Karnataka High Court
Nagaraj S/O Veerayya Swamy Mathpati vs The State Of Karnataka on 8 July, 2020
Author: Hanchate Sanjeevkumar
Bench: Hanchate Sanjeevkumar
IN THE HIGH COURT OF KARNATAKA
KALABURAGI BENCH
DATED THIS THE 8TH DAY OF JULY, 2020
BEFORE
THE HON'BLE MR.JUSTICE HANCHATE SANJEEVKUMAR
CRL.RP.NO.200027/2020
Between:
Nagaraj S/o Veerayya Swamy Mathpati
Age: 32 years, Occ: Engineer
R/o Bhemalakhed, Tq.Chitaguppa
Dist.Bidar
...Revision Petitioner
(By Sri Shivanand V. Pattanshetti, Advocate)
And:
1. The State of Karnataka
R/by Addl. SPP
High Court of Karnataka
Kalaburagi Bench
(Through Yadgiri Town P.S.,
Tq.& Dist.Yadgir)
2. Mahesh S/o Laxman Jadav
Age: 24 years
R/o Chandapur village
Tq.Chincholi, Dist.Kalaburagi
... Respondents
(By Sri Mallikarjun Sahukar, HCGP for R1;
Sri S.K.Babshetty, Advocate for R2)
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This Criminal Revision Petition is filed under Section
397 read with Section 401 of Cr.P.C. praying to set aside the
impugned order dated 27.05.2020 passed by the Sessions
Judge, Special Court at Yadgir, in Town P.S. Crime
No.50/2018, consequently allow the bail application and
release the petitioner/accused No.1 on statutory bail for the
offence punishable under Sections 498-A, 306 of IPC read
with Section 149 of IPC and under Section 3(2)(v) of SC/ST
of P.A. Act01989.
This petition coming on for admission, this day, the
Court made the following:
ORDER
(Through Virtual Court) This criminal revision petition is filed under Section 397 read with Section 401 of Cr.P.C. calling in question the order dated 27.05.2020 in Crime No.50/2018 passed by the Court of Sessions Judge and Special Court, Yadgiri, thereby rejecting the application filed by the petitioner under Section 167(2) of Cr.P.C.
2. Brief facts of the case are that, the sister of the deceased had lodged complaint against the 3 petitioner and other accused who have abetted the deceased to commit suicide by hanging by narrating in detail in First Information Statement (for short 'FIS). Accordingly crime is registered against the petitioner and other accused for the offences punishable under Sections 498-A, 306 read with Section 149 of IPC. The said FIS is lodged on 14.03.2018.
3. Based on the FIS given by the sister of the deceased, First Information Report (for short 'FIR') was registered on 14.03.2018. Upon acting on this, investigation was commenced. The record reveals that this petitioner being accused No.1 was arrested on 04.02.2020 and was produced before the Court, regarding this the remand report is produced. The Investigating Officer after completion of investigation, filed charge sheet on 08.06.2020. The petitioner had filed an application under Section 167(2) of Cr.P.C. before the Sessions Court praying to grant him 4 statutory bail as the Investigating Officer failed to file charge sheet within 90 days as stipulated in the said provision. Therefore, entitled to release him on statutory bail for the default committed by the Investigating Officer in not filing of charge sheet within 90 days.
4. The learned Sessions Judge had dismissed the application under Section 167(2) of Cr.P.C. filed by the petitioner/accused No.1 by referring the order of the Hon'ble Supreme Court dated 23.03.2020 in Suo Motu W.P.(C) No.3 of 2020 that the Hon'ble Supreme Court has extended the period of limitation prescribed under the general law of limitation or under the special law. Therefore, by referring the order of the Hon'ble Supreme Court stated supra and by forming opinion that since the period of limitation is extended, therefore, dismissed the application. The learned Sessions Judge had observed that the petitioner had filed bail application 5 under Section 167(2) of Cr.P.C. during the lockdown period, which is premature if lockdown period is excluded as on the date of filing of the application.
5. Further observed that initially the Investigating Officer invoked Sections 498-A, 306 read with Section 149 of IPC and under Section 3(2)(v) of the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989 (for short SC/ST (POA) Act) but at that stage the Court did not know under which provisions charge sheet is going to be filed and investigation is not yet completed and charge sheet is not filed, it is only due to spreading of disease COVID- 19, therefore, by making these observations the learned Sessions Judge has dismissed the application filed by the petitioner under Section 167(2) of Cr.P.C.
6. Being aggrieved by the impugned order, the petitioner/accused No.1 had preferred the present revision petition.
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7. The learned counsel for the petitioner/accused No.1 contended that the Hon'ble Supreme Court by the order dated 23.03.2020 passed in Suo Motu W.P.(C) No.3 of 2020 had not extended the period of limitation so far as filing of final report by the police under Code of Criminal Procedure but the learned Sessions Judge has misconstrued the order of the Hon'ble Supreme Court and by taking wrong impression of the said order had observed that the period of lockdown is to be excluded for filing of the charge sheet also. Therefore, by such erroneous order, the application filed by the petitioner is dismissed which is illegal and contrary to the order of the Hon'ble Supreme Court rendered in the case of S.Kasi vs. State through the Inspector of Police, Samaynallur Police Station, Madurai District (DD 19.06.2020) in Criminal Appeal No.452/2020 (arising out of SLP (Crl.) No.2433/2020) [DD 19.06.2020]. Therefore, he submitted that the order passed by the learned Sessions Judge in rejecting the 7 application filed by the petitioner is contrary to the order passed by the Hon'ble Supreme Court stated supra. Therefore, in the present case the Investigating Officer had not filed charge sheet within 90 days, the petitioner is entitled benefit of statutory bail as a matter of right. Therefore, prayed to allow the petition.
