Jammu & Kashmir High Court - Srinagar Bench
Mushtaq Ahmad Mir & Ors. vs State Of J&K; on 14 February, 2019
Author: Rashid Ali Dar
Bench: Rashid Ali Dar
Serial No.20
Regular List
HIGH COURT OF JAMMU AND KASHMIR
AT SRINAGAR
B.A. No.144/2018
Date of decision:14.02.2019
Mushtaq Ahmad Mir & Ors. v. State of J&K through SHO P/S
Watergam
Coram:
Hon'ble Mr Justice Rashid Ali Dar, Judge.
Appearance:
For the Petitioner(s): Mr. Aazim Pandith, Adv.
For the Respondent(s): Mr. Shah Aamir, AAG
i) Whether approved for reporting in Yes/No
Law journals etc.:
ii) Whether approved for publication
in press: Yes/No
1. Petitioners, in terms of instant petition, have prayed to be admitted to bail while it being also submitted that the Court is required to examine for same:
(I) Whether it is the J&K Cr. P. C or the Central Cr.P.C that is to be read while the NDPS Act refers to it?
(II) What is the period of remand if the case relates to one of intermediate quantity and the maximum punishment that can be imposed is one which may extent to 10 years?
(III) How default bail application shall be decided and what is the duty of the courts?
(IV) Whether right to default bail extinguishes on presentation of the charge sheet?BA No.144/2018 Page 1 of 19
(V) Is there a need for moving a written application or an oral submission to that extent will also work?
2. For appreciating the contentions raised in terms of the petition, the factual backdrop is reproduced as:
"On 16th July, 2018, police were on Nakah duty. A vehicle (Tata Mobile) bearing registration No.JK09A-4048 was stopped. The vehicle was boarded by three people including the driver. On personal search, the medicine Spasmoproxyvon Plus was seized from each person. 56 capsules from petitioner No.1, 48 capsules from petitioner No.2 and 52 capsules from petitioner No.3 were seized. Accordingly, a docket was sent for registration of the case and FIR No.91 of 2018 under Section 8/22 of Narcotic Drugs and Psychotropic Substances Act (for short the Act) was lodged against the petitioner and investigation set into motion. The petitioners moved a bail application before the Court of Additional Sessions Judge, Sopore, on 25.09.2018, which was rejected on 26.09.2018 while applying the principle laid down in the judgment of this court in "Tariq Ahmad Bhat vs. State of J&K".
3. The observations made by the Coordinate Benches while appreciating relevant contentions in various cases are stated to be as:
"Mohd. Ashraf Vs. State" 2006(2)JKJ 47"
Per Justice Y. P. Nargotra The accused Mohd Ashraf and Mohd Shafi came to be arrested by Police Station Udhampur in connection with FIR No.73/2005 for commission of the offences under the Act. They were produced before the learned Sessions Judge, Udhampur, who is Special Judge for the purposes of N.D.P.S Act by the Police for obtaining judicial remand. On their behalf applications was filed for invoked the provisions of Section 167(2) of the J&K Cr. P. C Svt.
BA No.144/2018 Page 2 of 191989. It was contended before the learned Special Judge that Investigation has not been completed and no charge sheet has been filed despite expiry of 120 days from the date of their arrest, therefore, an indefeasible right has accrued in favour of the accused for being enlarged on bail on account of the default of the investigating agency in completing the investigation and filing the charge sheet. Learned Special Judge accepted the contention of the accused being of the view that proviso to Section 167(2) J&K Cr. P. C Svt. 1989 which alone is in force in the State applies and therefore the accused are entitled to bail.
The High Court observed as under:
"............in this part of country the provisions of Code of Criminal Procedure 1989 only apply and the provisions of Code of Criminal Procedure 1973 have no application to the State of J&K. Reading Section 167 (2) of the Code of Criminal Procedure of 1989 in juxtaposition with Section 36A of the Act, an irresistible inference that can be safety drawn is that the period of 60 days proscribed in Section 167 (2) of 1989 Code has to be doubled and not the period of 90 days prescribed in 1973 Code is to be taken into consideration. Considering the provision 167(2) of 1989 Code the accused persons are proved to be in police judicial custody for the last 121 days that is the period of 120 days has since expired and investigation is not complete as yet. In view what has stated here in above and in view of right guaranteed to the accused person under Section 167(2) Cr. P. C read with Section 36A of the NDPS Act, 1988, I direct that the accused persons be released from the custody forthwith if they furnish cash security of one lac each failing which they shall continue to remain in judicial custody till further orders. This arrangement of cash security is being made considering of heinous offence charged against the accused persons, which is a vice against the modern society & malignant to the progress of country, as also the quantity of heroin recovered from their possession, value whereof is lakhs of rupees in the international market."
