Rajasthan High Court - Jodhpur
Vikash vs State Of Rajasthan on 5 December, 2022
Author: Farjand Ali
Bench: Farjand Ali
HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
S.B. Criminal Revision Petition No. 1334/2022
Vikash S/o Shri Rakma, Aged About 19 Years, R/o Badli Kheda
P.s. Gantali District Pratapgarh. (Presently Lodged At District Jail,
Pratapgarh)
----Petitioner
Versus
1. State Of Rajasthan, Through Pp
2. Narayan S/o Shri Mangla Bhil, Aged About 42 Years, R/o
Biladiya, Pinpalkhunt District Pratapgarh.
----Respondents
For Petitioner(s) : Mr. Kalu Ram Bhati
For Respondent(s) : -
HON'BLE MR. JUSTICE FARJAND ALI
Order Reportable 05/12/2022 The legality, correctness and propriety of the order dated 07.09.2022 passed by the Special Judge, POCSO Act Cases, Pratapgarh in Bail Application No.113/2022, which arose out of FIR No.76/2002, Police Station Pipalkhunt has been challenged by the accused-petitioner by way of filing the instant Criminal Revision Petition.
The notice issued by this Court has been duly served upon the private respondents; the proof of which has been filed on record by learned Public Prosecutor as per which, the SHO, P.S. Pipalkhunt intimated the complainant regarding hearing of the instant revision petition.
Bereft of elaborate details, the brief facts necessary for disposal of the instant Criminal Revision Petition are that the (Downloaded on 09/12/2022 at 09:42:32 PM) (2 of 9) [CRLR-1334/2022] petitioner was arrested on 05.06.2022 in connection with aforementioned FIR for the offences under Sections 363, 366, 376 (1) of the IPC and Sections 3 and 4 of the POCSO Act.
As per the statutory provisions contained in Sub-Clause (2) of Section 167 of the Cr.P.C., the charge-sheet is supposed to be submitted within 90 days of arrest of the accused/his or her production before the learned Magistrate concerned for remand. It is an admitted position that till 03.09.2022, no charge-sheet was submitted before the court concerned and, therefore, on behalf of the accused an application seeking default bail was filed in the Court below on the ground of non-filing of the charge sheet. A copy of the default bail application and endorsement made by the Court dated 03.09.2022 is available on record. It is emanating from the endorsement that upon filing of the default bail application, the learned Judge directed to list the matter on 07.09.2022 after preparation of check-report by the office. It is an undisputed fact that the charge-sheet was filed in this case on 06.09.2022 i.e., well after the expiry of 90 days of the arrest of accused and even after filing of the application for default bail. It has been propounded by Hon'ble the Supreme Court in the case of Uday Mohan Lal Acharya Vs. State of Maharashtra reported in AIR 2001 SC 1910 that the right of an accused to be released on bail due to commission of default in submission of charge-sheet within the stipulated period is a valuable, and indefeasible right. The above referred judgment of a three Judges' Bench has been recapitulated by the Hon'ble Supreme Court in catena of judgments and the same principle has been reiterated time and again.
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(3 of 9) [CRLR-1334/2022] The learned trial Court has dismissed the bail application on the ground that though the bail application had been submitted prior to filing of the charge-sheet but the accused was not willing to argue on default bail thus, prior to hearing on bail plea under Section 167 (2) of the Cr.P.C., the charge-sheet had been submitted on 06.09.2022, therefore, the petitioner's right to default bail has come to an end after filing of the charge-sheet. However, the record is reflecting altogether a different scene. Indisputably, the default bail application was filed by the accused on 03.09.2022. No endorsement was made by the Court on the bail application that any adjournment was sought on behalf of the accused, however, the Court posted the matter for hearing the bail plea on 07.09.2022 and in the meantime, the charge-sheet was submitted on 06.09.2022. It seems that only with a view to defeat the cause of the accused, the hearing of the bail application was postponed and the same was listed for hearing on 07.09.2022 so that the agency could file the charge-sheet in the meantime. It is nowhere reflecting that the accused was not willing and ready to furnish the bail bonds.
A perusal of the application is manifestly revealing that the accused was ready and willing to furnish bail bonds, thus, it was imperative upon the Court to pass an order in respect of furnishing bail bonds but the same was not done. This practice cannot be appreciated that when an accused prefers an application for default bail on the ground of non-filing of the charge-sheet after expiry of the statutory period, the Court defers hearing of the bail plea with a view to facilitate the agency to submit the charge-sheet in the meantime.
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(4 of 9) [CRLR-1334/2022] In the judgment rendered in case of Bikramjit Singh Vs. State of Punjab, reported in (2020) 10 SCC 616, a three- judge Bench of the Hon'ble Supreme Court has enunciated the expression "if already not availed of" in the following words:
The Court then held:
"13....The crucial question that arises for consideration, therefore, is what is the true meaning of the expression "if already not availed of"? Does it mean that an accused files an application for bail and offers his willingness for being released on bail or does it mean that a bail order must be passed, the accused must furnish the bail and get him released on bail? In our considered opinion it would be more in consonance with the legislative mandate to hold that an accused must be held to have availed of his indefeasible right, the moment he files an application for being released on bail and offers to abide by the terms and conditions of bail. To interpret the expression "availed of" to mean actually being released on bail after furnishing the necessary bail required would cause great injustice to the accused and would defeat the very purpose of the proviso to Section 167(2) of the Criminal Procedure Code and further would make an illegal custody to be legal, inasmuch as after the expiry of the stipulated period the Magistrate had no further jurisdiction to remand and such custody of the accused is without any valid order of remand. That apart, when an accused files an application for bail indicating his right to be released as no challan had been filed within the specified period, there is no discretion left in the Magistrate and the only thing he is required to find out is whether the specified period under the statute has elapsed or not, and whether a challan has been filed or not.
