Rajasthan High Court - Jaipur
Bhudev vs State Of Rajasthan Through P P on 11 December, 2012
Author: Mohammad Rafiq
Bench: Mohammad Rafiq
IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT JAIPUR ORDER IN S.B. Cr. Misc. 2nd Bail Appl. No.11357/2012 Bhudev Vs. State of Rajasthan through Public Prosecutor Date of Order ::: 11.12.2012 Present Hon'ble Mr. Justice Mohammad Rafiq Shri V.S. Chauhan, counsel for petitioner Shri Mahendra Meena, Public Prosecutor for State Shri Yogesh Singhal, counsel for complainant #### //Reportable// By the Court:-
This is second application filed by petitioner praying for his release on bail pending trial. Petitioner is accused of committing offence under Sections 143, 341, 323, 307 and 302 IPC. His first Bail Application No.8828/2012 was dismissed by this court vide order dated 14.09.2012, however, with liberty to again apply for bail before the trial court after statements of eye witnesses are recorded and prosecution was directed to examine those eye witnesses on priority basis.
Facts giving rise to present case are that one Mukat Singh submitted a written report to Station House Officer, Police Station Kumher, District Bharatpur, on 22.09.2009 alleging that Munshi S/o Kanhaiya, Narain Singh, Natthan, Munshi S/o Buddha, Smt. Nattho, Smt. Rajjo, Rinku, Jitendra, Ashok, Bhudev (present petitioner) and Chandra armed with iron rods, 'lathis' and 'pharsa' came to agriculture field of his brother Kalua. They tried to forcibly cultivate the agriculture field with their tractor. On knowing this, his nephew Shiv Kant and Lokendra went to the agriculture field to prevent them from doing so. The informant also followed them. The accused suddenly attacked them. Rinku inflicted a blow with iron rod on the head of Lokendra. Petitioner Bhudev caused a pharsa blow on the head of Lokendra. Lokendra fell down. Accused Ashok inflicted blows with iron rod and remaining all accused inflicted lathi blows. Shiv Kant tried to save him. Whereupon accused opened fire with country made gun. Rinku inflicted a blow with iron rod on the head of Shiv Kant, which he saved by hand resulting into fracture thereof. When Shiv Kant fell on the ground, all the accused started beating him with iron roads, pharsa and lathis. Informant Mukat Singh and Yogesh intervened to save them. Injured were immediately rushed to the hospital at Bharatpur wherefrom they were referred to S.M.S. Hospital, Jaipur. Injured Lokendra succumbed to his injuries. Police after investigation, filed challan against accused Munshi and Narain Singh under Sections 143, 323, 341, 325, 307, 302, 120B IPC on 22.12.2009 and investigation against all remaining accused, including accused-petitioner, was kept pending under Section 173(8) of the Cr.P.C. Co-accused Natthan S/o Damodar was arrested on 30.08.2010 and supplementary charge-sheet against him was filed under Sections 143, 323, 341, 325, 307, 302, 120B IPC, on 22.11.2010. Co-accused Munshi S/o Buddha was arrested on 04.05.2011. He was granted bail by this court. Thereafter, co-accused Nattho Devi, Rinku, Munshi, accused-petitioner Bhudev, Ashok were arrested on 26.06.2012 and supplementary charge-sheet was filed against them too under Sections 143, 323, 341, 325, 307, 302 and 120B IPC and against co-accused Jitendra under Sections 143, 323, 341, 325, 307, 302, 120B IPC and Section 3/25 of the Arms Act, on 21.09.2012.
After dismissal of the bail application of the petitioner by this court on 14.09.2012 on merits, accused-petitioner applied for bail before the trial court invoking the default clause under Section 167(2) of the Cr.P.C. on 04.10.2012 contending that though supplementary charge-sheet against him was filed before the court of Magistrate on 21.09.2012, only a day before the last date of expiry of the period of 90 days prescribed under Section 167(2), supra, but cognizance of the offence was not taken by the Magistrate against accused-petitioner till date of filing of the bail therefore the accused-petitioner should be release on bail. Learned trial court rejected the said application on 04.10.2012.