"Firdous Ahmad Gazi Vs. State" 2012 4 Crimes (HC) 482"
Per Justice Virender Singh:
In this case the petitioner-Fridous Ahmad Gazi, booked in case FGIR No.37 of 2012 registered under Section 8/20 NDPS Act prayed for concession of regular bail, primarily, on the following two grounds:
(i)the quantity allegedly recovered from the petitioner falls under the head 'non-commercial' and as such severity of Section 37 of NDPS Act, not applicable;BA No.144/2018 Page 3 of 19
(ii)the petitioner was entitled to bail as the challan was not filed by the prosecution within the stipulated period of 90 days as contained in Section 36-A(4) of NDPS Act.
The Court observed as under:
"Keeping in view the admitted position that the quantity allegedly recovered from the petitioner does not fall under the head, 'commercial quantity' and therefore, severity of Section 37 of NDPS Act is not attracted, coupled with the fact that the challan in this case was not filed within the statutory period of 90 days, as contained in Section 36-A (4) of NDPS Act and the fact that the petitioner admittedly agitated this point before the learned Sessions Judge for seeking bail as a matter of right, which plea was repelled by the learned Sessions Judge primarily on the ground that the recovery of contraband is 'commercial quantity' and the fact that the trial of the present case is at its initial stage whereas the petitioner is languishing in jail for the last more six months, he is entitled to concession of bail on both the counts." Accordingly, petitioner was admitted to bail.
"Firdous Ahmad Payer Vs. State" (BA No.133/2018)"
Per Justice M. K. Hanjura:
In this case, on 6th July, 2018, a police party, during a routine checking found a person moving suspiciously near Watergam. He was carrying a polythene bag in his hand. He was asked to stop but he tried to give the patrol party a slip. He was chased and apprehended. During search of the bag, 10 bottles (10 ML each) of the banned contraband Viz. Maxcoff-T syrup were recovered, as a consequence of which offences under Section 8/222 NDPS act were found to have been made out against the petitioner and accordingly a case bearing FIR No.83/2018 was registered against him.
This court after hearing both sides admitted the petitioner to bail while observing as under:
"To categorize the materials in terms of quantity as small, medium and commercial is to allow escape routes for those to whom the rigor of section 37 of the NDPS Act does not apply. Had the intention of the Legislators been to treat those who are found to be in possession of the small and medium quantity of the drugs and Narcotic substances on par with those from whom commercial quantity of such substances is recovered, it could not have pierced and scaled it in different categories. The conflict between the human tendencies and the rules of society is an eternal one which cannot ever be solved or ended to the entire satisfaction of idealistic puritans. World of human society will always remain imperfect. It creates a false ethical self- importance on the part of the Courts who sit in judgment to decide or BA No.144/2018 Page 4 of 19 determine such cases not in accordance with the law but by sentimental proverbs."
