Gujarat High Court
Pradeep vs State on 28 October, 2010
Author: Rajesh H.Shukla
Bench: Rajesh H.Shukla
Gujarat High Court Case Information System
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CR.MA/11389/2010 16/ 16 JUDGMENT
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
CRIMINAL
MISC.APPLICATION No. 11389 of 2010
For
Approval and Signature:
HONOURABLE
MR.JUSTICE RAJESH H.SHUKLA
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1
Whether
Reporters of Local Papers may be allowed to see the judgment ?
2
To
be referred to the Reporter or not ?
3
Whether
their Lordships wish to see the fair copy of the judgment ?
4
Whether
this case involves a substantial question of law as to the
interpretation of the constitution of India, 1950 or any order
made thereunder ?
5
Whether
it is to be circulated to the civil judge ?
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PRADEEP
SHARMA - Applicant(s)
Versus
STATE
OF GUJARAT - Respondent(s)
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Appearance
:
SV RAJU
ASSOCIATES for
Applicant(s) : 1,
MR PK JANI, PUBLIC PROSECUTOR for Respondent(s)
: 1,
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CORAM
:
HONOURABLE
MR.JUSTICE RAJESH H.SHUKLA
Date
: 28/10/2010
ORAL
JUDGMENT
The present application has been filed by the applicant under sec. 167(2) r/w sec. 482 of Criminal Procedure Code for grant of default bail challenging the impugned judgment and order passed by the learned Special (ACB) Judge, Bhuj, Kutch in Criminal Misc. Application No. 360 of 2010 dated 13.9.2010 rejecting such application for grant of default bail under sec. 167(2) of CrPC on the grounds set out in detail in the Memo of Application.
2. Learned Sr. Counsel Mr. Raju for the applicant referred to the papers and the grounds and submitted that the applicant-accused was arrested on 6.1.2010, was produced before the Magistrate on 6.7.2010 and he has been arrested in connection with M. Case No. 1/2008 registered with CID Crime, Rajkot Zone, Bhuj, for the alleged offences under sec. 200, 203, 217, 465, 468, 471, 472, 474, 475, 406, 409 and 120B of IPC. Thereafter a report was submitted for adding offences under the Prevention of Corruption Act (hereinafter referred to as 'the PC Act') and thereafter the said report for adding the offences under the PC Act was withdrawn vide application dated 1.4.2010. Thereafter, the present FIR being C.R. No. I-3/2010 registered with CID (Crime), Rajkot Zone, came to be filed for offences under sec. 7, 11, 13(1)(b) & 13(2) of the PC Act.
3. Learned Sr. Counsel Mr. Raju submitted that, though a separate FIR has been filed subsequently, in fact, the applicant was already in the custody and the report was also made for adding offences under the PC Act and therefore he would be deemed to have been in the custody even in respect of the offences under the PC Act for which a separate FIR has been filed.
4. Learned Sr. Counsel Mr. Raju referred to and relied upon the judgment of the Hon'ble Apex Court in the case of State of Maharashtra v. Bharati Chandmal Varma (Mrs.), reported in (2002) 2 SCC 121, in support of his submission and submitted that in fact MCOC Act was invoked and still the period was not reckoned for the purpose of bail under sec. 167(2) of CrPC. He, therefore, submitted that the applicant could be deemed to be in the custody in respect of the offences under the PC Act for which a separate FIR is filed and since he has been in custody beyond the period prescribed by law, he should be released on bail.
5. Learned Sr. Counsel Mr. Raju submitted that the second FIR is the same referring to the similar allegations for which a report for adding charges for offences under the PC Act was made. He pointedly referred to this aspect and submitted that though a separate FIR could be filed if it was a separate transaction, but in the facts of the present case, it would not be justified and therefore in any case when the remand was granted for these very charges under the PC Act were also considered and after the custodial interrogation when he has been remanded to judicial custody for all the offences and therefore the second FIR being C.R. No. I-3/2010 for the alleged offences under the PC Act is misconceived and treating the applicant-accused deemed to have been in the custody and having failed to file the charge sheet for these offences under FIR No. C.R. No. I-3/2010 default bail under sec. 167(2) of CrPC may be granted.
6. Learned Sr. Counsel Mr. Raju submitted that as the charge sheet is not filed within the stipulated period, the applicant is entitled to default bail. He submitted that it is an indefeasible right of the accused to be released on bail after the expiry of such period prescribed under sec. 167(2) of CrPC, to which he referred in detail.