8. On the other hand, the learned HCGP fairly submitted that in the present case the charge sheet is filed belatedly that is after 90 days. Therefore, the petitioner is entitled benefit of bail as per Section 167(2) of Cr.P.C.
9. The complainant is also represented by the learned counsel by virtue of sub-section 5 of Section 15- A of the SC/ST (POA) Act and the learned counsel for the complainant had submitted that the order passed by the learned Sessions Judge is correct and there is no need to interfere with the order. Further submitted that the petitioner is not entitled bail even though the charge 8 sheet is filed after 90 days. Therefore, prayed to reject the petition.
10. Upon considering the chronological dates leading to the date of filing of the charge sheet, that, sister of the deceased had lodged FIS on 14.03.2018 against the petitioner who is accused No.1 as per the FIR and he was arrested on 04.02.2020. In the present case the offences are foisted as per FIR that for the offences punishable under Sections 498-A and 306 read with Section 149 of IPC. For the offence punishable under Section 306 of IPC the maximum punishment to be imposed is 10 years imprisonment. Therefore, the Investigating Officer has to file charge sheet within 90 days from the date of arrest of the accused as one of the offence alleged the punishment prescribed is up to 10 years. As stated above, the petitioner/accused No.1 was arrested on 04.02.2020 and the Investigating Officer ought to have file final report/charge sheet on or 9 before 90th day from the date of the arrest of the petitioner, but the Investigating Officer had filed charge sheet on 08.06.2020. These chronological dates or events are not disputed by the complainant as well as by the learned Addl. SPP.
11. Therefore, in the present case the Investigating Officer had filed charge sheet beyond 90th day. Under these circumstances, the petitioner had filed application under Section 167(2) of Cr.P.C. for seeking statutory bail by taking benefit of fault committed by the Investigating Officer. But the application filed by the petitioner is rejected by the learned Sessions Judge by quoting the reasons above discussed. In this regard, it is worthwhile to refer the judgment of the Hon'ble Supreme Court in the case of S.Kasi vs. State through the Inspector of Police, Samaynallur Police Station, Madurai District stated supra at para-18 as follows:
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18. If the interpretation by learned Single Judge in the impugned judgment is taken to its logical end, due to difficulties and due to present pandemic, Police may also not produce an accused within 24 hours before the Magistrate's Court as contemplated by Section 57 of the Code of Criminal Procedure, 1973. As noted above, the provision of Section 57 as well as Section 167 are supplementary to each other and are the provisions which recognises the Right of Personal Liberty of a person as enshrined in the Constitution of India. The order of this Court dated 23.03.2020 never meant to curtail any provision of Code of Criminal Procedure or any other statute which was enacted to protect the Personal Liberty of a person. The right of prosecution to file a charge sheet even after a period of 60 days/90 days is not barred. The prosecution can very well file a charge sheet after 60 days/90 days but without filing a charge sheet they cannot detain an accused beyond a said period when the accused prays to the court to set him at liberty due to non-filing of the charge 11 sheet within the period prescribed. The right of prosecution to carry on investigation and submit a charge sheet is not akin to right of liberty of a person enshrined under Article 21 and reflected in other statutes including Section 167, Cr.P.C. Following observations of Madras High Court in the impugned judgment are clearly contrary to the order dated 23.03.2020 of this Court: -
"...The Supreme Court order eclipses all provisions prescribing period of limitation until further orders.
Undoubtedly, it eclipses the time prescribed under Section 167(2) of the Code of Criminal Procedure also..."
12. Therefore, in the above said paragraphs principle of law laid down that the right of prosecution to file a charge sheet even after a period of 60 days/90 days is not barred. The prosecution can very well file a charge sheet after 60 days/90 days but without filing a charge sheet they cannot detain an accused beyond the said period when the accused prays to the Court to set him at liberty due to non-filing of the charge sheet 12 within the period prescribed. Therefore, it is stressed that if Investigating Officer fails to file the charge sheet within 60 days/90 days then the accused cannot be detained in custody and a right accrues in favour of accused to get him set at liberty due to non-filing of charge sheet within the period prescribed. Therefore, the order of the Hon'ble Supreme Court in S.Kasi stated supra has not extended the period of limitation to file a charge sheet by the Investigating Officer in a crime.