4. Learned counsel for the petitioners appear to have made an in-depth survey of the case law and other provisions relevant in this regard and the endeavour requires to be appreciated. In some of the bail applications which have been argued before the Coordinate Benches, learned counsel had been appearing for the petitioners therein. It appears to be at his instance that the error in Gupta's J&K Laws regarding Section 167 Cr. P. C has been brought to the notice of the Bench and, accordingly, certain observations have been made by the Bench in this regard in "Firdous Ahmad Payer Vs. State of J&K" (BA No.133/2018). In this regard, it shall be quite apposite to quote para 16 of the said judgment in extenso:
"16. Before parting, it needs must be said that while going through the instant application, a very intricate question came to the surface, i.e. whether the amendment incorporated in Section 167 J&K Cr. PC has been rightly reflected and published in the Volume 4 of Gupta's J&K Laws 2015 edition? This Volume is shelved in the library of almost every Court in the District judiciary as also the High Court. It contains a similar note at pages 379 and 380. It states that the proviso added to Sub-Section 2 of Section 167 has been substituted by the Jammu and Kashmir Criminal Laws (Amendment) Act, 2014 (XI of 2014. The proviso, as is incorporated in the said Volume, reads as under:
"(a) the Magistrate may authorize detention of the accused person, otherwise than in custody of the police, beyond the period of thirty days if he is satisfied that adequate grounds exist for doing so, but no Magistrate shall authorize the detention of the accused person on custody under this section for a total period exceeding ninety days and on the expiry of the said period of ninety days the accused persons shall be released on bail if he is prepared to and does furnish bail, and every person released on bail under this section shall be deemed to be so released under the provisions of Chapter XXXIX for the purpose of that Chapter;
This proviso, as it finds place in Gupta's J&K Laws, Volume 4, 2015 edition, brings within its ambit, scope and sweep all the offences and it substitutes 15 days instead of 30 days and 60 days in the case of 90 days, wherever they existed in the earlier enactment. The scope of the proviso in BA No.144/2018 Page 5 of 19 the said Volume, as it relates to the substitution, has been portrayed in a heedless, imprudent and incorrect manner. It has been abstracted wrongly and the correct position has been crystallized in the Jammu and Kashmir Government Gazette, Vol. 126, Jammu, Saturday, the 22 nd March, 2014/ Ist Chai., 1936 (No.51-5), which incorporates the Jammu and Kashmir Criminal Laws (Amendment) Act, 2013 (Act No. XI of 2014) dated 22nd of March, 2014, at Chapter 3, and it is reproduced below, verbatim et literatim:
"Amendment of section 167, Act XXIII of 1989. -- In clause
(a) of proviso to sub-section (2) of section 167 of the Code of Criminal Procedure, at the end of said clause, the words "In case of offences punishable under section 326A, section 326B, section 376, section 376A, section 376C, section 376D and section 376E", the period of "fifteen days" and "sixty days", mentioned aforesaid shall be read as "thirty days" and "ninety days" respectively."
There is no Criminal Laws Amendment Act of 2014 (Act XI of 2014) dated 22nd of March, 2014. It is in essence the Criminal Laws Amendment Act of 2013 (Act XI of 2014) dated 22nd of March, 2014. The said amendment is applicable to the offences under Sections326 A, 326B, 376, 376A, 376C, 376D and 376E only where the period of remand has been extended to 30 days instead of the 15 days as it existed earlier. The total period of remand has been extended upto 90 days instead of 60 days as endowed earlier. The amendment in the Gupta's J&K Laws, 2015 edition, has been published in such a manner as if it is applicable to all the offences. It has been published in an irresponsible, irrational and casual manner without knowing its consequences. This Court also got swayed by the said publication and passed the orders based on the said amendment in two bail applications bearing Nos. 104 of 2018 and 109 of 2018 at paragraphs 16 and 9 respectively. The learned trial Court, in its order dated 7th of September, 2018, has referred to one of the orders passed by this Court in the bail application bearing No. 104/2018, titled "Tariq Ahmad Bhat & Anr. V. State", and has rejected the same after placing reliance on it. The editor has, in the most inconsiderate, unconscious and imprudent manner, published the said amendment in the Journal. In the previous past, the publication of the Jammu and Kashmir Laws was exclusively carried into effect by the Government. It is not known whether the publisher has been entrusted with any power or authority by the Law Department of the Jammu and Kashmir Government to publish the Jammu and Kashmir Laws and the notifications issued by the Government of Jammu and Kashmir from time to time. Copy of this order shall be forwarded to the learned Chief Secretary of the State of Jammu & Kashmir, who shall look into the pros and cons of the case and find out whether any authority has been bestowed unto the editor of the Gupta's J&K Laws, 2015, to publish the J&K BA No.144/2018 Page 6 of 19 Laws and whether he has been authorized to publish the notifications issued by the Government from time to time."
5. Learned counsel for the petitioners while being heard in the matter has projected arguments for being entitled to bail. Accordingly, while it being contended that the alleged recovery attributed to the accused does not fall within the commercial slab, it is being emphatically contended that the rigour of Section 37 of the NDPS Act was not applicable and so there was no occasion to keep the petitioners herein in custody. It had also been his submission before the learned Additional Sessions Judge that the petitioners were entitled to default bail in the light of grounds taken therein that their date of arrest being 16th of July, 2018 and the observations of the Hon'ble Apex Court in "Mohammad Iqbal Madar Sheikh Vs. State of Maharashtra" (1996) 1 SCC 722, and "Rakesh Kumar Paul Vs. State of Assam"
had been unambiguously pointing towards they being clothed with such a right.
