Madras High Court
Guna Alias Gunasekaran vs The State on 17 April, 1996
Equivalent citations: 1997CRILJ626
ORDER
1. The accused in custody, by name, Guna alias Gunasekaran, in Crime No. 245 of 1995 of Kullanchavadi Police Station in South Arcot Vallalar District, for the offences under Sections 147, 148, 341 and 302 Indian Penal Code, has preferred this revision, canvassing the propriety and legality of the impugned order passed by the Judicial Magistrate No. 3, Cuddalore, in Crl.M.P. No. 2690 of 1995 on 31-8-1995, declining to enlarge the petitioner on bail which was sought for on the ground of failure to file the charge sheet or final report within 90 days from the date of the arrest of the petitioner for the alleged offences, as it is a failure of mandatory functioning.
2. The petitioner-accused, among the other accused, was admittedly arrested by the respondent-police for the abovesaid alleged offences on 29-5-1995 and produced to judicial custody on the next day itself. Since the case registered against the petitioner and others was under investigation, the final report as required by the procedural law was not filed into the Court by the respondent-police which resulted in the petitioner filing Crl.M.P. No. 2690 of 1995 before the learned Judicial Magistrate No. 3, Cuddalore, inviting the passing of the impugned order after contest. After having considered the merits of the case by hearing both the parties and after having placed reliance upon a decision held in Shankar alias Gourisankar v. State, 1991 Mad LW (Cri 202 : (1991 Cri LJ 1745)), learned Magistrate declined to allow the petition by passing the following order :
"Petition is filed under Section 167(2) Crl.P.C. by the petitioner/accused on 28-8-1995, F.I.R. is filed under Sections 147, 148, 341 and 302, I.P.C. by the Kullanchavadi P.S. in Cr. No. 245/95. Notice was given to Assistant Public Prosecutor.
(2) Assistant Public Prosecutor has given a reply that the accused has not made the application before the expiry of statutory period as noted in 167(2), Cr.P.C. In the page No. 209 of the citation adduced by the petitioner in paragraph 13, in coloum (3), "The Magistrate would mean the Magistrate having jurisdiction to try the case". Hence, this Court which is only a Court of committal cannot have the power of trial and this application should have been filed before the Court of Session, which is having trial power and the application may be dismissed.
(3) Documents perused.
(4) Petitioner/accused has given a citation 1991 Mad Law Weekly (Cri) 202 to 210 : (1991 Cri LJ 1745 at p. 1755) in support of the prayer and prayed for the release of the accused, since the charge sheet was not filed within the stipulated period, from the date of remand i.e. 30-5-1995.
(5) In the given citation, 1991 Mad LW (Cri) 202 at page No. 209 : (1991 Cri LJ at p. 1754) in Para 13(3), the expression 'Magistrate' in the aforesaid proviso(a) would mean "the Magistrate having jurisdiction to try the case."
(6) As per the above citation the petition should have been filed before proper forum, the Court which has got the jurisdiction to try the case, before the expiry of stipulated period, as mentioned in Section 167(2) Cr.P.C. Hence, for the above reason, this application is dismissed."
Aggrieved at this Order, for want of its legal sanctity, this revision has been preferred as aforementioned.
3. I have heard Mr. Sankara Subbu, learned counsel for and on behalf of the revision petitioner who would contend very streneously that the remedy of bail is provided under Section 167(2) of the Code of Criminal Procedure to an accused-person when the charge sheet has not been filed within 90 days in the cases in which warrant procedure is adopted and the remanding of the petitioner-accused for further period is violative of the legislative command inbuilt under Section 167(2) of the Code of Criminal Procedure and that therefore, learned Magistrate has clearly fallen into an error while passing the impugned order by not adopting the said legal aspects and the refusal to grant bail to the petitioner is against the provisions of Section 167(2) of the Code of Criminal Procedure and so, the impugned order lacks every legality and propriety.