7. Learned Sr. Counsel Mr. Raju referred to and relied upon the judgment of the Hon'ble Apex Court in the case of Uday Mohanlal Acharya v. State of Maharashtra, reported in (2001) 5 SCC 453, and submitted that it is an indefeasible right of the accused and default bail has to be granted once the charge sheet is not filed within the stipulated period. He has also referred to and relied upon the judgment of the Hon'ble Apex Court reported in (2008) 3 SCC 222 in the case of State of Haryana and ors. v. Dinesh Kumar, and referring to the observations in Para 21, he tried to emphasize the distinction between the 'arrest' and the 'custody' and submitted that the applicant accused may be deemed to be in the custody even in respect of the offences under the PC Act in respect of C.R. No. I-3/2010.
8. Therefore, in substance, Learned Sr. Counsel Mr. Raju emphasized that even though the applicant is on bail in connection with alleged offences under sec.200, 203, 217 etc. of IPC in connection with M. Case No. 1/2008, he should be treated as in custody or deemed custody for the FIR which has been filed subsequently being C.R. No. I-3/2010 for the offences under the PC Act and as the charge sheet has not been filed in connection with the subsequent FIR being C.R. No. I-3/2010 within a period of 60 days, default bail in exercise of discretion under sec. 167(2) of CrPC should be granted.
9. Mr. PK Jani, learned Public Prosecutor, referred to the FIR and also referred to the arrest memo, which is produced at page 20 of the paper-book. and submitted that as it is evident from the arrest memo, the applicant has been arrested in connection with the alleged offences under the IPC in connection with M. Case No. 1/2008. Learned Public Prosecutor Mr. Jani submitted that it is required to be mentioned that it was in respect of offences under IPC only. He pointedly referred to the sequence of events and also the affidavit filed on behalf of the respondent with the details enclosed produced on record and submitted that as stated in this, an application was made to add offences under the PC Act on 19.2.2010 which came to be withdrawn as per the application dated 1.4.2010 (Annexure-B). Learned Public Prosecutor Mr. Jani submitted that an application for bail in the meantime was preferred by the applicant before the Sessions Court and thereafter an application for bail was preferred before the High Court being Criminal Misc. Application No. 604 of 2010 which came to be rejected vide order dated 3.3.2010. The said application was with regard to grant of bail for the alleged offences under the IPC in connection with M. Case No. 1/2008 registered with CID Crime, Rajkot Zone. Thereafter, the petitioner again moved an application under sec. 439 of CrPC for grant of regular bail which came to be rejected on 30.6.2010 against which he preferred an application before the Hon'ble Apex Court. Learned Public Prosecutor Mr. Jani submitted that pursuant to the order of the Hon'ble Apex Court, the chief Judicial Magistrate, Bhuj, as per the report produced at page 188, released the applicant on bail which he pointedly referred and submitted that it was with regard to offences under sec. 200, 203, 216, 465, 468, 471, 472, 474, 475, 406, 409, 120B of IPC in connection with M. Case No. 1/2008.
10. Learned Public Prosecutor Mr. Jani also referred to the papers and submitted that in fact, in the meanwhile, the applicant applied for temporary bail and thereafter the applicant himself had moved an application for anticipatory bail under sec. 438 of CrPC in connection with FIR being C.R. No. 3/2010 registered with CID (Crime), Rajkot Zone, which was not pressed.
11. Learned Public Prosecutor Mr. Jani has also referred to the details with regard to this and submitted that when he has withdrawn the application for anticipatory bail, the applicant has claimed that he was not arrested and therefore he moved the application for anticipatory bail. He further submitted that, admittedly, the applicant has been released on bail as per the order of the Hon'ble Apex Court in respect of the alleged offences under IPC in M. Case No. 1/2008. Learned Public Prosecutor Mr. Jani, therefore, submitted that, admittedly, the applicant is not in custody and therefore there is no question of grant of any default bail under sec. 167(2) of CrPC.
12. Learned Public Prosecutor Mr. Jani referred to the provisions of sec. 167(2) of CrPC which reads as under:
"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 as such Magistrate thinks fit, 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) xxxx
(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 released under the provisions of Chapter XXXIII for the purposes of that Chapter."
He, therefore, submitted that this provision will come into play provided the applicant accused is in custody or in jail who can resort to this provision for grant of bail as the legislature has provided this safeguard laying down the time-limit for the investigating agency and also considering the right of the accused that he may not be detained for long period.
13. Therefore, he submitted that the submissions with regard to deemed custody are without any basis and there appears to be some misconception. Learned Public Prosecutor Mr. Jani also submitted referring to the details as to the exact nature of allegations made in the FIR filed subsequently being C.R. No. I-3/2010. Learned Public Prosecutor Mr. Jani submitted that separate FIRs could be filed for separate offences like under the PC Act which is a separate and independent offence. Learned Public Prosecutor Mr. Jani submitted that may be in respect of the alleged deeds or irregularity committed by the accused it may have different allegations for separate offences for which separate FIR is not prohibited under the law.
