Allahabad High Court
Dharmanand Alias Mahato vs The State on 20 May, 1993
Equivalent citations: 1994CRILJ730
ORDER K.C. Bhargava, J.
1. In the bail application moved by Dharmanand alias Mahato who has been charged u/S. 302/307 of the Indian Penal Code, Police Station Cantt, Lucknow I have been called upon to reconsider my decision on bail application in Criminal Misc. Case No. 3496(B) of 1992 (Amar Singh v. State) which was decided on 24-11-1992, which has now been reported in 1992 LLJ 373.
2. Brief facts relating to the present application for bail are that one Kallu lodged a first information report on 8-9-1992 against the applicant at Police Station Cannt, Lucknow on the basis of which a case crime No. 281 of 1992 under Section 302/307 of the Indian Penal Code was registered against him. Along with him two other persons were also shown as accused in the case. The applicant was, there after, arrested.
3. Learned counsel for the applicant and the learned Counsel for the State have been heard. Learned counsel for the applicant has argued that in the present case a charge-sheet has been filed in the court after the expiry of 90 days from the detention of the applicant. The applicant, as a matter of fact, surrendered in the court on 9-9-1992 and the charge-sheet was submitted on 10-12-1992 i.e., beyond the period of 90 days which has been prescribed under Section 167 of the Code of Criminal Procedure. According to the learned Counsel the applicant should have been released or bail for not filing the charge-sheet within period of 90 days in the present case.
4. On the other hand learned Additional Government Advocate has argued that this right of bail which has been given to the accused under Section 167(2) of the Code of Criminal Procedure can only be availed by the accused till the precognizance stage is there. After the cognizance is taken by the court the accused loses his right to be released on bail on that ground.
5. After hearing the submissions of the learned Counsel for the applicant and the learned Additional Government Advocate it has to be seen as to whether the applicant has a right to be released on bail under the provisions of Section 167(2) of the Code of Criminal Procedure. This point also came for consideration before me in the case of Amar Singh v. State (1992 2 LJ 373) (All) (supra). After considering the various decisions of this Court as well as the Hon'ble Supreme Court I came to the conclusion that if a charge-sheet has been filed after 90/60 days, as the case may be, then the accused has a right to be released on bail and that right is not lost by filing of the charge-sheet subsequently. It was further held that it is not necessary for the accused to apply for bail after the expiry of 90/60 days and it is the duty of the Magistrate to pass a bail order and ask the accused persons to furnish surety bonds and personal bond before he can be remanded Under Section 309(2) of the Code of Criminal Procedure. It was further held that if there is a delay in furnishing the bail bonds the right of bail to the accused is not defeated.
6. Now the learned Additional Government Advocate has placed a Full Bench decision of this Court before me and has argued that in view of the Full Bench decision of this Court the previous order passed by this Court in the case of Amar Singh v. State (supra) needs reconsideration. The case relied upon by the learned Additional Government Advocate is Criminal Misc. Case No. 944 of 1984 (Vijay Bahadur v. State) and Criminal Misc. Case No. 1191 of 1984 (Ram Bahadur v. State) delivered on 7-11-1986 by the Full Bench. In that case a single Judge of this Court referred the matter on 20-9-1984 for consideration of the Full Bench as to whether a person is entitled to be released on bail if there is a delay in filing the charge-sheet. The Full Bench reframed question No. 2. For the sake of convenience the questions which have been answered by the Full Bench may be extracted below:--
(i) Whether the right of a under-trial for bail under proviso (a) to Section 167(2) Code of Criminal Procedure, is limited only to the period till filing of the charge-sheet against him or is a right unaffected by filing of the charge sheet if the charge-sheet is not submitted within 90 days, as the case may be?
(ii) Whether application for bail filed and pending after the expiry of the period of 60 or 90 days, ceases to be maintainable, apart from the provisions of Section 437 and 439, Cr. P.C. as soon as the charge sheet is submitted or the case is committed to the court of sessions under Section 209, Cr. P.C. by the Magistrate after submission of the charge sheet against the accused?
7. After considering the various decisions of the Supreme Court and of this Court the Full Bench answered the questions. From a perusal of the answers given by the Full Bench to the two questions referred to above it is clear that the Full Bench was of the opinion that the right of the accused or an under tail for bail under proviso (a) to Sub-section (2) of Section 167 of the Code of Criminal Procedure exists only till the charge sheet is filed against the accused persons. If the accused exercises his right to be released on bail before filing of the charge-sheet then his bail will not automatically stand cancelled on the filing of the charge-sheet. It was further held that if the accused fails, for any reason whatsoever, to exercise his right of bail after expiry of 60/90 days but before filing of charge-sheet then his right to be released on bail will cease on the filing of the charge sheet. In answer to the second question it was further held by the Full Bench that the bail application which was pending after the expiry of the period of 60 / 90 days, as the case may be, for bail under proviso (a) to Sub-section (2) of Section 167 of the Code of Criminal Procedure would cease to be maintainable as soon as the charge sheet is filed or the case is committed to the court of session. It was specifically mentioned that the right of accused to be released on bail would come to an end on the filing of the charge-sheet. Thus this view of the Full Bench is contrary to the view which I have taken in the above mentioned case of Amar Singh v. State (supra).