4. Controverting the said contention, Mr. A. N. Rajan, learned Government Advocate submitted that the petition inviting the impugned order itself is not at all maintainable in view of the clear mandate provided under Section 167(2) of the Code of Criminal Procedure, viz., on the date of the filing of the impugned petition under Section 167(2) of the Code i.e. on 28-8-1995, the period of 90 days spelt out in the above section of law has not elapsed as the petition was filed before the lower Court on 28-8-1995 and consequently, even before 10 days to the date of hearing, the final report, after completing the investigation, was filed before the Court below as contemplated under Section 173 of the Code and that therefore, the statutory relief of bail provided under Section 167(2) of the Code of Criminal Procedure is not at all made available to the petitioner for any reason. Learned Government Advocate would also contend that though the impugned order must contain the proper reasoning that appropriate law is made applicable to the facts of the instant case, it is made very clear that the impugned petition asking for bail by the petitioner is not at all maintainable and that the impugned order passed by the learned Magistrate is perfectly correct and justifiable. Having contended so, learned Government Advocate prays for the dismissal of the revision in limini.
5. In the context of the rival position above referred to, it has become necessary for me to advert Section 167 of the Code of Criminal Procedure which runs like this :
"(1) Whenever any person is arrested detained in custody, and it appears that the investigation cannot be completed within the period of twentyfour hours fixed by Section 57, and there are grounds for believing that the accusation or information is well-founded, the Officer in charge of the police station or the Police Officer making the investigation, if he is not below the rank of Sub-Inspector, shall forthwith transmit to the nearest Judicial Magistrate a copy of the entries in the diary hereinafter prescribed relating to the case, and shall at the same time forward the accused to such Magistrate.
(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, authorise the detention of the accused in such custody to 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 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, 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 under the provisions of Chapter XXXIII for the purpose of that Chapter;
(b) no Magistrate shall, authorise detention in any custody under this section unless the accused is produced before him;
(c) no Magistrate of the second class, not specially empowered in this behalf by the High Court, shall authorise detention in the Custody of the police.
Explanation :- For the avoidance of doubts, it is hereby declared that, notwithstanding the expiry of the period specified in paragraph (1), the accused shall be detained in custody so long as he does not furnish bail.
Explanation-2 :- If any question arises where 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 authorising detention."
As the adverting of latter part of the above section has become unnecessary, I do not propose to prefer the same, but, however, taking advantage of the explanation provided therein, sub-section 2(a)(i) is apt to be quoted and taken for consideration in the facts of the instant case. The offences charged against the revision petitioner and others by the respondent/police are under Sections 147, 148, 341 and 302 Indian Penal Code which are exclusively triable by a Court of Session by adopting warrant procedure. It is, therefore, under the circumstances Section 167(2)(a)(i) of the Code of Criminal Procedure will squarely apply to the facts of the instant case, i.e., the maximum period of time limit provided under this section for the alleged offences against the petitioner is 90 days from the date of his detention viz., 30-5-1995, which falls on 30-8-1995. It is, thus, made clear that the 90 days period provided under the above section of law clearly falls on 30-8-1995 or 29-8-1995. However, it is seen from the impugned order, the petition under Section 167(2) of the Code was filed before the learned Judicial Magistrate on 28-8-1995. Therefore, the petition, was filed before the expiry of 90 days and for that ground alone, the petition filed on behalf of the petitioner before the learned Judicial Magistrate ought to have been rejected in limine. However, learned Magistrate has passed the order without adverting the said factual aspects, but on merits which is being convassed in this revision.
6. The second ground, perhaps the only ground upon which much reliance and emphasis have been placed by the Bar for and on behalf of the revision petition is the abovesaid sub-section to Section 167 of the Code of Criminal Procedure. The reason for placing such reliance is obvious in the following observations made by a learned single Judge of this Court in Sankar alias Gouri Sankar v. State, 1991 Mad LW (Cri) 202 : (1991 Cri LJ 1745), which are as follows :
"Regarding the right of the person accused of a non-bailable offence to be enlarged on bail, under the benevolent provision of Section 167(2), Cr.P.C., the position may succinctly be summarised as follows :- An order for release on bail under proviso (a) to Section 167(2) is an order on default. The accused is entitled to be released on bail on account of default on the part of the prosecution to file charge sheet within the prescribed period if he is prepared to and does furnish bail. It is a legislative command and not Court's discretion. In other words, if the investigating agency fails to file charge-sheet before the 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." The Magistrate has no power to remand the accused beyond the stipulated period of 90/60 days, and he should be released on bail if he is prepared to and furnished bail. The accused cannot claim any special right to remain on bail. In other words, the accused cannot claim that his right to remain on bail, can, under no circumstances, be defeated. If the investigation reveals that (i) the accused has committed a serious offence; and (ii) charge-sheet is filed, the bail granted under proviso (a) to Section 167(2) could be cancelled. If the accused has not made application for his release on bail, after expiry of the period prescribed by the proviso (a) to S. 167(c) and before filing of the charge-sheet, he has no right to claim his release on bail after filing of the charge-sheet/final report, solely on the ground that the charge-sheet/final report was not submitted within the prescribed period.
