Rajasthan High Court - Jaipur
Mahaveer Singh vs The State Of Rajasthan on 4 August, 1992
Equivalent citations: 1991(2)WLC689, 1992WLN(UC)171
JUDGMENT V.S. Dave, J.
1. This is an application for bail filed under Section 439 Cr.P.C. in a case under Sections 302 & 307 IPC.
2. Allegation against the accused-petitioner is that on midnight of 4th July, 1991 the accused-petitioner alongwith certain persons went to the house of deceased Dharmendra Singh and killed him by firing the gun. After investigation and committal a charge has been framed against him for offence under Sections 302, 460, 420 and 307 IPC and Section 3/25 & 3/27 of the Arms Act. The application has been filed on the legal ground that charge-sheet against him has not been presented within 90 days of his arrest which made him entitled to bail in terms of the proviso (1) of Section 167(2) Cr.P.C. It is alleged by him that he too had sustained injuries in the incident and the Station House Officer, police station, Bhanwargarh, District Baran admitted him to the hospital on 5th July, 1991 and as such he was in constructive custody of the S.H.O. P.S. Bhanwargarh, though a formal arrest memo has been prepared on 6th July, 1991. According to him the charge sheet in the case has been filed in the court of Judicial Magistrate 1st class, Baran on 4th October,' 1991, on which, the learned Magistrate did not take cognizance and only mentioned that, 'for check and report. Put up on 5.10,1991' and a report was made on it by the clerk on 5th October, 1991 and the learned Magistrate on this date took cognizance of the offence, though the copies of the charge sheet were delivered to the accused on 14th October, 1991. The argument of the learned Counsel for the petitioner therefore, in this bail application, is that taking the date of arrest from 5th October, 1991 or even 6th October, 1991, 90 days have elapsed on the day, the cognizance was taken. He has placed reliance on Narain Singh v. State of Rajasthan 1992 (7) R.Cr.C. 315, Sardar v. The State of Rajasthan 1983 (6) R.Cr.C. 108, Jawahar Singh v. The State 1990 (15) R.Cr.C. 140 and Khimbhadour Palshiram Thapa v. The State of Maharashtra 1939 (3) Crimes 543. On the strength of the aforesaid cases learned Counsel submitted that in the instant case cognizance was taken beyond period of 90 days, therefore the accused is entitle to bail.
3. On behalf of the State it has been argued that the accused was arrested on 6th July, 1991 and for the first time was produced before the Magistrate on 7th July, 1991 on which date he was remanded to police custody, therefore, period should be counted from 7th July, 1991 and that period would be counted upon 4th October, 1991 when the charge-sheet was submitted which period clearly comes to within 90 days'.
4. When the argument was raised before the learned Addl. Sessions Judge he held that as for the first time remand was granted on 7th July, 1991 and charge-sheet was submitted on 4th October, 1991, the accused is not entitled to be released on bail under the provisions of Section 167(2) Cr.P.C.
5. I called for the original record and have perused the same. It is borne out from the record that Mahaveer Singh accused-petitioner was admitted to Govt. Hospital, Baran on 5th July, 1991 at 2.50 p.m. It is mentioned therein that the accused was brought by Shri Shiv Bhagwan, S.H.O., police station, Baran Sadar. It may be mentioned here that the F.I.R. in the case was Lodged by Dharemendra at 8.30 a.m. on 5th July, 1991 wherein the accused was named. Thus, the accused-petitioner was an accused of the offence of murder in F.I.R. No. 39/91 at the time when the S.H.O., police station, Baran had taken him in his custody and admitted him to the hospital. The S.H.O. Shri Shiv Bhagwan however, prepared the arrest memo of accused-petitioner Mahaveer Singh on 6th July, 1991 at 6.30 p.m. I have carefully gone through this arrest memo and am constrained to say that at the top of it where description of the document is given the dated 5th July, 1991 has been altered to, 6th July, 1991 by making an overwriting and the time 6.30 p.m. is also written in different ink though at the bottom the date given is 6th July, 1991 at 6.30 p.m. Thus, for all practical purposes the petitioner was in custody of the S.H.O. w.e.f. 5.7.1991 when he got him medically examined and admitted to the Govt. Hospital, Baran. Regarding filing of the charge-sheet also I found that there is controversy. On the charge-sheet a note has been appended to by the learned Magistrate as under:
^^4-10-1991 psd o fjiksVZ fnukad 5-10-1991 dks is'k gks** but the order sheet of the file starts from 5.10.1991 when the learned Magistrate has recorded that accused Shyam alias Ghanshyam was present from judicial custody and accused Mahaveer Singh could not be produced from jail and it has been shown that he was admitted in Govt. hospital. Challan was filed on 4th October, 1991 and cognizance of the offences under Sections 460, 302, 307 and 420 IPC andS. 3/27 of the Arms Act is taken against Mahaveer Singh petitioner and for offence under Section 302/34, 307 & 460 IPC read with Section 3/25 and 3/27 of the Arms Act against Shyam alias Ghanshyam. It is pertinent to mention here that on the order-sheets of file when the last remand was given on 21st September, 1991, remand was granted upto 5th October, 1991 also which read pkyku is'k fd;kA 'kfey fely gks**. Thus, on both the ends there is controversy. On the first point of arrest, there is dispute in date whether it is 5th & 6th and at last point while filing charge sheet also whether it is 4th or 5th October, 1991? However, viewing from the point of view of counting 90 days of valid judicial custody if the date of taking cognizance is taken i.e., 5th October, 1991 together with the date of arrest as 5th or 6th July, 1991, then also it becomes 91 days. In this respect I would deal with the case law cited. In Narain Singh v. State of Rajasthan (supra) it has been held that if the cognizance has not been taken within 90 days the accused, after expiry of 90 days, has an absolute right to be released on bail which accuse to him. It was held that under the new Code of Criminal Procedure if the detention was illegal it cannot be validated by order of remand subsequently.
6. In Sardar v. The State of Rajasthan (supra) it has been held that an incomplete charge-sheet filed by the police cannot be treated as a report under Sub-section (2)(i) of Section 173 Cr.P.C. and if complete charge sheet is not filed within 90 days the petitioner's detention cannot be said to be legal.
7. In Jawahar Singh v. The State (supra) it has been held that starting point of limitation would be the date on which the accused is available to the police for investigation, while in detention under the orders of the court.
8. In Khimbhadhur Palshiram Thapa v. State of Maharashtra (supra) it was held that mere mechanical adjournment of a case after a charge-sheet is filed is neither an enquiry nor taking cognizance of the case within the meaning of Section 309(2) Cr.P.C. or within the meaning of Section 2(g) Cr.P.C.
9. In light of aforementioned judgments the calculation made by the learned Addl. Session Judge was against the law and I have no hesitation in holding that charge-sheet has not been filed within a period of 90 days and the accused is entitled to he released on bail.
10. It is, therefore, directed that the accused-petitioner Mahaveer Singh shall be released on bail provided he furnishes a personal bond in the sum of Rs. 20,000/- with two sureties in the sum of Rs. 10,000/- each to the satisfaction of the trial court with stipulation to appear in that court as and when called upon to do so during the pendency of the trial against him in this case.
11. Before parting with this case, I am constrained to make some observations as this case is an eye opener for police department. Under no circumstances this was the base for bail but I have been compelled to take the bail as the provisions of law concerning filing of the charge-sheet, have not been complied with faithfully. Accused-petitioner Mahaveer, according to the report, is involved in as many as 16 criminal cases out of which Three cases are under Section 302 IPC besides other offences; One under Sections 395, 396 & 397 IPC; 9 Atleast Two under Section 394 IPC; Two under Section 307 IPC. An accused of this character is a potential threat to the peace of citizens and creates law and order situation in State of Rajasthan and State of Madhya Pradesh. If the cases mentioned in the diary are genuine, it is for higher authorities to decide, should such slackness was expected of the concerned officers that accused had to be released on bail because charge-sheet has not been submitted within 90 days? I enquired time and again during pendency of this bail application from the Government Advocate as to whether he is on bail in the cases pending against him or that he is wanted in any of the cases aforesaid, if so, by which police station. Not getting any proper information I directed the Addl. Registrar to writ a letter to the learned Superintendent of Police, Baran who informed me vide his letter, dated 12th May, 1992 that 16 cases are pending against the accused petitioner including two under Section 302 IPC where charge-sheet has been filed in Madhya Pradesh and one under Sections 395, 396 & 397 II C of police station, Itawa where too charge sheet has been submitted. But this letter also has no detailed information as to whether he is still on bail in the aforesaid cases or his custody is to be handed over to some other police stations. It appears that complete desired information had not been furnished even to the Superintendent of police, Baran. I can only observe that dealing with the cases of such criminals in the manner done in this case, leaves an impression on the mind of the court that either the State Machinery Is unmindful of activities of such characters or they have some protection from some corner, which is required to be taken note of. Copy of this order shall be sent by name to Hon'ble Home Minister, as well as Director General of Police, Government of Rajasthan, Jaipur.