8. In the previous decision rendered by me in the case of Amar Singh v. State (1992 LLJ 373) (All) (supra) I have considered two Supreme Court cases which may again be looked into for clarifying the legal position which exists today. It is not necessary for me to burden this judgment with all the authorities which were cited and considered in the above case or to repeat the same in this judgment. There are two authorities of the Supreme Court which are going to be cited again which will make the point clear and will state the law which has been interpreted by the Hon'ble Supreme Court. The first case is Rajnikant v. Intelligence Officer, Narcotic Control Bureau, New Delhi, AIR 1990 SC 71: (1990 Cri LJ 62). In that case the Hon'ble Supreme Court had an occasion to consider the impact of the provisions of Section 167(2) proviso (a) of the Code of Criminal Procedure for release on bail which is generally termed as an order for default. After considering the provisions of bail the Hon'ble Supreme Court in para 12 has given its reasons. For the sake of convenience this para is extracted below:--
12. An order for release on bail under proviso (a) to Section 167(2) may appropriately be termed as an order-on-default. Indeed, it is a release on bail on the default of the prosecution in filing charge-sheet within the prescribed period. The right to bail u/S. 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.
(Emphasis supplied) A perusal of this case will go to show that the order of bail which is passed in default of the prosecution agency for not filing the charge-sheet within the prescribed period of 90/ 60 days is the absolute right of the accused. It is legislative command and not the court's dis-creation. It specifically says that if the charge-sheet has not been filed within the time allowed then the accused who is in custody has to be released and should be released on bail it and it is not the discretion of the court to release him or not to release him on bail in case the charge-sheet is not filed within 90/ 60 days. It was further held in the above mentioned case that the Magistrate has no power to remand a person beyond the stipulated period of 90/60 days. A duty is cast on the Magistrate to pass an order of bail and communicate the same to the accused person so that he may furnish the requisite personal bond and bail bonds. It may be mentioned here that if the accused fails to furnish the personal bond or surety bonds after the order ; of bail has been passed in his favour then only a remand can be made under Section 309, Cr. P.C. It is a duty cast upon the Magistrate to pass an order for bail in such cases where the charge-sheet has not been submitted within the prescribed period and he should also ask the accused persons to furnish personal bond and surety bonds. The Magistrate has no option but to act according to the dictates of law. Unless the Magistrate passes an order for bail and provides opportunity to the accused to furnish bail bonds he has no jurisdiction to pass an order of remand. The same view was taken by the Hon'ble Supreme Court in the case of Raghubir Singh v. State of Bihar and Simranjit Singh Mann v. State of Bihar, AIR 1987 SC 149 : (1987 Cri LJ 157). In this case also the facts were similar and the charge-sheet could not be filed against the accused persons within the period of 90 days as provided Under Section 167(2) of the Code of Criminal Procedure. The Hon'ble Supreme Court, after considering these provisions, held that the accused has a right to be released on bail if the charge-sheet is not filed within the prescribed period. In that case the Magistrate had directed release of the accused persons on bail for not filing the charge-sheet within the prescribed period but he imposed a condition that the sureties should be residents of Araria town. The accused persons could not furnish the sureties who were the residents of Araria town before the filing of the charge-sheet. A question arose as to whether the accused has a right to be released on bail after filing of the charge-sheet even though an order for bail had already been passed in his favour before the filing of the charge-sheet. After considering the various provisions of the Code of Criminal Procedure and various decisions on this point the Hon'ble Supreme Court summarised its finding in paras 22 and 23 of the judgment. For the sake of convenience the relevant portions of paras 22 and 23 extracted below:--
22. The result of our discussion and the case law in this : An order for release on bail made under the proviso to Section 167(2) is not defeated by lapse of time, the filing of the charge sheet or by remand to custody under Section 309(2). The order for release on bail may however be cancelled under Section 437(5) or Section 439(2).
23. In the present case, the High Court and following the High Court, the Special Judge have held that the order for release on bail came to an end with the passage of time on the filing of the charge-sheet. That we have explained is not a correct view.