What is contemplated under the proviso to Section 167(2), Cr.P.C. is that the Magistrate who is not otherwise having the power to release a person accused of a non-bailable offence, acquired such a power on the contingency of the Investigating Agency not filing the charge-sheet/final report within the statutory period prescribed thereunder and such release of the person on bail, shall be deemed to be a release under Chapter XXXIII of the Code of Criminal Procedure and there is no warrant for the interference or deduction that the accused shall be deemed to have been released on bail on the expiry of 90/60 days, thereby taking his further detention illegal.
The observations made by the learned single Judge in the above extract would clearly demonstrate the fact of opportunity and right time for the accused to apply for bail by furnishing sureties, when he is alleged to have committed an non-bailable offence as specified therein, in the contingency of not filing of the final report or charge-sheet within the period of 90 or 60 days as the case may be. Learned Judge has clearly categorised the remedy provided to the accused and the time when the accused can be answered favourably. Importing the said ratio to the facts of the instant case, it is true that the learned Magistrate, while passing the impugned order, has not at all adverted or followed the underlying principle or the legal mandate or the ratio laid down by this Court in the case cited supra. After having perused the facts of the instant case and the impugned order with the legal ratio enunciated above, I am constrained to say that a mere touch and run policy has been adopted by the learned Judicial Magistrate, who has not applied her mind in either giving reasoning or adverting to the legal position while passing the impugned order. Hence, the impugned order is lacking in procedural guidance.
7. While dealing with the scope of Section 20(4)(bb) of the Terrorist and Disruptive Activities (Prevention) Act, 1987, the Supreme Court in Sanjay Dutt v. State (II), 1994 SCC (Cri) 1433 : (1995 Cri LJ 477) has held the principles to be followed in the facts of the instant case in the following words :
"Section 20(4)(bb) of the TADA Act only requires production of the accused before the Court in accordance with Section 167(1) of the Code of Criminal and this is how the requirement of notice to the accused before granting extension beyond the prescribed period of 180 days in accordance with the further proviso to Clause (bb) of sub-section (4) of Section 20 of the TADA Act has to be understood in the judgment of the Division Bench of the Supreme Court in Hitendra Vishnu Thakur (1995 Cri LJ 517). The requirement of such notice of the accused before granting the extension for completing the investigation is not a written notice to the accused giving reasons therein. Production of the accused at that time in the Court informing him that the question of extension of the period for completing the investigation is being considered, is alone sufficient for the purpose.
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 (1995 Cri LJ 517) (SC) 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. If the accused applies for bail under this provision on expiry of the period of 180 days or the extended period, as the case may be, then he has to be released on bail forthwith. The accused, so released on bail may be arrested and committed to custody according to the provisions of the Code of Criminal Procedure. 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 the challan is filed because Section 167 Cr.P.C. ceases to apply. The Division Bench in Hitendra Vishnu Thakur also indicated that if there be such an application of the accused for release on bail and also a prayer for extension of time to complete the investigation according to the proviso in Section 20(4)(bb), both of them should be considered together. It is obvious that no bail can be given even in such a case unless the prayer for extension of the period is rejected. In short, the grant of bail in such a situation is also subject to refusal of the prayer for extension of time, if such a prayer is made.
The decision of the Division Bench in Hitendra Vishnu Thakur is clarified accordingly, and it gives a different indication because of the final order made therein, that view cannot be subscribed."
8. In Hitendra Vishnu Thakur v. State of Maharashtra, 1994 SCC (Cri) 1087 at page 1092 : (1995 Cri LJ 517), the Supreme Court has also considered and clearly indicated the legal objects and purview of Section 167 of the Code of Criminal Procedure in the following words :
"The Constitution of India as well as the Code of Criminal Procedure expect that an arrested person, who has been detained in custody, shall not be kept in detention for any unreasonable time and that the investigation must be completed as far as possible within 24 hours. Else, the police is obliged to forward the accused along with the case diary to the nearest Magistrate for further remand of the accused person. The Magistrate must scrutinise the same carefully and consider whether the arrest was legal and proper and whether the formalities required by law have been complied with and then to grant further remand, if the Magistrate is so satisfied. The law enjoins upon the investigating agency to carry out the investigation, in a case where a person has been arrested and detained, with utmost urgency and completed the investigation with great promptitude in the prescribed period.
