Andhra HC (Pre-Telangana)
Singamala Sankara Nath vs State Of A.P. on 22 November, 2006
Equivalent citations: 2007CRILJ884, 2007 CRI. L. J. 884, 2007 ALL MR(CRI) 92 JS, (2007) 52 ALLINDCAS 466 (AP), 2007 (1) ANDHLT(CRI) 226 AP, 2007 (1) ALD(CRL) 7
Author: K.C. Bhanu
Bench: K.C. Bhanu
ORDER K.C. Bhanu, J.
1. This Criminal Petition is filed under Sections 437 and 439, Cr. P.C. for grant of bail to the petitioner/A. 1 in crime No. 175 of 2006 of III Town police station, Nellore registered for the offences under Sections 420, I.P.C. and 5 of the A.P. Protection of Depositors and Financial Establishments Act, 1999.
2. The brief facts that are necessary for disposal of this Criminal Petition may be stated as follows:
It is alleged that A. 1 started a company in the name and style of "Queen Trading Company Private Limited" on 18-3-2006 with the assistance of A.2 to A.5. The accused purported himself as an exporter of beads chains and offered good remunerative work i.e. knitting chains, promising the customers to pay Rs. 50/- per kg. of beads supplied by A. 1. The accused asked the customers to deposit Rs. 2.000/- for every kg. of beads towards caution deposit. It is further alleged that the public deposited money towards caution deposit and took beads/ pearls at their allotted ratio. It is alleged that totally an amount of Rs. 97,300/- was taken as deposit from various persons and later the accused shut down the business and evaded to return the deposit amounts to the concerned persons.
Basing on the complaint lodged by one G. Narayanamma, police registered the case. The petitioner was arrested on 19-8-2006 and since then he has been in judicial custody. The bail application Cri. M. P. No. 1452 of 2006 on the file of the Sessions Judge, Nellore, was dismissed by the learned Sessions Judge on merits by Order dated 3-11-2006. Thereafter, the petitioner filed a petition under Section 437 read with 167(2), Cr. P.C. before the learned II Additional Judicial Magistrate of First Class, Nellore, But, the same was returned with endorsement dated 19-10-2006 that as a circular was issued by District and Sessions Judge, Nellore to all Judicial Officers drawing their attention to a judgment reported in 2005 (1) ALD (Cri) 874 that grant of bail under Section 167(2) on completion of 60 or 90 days is not automatic but subject to conditions under Section 437 and 439, Cr. P.C. Challenging the same, the present petition is filed stating that the petitioner is willing to furnish suitable surety and abide by the conditions imposed by the Court.
3. The learned Counsel Sri C. Padmanabha Reddy appearing for the petitioner contended that since the offences alleged against the present petitioner are not punishable with either death or imprisonment for life, police have to file charge sheet within 60 days; that as on today, police have not filed charge sheet, that on failure to file charge sheet within the prescribed time as contemplated under proviso (a) to Sub-section (2) of Section 167, Cr. P.C., the petitioner is entitled to bail as a matter of right; that the decision in Bukke Ranuka and Ors. v. State of A.P. 2005 (1) ALD (Cri) 874 (AP) is per incuriam in view of the decision rendered by the Apex Court in Uday Mohanlal Acharya v. State of Maharashtra 2001 Cri LJ 1832; hence, he prays to grant bail to the petitioner. The learned Public Prosecutor opposed the same.
4. Now, the short question that falls for consideration is whether the petitioner is entitled to be released on bail under proviso (a) to Sub-section (2) of Section 167, Cr.P.C. ?
