Patna High Court
Kanhaiya Mahto And Anr. Etc. vs State Of Bihar And Ors. on 28 September, 1999
Equivalent citations: 2000(1)BLJR622
Author: R.A. Sharma
Bench: R.A. Sharma, M.Y. Eqbal, A.K. Prasad
JUDGMENT R.A. Sharma, J.
1. A Division Bench in Cr. W.J.C. No. 94 of 1998(R) has referred the following question relating to interpretation and scope of Proviso(a) to Sub-section (2) of Section 167 of the Code of Criminal Procedure (hereinafter referred to as the Code) for decision by the Full Bench:
Whether the right of an accused for release on bail on an application made under Section 167(2)(a)(i) of the Code remains enforceable even after filing of the belated charge-sheet though filed after the said application but: before passing of the order for bail and/or before execution of the bail bond?
The reason for referring the said question to the Full Bench is the different views, regarding the interpretation and scope of Proviso (a) to Section 167(2) of the Code, expressed by two different Division Benches of this Court in Dr. Braj Nandan Sharma @ Dr. B.N. Sharma v. The State of Bihar and Ors. 1997 BCCR 69 and in Chutar Mahto v. The State of Bihar and Anr. Cr. W.J.C. No. 02/98(r). Pending the above reference, a learned Single Judge in Cr. W.J.C. No. 176/98(R) has also referred the following question to the Full Bench:
Whether on expiry of statutory period of 90 days, prayer for release on bail is made under Section 167(2)(a)(i) of the Code and on receipt of report that charge-sheet has not been received, order for release on bail under Section 167(2)(a)(i) of the Code is passed and the bail bond is also furnished, before its acceptance and issuance of release order, the order granting bail under Section 167(2)(a)(i) of the Code can be recalled, on receipt of subsequent report that by then charge-sheet has been received.
2. Section 167 of the Code, in so far as it is relevant for the present controversy, is reproduced below:
167. Procedure when investigation cannot be completed in twenty-four hours.-(1) ***** (2) The Magistrate to whom an accused-person is forwarded under this section may, whether he has or has not jurisdiction to try the case, from time to time to authorise the detention of the accused in such custody as such Magistrate thinks fit, for a term not exceeding fifteen days in the whole ; and if he has no jurisdiction to try the case or commit it for trial, and considers further detention unnecessary, he may order the accused to be forwarded to a Magistrate having such jurisdiction:
Provided that-
(a) The Magistrate may authorise 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 authorise 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 sub-section shall be deemed to be so released tinder the provisions of Chapter XXXIII for the purpose of that Chapter-
(b) *****
(c) ***** Explanation I.-For the avoidance of doubts it is hereby declared that, notwithstanding the expiry of the period specified in paragraph (a), the accused shall be detained in custody so long as he does not furnish bail.
Explanation II.-If any question arises whether an accused-person was produced before the Magistrate as required under paragraph (b), the production of the accused-person may be proved by his signature on the order authorizing detention.
3. The controversy, which has been referred to the Full Bench, is no more res intergra. It has already been decided by the apex Court. In Sanjay Dutt v. State through C.B.I., Bombay (II) , the apex Court has laid down that the right of an accused to bail under the proviso to Section 167(2) is enforceable only prior to the tiling of the charge-sheet and once the charge-sheet is filed the question of granting bail under the said proviso does not arise. It was further held that after the charge-sheet is filed, the prayer for bail has to be considered and decided on merits in accordance with the provisions relating to grant of bail to an accused. Paragraph '48' of the apex Court decision in Sanjay Dutt's case, being relevant is reproduced below:
48. We have no doubt that the common stance before us of the nature of indefeasible right of the accused to be released on bail by virtue of Section 20(4)(bb) is based on a correct reading of the principle indicated in that decision. The indefeasible right accruing to the accused in such a situation is enforceable only prior to the filing of the challan and it does not survive or remain enforceable on the challan being filed if already not availed of. Once the challan has been filed, the question of grant of bail has to be considered and decided only with reference to the merits of the case under the provisions relating to grant of bail to an accused after the filing of the challan. The custody of the accused after the challan has been filed is not governed by Section 167 but different provisions of the Code of Criminal Procedure. If that right had accrued to the accused but it remained unenforced till the filing of the challan, then there is no question of its enforcement thereafter since it is extinguished the moment challan is filed because Section 167, Cr. P.C. cases to apply.
*** It is settled by Constitution Bench decisions that a petition seeking the writ of habeas corpus on the ground of absence of a valid order of remand or detention of the accused, has to be dismissed, if on the date of return of the rule, the custody or detention is on the basis of a valid order." (See Naranjan Singh Nathawan v. State of Punjab , Ram Narayan Singh v. State of Delhi and A.K. Gopalan v. Government of India ).
