Allahabad High Court
Rajeev Kuchchhal vs State Of U.P. And Another on 23 January, 2020
HIGH COURT OF JUDICATURE AT ALLAHABAD ?Court No. - 78 1. Case :- APPLICATION U/S 482 No. - 36888 of 2019 Applicant :- Rajeev Kuchchhal Opposite Party :- State of U.P. and Another Counsel for Applicant :- Anurag Vajpeyi,Manish Tiwary(Senior Adv.),Syed Imran Ibrahim Counsel for Opposite Party :- G.A. 2. Case :- APPLICATION U/S 482 No. - 36893 of 2019 Applicant :- Rajeev Kuchchhal Opposite Party :- State of U.P. and Another Counsel for Applicant :- Anurag Vajpeyi,Manish Tiwary(Senior Adv.),Syed Imran Ibrahim Counsel for Opposite Party :- G.A. 3. Case :- APPLICATION U/S 482 No. - 36896 of 2019 Applicant :- Rajeev Kuchchhal Opposite Party :- State of U.P. and Another Counsel for Applicant :- Anurag Vajpeyi,Manish Tiwary(Senior Adv.),Syed Imran Ibrahim Counsel for Opposite Party :- G.A. Hon'ble Om Prakash-VII,J.
Though aforesaid applications under Section 482 CrPC arose out of different crime numbers yet the controversy involved in all matters and applicant are same, the same have been heard together and are being decided by common order.
These applications have been filed with the prayer to quash the order dated 6.9.2019 passed by Incharge Second Additional Chief Judicial Magistrate, Gautam Budh Nagar in case crime nos. 1208 of 2018, 1209 of 2018 and 1132 of 2018, under Sections 420, 466468, 120-B IPC and 132 CGST Act, P.S. Surajpur, District Gautam Budh Nagar as well as the order dated 19.9.2019 passed by First Additional Sessions Judge, Gautam Budh Nagar in Criminal Revision No.258 of 2019, 259 of 2019 and 260 of 2019.
Heard Shri Manish Tiwary, learned Senior Counsel assisted by Shri Syed Imran Ibrahim, learned counsel for the applicant as well as the learned A.G.A. appearing for State.
It is submitted by learned Senior Counsel appearing for applicant that the applicant was arrested in the aforesaid crimes on 20.6.2019 against F.I.R. lodged for the offence under Sections 420, 467, 468, 471 IPC. Remand was being extended time to time and on 4.9.2019 prayer before the Court concerned was made by concerned Investigating Officer to change the remand for the offence under Sections 420, 466, 468 IPC and Section 132 CGST Act by deleting the offence under Sections 467, 471 and 120-B IPC. Court concerned summoned the accused / applicant from jail and on 6.9.2019 changed the remand of accused / applicant earlier granted till 11.9.2019 on 28.8.2019 for the offence under Sections 420, 466, 468 IPC and 132 CGST Act. It is further submitted that on 6.9.2019 itself applications were moved in all the aforesaid crimes by the applicant to release him on the basis of default bail under Section 167(2) CrPC, as after the expiry of 60 days, no charge-sheet was submitted by the Investigating Officer concerned. It is also submitted that after change of remand on 6.9.2019 remand of accused / applicant was only for the offence under Sections 420, 466, 468 IPC and 132 CGST Act, which are punishable for the period less than ten years. Thus, maximum period provided under Section 167 CrPC for filing charge sheet was only sixty days. Concerned Magistrate irrespective of this fact that remand of accused was changed for the aforesaid offences, rejected the applications moved by the applicant for release on default bail taking recourse to the provisions of Section 167(2) CrPC observing that at initial stage in the present matter offence under Section 467 IPC was also levelled against the accused / applicant which was punishable for ten years or more and life imprisonment was also provided for the offence under Section 467 IPC, which is illegal and without application of judicial mind. As soon as remand was changed by deleting offence under Section 467 IPC, accused / applicant was entitled to be released on default bail, as he has expressed his intention to file bail bonds as required under law. It is next submitted that order dated 6.9.2019 passed by concerned Magistrate was challenged by way of Criminal Revisions before the Sessions Judge concerned. Though the Additional Sessions Judge concerned discussed the entire facts in detail yet dismissed the revisions on the ground of maintainability and did not direct the concerned Magistrate to release the accused / applicant on the ground of non-submission of charge sheet within the prescribed period provided under law. Referring to aforesaid facts, it is further submitted that since charge sheet was not submitted within sixty days and time for filing charge sheet was upto 21.8.2019 (first remand of accused was taken in the matter on 21.6.2019), therefore, as soon as applications dated 6.9.2019 were moved by the accused / applicant, indefeasible right accrued in his favour. Submission of charge sheet subsequently and taking cognizance thereon will not extinguish the right accrued in favour of applicant. In support of his submissions, learned counsel for the applicant placed reliance on the following decisions:
1. Sanjay Dutt vs. State through C.B.I. Bombay(II), (1994) 5 SCC 410.
2. Achpal and others vs. State of Rajasthan, Criminal Appeal No. 1218 of 2018 (arising out of Special Leave Petition (Criminal) No. 6453 of 2018), decided on 24.9.2018.