14. Learned Public Prosecutor Mr. Jani further submitted that if these submissions of the applicant were to be accepted, it would amount to quashing the FIR at this stage, which is not permissible inasmuch as the petitioner has the option to have a remedy for quashing the subsequent FIR being C.R. No. I-3/2010 filed for the offences under the PC Act. However, once having failed to get anticipatory bail, he has not carried the matter before the higher forum like the High Court, has not filed the proceedings for quashing the separate FIR being C.R. No. I-3/2010, has claimed the default bail on the wrong assumption or presumption that he should be deemed to be in custody in connection with the subsequent FIR being C.R. No. I-3/2010 for the alleged offences under the PC Act, though, in fact, he is already on bail, and he is not in the custody. He submitted that there is no provision for deemed custody which is sought to be canvassed and therefore when the applicant is not at all in the custody, the provision sec. 167(2) would not be attracted and the present application deserves to be rejected.
15. In rejoinder, learned Sr. Counsel Mr. Raju referred to the papers and submitted that if the person is arrested, he has to be produced before the Magistrate within 24 hrs. and thereafter he would be granted regular bail or default bail. He submitted that as the applicant accused was arrested earlier and regular bail has been granted, the charges for the offences are the same for which even a report was made and subsequently a separate FIR has been filed and, therefore, he has to be treated as deemed to have been in custody even for the offences under the PC Act in C.R. No. I-3/2010, and as there is no charge sheet filed within the stipulated period of 60 days, the petitioner would be entitled to be released on bail under sec. 167(2) of CrPC as it is an indefeasible right.
16. In view of rival submissions, it is required to be considered whether the present application can e entertained or not.
17. As it transpires from the facts, admittedly, the applicant has been released pursuant to the order of the Hon'ble Apex Court in SLP (Cri.) No. 6166 of 2010 vide order dated 16.9.2010 and he has been enlarged on bail for which the report is also produced. It clearly refers to the fact it was in connection with M. Case No. 1/2008 for the alleged offences under the IPC. Further, even in an application for bail being Criminal Misc. Application No. 4604 of 2010 after charge sheet before the High Court, the application itself makes it clear that it was preferred under sec. 439 for bail in connection with M. Case No. 1/2008 registered with CID Crime, for the alleged offences under sec. 200, 203, 217, 465, 468, 471 etc. of IPC. Admittedly, the applicant has not been in custody. Admittedly, the applicant had preferred an application for anticipatory bail being Criminal Misc. Application No. 237 of 2010 before the Special Judge (ACB), Kutch at Bhuj under sec. 438 in connection with C.R. No. I-3/2010 registered with CID Crime, Rajkot Zone, for the alleged offences under the PC Act, which has been withdrawn by him.
18. Therefore, as provided in sec. 167(2), which is known as default bail, it presupposes that the person has to be in custody. This provision has been made to safeguard the right of the accused that he is not detained beyond a prescribed period obliging the investigating agency to complete the investigation and file charge sheet within the stipulated period as provided in Sec. 167(2). On a closer examination of this provision, which has been referred to by both the sides, the proviso makes it clear that the Magistrate may authorise the detention of the accused otherwise than in the custody of police, that is, judicial custody, beyond the period on the ground mentioned therein. But he wording clearly suggests "no magistrate shall authorize detention of the accused person in custody under this chapter for a total period exceeding xxxxxx 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 released under the provisions of Chapter XXXIII for the purposes of that Chapter." (emphasis supplied) This itself would suggest that the person has to be in judicial custody before this provision could be invoked.
19. The submissions made by learned Sr. Counsel Mr. Raju referring to the facts in the present case with much emphasis that the applicant should be deemed to have been in custody in respect of the subsequent FIR being C.R. No. I-3/2010 registered with CID Crime, Rajkot Zone, for the alleged offences under the PC Act is a novel argument without any basis or any provision. Further, if the submissions were to be accepted, at the most, initially when the report was made for adding offences under the PC Act in M. Case No. 1/2008 and thereafter it was withdrawn, and separate FIR has been filed being C.R. No. I-3/2010 for the alleged offences under the PC Act, it may lead to a recourse for appropriate remedy as may be advised. Further, the proceedings for quashing such FIR is a different aspect which the petitioner may have the remedy or he could have raised objection at that time when the report for addition of offences under the PC Act in M. case No. 1/2008 was sought to be withdrawn. The same has not been challenged.