Thus a perusal of this case will go to show that the Hon'ble Supreme Court has, in so many words, stated that if an order for release on bail has been made prior to the filing of the charge-sheet under proviso to Section 167(2) of the Code of Criminal Procedure, the same is not defeated by the lapse of time. Even the filing of the charge-sheet or remand by the Magistrate under Section 309(2), Cr. P.C. will not cure this defect and the order of bail cannot be cancelled only on the ground that the charge-sheet has been filed or a remand has been given by the Magistrate under Section 309(2), Cr. P.C. It has been held that the bail which has already been granted can be cancelled only under Section 437(5) or 439(2) Cr. P. C. The grounds which are to be considered for cancellation of bail have also been summarised in this case. This shows that the bail cannot be cancelled merely on the filing of the charge-sheet. The contention of the learned .Additional Government Advocate that after the pre-cognizance stage comes to an end the right to bail is lost as held by the Full Bench of this Court in the case of Vijai Bahadur v. State (supra) goes contrary to the findings of the Hon'ble Supreme Court. At pages 44 and 45 of the judgment the Full Bench has observed as under:--
I have gone through these case's decided by the Hon'ble Supreme Court but I find that in none of these cases the Hon'ble Supreme Court has laid down either expressly or by necessary implication that the right to be released on bail under the Proviso (a) to Sub-section (2) of Section 167 of the Code on the contingency of non-filing of the charge sheet within a period of 60 or 90 days, as the case may be, would continue to be available to the under-trial prisoner, even after the conclusion of the investigation and filing of the charge-sheet by the prosecution. The Hon'ble Supreme Court, in my opinion, had not expressed the view that the said right accruing to the under-trial prisoner would continue to be available to him in spite of filing of charge- sheet against him. In the aforesaid decisions the Hon'ble Supreme Court had laid emphasis on the point that if the investigation has not been completed and the charge-sheet has not been filed within the stipulated period under the said provision that accused applicant would be entitled to be released on bail and the Magistrate must intimate to the accused person that he can be released on bail as charge sheet has not been submitted by the prosecution within the said period. There would also be no necessity for any application to be filed for the purpose by the accused who has merely to indicate his preparedness to furnish the bail for his release under the said provision. It has not been laid down in the said decisions that this right is not indefeasible and that the Magistrate will be bound to release the under trial prisoner on bail even after filing of the charge sheet merely on the aforesaid ground.
Thus the order was passed by the Full Bench on the consideration of the decisions of the Hon'ble Supreme Court in the following cases:--
(i) Smt. Maneka Gandhi v. Union of India, AIR 1978 SC 597.
(ii) Gauri Shanker Jha 1972 Cri LJ 505 : (AIR 1972 SC 711).
9. After the above decisions the Hon'ble Supreme Court again considered this point in the case of Rajnikant v. Intelligence Officer, Narcotic Control Bureau, New Delhi -- (1990 Cri LJ 62) (SC) (supra) and Raghubir Singh v. State of Bihar (1987 Cri LJ 157) (SC) (supra) and after considering the matter the law has been interpreted as has been mentioned above. Thus in view of these decisions of the Hon'ble Supreme Court the Full Bench decision of this Court stands over ruled and is no longer a good law.
10. The net result is that the view taken by me in the case of Amar Singh v. State (1992 LLJ 373) (All) (supra) needs no review or reconsideration as the two Supreme Court cases which have been considered above were also considered in the above case and after a detailed discussion of the relevant law in the light of the decisions of the Hon'ble Supreme Court this Court came to the conclusion that the right of bail I under Section 167(2) proviso (a) of the Code of Criminal Procedure cannot be defeated by 'filing of the charge sheet or by passing an order of remand under Section 309(2) of the Code of Criminal Procedure. That finding was based on the fact that a right which has once vested in the accused cannot be divested by the subsequent events unless the law so provides. This is a criminal law and if there are two interpretations then the interpretation which is in favour of the accused is to be preferred.
11. Thus after screening the provisions of Section 167(2) proviso (a) of the Code of Criminal Procedure and various case laws on this point the Court comes to the conclusion that the right of the accused to be released on bail if the charge-sheet is not filed within the period of 90/60 days, as the case may be, is absolute and cannot be defeated or taken away oh subsequent filing of charge-sheet or by remand under Section 309(2) of the Code of Criminal Procedure. The right to bail in such a case continues till the accused is released on his furnishing bail bonds etc. In default of non-filing of charge sheet by prosecution within the prescribed period the Magistrate should pass an order enlarging the accused on bail, irrespective of the fact whether an application for bail is or is not moved.-by the accused and should call upon the accused to furnish bail bonds. If the accused is prepared and does furnish bail bonds then he has to be released on bail. If the accused fails to furnish bail bonds, then only he should be remanded under the provisions of Section 309(2), Cr. P.C. But if after remand the accused furnishes bail bonds, even after receipt of charge-sheet, then he has to be released from the custody because the order of bail survies even after filing of charge-sheet. The Magistrate cannot detain an accused in custody on furnishing bail bonds. The Magistrate has to follow the provisions Strictly if the accused furnishes bail bonds.
12. Therefore the application for bail of Dharmanand alias Mahato is allowed. Let him be released on bail on his furnishing a personal bond and two sureties in the like amount to the satisfaction of Chief Judicial Magistrate, Lucknow.