4. Following the decision in Sanjay Dutt's case (supra), the apex Court in State of M.P. v. Rustam and Ors. 1995 Supp. (3) SCC 221, the relevant extract of which is reproduced below, has laid down that the relevant date on which the question of the availability of the right of compulsive bail is to be considered is the date on which the bail application is considered:
4...
The matter now stands settled in Sanjay Dutt v. State in which case Hitendra Vishnu Thakur v. State of Maharashtra has aptly been explained away. The Court is required to examine the availability of the right of compulsive bail on the date it is considering the question of bail and not barely on the date of the presentation of the petition for bail. This well-settled principle has been noticed in Sanjay Dutt case on the strength of three Constitution Bench cases Naranjan Singh Nathawan v. State of Punjab, Ram Narayan Singh v. State of Delhi and A.K. Gopalan v. Government of India.
5. In Raghubir Singh and Ors. v. State of Bihar , the relevant extracts from which are quoted below, the apex Court has held that the order for release on bail under Section 167(2) remains effective until an order is made under Section 437(5) and Section 439(2) and it is not defeated by lapse of time, filing of charge-sheet or by remand to the custody under Section 309(2):
20. ...
A person released on bail under the proviso to Section 167(2) for the default of the investigating agency is statutorily deemed to be released under the provisions of Chapter 33 of the Code for the purposes of that chapter. That is provided by the proviso to Section 167(2) itself. This means, first the provisions relating to bonds and sureties are attracted. Section 441 provides for the execution of bonds, with or without sureties, by persons ordered to be released on bail. One of the provisions relating to bonds is Section 445 which enables the Court to accept the deposit of an sum of money in lieu of execution of a bond by the person required to execute it with or without sureties. If the bond is executed (or the deposit of cash is accepted), the Court admitting an accused-person to bail is required by Section 442( 1) to issue an order of release to the Officer-in-charge of the jail in which such accused-person is incarcerated. Sections 441 and 442, to borrow the language of the Civil Procedure Code, are in the nature of provisions for the execution of orders for the release on bail of accused-persons.
What is of importance is that there is no limit of time within which the bond may be executed after the order for release on bail is made. Very often accused-persons find it difficult to furnish bail soon after the making of an order for release on bail. This frequently happens because of the poverty of the accused-persons. It also happens frequently that for various reasons the sureties produced on behalf of accused-persons may not be acceptable to the Court and fresh sure-ties will have to be produced in such an event. The accused-persons are not to be deprived of the benefit of the order for release on bail in their favour because of their inability to furnish bail straightway. Orders for release on bail are effective, until an order is made under Section 437(5) or Section 439(2). These two provisions enable the Magistrate who has released an accused on bail or the Court of Sessions or the High Court to direct the arrest of the person released on bail and to commit him to custody. The two provisions deal with what is known in ordinary parlance as cancellation of bail. Since release on bail under the proviso to Section 167(2) is deemed to be release on bail under the provisions of Chapter XXXIII, an order for release under the proviso to Section 167(2) is also subject, to the provisions of Sections 437(5) and 439(2) and may be extinguished by an order under either of these provisions....
In paragraph '22' of its judgment the apex Court summed up the position as under:
22. The report of our discussion and the case law is this: An order for release on bail made under the proviso to Section 167(2) is not defeated by lapse of time, the filing of the charge-sheet or by remand to custody under Section 309(2), The order for release on bail may however be cancelled under Section 437(5) or Section 439(2). Generally the grounds for cancellation of bail, broadly, are, interference or attempt to interfere with the due course of administration of justice, or evasion or attempt to evade the course of justice, or abuse of the liberty granted to him. The due administration of justice may be interfered with by intimidating or suborning witnesses, by interfering with investigation, by creating or causing disappearance of evidence etc. The course of justice may be evaded or attempted to be evaded by leaving the country or going underground or otherwise placing himself beyond the reach of the sureties. He may abuse the liberty granted to him by indulging in similar or other unlawful acts. Where bail has been granted under the proviso to Section 167(2) for the default of the prosecution in not completing the investigation in 60 days, after the defect is cured by the filing of a charge-sheet, the prosecution may seek to have the bail cancelled on the ground that there are reasonable grounds to believe that, the accused has committed a non-bailable offence and that it is necessary to arrest him and commit him to custody. In the last mentioned case, one would expect very strong grounds indeed.
6. Raghubir Singh's case (supra) has been followed by the apex Court in its later decision in Mohamed Iqbal Madar Sheikh and Ors. v. State of Maharashtra .