Shri V.S. Chauhan, learned counsel for accused-petitioner, has reiterated the same argument before this court contending that since prerequisite condition for the Magistrate under Section 167(2) of the Cr.P.C. is to take cognizance of the offence alleged against accused within 90 days of his arrest, that condition having been violated the petitioner should be released on bail. Learned counsel in support of his argument relied on the judgment of this court in Narayan & Company Vs. The State of Rajasthan 1982 RCC (Vol.VII No.9) 315, Mahaveer Singh Vs. State of Rajasthan 1992 RCC 439, Roop Chand Vs. The State of Rajasthan 1997 Cr.L.R. (Raj.) 774. Counsel has produced for to show that challan was filed on 23.09.2012 whereas 90th day expired on 24.09.2012.
Per contra, learned Public Prosecutor opposed the bail application and submitted that as per Section 167(2) of the Cr.P.C., the proviso (A)(1) the period of filing challan in regard to an offence punishable for death, life imprisonment for less than ten years is 90 days. Whether or not challan has been filed within prescribed period of 90 days would be decided on the basis of date and this would be decided on the basis of date of challan is actually filed and not the date on which cognizance is taken. The investigation has to be held to have been completed the moment the challan is filed, then the cognizance may be taken by the magistrate on a later point of time. In support of his argument, learned counsel for petitioner has relied on the Division bench judgment of this court in Nizzu Vs. State of Rajasthan 1993 RCC 526.
I have given my anxious consideration to rival submissions and perused the material on record.
Earliest judgment of this court in Narayan & Co., supra, cited by learned counsel for petitioner has indeed held that once the period of 90 days or 60 days, as the case may be, as referred to in Section 167(2) Cr.P.C. expired before taking cognizance of the offences by the court, the accused acquires a valuable right to be released on bail. This line of approach has been followed in Mahaveer Singh, supra, and Roop Chand, supra, but then there is a contrary view expressed by the division bench of this court in Nizzu, supra. A similar view is also expressed in SB judgment of this court in Beni Madhav and Others Vs. The State of Rajasthan (1982 RCC 145). Aforesaid view of the SB was founded on the reasoning that investigation is not complete till Magistrate examines the police report filed under Section 173 Cr.P.C. and takes cognizance of the offence under Section 190 Cr.P.C. In other words, the view was where the Magistrate has not taken cognizance of the offence, detention of accused cannot be held to be authorized under Section 167(2) Cr.P.C. A learned Single Judge of this court vide his order dated 22.04.1993 while doubting the correctness of the aforesaid view, made a reference to the larger bench for determination of the following point:-
Whether the accused is entitled to bail under proviso to sub-sec.(2) of Sec.167 Cr.P.C. even in those cases where the investigation is complete and charge-sheet has been filed within the prescribed period, but cognizance could not b e taken by the Magistrate for any reason whatsoever.
The division bench in Nizzu, supra, did not agree with the earlier view expressed in Naryan & Co., supra, referred to above, observing thus:-
5. A bare reading of Sec. 167 Cr.P.C. will show that its various sub-sections deal with different situations. But one thing is clear that the procedure mentioned in the said section is attracted only when the investigation cannot be completed within the period prescribed. Sub-sec.(1) of Sec.167 Cr.P.C. will be attracted to a situation when any person is arrested and detained in custody and its appears to the investigating officer that the investigation cannot be completed within 24 hours. In such a situation, it is incumbent on the Officer Incharge of the police station or the police officer making the investigation, to forthwith transmit to the nearest Judicial Magistrate a copy of the entries in the diary relating to the case but also to forward the accused to such Magistrate. Sub-sec.(2) of Sec.167 Cr.P.C. thereafter comes into picture and it authorize any Magistrate, whether having jurisdiction in the matter or not, to order detention of the accused in such custody as he thinks fit, but in any case, the detention cannot exceed fifteen days. Then, proviso to sub-sec.(2) of Sec.167 Cr.P.C. comes into play and it prescribes different period of detention of the accused to be ordered by the Magistrate, depending on the sentences) which for the offences, with which the accused is charged, can be ultimately passed under the various sections of the Indian Penal Code. A reading of the aforesaid Sec.167 Cr.P.C. would show that the said section will only apply to the investigation of the case and detention of the accused can be authorized only during the investigation of the case and not thereafter. It is the mandate of the Legislature as contained in sub-sec.(1) of Section 173 Cr.P.C. that every investigation under this Chapter 12 shall be completed without unnecessary delay and under sub-sec.