6. The learned trial court has rejected the bail application with the observation that this High Court in "Tariq Ahmad Bhat Vs. State of J&K (BA No.104/2018) decided on 13.08.2018" has held "16. Taking the application of the applicants on the touchstone of the arguments of ld. Counsel for the applicants that the applicants had a statutory right to be admitted to bail on the completion of period of sixty days in custody on the strength and anvil of section 167 of Cr. P.C what can be said is that it is a spurious and a specious argument for the simple reason that for the period of "sixty days" wherever it occurred in section 167 Cr. P. V, the period of "ninety days" has been substituted by the Jammu and Kashmir Criminal Laws (amendment) Act 2014, (XI). On the face of the above, the argument of the ld. Counsel for the applicants that the applicants were entitled to be released on bail on the expiry of the period of detention of sixty days is devoid of any merit and substance and is, therefore, rejected."
7. Learned AAG appearing for the State has contended that the learned Additional Sessions Judge has, on proper consideration of the material before him, rejected the bail application as there was no force in the arguments raised by the BA No.144/2018 Page 7 of 19 petitioners. The error in Gupta's J&K Laws regarding Section 167 Cr.P.C and the amendment therein is not ben disputed.
8. Considered the rival arguments. Having regard to the fact that the allegation against the petitioners being in possession of respectively 56, 48 and 52 capsules of Spasmoproxyoan at the time they were apprehended on 16 th of July, 2018, the point to be underlined is what is the total weight of such drug for which the law has been brought into motion and the accused sought to be prosecuted. Computer generated information regarding drug which is not being disputed by the other side reveals that the said capsules i.e. Spasmoproxyvon contains "Dicyclomine 10 Mg +Paracetamol 325 Mg + Tramadol 50 Mg). The total weight of the capsules so recovered from the petitioners is, admittedly, 60.06 gms. The commercial quantity for this drug, in the Schedule to NDPS Act, is 250 gms. While pleading so, learned counsel canvassed law having been incorrectly applied by learned Additional Sessions Judge in rejecting the application.
9. It may also be proper herein to take note of the notification which has been brought on record in another bail application bearing No.134/2018, wherein by virtue of an amendment and consequent issuance of notification dated 26th April, 2018 "Tramadol" has been incorporated in the list of psychotropic substances specified in the Schedule to the NDPS Act and has to be treated as "psychotropic substance". The argument is taken, as such, and the questions raised for determination are needed to be answered in this backdrop.
10. Sub-section (4) Section 36A of the Act provides for extended period of remand in cases referred therein and Section 167 of Cr. P. C (Central) has to be read accordingly. It would be proper herein to have a glance of the said provision:
BA No.144/2018 Page 8 of 19"36A. Offences triable by Special Courts.
(1) xxx xxx xxx (2) xxx xxx xxx (3) xxx xxx xxx (4) In respect of persons accused of any offence punishable under section 19 or section 24 or section 27A or for offences involving commercial quantity the references in sub-section (2) of Section 167 of the Code of Criminal Procedure, 1973 (2 of 1974), 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."
11. It would be proper herein to have a glance of Section 167(2) of the State Criminal Procedure Code:
167. Procedure when investigation cannot be completed in twenty-four hours.--
(1) xxx xxx xxx (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 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 authorize the detention of the accused person in custody under this section for a total period exceeding ninety days and on the expiry of the said period of ninety days, 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 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 BA No.144/2018 Page 9 of 19
(c) no Magistrate of the second class, not specially empowered in this behalf by the Government or the High Court, as the case may be, shall authorise detention in the custody of the police.
(3) xxx xxx xxx (4) xxx xxx xxx
12. It cannot be disputed here that NDPS Act is a special legislation which has been enacted to have statutory control over the narcotic drugs which were being regulated in terms of various legislations including Opium Act, the Dangerous Drugs Act etc. It is provided in the statement of objects therein that there was an urgent need for enactment of a comprehensive legislation on narcotic drugs and psychotropic substances, more particularly in view of India being a party to various international treaties. Sight of the fact cannot be lost that Central Cr. P. C is not applicable to the State.