7. Thus the settled position is that if till the time the bail application is decided the charge-sheet has not been filed, the Magistrate has to pass an order granting bail under the proviso to Section 167(2). Filing of the charge-sheet after the passing of the bail order cannot affect the bail already granted. Bail order once passed under Section 167(2) is deemed to be an order under Chapter XXXIII of the Code and such an order can-not be recalled or reviewed except under and in accordance with Section 437(5) or Section 439(2).
8. The Division Bench in Dr. Braj Nandan Sharma @Dr. B.N. Sharma v. The State of Bihar and Ors. 1997 BCCR 69 (supra) has held that if an accused has applied for bail under the proviso to Section 167(2) after the expiry of 90 days and before filing of the charge-sheet, he acquires the right to bail and such a right cannot be taken away by filing the charge-sheet during the pendency of the bail application. Similar views have been expressed in Babul Yadav v. State of Bihar 1999(1) East Cr. C. 882(Pat). These cases do not represent the correct legal position and the views expressed therein are contrary to the law laid down by the apex Court in State of M.P. v. Rustam and Ors. (supra) and Sanjay Dutt v. State (supra). Both the above decisions of this Court are, accordingly, overruled.
9. Another Division Bench in Chutar Mahto v. The State of Bihar and Anr. Cr. W.J.C, No. 02/98-R (supra) has laid down that if the charge-sheet is filed even after passing of the order granting bail but before filing of the, bail bond, the right of the accused to get the bail is extinguished and the Magistrate is competent to recall/review the order granting bail. Similar view has been taken by the two Single Judge Benches in Ashok Paswan v. State of Bihar 1984 PLJR 274 and Chaitu Sahni v. State of Bihar 1994( 1) PLJR 337. The views expressed in the above three cases is contrary to law laid down by the apex Court in Raghubir Singh and Ors. v. State of Bihar (supra), State of M.P. v. Rustam and Ors. 1995 Supp. (3) SCC 221 (supra) and Mohamed Iqbal Madar Sheikh and Ors. v. State of Maharashtra (supra). The above three decisions of this Court are also overruled.
10. In Pradip Prasad v. State of Bihar 1995 (2) East Cr. C. 545 (Pat), the Division Bench of this Court has held that if no charge-sheet is filed within 90 days, the accused is entitled to be released on bail under Section 167(2) and filing of the charge-sheet subsequently does not defeat his right to bail which has akeady accused to him by operation of law. With the above observations, this Court disposed of the case directing the Court below to consider the application of the accused for release under Section 167(2) if it is satisfied that the charge-sheet was not received within 90 days of his arrest or surrender. It is well settled by the Supreme Court that if the charge-sheet has been filed before consideration of the application for bail, the accused cannot be released on bail, but if the bail order has already been passed before filing of the charge-sheet, the bail already granted cannot be affected. The observations in Pradip Prasad's case (supra) to the effect that if the charge-sheet has not been received within the period of 90 days the accused is entitled to bail under Section 167(2) cannot be sustained in view of the law laid down by the apex Court. The decision of this Court in Pradip Prasad's case is, accordingly, overruled.
11. In Sutta Rai alias Laxman Rai v. State of Bihar 1999( 1) East Cr. C. 894 (Pat), the charge-sheet was filed after the date on which the order granting bail was passed but before furnishing of the bail bonds. The learned Single Judge rightly held that the order granting bail cannot be cancelled, modified or changed merely on the ground that the charge-sheet was filed before filing of the bail bond. This decision lays down the correct law. In Ranjit Singh v. The State of Bihar 1998 (3) PLJR 917, the order of the Magistrate rejecting the prayer for bail under the Proviso (a) To Section 167(2) on the ground that before the consideration of the bail petition the charge-sheet was filed was upheld by the learned Single Judge. This case also represents the correct legal position.
12. Our answer of the questions referred to above is as under:
(i) The right of the accused for release on bail on an application made under the Proviso (a) to Section 167(2) of the Code remains enforceable till the charge-sheet is filed but filing of the charge-sheet after the order granting bail has been passed, cannot affect the bail already granted;
(ii) If the charge-sheet has been filed after passing the order of the bail under the Proviso (a) to Section 167(2), the bail order does not get extinguished and it remains effective even if the charge-sheet has been field before furnishing of the bail bond and/or before passing of the release order; and
(iii) But if the charge-sheet has been filed before consideration of the bail petition, the accused cannot be granted bail under the proviso to Section 167(2) even if the bail petition was filed prior to the filing of the charge-sheet.
M.Y. Eqbal, J.
13. I agree.
A.K. Prasad, J.
14. I agree.