(2) of Sec.173 Cr.P.C. as soon as the investigation is completed, the Officer Incharge of the Police Station shall forward to the Magistrate empowered to take cognizance of the offence on a police report, a report in the form prescribed by the State Government stating various facts, name of the accused etc. as contained in clauses (a) to (g) of sub-sec.(2) of Sec.173 Cr.P.C. Therefore, from a joint reading of Section 167 and 173 Cr.P.C. it is clear that the stage of investigation comes to an end no sooner the report is forwarded by the Officer Incharge of the Police Station to the Magistrate. The learned Single Judge in the case of Beni Madhav (supra) had extended the investigation even after the filing of the police report under section 167, on the ground that even after the submission of the report u/s. 173 Cr.P.C. it is open to the Magistrate to direct further investigation under sub-sec.(2) of Sec.156 Cr.P.C. With due respect to the learned Jude, we are unable to agree with him. No doubt, Sec. 173(8) Cr.P.C. does not preclude further investigation in respect of offence after a report under sub-sec.(2) of Sec. 173 Cr.P.C. has been forwarded to the Magistrate and the Officer Incharge of the police station obtains further evidence, oral or documentary, and forwards it to the Magistrate, a further report or reports regarding such evidence in the form prescribed but we are of the opinion that it does not mean that the investigation can be said to be still pending. It can therefore, be concluded that proviso to Sub-sec.(2) of Sec.167 Cr.P.C. will not apply to a case where after the completion of the investigation, the Officer Incharge of the Police Station has forwarded to the Magistrate, report u/sub-sec.(2) of Sec.173 Cr.P.C. and therefore merely because after the investigation report or the charge-sheet has been filed within the prescribed period by the Officer Incharge of the Police Station but cognizance of the offence has not been taken by the Magistrate, it cannot be said that under proviso to sub-sec.(2) of Sec.167 Cr.P.C. the accused will be entitled for being released on bail.
This issue came up for consideration again even in a recent judgment of the Supreme Court in Dinesh Dalmia Vs. CBI (2007) 8 SCC 770, wherein it was held that the court takes cognizance of the offence and not of an offender. The power of a court to direct remand of an accused either in terms of Sub-section (2) of Section 167 of the Code or Sub-section (2) of Section 309 thereof will depend on the stages of the trial. Whereas Sub-section (2) of Section 167 of the Code would be attracted in a case where cognizance has not been taken, Sub-section (2) of Section 309 of the Code would be attracted only after cognizance has been taken. Proviso to Section 167(2) of the Cr.P.C. is conditional one, being condition of investigation having remained pending and the charge-sheet having not been presented. In the facts of that case, the appellant before the Supreme Court was not held entitled to statutory right to be released on bail.
In Jeewan Kumar Raut and Another Vs. Central Bureau of Investigation (2009) 7 SCC 526, the case pertained to offence under Section 22 of the Transplantation of Human Organs Act, 1994. The Central Bureau of Investigation, being an authorized agency under Section 13 of the Act of 1994, registered FIR under Section 22 of the Act of 1994, under which it is authorized only to investigate offences and it expressly has been statutorily prohibited from filing a police report. The bail application filed by accused under Section 167(2) of the Cr.P.C. was held not maintainable, since the the said provision was not attracted as the police report under Section 173(2) Cr.P.C. by necessary implication was forbidden by Section 22 of the Act of 1994. Admittedly, the complaint under Section 22 of the Act of 1994 was lodged within 90 days but the Magistrate delayed in taking cognizance. The argument was made that accused should be granted default bail because cognizance was taken with delay after 90 days of arrest. The Supreme Court held that even assuming for the sake of argument that sub-section (2) of Section 167 of the Cr.P.C. requires filing of a report within 90 days, this requirement under Section 22 of the Act of 1994 would be satisfied in case the complaint petition is filed within the aforesaid period. However, any delay by a court in taking cognizance would not mean that any new right is created in favour of the accused under Section 167(2) of the Cr.P.C. It was held that remand of an accused at a pre-cognizance stage is to be made in terms of Sub-section (2) of Section 167 of the Code, but an order of remand of an accused at post-cognizance stage can be effected only in terms of Sub-section (2) of Section 309 of the Cr.P.C.
In view of the above discussion, I do not find any merit in this bail application, which is accordingly dismissed.
(Mohammad Rafiq) J.
//Jaiman// All corrections made in the judgment/order have been incorporated in the judgment/order being emailed.
Giriraj Prasad Jaiman PS-cum-JW