Kerala High Court
Nishil vs The Station House Officer And Anr. on 10 October, 2007
Equivalent citations: 2008(1)KLJ39, 2008 CRI. L. J. 2467, (2008) 61 ALLINDCAS 502 (KER), 2009 ALL MR(CRI) 37 JS, (2007) ILR(KER) 4 KER 543, 2008 (61) ALLINDCAS 502, (2007) 4 KER LT 870, (2008) 1 KER LJ 39, 2008 (3) ANDHLT(CRI) 209 KER, (2008) 3 ANDHLT(CRI) 209
Author: R. Basant
Bench: R. Basant
ORDER R. Basant, J.
1. Is an accused person, who was granted default bail under the proviso (a) to Section 167(2) Cr.P.C., which bail was cancelled later under Section 439(2) Cr.P.C., entitled to invoice the proviso to Section 167(2) Cr.P.C. again later? Will the fact that the final report was not filed within 60/90 days from the date of the remand after first arrest or the date of subsequent arrest on cancellation of bail entitle him for such default bail again? These interesting questions are raised in this application filed by the petitioner, who faces allegations for offences punishable, inter alia, under Sections 120B and 302 r/w. 149 I.P.C.
2. To the crucial and vital facts first. The petitioner is one of the 11 accused persons, who have by now been arrayed as accused in the case. He is the 11th accused. The alleged incident took place on 26-7-2005. The crux of the allegations is that accused 1 and 2 entertained business rivalry against the deceased, one Thilakan. They were all engaged in single digit lottery business. Accused, 1 to 7 allegedly conspired to do away with the said Thilakan. Accused 8 to 11 subsequently joined as conspirators. In prosecution of the conspiracy hatched, accused 3 and 8 to 11 allegedly proceeded on the date of the incident in a Maruti car. They were armed with dangerous weapons. They, in prosecution of the common object of the unlawful assembly and in pursuance of the conspiracy, attacked the deceased with dangerous weapons on 26-7-2005. The deceased succumbed to his injuries on 31 -7-2005. The petitioner is allegedly a hired assassin. He was arrested on 20-8-2005. He continued in custody. He was granted default bail as per order dt.21 -11-2005 under the proviso to Section 167(2) Cr.P.C. He allegedly abused the freedom and liberty granted to him. He did not comply with the conditions imposed. The bail granted to him was hence ordered to be cancelled under Section 439(2) Cr.P.C. He was arrayed subsequently while he was on bail, in four crimes, including crimes punishable under Sections 302,308 and 402 I.P.C. and the provisions of the Explosive Substances Act and Arms Act.
3. The petitioner was in the mean time arrested on 10-2-2007 as accused in another crime. He was produced before Court on production warrant in the instant crime on 2-5-2007. A period of 90 days has elapsed from 2-5-07 on 2-8-07. Final report has not been filed so far. Accused 8 and 9 have not been arrested so far. Investigation is still continuing. It is, in these circumstances, that the petitioner has come to this Court with an application for regular bail.
4. The learned Counsel for the petitioner submits that the petitioner is entitled for regular bail. He first of all submits that the petitioner is entitled for bail by default as final report has not been filed even now after his arrest on 20-8-2005. He further contends that, at any rate, he, who has again been arrested and taken into custody in this crime on 2-5-07, is entitled for bail by default under the proviso to Section 167(2) Cr.P.C. again on and after 2-8-07. Finally he urges that even if he is not entitled for default bail, he is entitled for regular bail in the changed circumstances under Section 439 Cr.P.C.
5. I shall consider the question whether the discretion under Section 439 Cr.P.C. can or ought to be invoked later. I shall first consider the legal question whether the accused in the given circumstances is entitled for regular bail again by default under the proviso to Section 167(2) Cr.P.C;.
6. The learned Counsel for the petitioner and the learned Prosecutor were requested to advance detailed arguments as it was felt that the question of law has not been specifically covered in any binding or persuasive precedents. The counsel asserted that no binding or persuasive precedents are available on the point. Advocate Blaze K. George and Sasthamangalam Ajitkumar also offered assistance to the Court. They were also heard.
7. The scheme of the Cr.P.C. 1973 in so far as it relates to detention pending investigation has got to be considered. Section 57 of the Cr.P.C. mandates that an arrested accused person has to be produced before the Magistrate within 24 hours of such arrest. Section 167 Cr.P.C. speaks of the procedure, if such investigation cannot be completed within the period of 24 hours as stipulated in Section 57. It is unnecessary to advert now to precedents and the specific language of Sections 57 and 167 Cr.P.C. Following principles appear to be very evident and are not disputed.
(1) Efforts must be made by the Investigating Officer to complete the. investigation within 24 as hours fixed by Section 57.