3. Rajeev Chaudhary vs. State (NCT) of Delhi, (2001) 5 SCC 34.
4. Rakesh Kumar Paul vs. State of Assam, (2017) 15 SCC 67.
On the other hand, learned AGA appearing for State submitted that on 28.8.2019 remand of accused / applicant was accepted upto 11.9.2019. The Investigating Officer concerned in collusion with the accused moved the application before the Court below on 4.9.2019 to delete the offence under Sections 467 and 471 IPC and to accept the remand of accused for the offence under Sections 420, 466, 468 IPC and 132 CGST Act. Since FIR was also lodged for the offence under Section 467 IPC, which was punishable for more than ten years and life imprisonment also, the trial court has rightly rejected the application for default bail moved by the applicant. Orders passed by the concerned Magistrate were not revisable, therefore, there is no illegality, infirmity, perversity or irregularity in the orders passed by the lower revisional court. In the present matter period for submission of charge will be 90 days and charge sheet was submitted on 11.9.2019 and cognizance was also taken thereon.
I have considered rival submissions made by learned counsel for the parties and have gone through the entire record including the case laws relied upon in the matter.
In this matter it is admitted case of the parties that initially F.I.R. was lodged for the offence under Sections 420, 467, 468, 471 IPC. Investigation continued in all three cases and time to time custody of accused / applicant in all matters was extended on the prayer of Investigating Officer concerned. On 28.8.2019 remand of accused / applicant was accepted upto 11.9.2019 for the offence under Sections 420, 467, 468, 471, 120-B IPC. A perusal of record also reveals that on 4.9.2019 the concerned Investigating Officer moved an application before the concerned Magistrate to change the remand of accused only for the offence under Sections 420, 466, 468 IPC and 132 CGST Act. Concerned Magistrate on 6.9.2019 summoned the accused / applicant from jail and changed the remand of accused / applicant only for the offence under Sections 420, 466, 468 IPC and 132 CGST Act, meaning thereby on 6.9.2019 in all aforesaid crimes offence under Sections 467 and 471 IPC was not in existence against the accused / applicant. It also appears that accused / applicant also applied for default bail on the same day i.e. 6.9.2019, as is evident from the impugned orders itself. If the aforesaid factual position in light of submissions raised across the Bar and also the law laid down by the Apex Court in Rakesh Kumar Paul case (supra), are taken into consideration, it emerges that charge sheets were to be submitted in the present matters within sixty days. It is not a case in which charge sheets were to be filed within ninety days of the arrest of accused, as remand of accused was changed. It is also evident from the impugned orders that charge sheets were not filed in the matters on 6.9.2019. It appears that trial court committing illegality reckoned the period for filing charge sheets in the present matters on the basis of offence under Sections 467 and 471 IPC. Since on 6.9.2019 sixty days time was elapsed and no charge sheets were filed till said date, applications, expressing intention to file bonds, were also filed on behalf of accused /applicant. Thus, concerned Magistrate ought to have recognized the indefeasible right accrued in favour of accused / applicant due to non-filing of charge sheets within the period provided under Section 167(2) CrPC. The Apex Court in Rakesh Kumar Paul case (supra) even in absence of default bail application moved on behalf of applicant recognized the oral submission made by the accused / applicant during course of hearing of regular bail and accused / applicant was directed to be released on bail. The lower revisional court has also not directed for conversion of criminal revisions into regular bail applications, instead, dismissed the revisions only on the ground of maintainability. The lower revisional court has also not considered this fact that detention of accused / applicant in jail, for the reasons discussed here-in-above, is unauthorized and he could not be kept in jail defeating his indefeasible right, as laid down by the Apex Court in Rakesh Kumar Paul case (supra). In the facts and circumstances of the case, I do not find any necessity to discuss about maintainability of criminal revisions against the order passed by the concerned Magistrate on default bail application of accused / applicant when on 6.9.2019 applicant moved applications for default bail expressing his intention to furnish bail bonds, indefeasible right accrued in his favour could not be defeated by filing charge sheets subsequently.
In view of the above discussions, I am of the view that there is substance in the submissions made by the learned Senior Counsel appearing for applicant. The applications are liable to be allowed and the impugned orders passed by concerned Magistrate are liable to be quashed and the applicant is entitled to be released on default bail.
Accordingly, applications are allowed and the orders dated 6.9.2019 passed by Incharge Second Additional Chief Judicial Magistrate, Gautam Budh Nagar in case crime nos. 1208 of 2018, 1209 of 2018 and 1132 of 2018, under Sections 420, 466, 468, 120-B IPC and 132 CGST Act, P.S. Surajpur, District Gautam Budh Nagar are quashed / set-aside. Trial Court is directed to release the applicant on default bail with the conditions to his satisfaction.
Copy of this order be also placed on the records of application u/s 482 no. 36893 of 2019 and 36896 of 2019.
Order Date :- 23.1.2020 safi