13. A Coordinate Bench in "Mohd. Ashraf's case supra has held that since provisions of NDPS Act are applicable to the State of J&K, therefore, Section 36A has to be read in same language in which it has been enacted. The provision regarding extended period of remand and to complete the investigation was thus treated to be part of Section 167 of the State Code by assuming that Section 36A being applicable to the State, the Section, as such, has to be treated to have been modified to this extent.
14. Nonetheless, Central Cr. P. C may not be applicable to the State of J&K, Section 36A of NDPS Act being treated to be a part of Section 167 of State Cr. P.C, the period of remand and the investigation has to be noted in the light of special legislation, as rightly laid down in Mohd. Ashraf's case.
BA No.144/2018 Page 10 of 1915. In the instant case, as already noted, the alleged contraband recovered from the petitioners is 60.06 gms. As canvassed in terms of the petition and having remained uncontroverted from the other side, it falls within intermediate quantity and the case registered against the accused has to be dealt accordingly. Mischief of Section 37 of the Act, admittedly, is not applicable thus for grant of bail. Prayer for admission to bail is and had to be tested on the touchstone of Section 497 Cr. P. C.
16. In "Rakesh Kumar Paul vs. State of Assam" (AIR 2017 SC 3948), a three Judge Bench of the Hon'ble Apex Court had an occasion to interpret Section 167(2)(i) of Cr.P.C. His lordship Hon'ble Mr. Prafulla C. Pant had his dissenting opinion in the matter and did not concur with the majority view of their Lordships Hon'ble Mr. Justice Madan B. Lokur and Hon'ble Mr. Justice Deepak Gupta. It would be proper herein to refer to the observations made by their Lordships:
Hon'ble Mr. Justice Madan B. Lokur
1. In Measure for Measure the Duke complains (in the given situation):
"And liberty plucks justice by the nose". 1 The truth is that personal liberty cannot be compromised at the altar of what the State might perceive as justice - justice for one might be perceived as injustice for another. We are therefore unable to agree with learned counsel for the State that the petitioner is not entitled to his liberty through what is commonly referred to as 'default bail' or that the justice of the case should persuade us to decide otherwise.
2. The facts in these petitions are not in dispute and we need not go into them in any great detail since we are really concerned with the interpretation of the words "imprisonment for a term not less than ten years" appearing in clause (i) of proviso (a) to Section 167(2) of the Code of Criminal Procedure, 1973 as amended in 1978.
A few facts BA No.144/2018 Page 11 of 19
3. A First Information Report No. 936 of 2016 was lodged on 27th October, 2016 in respect of allegations made under the provisions of the Prevention of Corruption Act, 1988 (PC Act) and the Indian Penal Code, 1860 (IPC). Although the petitioner was not named in the First Information Report, investigations seemed to implicate him in a very large and structured conspiracy. Accordingly, on 5th November, 2016 the petitioner was taken into custody pending further investigation.
4. Ordinarily, the maximum period of detention during the course of investigation (without a charge sheet or challan being filed) would be 60 days in terms of clause (ii) of proviso (a) to Section 167(2) of the Code of Criminal Procedure, 1973 (for short 'the Cr.P.C.'). In the petitioner's case, this period would come to an end on 3rd January, 2017. However according to the State, since the petitioner had committed offences which could result in "imprisonment for a term not less than ten years" he could be kept in custody for a period of 90 days in terms of clause (i) of proviso
(a) to Section 167(2) of the Cr.P.C. Therefore, the question before us is whether, pending investigation, the petitioner could be kept in custody for a maximum period of 60 days in terms of clause (ii) of proviso (a) to Section 167(2) of the Cr.P.C. or for 90 days in terms of clause (i) of proviso (a) to Section 167(2) of the Cr.P.C. without a charge sheet being filed.
5. On 20th December, 2016 (before the expiry of 60 days), the petitioner applied for bail before the Special Judge dealing with cases relating to offences under the PC Act. His application was rejected.
6. Subsequently, on or about 11th January, 2017 (after the expiry of 60 days of detention but before the expiry of 90 days of detention), the petitioner applied for bail before the Gauhati High Court, but that application was rejected on 11th January, 2017. The prayer made in the application for bail was for grant of "regular bail" under Section 439 of the Cr.P.C. This is of some importance because, according to learned counsel for the State, assuming the petitioner could be detained only for a maximum period of 60 days during investigations, he had not applied for 'default bail', that is bail in default of the prosecution filing a charge sheet against him soon after that 60 day period of detention, but had only applied for "regular bail".