The object behind the enactment of Section 167 of the Code was that the detention of an accused person should not be permitted in custody pending investigation for any unreasonably longer period. However, realising that it may not be possible to complete the investigation in every case within 24 hours or even 15 days, as the case may be, even if the investigating agency proceeds with utmost promptitude, Parliament introduced the proviso to Section 167(2) of the Code of prescribing the outer limit within which the investigation must be completed. The proviso to sub-section (2) fixes the outer limit within which the investigation must be completed and in case the same is not completed within the said prescribed period, the accused would acquire a right to seek to be released on bail and if he is prepared to and does furnish bail, the Magistrate shall release him on bail and such release shall be deemed to be grant of bail under Chapter XXXIII of the Code of Criminal Procedure."
9. In Swami Premanda v. Inspector of Police, C.B., C.I.D., Pudukkottai, (1995) 2 Mad LW (Cri) 606 at page 616, Shivappa, J. had the occasion to consider the scope of Section 167(2) of the Code of Criminal Procedure, following the principle laid down by the Supreme Court in Hitendra Vishnu Thakur's case (1995 Cri LJ 517) (cited supra) and the same has been extracted as hereunder :
"Proviso (a) to sub-section (1) to Section 167 of the Code contemplates that a Magistrate shall have no power to detain an accused unnecessarily, after the expiry of 90 days, if the accused is prepared and does furnish bail, he shall be released and it is the Legislative command and not the Court's discretion. If the investigating agency fails to file the challan before the expiry of 90 or 60 days, as the case may be, the accused in custody shall be released on bail, but at that stage merits of the case are not to be examined. The Magistrate, who is not otherwise having the power to release a person accused of a non-bailable offence acquires such a power in the contingency of the investigating agency not filing the final report within the prescribed statutory period, and such release on bail, if the person is prepared to and does furnish bail, shall be deemed to be released under Chapter XXXIII of the Code. The right accrued to the accused under the provisions of sub-section (2) of Section 167 can be exercised only before the charge-sheet is filed. The first condition for the release of the accused on bail is that a report under Section 173 of the Code is not submitted within the prescribed time. Secondly, the accused must furnish the bail bond. Failure on the part of the police to submit a charge-sheet within the prescribed time alone cannot entitle unless he furnishes the bail. After the submission of the charge-sheet by the police, a new legal situation emerges and the right, which is available to the accused for being released on bail, during the course of police investigation, is extinguished. The provisions of Chapter XII ceased to become applicable under the changed situation. If the report is submitted after the completion of the investigation, the power of the Magistrate to remand the accused to custody under this Section comes to an end. The remedy for the accused, therefore, lies in taking recourse to the provisions of Chapter XXXIII of the Code. In Sanjay Dutt v. State of Maharashtra, 1994 SCC (Cri.) 1426 : (1994 AIR SCW 4360), the Supreme Court has held that after the expiry of the Statutory period mentioned in the proviso to sub-section (2) of Section 167, an indefeasible right is created in an accused-person on account of the default by the investigating agency in the completion of the investigation and at that stage, it is an indefeasible right.
10. Thus, it has become deducible from the legal ratio enunciated by the Apex Court, followed by this Court in the cases cited supra that to avail the remedy of bail by filing of application furnishing with sureties, in the contingency of not filing of the final report or the charge-sheet as provided under Section 173 of the Code of Criminal Procedure within the time limit spelt out under Section 167(2) of the Code is an indefeasible right and such right could be made available to the accused only in case of contingency provided therefor and after the expiry of the time, if the charge-sheet or the final report has been filed into the Court, as spelt out clearly by the Apex Court, the remedy of bail made available to the accused person become extinguished and it would not survive after the filing of the charge-sheet or the final report. It is also made clear that this extinguishment of the indefeasible right made available to the accused continues and it puts a double bar to the accused in such cases. In sother words, it would mean that if the final report is filed, the remedy provided under Section 167(2) of the Code of Criminal Procedure will not be made available, but the aggrieved person viz., the accused can seek remedy of bail under Chapter XXXIII of the Code of merits of a given case.