If the expression "availed of" is interpreted to mean that the accused must factually be released on bail, then in a given case where the Magistrate illegally refuses to pass an order notwithstanding the maximum period stipulated in Section 167 had expired, and yet no challan had been filed then the accused could only move to the higher (Downloaded on 09/12/2022 at 09:42:32 PM) (5 of 9) [CRLR-1334/2022] forum and while the matter remains pending in the higher forum for consideration, if the prosecution files a charge-sheet then also the so- called right accruing to the accused because of inaction on the part of the investigating agency would get frustrated. Since the legislature has given its mandate it would be the bounden duty of the court to enforce the same and it would not be in the interest of justice to negate the same by interpreting the expression "if not availed of" in a manner which is capable of being abused by the prosecution.
22. The second vexed question which arises on the facts of this case is the question of grant of default bail. It has already been seen that once the maximum period for investigation of an offence is over, under the first proviso (a) to Section 167(2), the accused shall be released on bail, this being an indefeasible right granted by the Code. The extent of this indefeasible right has been the subject matter of a number of judgments. A beginning may be made with the judgment in Hitendra Vishnu Thakur v. State of Maharashtra (1994) 4 SCC 602, which spoke of "default bail" under the provisions of the Terrorist and Disruptive Activities (Prevention) Act, 1987 (hereinafter referred to as "TADA") read with Section 167 of the Code as follows:
"19. Section 20(4) of TADA makes Section 167 of CrPC applicable in relation to case involving an offence punishable under TADA, subject to the modifications specified therein...while clause (b) provided that reference in sub-section (2) of Section 167 to '15 days', '90 days' and '60 days' wherever they occur shall be construed as reference to '60 days', 'one year' and 'one year' respectively. This section was amended in 1993 by the Amendment Act 43 of 1993 with effect from 22- 5-1993 and the period of 'one year' and 'one year' in clause (b) was reduced to '180 days' and '180 days' (Downloaded on 09/12/2022 at 09:42:32 PM) (6 of 9) [CRLR-1334/2022] respectively, by modification of sub-section (2) of Section 167. After clause
(b) of sub-section (4) of Section 20 of TADA, another clause (bb) was inserted which reads:
"(bb) in sub-section (2), after the proviso, the following proviso shall be inserted, namely:-- 'Provided further that, if it is not possible to complete the investigation within the said period of one hundred and eighty days, the Designated Court shall 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; and' "
20. ...Sub-section (2) of Section 167 of the Code lays down that the Magistrate to whom the accused is forwarded may authorise his detention in such custody, as he may think fit, for a term specified in that section. The proviso to sub- section (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...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 (Downloaded on 09/12/2022 at 09:42:32 PM) (7 of 9) [CRLR-1334/2022] 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 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 fails 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 [Hussainara Khatoon v. Home Secy., State of Bihar, (1980) 1 SCC 98 : 1980 SCC (Cri) 40 : AIR 1979 SC 1369] ). This legal position has been very ably stated in Aslam Babalal Desai v. State of Maharashtra [(1992) 4 SCC 272 : 1992 SCC (Cri) 870 : AIR 1993 SC 1] where speaking for the majority, Ahmadi, J. referred with approval to the law laid down in Rajnikant Jivanlal Patel (Downloaded on 09/12/2022 at 09:42:32 PM) (8 of 9) [CRLR-1334/2022] v. Intelligence Officer, Narcotic Control Bureau, New Delhi [(1989) 3 SCC 532 : 1989 SCC (Cri) 612 : AIR 1990 SC 71] 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."
(Emphasis supplied) Thus, in view of the above, it is held that on expiry of the said period of 60 days, 90 days, 180 days or as the case may be, an indefeasible right accrues in favour of the accused for his release on default bail by the investigating agency on non- submission of the charge-sheet within the prescribed period and the accused is entitled to be released on bail, if he is ready and willing to furnish bail bonds. The preparation, willingness as well as his intent to pursue the default bail application can be gathered from the moment he files an application for release on default bail. Of course, it is for the Court to pass an order regarding the amount of surety and bail bonds and an express order of his release upon fulfillment of the conditions. Neither the agency nor the Court can seek advantage of the aforesaid condition on the ground that before hearing the default bail application and passing order on it, the charge-sheet has been submitted. (Downloaded on 09/12/2022 at 09:42:32 PM)
(9 of 9) [CRLR-1334/2022] In the present case, in my considered view, the act of not passing an order/post-poning the hearing of the default bail application and inviting the agency to file the charge-sheet in the meantime is an endeavor to frustrate and defeat the cause of the accused-petitioner. This court is aptly guided by the principles of law laid down by the Hon'ble Supreme Court through a plethora of judicial pronouncements and is of the considered view that the accused of this case had moved an application seeking default bail and his intent and preparation has been shown by filing the application for default bail and the Court below was under an obligation to pass an appropriate order on the application for default bail.
In view of the above, the Criminal Revision Petition succeeds and is allowed. The order dated 07.09.2022 passed by the learned Special Judge, POCSO Act Cases, Pratapgarh in Bail Application No.113/2022 is hereby quashed and set aside. The accused is directed to be released on bail upon furnishing personal bond in the sum of Rs.50,000/- along with two sureties in the sum of Rs.25,000/- each to the satisfaction of the learned trial Court. It is further made clear that this order does not prohibit or otherwise prevent the arrest/re-arrest of the accused-petitioner on other legitimate and cogent reasons in respect of the subject charge. In the event of arrest of the petitioner, he would be at liberty to move for regular bail, which would be considered on the merits of the case.
(FARJAND ALI),J 96-Mamta/-
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