13. In this regard, the Hon'ble Supreme Court in the judgment of S.Kasi stated supra, were pleased to observe at para-17 as follows:
17. The limitation for filing petitions/applications/ suits/ appeals/all other proceedings was extended to obviate lawyers/litigants to come physically to file such proceedings in respective Courts/Tribunals. The order was passed to protect the litigants/lawyers whose petitions/ applications/ suits/ appeals/all other 13 proceedings would become time barred they being not able to physically come to file such proceedings. The order was for the benefit of the litigants who have to take remedy in law as per the applicable statute for a right. The law of limitation bars the remedy but not the right. When this Court passed the above order for extending the limitation for filing petitions/ applications/ suits/ appeals/all other proceedings, the order was for the benefit of those who have to take remedy, whose remedy may be barred by time because they were unable to come physically to file such proceedings. The order dated 23.03.2020 cannot be read to mean that it ever intended to extend the period of filing charge sheet by police as contemplated under Section 167(2) of the Code of Criminal Procedure. The Investigating Officer could have submitted/filed the charge sheet before the (Incharge) Magistrate. Therefore, even during the lockdown and as has been done in so many cases the charge-sheet could have been filed/submitted before the Magistrate (Incharge) and the Investigating Officer was 14 not precluded from filing/submitting the charge-sheet even within the stipulated period before the Magistrate (Incharge).
(Emphasis is supplied by me)
14. Further under very similar facts and circumstances wherein the various Hon'ble High Courts have dealt with this aspect were culled out at para-30 and were pleased to observe as follows:
30. Rajasthan High Court had occasion to consider Section 167 as well as the order of this Court dated 23.03.2020 passed in Suo Moto W.P(C)No.3 of 2020 and Rajasthan High Court has also come to the same conclusion that the order of this Court dated 23.03.2020 has no consequence on the right, which accrues to an accused on non-filing of charge sheet within time as prescribed under Section 167 Cr.P.C. Rajasthan High Court in S.B. Criminal Revision Petition No. 355 of 2020 - Pankaj Vs. State decided on 22.05.2020 has also followed the judgment of learned Single Judge of the Madras High Court in Settu 15 versus The State (supra) and has held that accused was entitled for grant of the default bail. Uttarakhand High Court in First Bail Application No.511 of 2020 - Vivek Sharma Vs. State of Uttarakhand in its judgment dated 12.05.2020 has after considering the judgment of this Court dated 23.03.2020 passed in Suo Moto W.P(C)No.3 of 2020 has taken the view that the order of this Court does not cover police investigation. We approve the above view taken by learned Single Judge of Madras High court in Settu versus The State (supra) as well as the by the Kerala High Court, Rajasthan High Court and Uttarakhand High Court noticed above.
15. Therefore, for the principle of law laid down by the Hon'ble Supreme Court in Suo Motu W.P.(C).No.3 of 2020 dated 23.03.2020 the period of limitation for filing of charge sheet is not extended. The said order of the Hon'ble Supreme Court does not cover the police investigation. The Investigating Officer being the police officials could have filed charge sheet within the 16 limitation prescribed and there is no embargo upon Investigating Officer to file charge sheet within the limitation period by taking excuse of lockdown due to COVID-19. In this regard the Hon'ble Supreme Court were pleased to make distinction clearly in para-17 that the right of accused as well as the duty cast on police officials while conducting investigation. But without applying mind in this regard in the present case the learned Sessions Judge by carrying different impression of the order of the Hon'ble Supreme Court in suo motu W.P.(C).No.3 of 2020 dated 23.03.2020 has rejected the application filed by the petitioner.
16. Therefore, it is right conferred on the petitioner to be released on bail wherein the Investigating Officer fails to file charge sheet/final report within the period of 60 days/90 days as prescribed under Section 167(2) of Cr.P.C. Therefore, the petitioner is entitled statutory bail as per Section 167(2) Cr.P.C. 17 due to fault committed by the Investigating Officer. Therefore, instant petition is liable to be allowed and the petitioner is entitled for statutory bail and accordingly he is enlarged on bail but with stringent conditions. Just because the petitioner is entitled statutory bail it cannot be meant that the conditions are not to be imposed. Even if the petitioner is entitled statutory bail as above stated by the fault committed by the Investigating Officer in not filing of charge sheet within the prescribed time, but conditions are to be imposed ensuring the presence of the petitioner/accused No.1 before the Investigating Officer for the purpose of further investigation if it is required as per the wisdom of the Investigating Officer and to meet the apprehension of the prosecution. Therefore, the instant petition is liable to be allowed.
17. Accordingly the criminal revision petition is allowed by setting aside the impugned order dated 18 27.05.2020 passed by the Court of Sessions Judge and Special Court at Yadgiri in Crime No.50/2018. The petitioner is set at liberty on bail subject to the following:
CONDITIONS
1. The petitioner shall execute a Personal Bond for a sum of Rs.2,00,000/- (Rupees Two lakh only) with two solvent sureties for like sum to the satisfaction of the concerned Sessions Court.
2. The petitioner shall attend the Court regularly on all the dates of hearing, without fail and shall co-operate for speedy disposal of the case.
3. If the petitioner fails to appear before the court on two consecutive dates of hearing, then it may entail cancellation of liberty granted by this order.
4. The petitioner shall not leave jurisdictional Court without its prior permission.
Sd/-
JUDGE sdu