20. The conduct of the applicant is also required to be appreciated that thereafter when he has filed regular bail application before the High Court as well as before the Hon'ble Apex Court, he has confined the application for bail under sec. 439(2) for the offences under IPC in connection with M. Case No. 1/2008 and not a whisper has been made with regard to this aspect. Even thereafter he has filed anticipatory bail application under sec. 438 before the Special Judge being Criminal Misc. Application No. 237 of 2010 in connection with the subsequent FIR being C.R. No. 3/2010 registered with CID Crime, Rajkot Zone, which has been withdrawn. If there was any misconception, he could have taken further recourse as may be advised for anticipatory bail and in fact it would suggest that the applicant petitioner has also admitted about the separate FIR for the alleged offences under the PC Act against him.
21. Therefore, when he could not either pursue or could not easily convince the court for grant of anticipatory bail, it was withdrawn, and the matter rested there. Now, in the guise of such application for default bail under sec. 167(2), it cannot be permitted to be argued that he is deemed to have been in custody in connection with the separate FIR being C.R. No. I-3/2010 registered with CID Crime, Rajkot Zone when he was in custody for the offences under IPC in connection with M. Case No. 1/2008. This deeming fiction as sought to be canvassed is not permitted in law and there is no such provision shown. The reference made to the judgment of the Hon'ble Apex Court in the case of State of Maharashtra v. Bharati Chandmal Varma (Mrs.) @ Ayesha Khan (supra) stands on a different footing and it will not have application to the facts of the present case as there it was a case with regard to calculation of the period for the purpose of default bail under sec. 167(2) after the MCOCA was invoked and observations have been made in that context, but there it was not the fact that the petitioner was not in the custody. In the facts of the present case, the petitioner is not at all in the custody and therefore the provisions of sec. 167(2) will not have any application.
22. While discussing the provisions of sec. 438 & 429 of CrPC, in its judgment in the case of Sunita Devi v. State of Bihar and anr. reported in AIR 2005 SC 498, the Hon'ble Apex Court has refeferred to this aspect of custody as to when the person can invoke the provisions of sec. 438 and 439. It is also made clear that once the person is in custody provisions of sec. 439 would apply. It has been specifically observd in Para 8 that, "It is clear from a bare reading of the provisions that for making an application in terms of Seoction 439 of the Code a person has to be in custody. Section 438 of the Code deals with "Direction for grant of bail to person apprehending arrest".
Therefore, as it has been observed anticipatory bail is granted in anticipation of arrest in non-balilable cases, whereas sec. 439 will come into play when the person is in custody. Further, it has been observed in Para 16, "Since the expression "custody" though used in various provisions of the Code, including Section 439, has not been defined in the Code. It has to be understood in setting in which it is used and the provisions contained in Section 437 which relates to jurisdiction of the Magistrate to release an accused on bail under certain circumstances which can be characterized as "in custody" in a generic sense. The expression "custody" as used in Section 439, must be taken to be a compendious expresion referring to the events on the happening of which Magistrate can entertain bail petition of an accused."
23. Again, it has been observd that "the fundamental requirement is that the accused should be in custody." The provisions of sec. 167(2) which in turn provide that the person has to be in custody and therefore such provision will not be attracted in the facts of the case.
24. In the facts of the present case, it cannot be said that merely because the bail is granted in connection with one FIR, the applicant should be deemed to have been in custody in connection with another FIR particularly when anticipatory bail has been withdrawn. Therefore, in connection with the second FIR being C.R. No. I-3/2010 registered with CID Crime, Rajkot Zone, the provisions of sec. 167(2) for default bail would not be attracted. It is not even the case of the applicant that the separate FIR being C.R. No. I-3/2010 is not maintainable or that second FIR could not be filed. Even if it is so, the remedy lies elsewhere for appropriate steps as may be advised, but sec. 167(2) will not be attracted.
25. It is well accepted by judicial pronouncements that there could be separate FIRs for separate offences. A useful reference can be made to the observations made by the Hon'ble Apex Court in the judgment in the case of Nirmal Singh Kahlon v. State of Punjab & ors. reported in(2009) 1 SCC 441 where the Hon'ble Apex court has quoted earlier judgment of 3-Judge Bench of the Apex Court in the case of Upkar Singh v. Ved Prakash, reported in (2004) 1 SCC 292.
26. Therefore, in view of the aforesaid discussion with regard to the rival submissions and the provisions of sec. 167(2) of CrPC it will not have any application as the applicant cannot be said to be in custody as sought to be canvassed on the basis of the deemed custody and in fact he is granted regular bail as discussed hereinabove. Therefore, when he is not at all in the custody, the provisions of sec. 167(2) of CrPC would not be attracted and the present application deserves to be rejected and accordingly stands rejected. Rule is discharged.
(Rajesh H. Shukla, J.) (hn) Top