7. At this stage, it may be mentioned that even though the petitioner had not applied for 'default bail' he did contend before the High Court that he was entitled to 'default bail' since no charge sheet had been filed against him within 60 days of his arrest during investigations. This submission was considered by the High Court but rejected, not on the ground that the petitioner had not applied for 'default bail' but on the ground that he could be detained for 90 days without a charge sheet being filed and that period BA No.144/2018 Page 12 of 19 of 90 days had not yet come to an end. (The period of 90 days would come to an end on or about 2 nd February, 2017).
8. To complete the narration of essential facts, it may be mentioned that a charge sheet was filed against the petitioner on 24 th January, 2017 that is after 60 days of his detention but before completion of 90 days of detention.
9. In view of the charge sheet having been filed, the modified question before us is whether the petitioner was entitled to 'default bail' with effect from 3rd or 4th January, 2017 onwards and, in any case on 11th January, 2017 when his application for "regular bail" was rejected by the Gauhati High Court.
28. We may also look at the entire issue not only from the narrow interpretational perspective but from the perspective of personal liberty. Ever since 1898, the legislative intent has been to conclude investigations within twenty-four hours. This intention has not changed for more than a century, as the marginal notes to Section 167 of the Cr.P.C. suggest. However, the Legislature has been pragmatic enough to appreciate that it is not always possible to complete investigations into an offence within twenty-four hours. Therefore initially, in the Cr.P.C. of 1898, a maximum period of 15 days was provided for completing the investigations. Unfortunately, this limit was being violated through the subterfuge of taking advantage of Section 344 of the Cr.P.C. of 1898. The misuse was recognized in the 41 st Report of the Law Commission of India and consequently the Law Commission recommended fixing a maximum period of 60 days for completing investigations and that recommendation came to be enacted as the law in the Cr.P.C. of 1973. Subsequently, this period was also found to be insufficient for completing investigations into more serious offences and, as mentioned above, the period for completing investigations was bifurcated into 90 days for some offences and 60 days for the remaining offences.
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.
39. This Court also noted that apart from the possibility of the prosecution frustrating the indefeasible right, there are occasions when even the court BA No.144/2018 Page 13 of 19 frustrates the indefeasible right. Reference was made to Mohamed Iqbal Madar Sheikh v. State of Maharashtra wherein it was observed that some courts keep the application for 'default bail' pending for some days so that in the meantime a charge sheet is submitted. While such a practice both on the part of prosecution as well as some courts must be very strongly and vehemently discouraged, we reiterate that no subterfuge should be resorted to, to defeat the indefeasible right of the accused for 'default bail' during the interregnum when the statutory period for filing the charge sheet or challan expires and the submission of the charge sheet or challan in court. Procedure for obtaining default bail.
Procedure for obtaining default bail
40. In the present case, it was also argued by learned counsel for the State that the petitioner did not apply for 'default bail' on or after 4th January, 2017 till 24th January, 2017 on which date his indefeasible right got extinguished on the filing of the charge sheet. Strictly speaking this is correct since the petitioner applied for regular bail on 11th January, 2017 in the Gauhati High Court - he made no specific application for grant of 'default bail'. However, the application for regular bail filed by the accused on 11th January, 2017 did advert to the statutory period for filing a charge sheet having expired and that perhaps no charge sheet had in fact being filed. In any event, this issue was argued by learned counsel for the petitioner in the High Court and it was considered but not accepted by the High Court. The High Court did not reject the submission on the ground of maintainability but on merits. Therefore it is not as if the petitioner did not make any application for default bail - such an application was definitely made (if not in writing) then at least orally before the High Court. In our opinion, in matters of personal liberty, we cannot and should not be too technical and must lean in favour of personal liberty. Consequently, whether the accused makes a written application for 'default bail' or an oral application for 'default bail' is of no consequence. The concerned court must deal with such an application by considering the statutory requirements namely, whether the statutory period for filing a charge sheet or challan has expired, whether the charge sheet or challan has been filed and whether the accused is prepared to and does furnish bail.
49.The petitioner is held entitled to the grant of 'default bail' on the facts and in the circumstances of this case. The Trial Judge should release the petitioner on 'default bail' on such terms and conditions as may be reasonable. However, we make it clear that this does not prohibit or otherwise prevent the arrest or re-arrest of the petitioner on cogent grounds in respect of the subject charge and upon arrest or re-arrest, the petitioner is entitled to petition for grant of regular bail which application should be BA No.144/2018 Page 14 of 19 considered on its own merit. We also make it clear that this will not impact on the arrest of the petitioner in any other case.