11. Applying the said ratio to the facts of the instant case, it is desirable to note that the learned Government Advocate has stated during his arguments that the final report or the charge-sheet in the instant case has been filed into the Court on 19-12-1995. However, it is noticed as brought out by Mr. Sankara Subbu to my knowledge that the final report or charge-sheet filed by the Station House Officer was returned and not represented before the Court below as evidenced from the order passed by the learned Magistrate dated 11-3-1996 in an application filed for furnishing copy of the charge-sheet or final report. Even so, it was also represented by the Bar that the said report was returned due to non-availability of the report of the chemical examiner, but, however, it was represented subsequently on 12-4-1996 and that, as on today the final report or the charge-sheet against the petitioner/accused was filed as contemplated under Section 173 of the Code of Criminal Procedure. It is thus seen that the investigation was completed and consequently the final report against the petitioner was filed before the learned Judicial Magistrate and all further proceedings has to take place and at that stage, I have the occasion to pass this order.
12. Placing reliance upon the abovesaid factual aspects, Mr. Sankara Subbu, learned counsel appearing for the revision petitioner contended that it is a statutory right to enlarge the petitioner on bail for the reason of non-compliance of the statutory provision, that is, the non-filing of the charge-sheet or the final report within the time spelt out in the Code and the order passed by the learned Magistrate has become vitiated in the context of no charge-sheet or final report has been filed within the time stipulated in this case and that even assuming that the chargesheet had been filed before the Court, that was since returned on the one ground or other and from the said circumstances it is bound to be deemed that no charge-sheet or final report is pending before the Court below and that therefore, the said circumstance would clearly entitle the petitioner to be enlarged on bail by virtue of Section 167(2) of the Code of Criminal Procedure, and since this remedy provided under she statute to every accused person is a legislative command, the Court of law cannot abdicate the said power by a routine administrative order in its nature. Learned counsel would submit that the said ground alone would necessarily vitiate the impugned order.
13. Mr. A. N. Rajan, learned Government Advocate, on the other hand, would submit that the earlierest filing of the final report is to be reckoned as the relevant period and the subsequent returns for want of certain particulars would not provide a ground to be ascribed in favour of the accused while considering the statutory remedy provided to every accused and that what is more imperative in this case is that the Court has received the final report of the charge-sheet as provided under Section 173 of the Court of Criminal Procedure and for the said reasonings, the statutory remedy provided to the accused, in the facts of the instant case, cannot be made available, to the petitioner.
14. In the context of the said position and the contentions raised on behalf of the parties, it has become necessary for me to advert sub-sections (5) to (8) of Section 173 of the Code of Criminal Procedure which runs like this :
"When such report is in respect of a case to which Section 170 applies, the police officer shall forward to the Magistrate along with the report -
(a) All documents or relevant extracts thereof on which the prosecution proposes to rely other than those already sent to the Magistrate during investigation;
(b) the Statements recorded under Section 161 of all the persons whom the prosecution proposes to examine as its witnesses.
(6) If the Police Officer is of opinion that any part of any such statement is not relevant to the subject matter of the proceedings or that its disclosure to the accused is not essential in the interests of justice and is inexpedient in the public interest, he shall indicate the part of the statement and append a note requesting the Magistrate exclude that part from the copies to be granted to the accused and stating his reasons for making such request.
(7) Where the police officer investigating the case finds it convenient so to do, he may furnish to the accused copies of all or any of the documents referred to in sub-section (5).
(8) Nothing in this section shall be deemed to preclude further investigation in respect of an offence after a report under sub-section (2) has been forwarded to the Magistrate and, where upon such investigation, the officer incharge of the police station obtains further evidence, oral or documentary, he shall forward to the Magistrate a further report or reports regarding such evidence in the form prescribed; and the provisions of sub-sections (2) to (6) shall, as far as may be, apply in relation to such report or reports as they apply in relation to a report forwarded under sub-section (2)."
