20:01:15 :::HCHP 27 not do any good to our criminal jurisprudence or to our society.
20. The Hon'ble Apex Court in Prasanta Kumar .
Sarkar v. Ashis Chatterjee and Another (2010) 14 SCC 496, has laid down the following principles to be kept in mind, while deciding petition for bail:
(i) whether there is any prima facie or reasonable ground to believe that the accused had committed the offence;
(ii) nature and gravity of the accusation;
(iii) severity of the punishment in the event of conviction;
(iv) danger
r of the accused absconding or
fleeing, if released on bail;
(v) character, behaviour, means, position and standing of the accused;
(vi) likelihood of the offence being repeated;
(vii) reasonable apprehension of the witnesses being influenced; and
(viii) danger, of course, of justice being thwarted by grant of bail.
21. Consequently, in view of the above, the present petition is allowed and impugned order dated 25.10.2018, passed by learned Special Judge (II), Solan, District Solan, H.P., is quashed and set-aside. The petitioner is ordered to be enlarged on bail subject to his furnishing personal bond in the sum of Rs. 1,00,000/- (Rs. One lakh) with one ::: Downloaded on - 01/01/2019 20:01:15 :::HCHP 28 surety in the like amount, to the satisfaction of the learned trial Court, with following conditions:
.
a. He shall make himself available for the purpose of interrogation, if so required and regularly attend the trial Court on each and every date of hearing and if prevented by any reason to do so, seek exemption from appearance by filing appropriate application;
b. He shall not tamper with the prosecution evidence nor hamper the investigation of the case in any manner whatsoever;
c. He shall not make any inducement, threat or promises to any person acquainted with the facts of the case so as to dissuade them from disclosing such facts to the Court or the Police Officer; and d. He shall not leave the territory of India without the prior permission of the Court.
22. It is clarified that if the petitioner misuses his liberty or violates any of the conditions imposed upon him, the investigating agency shall be free to move this Court for cancellation of his bail.
23. Any observations made hereinabove shall not be construed to be a reflection on the merits of the case and shall remain confined to the disposal of this petition alone.
The bail petition stands disposed of accordingly.
Copy dasti.
(Sandeep Sharma), Judge 26th December,2018 (shankar) ::: Downloaded on - 01/01/2019 20:01:15 :::HCHP