50. We allow the petition and set aside the judgment and order of the High Court.
51. The companion petition, being S.L.P. (Crl.) No. 2176 of 2017 is rendered infructuous and is dismissed as such.
Hon'ble Mr. Justice Deepak Gupta:
113. In view of the above discussion, my findings are as follows 113(1). I agree with both my learned brothers that the amendment made to the Prevention of Corruption Act,1988 by the Lokpal and Lokayuktas Act, 2013 applies to all accused charged with offences under this Act irrespective of the fact whether the action is initiated under the Lokpal and Lokayuktas Act, 2013, or any other law;
113(2). Section 167(2)(a)(i) of the Code is applicable only in cases where the accused is charged with (i) offences punishable with death and any lower sentence; (ii) offences punishable with life imprisonment and any lower sentence and (iii) offences punishable with minimum sentence of 10 years;
113(3). In all cases where the minimum sentence is less than 10 years but the maximum sentence is not death or life imprisonment then Section 167(2)(a)(ii) will apply and the accused will be entitled to grant of 'default bail' after 60 days in case charge-sheet is not filed.
113(4). The right to get this bail is an indefeasible right and this right must be exercised by the accused by offering to furnish bail.
On issues 2 to 4, I agree and concur with my learned brother Lokur J. and with due respect I am unable to agree with learned brother Pant J.
I agree and concur with the conclusions drawn and directions given by learned brother Lokur J. in Paras 49 to 51 of his judgment.
Hon'ble Mr. Justice Prafulla C. Pant:
72.From the above analogy, I am of the opinion that the intention of the legislature was that if an offence was punishable with imprisonment upto ten years, then it falls within the provision of Section 167(2)(a)(i) of the Code, and the permissible period for investigation is ninety days. The intention of the Legislature in extending the permissible time period from sixty days to ninety days for investigation is to include the offences in which sentence awardable is at least ten years or more. Therefore, as discussed BA No.144/2018 Page 15 of 19 above, though the expression "not less than ten years" used in Section 167(2)(a)(i) of the Code has created some ambiguity, the real intention of the legislature seems to include all such offences wherein an imprisonment which may extend to ten years is an awardable sentence. In other words, for offences wherein the punishment may extend to ten years imprisonment, the permissible period for filing charge sheet shall be ninety days, and only after the period of ninety days, the accused shall be entitled to bail on default for non filing of the charge sheet. (In the present case, admittedly the charge sheet is filed within ninety days). I may further add that, since the expression "not less than ten years" has caused ambiguity in interpretation, the best course for the legislature would be to clear its intention by using the appropriate words.
Answer to question II:
73. The second issue which requires to be addressed is whether the appellant is entitled to statutory bail under Section 167(2) of the Code though he has not made any application under Section 167(2) of the Code before the Magistrate (or Special Judge) prior to the filing of the charge sheet. The record of the case reveals that the appellant was arrested on 4.11.2016 and produced before the Magistrate on 5.11.2016 and he was remanded to custody for the first time. The period of sixty days for filing charge sheet expired on 04.01.2017. The charge sheet came to be filed on 24.1.2017.
Initially the appellant had applied for regular bail before the Sessions Court which came to be rejected on 20.12.2016. Thereafter he moved bail application No. 23/2017 for bail under Section 439 of the Code before the High Court of Guwahati. This bail application was disposed on 11.01.2017 which was after sixty days of arrest, but prior to filing of charge sheet. A perusal of this bail application shows that this bail application was moved under Section 439 of the Code for regular bail on merits and not as a bail claiming the statutory right under Section 167 of the Code. In none of the grounds taken in the bail application, the appellant has pleaded for default bail as a result of non filing of the charge sheet. All the grounds urged are on merits. The prayer is also for regular bail. It appears that, prior to the time of hearing, the counsel for the appellant has realised that the accused was entitled for default bail under Section 167(2) and has taken the plea in the oral arguments in the High Court that since sixty days for filing charge sheet has expired, he is entitled to bail as matter of right under Section 167(2) of the Code. The question thus arises, whether such application on merits can be equated to be an application seeking enforcement of statutory right under Section 167(2) of the Code and whether such practice of taking such oral arguments directly before the High Court in a pending regular bail application without having taken such grounds in the application or having approached the Magistrate (or Special Court) should be entertained.