5. Proviso (a) to Sub-section (2) of Section 167, Cr. P.C. reads as follows:
Provided that -
(a) the Magistrate may authorize the detention of the accused person, otherwise than in the 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 paragraph for a total period exceeding,-
(i) ninety days, where the investigation relates to an offence punishable with death, imprisonment for life or imprisonment for a term of not less than ten years;
(ii) sixty days, where the investigation relates to any other offence, and on the expiry of the said period of ninety days, or sixty days, as the case may be, 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 subsection shall be deemed to be so released under the provisions of Chapter XXXIII for the purposes of that Chapter;
The law engrafted in the aforesaid proviso confers power on the Magistrate to grant bail to an accused during pendency of investigation upon completion of remand period as prescribed in the proviso.
6. In Bukke Ranuka case (supra), a learned single Judge of this Court after referring to the judgments of the Supreme Court in Dr. Bipin Shantilal Panchal v. State of Gujarat case 1996 (1) ALD (Cri) 149 : 1996 Cri LJ 1652 (SC), Hussainara Khatoon v. State of Bihar case , Natabar Parida v. State of Orissa case and Rajnikant v. Intelligence Officer, Narcotic Control Bureau, New Delhi case , observed as follows:
...Thus, Section 167(2) of Cr. P.C., confers a procedural right on the accused to move for bail whereas Sections 437 and 439 of Cr. P.C., deal with substantive right of accused for bail. In either case, it cannot be said that an accused can get an order of bail as a matter of course or in a routine manner dehors the provisions of Section 437(1) of Cr. P.C., assuming that the person is alleged to have committed an offence punishable with death or life imprisonment. Even in such a case, the Court competent to release an accused on bail has to consider every case on its own merits and it would not be correct to say that an accused would be entitled to bail the moment police failed to complete investigation within sixty/ninety days as the case may be.
7. The legislative command in proviso
(a) to Sub-section (2) of Section 167 Cr. P.C. is that a person has got to be released on bail if the offences alleged against him are not punishable with death, imprisonment for life or imprisonment for a term of not less than ten years provided he is prepared to and does furnish bail, and cannot be kept in detention beyond the period of sixty days even if the investigation may still be proceeding.
In Natabar Parida v. State of Orissa case the Apex Court also held, "....But, if it is not possible to complete the investigation within a period of 60 days then even in serious and ghastly types of crimes the accused will be entitled to be released on bail...."
In Rajnikant v. Intelligence Officer, Narcotic Control Bureau, New Delhi , case it is clearly held,"....If the investigating agency fails to file charge-sheet before 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....
8. In Sanjay Dutt v. State through C.B.I. Bombay case, a Constitutional Bench of the Apex Court had an occasion to consider the scope of Section 167 Cr. P.C. with reference to the provisions of the Terrorist and Disruptive Activities (Prevention) Act, 1987. One of the conclusions arrived at by the Bench is as follows: (Para 53(2) (b)) The 'indefeasible right' of the accused to be released on bail in accordance with Section 20(4)(bb) of the TADA Act read with Section 167(2) of the Code of Criminal Procedure in default of completion of the investigation and filing of the challan within the time allowed, as held in Hitendra Vishnu Thakur (1994)4 Supreme Court Cases 602 : 1995 Cri LJ 517 is a right which enures to, and is enforceable by the accused only from the time of default till the filing of the challan and it does not survive or remain enforceable on the challan being filed....
From the above, it is clear that right under proviso (a) to Sub-section (2) of Section 167 Cr. P.C. is indefeasible and it is enforceable by an accused only from the time of default till filing of challan or charge sheet.
9. In Hitendra Vishnu Thakur and Ors. v. State of Maharashtra and Ors. case, which was affirmed by the Constitutional Bench of the Apex Court in Sanjay Dutt case 1995 Cri LJ 477 (supra), it is held that the object behind the enactment of Section 167 Cr. P.C. was that the detention of an accused person should not be permitted in custody pending investigation for any unreasonably longer period, and that proviso to Section 167(2) Cr. P.C. prescribes outer limit within which the investigation must be completed. In case investigation is completed within the prescribed period, the accused would acquire right to seek to be released on bail provided if he is prepared to and does furnish bail.