(2) If such completion is not possible and there are grounds for believing that the accusation/information is well founded the officer must forthwith forward the accused to the nearest judicial Magistrate with a copy of the relevant entries.
(3) The Magistrate, who receives such information, may authorise the detention of the accused for a maximum period of 15 days whether or not he has jurisdiction to try the case.
(4) Such detention during the initial period of 15 days may be either injudicial custody or in police custody in the discretion of the learned Magistrate. Magistrate having no jurisdiction must forward the accused to the Magistrate having jurisdiction on completion of 15 days of remand if there be reasonable grounds.
(5) Beyond the period of 15 days, there cannot be any remand to police custody.
(6) Thereafter, if the Magistrate having jurisdiction is satisfied that adequate grounds exist for doing so, the Magistrate may authorise the detention of the accused otherwise than in police custody for a period of 15 days at a time.
(7) Such detention cannot exceed the total period of 90 days or 60 days as the case may be.
(8) If within the said period of 90 days or 60 days the final report is not filed, the accused has an indefeasible right to be released from custody.
(9) Thereafter he can be remanded to custody by the Magistrate only if he is not in a position to offer bail.
(10) When the accused is so released under the proviso to Section 167(2) of the Cr.P.C. it shall be deemed that such release is under Chapter 33 of the Code.
(11) Such bail is also liable to be cancelled under Section 437(5) or Section 439(2) of the Cr.P.C. as the case may be.
(12) If the final report was filed after 60 or 90 days as the case may be and the accused has not availed such indefeasible right to be released on bail before the final report is filed, he cannot claim such right to be released on bail.
8. The question that I have to consider is not covered by the above principles or precedents squarely. In the instant case bail by default is granted. That bail is cancelled for non-compliance with the conditions imposed. That cancellation is not challenged and has become final. The accused is taken back to custody in pursuance of the order of cancellation. A further period of 90 days has elapsed again from the date on which he was rearrested. Still no final report is filed. Is the accused again entitled to be released on bail under the proviso to Section 167(2) of the Cr.P.C.? That squarely is the question to be decided.
9. The learned Counsel for the petitioner contends that the salutary principles underlying the proviso to Section 167(2) may not be lost sight of. An accused person is entitled to speedy trial. Right to speedy trial stems from the right to life under Article 21 of the Constitution. Indefinite detention of the accused without any formal indictment is frowned upon by Parliament. That has prompted the Parliament in the 1973 Code to introduce the proviso to Section 167(2). However grave and serious the offence may be, an accused cannot be kept under detention pending investigation beyond the period of 90 days. The law compels an investigating authority to complete the investigation and file final report within 90 days at the latest. Beyond that even in the gravest of cases, an accused cannot be kept in custody without bail. Completion of investigation within the maximum period of 90 days when the accused is in custody is the objective sought to be achieved by the proviso to Section 167(2) of the Cr.P.C. For that mandate to be implemented religiously an accused must be held to have such subsequent right also to claim bail by default afresh after the elapse of 90 days after the date of rearrest also notwithstanding the earlier cancellation of bail. An interpretation in favour of liberty of the individual may be adopted by the court. Merely because the bail granted was once cancelled, the obligation of the Investigator to complete the investigation within 90 days of such rearrest may not be watered down, contends the learned.
10. The learned Public Prosecutor, on the other hand, contends that the right of the individual will have to be balanced with the societal interests and perspective. An accused who is continuing custody pending investigation simplicitor cannot be equated with an accused who has been granted bail and whose bail has been cancelled subsequently for specific reasons under Section 439(2) or Section 437(5) of the Cr.P.C, submits the learned Public Prosecutor. Merely because the Investigator has not been able to complete the investigation within the period of 90 days after arrest or rearrest as the case may be, an accused person who has violated the conditions of the bail order and who has forfeited his right to continue on bail may not be conferred with a further right to be released on bail, submits the learned Public Prosecutor. The position of an accused whole bail has been cancelled under Section 439(2) or Section 437(5) is qualitatively different from an accused person who is continuing in custody for 90 days after his arrest without a charge sheet being filed against him. The purpose, objective and scheme of Section 167 of the Cr.P.C. may be alertly borne in mind, submits the learned Public Prosecutor.
11. Having rendered my very anxious consideration to all the relevant circumstances, I am of opinion that the condition of the learned Public Prosecutor is to be accepted. While interpreting the proviso to Section 167(2) the sacrosanct right of the individual to freedom and liberty must be balanced with the societal needs and requirements. A person who has abused the freedom granted to him and hence is rearrested must certainly be distinguished from an accused who has to continue in custody merely because the Investigator has not completed the investigation within a period of 90 days.