BA No.144/2018 Page 16 of 1978. The law laid down as above shows that the requirement of an application claiming the statutory right under Section 167(2) of the Code is a prerequisite for the grant of bail on default. In my opinion, such application has to be made before the Magistrate for enforcement of the statutory right. In the cases under the Prevention of Corruption Act or other Acts where Special Courts are constituted by excluding the jurisdiction of the Magistrate, it has to be made before such Special Court. In the present case, for the reasons discussed, since the appellant never sought default bail before the court concerned, as such not entitled to the same.
81. I may hasten to add that in the present case, the allegations do not disclose merely an economic offence but it shows a transgression of the constitutional rights of the victims of the crime. The Chairman of the APSC has the responsibility on behalf of the State for enforcement of the Fundamental Rights of equality in matters of public employment enshrined under Articles 14 and 16 of the Constitution of India. If the allegations are found to be true, then the offence cannot merely be considered as an economic offence, but a fraud on the Constitution itself by the persons appointed to enforce it.
82. In the above circumstances, without expressing any views on the merits of the case pending before the trial court, looking into the nature of allegations, the role attributed to the appellant, the fact that further investigation regarding the offence is underway, possibility of tampering evidence and influencing witnesses, I am of the opinion that it is not a fit case for grant of bail at this stage even on merits.
17. Petitioner in the instant case had been arrested on 16 th of July, 2018 and they had presented an application for being admitted to bail on 25.09.2018. In the application they had taken the investigating agencies have failed to complete the investigation and produce the charge sheet within the statutory period which in case of non-commercial quantities is 60 days. The date of arrest of the accused being 16.07.2018 and the date of first remand being 17.07.2018, hence the investigating agency was supposed to produce the challan by or before 14.09.2018. Rejection of the bail petition has been simply made in the light of observations made by the Coordinate Bench in Tariq Ahmad Bhat's case". Reference to the amendment, in the said judgment, as pointed above, has been later revisited in Firdous Ahmad Payer's case by the same Bench noticing BA No.144/2018 Page 17 of 19 the argument raised and the incorrect reference of the amendment in Gupta's J&K Laws supra. In the instant case, final report, admittedly, has been filed after the period of sixty days. The extended period for having investigation in terms of Section 36A of the Act was not applicable as the alleged contraband was, as stated above, falling in intermediate slab. The ld. Sessions Judge has not considered the relevance of the judgment of the Apex Court brought to her notice. The approach so adopted was not right in the circumstances.
18. Question No.1 referred at the prelude regarding application of provisions of Cr. P. C has been answered above in para 14. The reply to question No.2 to 4 raised in petition is clearly indicated in the observations of their Lordships in the Rakesh Kumar's judgment and nothing further needs to be added.
19. It is an admitted position in the case that the quantity of contraband which is alleged to have bene recovered from the petitioner is intermediate one and so rigor of Section 37 of the Act is not applicable. The merit of the application has to be seen in the light of Section 497 Cr. P. C only.
20. Challan has been presented on 27.09.2018. The trial may have achieved substantial progress. Nothing has been brought on record by the prosecution that the petitioners herein, had been in past involved in the commission of any offence, more particularly under NDPS Act. It has also not been brought to fore that the conduct of the petitioners herein had, in any way, propensity of thwarting the course of justice after the case was registered. I, as such, am of the opinion that petitioners have made out a case for being admitted to bail. It also appears thus expedient in the ends of justice to admit the petitioners to BA No.144/2018 Page 18 of 19 bail. They have a right to prepare their defence as presumably innocent persons. Accordingly, petitioners are admitted to bail provided they will furnish personal bonds to the tune of Rs.50,000/ (rupees fifty thousand) each with one surety each of like amount to the satisfaction of the trial court subject to following terms and conditions I. They shall remain present before the trial Court, as and when asked to do so;
II. they shall not leave the territorial limits of the trial court without prior permission;
III. They shall not tamper or intimidate the prosecution witnesses;
21. Disposed of accordingly.
22. A copy of this order shall be sent to the trial court for information and further action.
(Rashid Ali Dar) Judge Srinagar 14.02.2019 "Bhat Altaf, PS"
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