10. In Uday Mohanlal Acharya case 2001 Cri LJ 1832 (supra), one of the conclusions reached by the Apex Court reads as follows:
...On the expiry of said period of 90 days or 60 days as the case may be, an indefeasible right accrues in favour of the accused for being released on bail on account of default by investigating agency in completion of Investigation within the period prescribed and the accused is entitled to be released on bail if he is prepared to and does furnish bail as directed by the Magistrate.
11. Proviso (a) to Sub-section (2) of Section 17 Cr. P.C. is not controlled by either Section 437 Cr. P.C. Merits of the case are immaterial. Whatever may be the serious nature of the crime and gravity of offence, no discretion is given to the Magistrate when the accused files an application for grant of bail under the said section, and thereupon the accused is entitled for bail as a matter of right. The observation in Bukke Ranuka case (supra) that right of an accused to apply for bail after sixty /ninety days of remand is indefeasible right provided that the substantive provision dealing with granting of bail permits the release of bail, is per incuriam in view of the decision of the Constitutional Bench of the Apex Court in Sanjay Dutt case 1995 Cri LJ 477 (supra) and Uday Mohanlal Acharya case 2001 Cri LJ 1832 (supra). If the said contention is accepted, then proviso (a) to Sub-section (2) of Section 167 Cr. P.C. is a dead letter in the Statute book. The object behind this salutary provision is to prevent the incarceration of persons accused of offences for an unduly long period without any other limit. This provision is an innovation in new Code and is intended to speed up investigation so that a person accused of an offence does not have to languish unnecessarily in prison facing a trial. Grant of bail under proviso (a) to Sub-section (22) of Section 167 Cr. P.C. is not on the merits of the case, but is primarily a statutory and technical right accruing in the event of delays in completion of investigation by police. The provisions of Section 437 Cr. P.C. can be invoked at any stage of the case. Therefore, in view of the above discussion, the decision rendered by this Court in Bukke Ranuka case (supra) is per incuriam. As a matter of fact, this Court in a decision in Public Prosecutor v. Chaganti Satyanarayana 1986 Cri LJ 1134 (AP) held as follows: (Para 13) If the investigation into a case is not completed and the charge sheet is not filed before the expiry of the period of detention of the accused for 90 days or 60 days as the case may be, the accused is entitled to be released on bail under the proviso (a) to Section 167(2) of the Cr. P.C., 1973. No discretion whatsoever is left to the Magistrate and it is obligatory on his part to release the accused on bail provided the accused furnishes bail.
12. In the circumstances, returning of the petition filed by the petitioner herein by the learned II Additional Judicial Magistrate of First Class, Nellor with the impugned endorsement dated 19-10-2006 in pursuance of the circular issued by the District and Sessions Judge, Nellore is illegal and contrary to the statutory provisions under Section 167(2), Cr. P.C. and also the ratio laid down by the Apex Court in Sanjay Dutt's case 1975 Cri LJ 477 (supra) and Uday Mohanlal Acharya's case 2001 Cri LJ 1832 (supra).
13. Coming to the facts of the present case, maximum punishment prescribed for the offence under Section 5 of the A.P. Protection of Depositors and Financial Establishments Act, 1999 is 10 years and for the offence under Section 420, I.P.C. is 7 years. Therefore, under Section 167(2), Cr. P.C., police have to file charge sheet within 60 days. The petitioner was arrested on 19-8-2006 and since then he has been in judicial custody for more than 60 days. It is not in dispute before this Court that police have not filed charge sheet as on today. Therefore, the petitioner is entitled for bail as a matter of right in view of the fact that he has applied for bail.
14. The Criminal Petition is, accordingly, allowed. The petitioner shall be released on his execution of a bond for Rs. 10,000/-(Rupees ten thousand) with two sureties each for the like sum to the satisfaction of the 11 Additional Judicial Magistrate of First Class, Nellore.