12. In this context, I take note of the deeming provision under Section 167(2) that an accused released under the proviso to Section 167(2) shall be deemed to be one who has been granted bail under Chapter 33. That inevitably means that the bail granted to him can be cancelled. Even when the circumstance which entitles him to grant of bail by default - the non-filing of the final report within 90 days, continues, the bail granted to an accused can be cancelled. This squarely shows that the right of an accused to be released on bail whether under the proviso to Section 167(2) or otherwise is subject to his observance of the conditions of bail and also subject to proper conduct on his part which does not disentitle him to continue on bail. If bail by default granted after 90 days is liable to be cancelled later on the ground of abuse of the liberty or violation of conditions even when the default in filing the final report continues, there can be no rhyme, reason or principle in insisting that a person who has been rearrested must again be granted the benefit of the proviso to Section 167(2) when the total period of detention exceeds 180 days.
Such an accused continues in custody because he has abused the freedom/liberty granted to him. The case of such a person must definitely be distinguished from a person who continues in custody without any charge sheet being filed against him.
It will not be inapposite in this context to take note of Section 436(2) of the Cr.P.C. In a bailable offence an accused has a right to be released on bail. Even such a right-is conditioned by the stipulation in Section 436(2) which entitled the court to refuse bail to such a person if he does not comply with the conditions imposed. The policy of the law is clearly reflected in Section 436(2). Even when the offence is bailable, bail can be refused if conditions of bail are violated. If that be the case, the position of an accused who has-been granted default bail under the proviso to Section 167(2) which bail is deemed to be bail granted under Chapter 33' cannot be any better.
13. As it was submitted at the Bar that there is no precedent covering the issue, the ' learned Additional Director of the Judicial Academy Sri. Abraham Mathew was requested, to research the point and assist the court. He has pointed out to me that a decision of the U.P. High Court in Ghoorey Singh v. State 1985 (22) All. Cri. C. 102 throws some light on this aspect. I place on record my appreciation for the able research assistance rendered by the learned Additional Director. In para 11 of the said decision, the following passage appears:
It is also obvious that once such bail granted to an accused is cancelled, there would be no question of making any further orders under sub-section directing release of an accused on bail on the ground that the police has failed to submit a charge sheet even though the period of ninety days stipulated in the section has expired. Further, Section 167(2) does not in any way inhibit the exercise of powers conferred upon the Count of Sessions and the High Court to direct the release of an accused on bail either at the stage covered by Section 167(2) of the Code or at any other stage.
Of court, the question considered in that case was not exactly identical. But the process of reasoning by the learned Judge Mr. Justice H.N. Seth appears to be in conformity with the process of reasoning which I have sought to accept.
14. I do, in these circumstances, come to the conclusion that an accused is entitled for default bail only once in respect of a crime and in a case where the bail granted to him has been cancelled under Section 439(2) or Section 437(5) of the Cr.P.C, he cannot thereafter claim the benefit of the proviso to Section 167(2).
15. This is, of course, not to say that the long period of incomplete investigation cannot weigh with the court while considering the grant of bail afresh under Section 437/439. The discretion under Section 437/439 will have to be alertly exercised taking into account all the relevant circumstances. Merely because an accused has committed breach of the obligation in a bond, endless detention pending investigation need not be authorised. But that will not be a case of mandatory grant of bail by default under the proviso to Section 167(2). It can only be a case of exercise of discretion under Section 437 or Section 439.
16. The question then is whether such discretion is liable to be exercised in this case. The allegations against the petitioner are serious. He was allegedly a conspirator and he had also taken part in the incident proper. He had violated the conditions of bail imposed on him when he was released under the proviso to Section 167(2). He has been involved in four crimes including the crimes punishable under Sections 302, 308 and 402 of the IPC, while he was on bail granted to him earlier. In these circumstances, notwithstanding the fact the petitioner has been a custody pending investigation from 20-8-05 to 21 -11 -05 and from 2-5-07 till this day, I am satisfied that the petitioner is not entitled to be granted bail.
17. I do however note with dissatisfaction that the investigation in this case has not been completed. The learned Public Prosecutor submits that the investigation shall be completed as expeditiously as possible. The Investigator requires some further time as accused Nos. 8 and 9 have not been arrested so far. The learned Public Prosecutor prays that one month's further time may be granted to the Investigator to complete the investigation.
18. This petition is, in these circumstances, dismissed. But I may hasten to observe that the petitioner shall be at liberty to move this Court for bail again at a later stage of the investigation - not, at any rate, prior to 26-11-07 if the final report is not filed. Needless to say, after the final report is filed the petitioner shall be at liberty to approach this Court for bail again and his application shall be considered afresh on merits at that stage.