A combined reading of sub-sections (5) to (8) of Section 173 of the Code of Criminal Procedure would reveal that it is an enabling provision purely meant for the incumbent duties cast upon the investigating officer to file the final report with such of the material categorised in the section itself. It is well noticed in the instant case as contended by the learned Government Advocate that the Investigation was over in this case and final report was filed as early as 9-12-1995, however, for want of some materials of the records, it was returned and after compliance of the returns made by the learned Magistrate, the final report was represented in several times, finally in the month of April, 1996 i.e. on 12-4-1996. The Court has accepted the final report against the petitioner. Having regard to the above factual aspects, in the context of the principles inherent in Section 173 of the Code of Criminal Procedure, it is enough for me at this stage to say that the filing of the final report after the completion of the investigation in a given case, by the investigating agency would suffice and whatever returns made by the Court for want of material or other particulars in the final report would be, in my esteemed view, only an administrative one, but certainly not a judicial one. The filing of charge-sheet or final report would follow with returns for compliance of defects pointed out by the Court within the purview of Section 173 of the Code which would clearly demonstrate the fact that it is a matter of routine administration and it would not mean in any event that no charge-sheet or final report has been filed into the Court. The final report may be defective for want of certain particulars which may be on some important aspects or not, but it is purely within the power of the Court to decide whether the final report is within the purview of Section 173 of the Code of Criminal Procedure or not. It does not however give any room or inference that no charge-sheet or final report has been filed. Applying the said ratio and the underlying principle carved out from the reading of Section 173 of the Code of Criminal Procedure to the facts of the instant case, even though the final report filed by the respondent herein on 19-12-1995 was returned for compliance of certain defects, it is an administrative one under Section 173 of the Code of Criminal Procedure and it cannot be allowed to be taken advantage of getting bail under Section 167(2) of the Code. As the Apex Court has held in the case laws cited above referred to, the remedy of bail provided under Section 167 of the Code to an accused is on the happening of the contingencies or a default by the investigating staff in not preferring or filing the final report or charge-sheet before the Court of law against the accused within the time framed therein and once the final report or charge-sheet is filed within the time, then that remedy, as was held by the Apex Court, has become extinguished and the remedy does not survive in any manner to the accused. As I have already pointed out that when the filing of this petition with two given sureties for the enlargement of the bail for the petitioner was two days earlier to the expiry of the last date, I am totally unable to subscribe my view with the contentions raised by Mr. Sankara Subbu learned counsel appearing for the petitioner even on the subsequent points raised by the learned counsel for the reasoning given by me pertaining to the legal ambit of Section 173 of the Code. I am totally restrained from accepting his contentions as they bear no legal weight or credence at all. Therefore, his contentions are rejected.
15. This view of mine would however not preclude the petitioner from seeking his bail under Chapter XXXIII of the Code of Criminal Procedure. It is always open for him to apply for the bail before the trial Court on merits of the case and if so done, the trial Court has to consider his request purely on merits, uninfluenced by the findings or reasons given by me in this revision. In this context, I would like to say that the remedy of bail provided to the petitioner/accused under Section 167(2) of the Code survives only on the happening of non filing of the final report or charge-sheet within the time framed, i.e., on the happening of certain contingencies provided by the statute, whereas the remedy of bail provided under Chapter 33 of the Code is a statutory one, but to be considered whether there are existence of any contingencies or not, however, purely on the basis of merits of a given case. It is, therefore, very clear that the remedy of bail provided under Section 167(2) of the Code cannot be equated with the remedy of bail provided under Chapter XXXIII of the Code for an accused person in a given case. The latter remedy is very exhaustive in its nature to be exercised by the Court of law with every care and caution on the basis of the factual aspects in a given case, whereas, the remedy of bail provided for in the first instance viz., under Section 167(2) of the Code of Criminal is only on the happening of certain contingencies that is, the mere non-filing of the final report or the charge-sheet within the time spelt out in line above section of law and nothing more. The distinction between the two is very clear. But, however the check provided under Section 167(2) of the Code is only to make the investigating agency to expedite the investigation with no possibility of dragging on the matter further and in the said context, the earlier remedy is said to be a limited one, intended to act as a limitation or check for the power of investigating agency. The latter remedy cannot be put as an analogy with the earlier remedy for the simple reasoning that it is purely a matter to be decided on merits by the Court of law on the facts of a given case and in this respect, I am constrained to say that it is an exhaustive remedy.
16. Though the impugned order passed by the learned Magistrate rejecting the petition with inadequate reasonings resulted in dismissal of the petition, I do not accept the reasoning given by the learned Magistrate. However, I am inclined to reject this revision for all the observations and reasonings given above. While saying so, I would like to make it clear that it is always open for the revision petitioner to seek his remedy of bail before the Court below under Chapter XXXIII of the Code of Criminal Procedure and if so done, the Court below is directed to consider the same in accordance with law.
17. In the result, for all the foregoing reasonings and observations, the revision fails and the same is dismissed.
18. Petition dismissed.