Karnataka High Court
A P Abhijith vs State By Basaralu Police on 8 July, 2021
Author: K.Natarajan
Bench: K.Natarajan
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 8th DAY OF JULY, 2021
BEFORE
THE HON'BLE MR. JUSTICE K.NATARAJAN
CRIMINAL PETITION No.985 of 2021
BETWEEN
A.P. ABHIJITH
S/O. PUTTASWAMYGOWDA,
AGED ABOUT 26 YEARS,
ARISHINAGERE VILLAGE,
BASARALU HOBLI, MANDYA TALUK,
MANDYA DISTRICT - 571 401.
... PETITIONER
(BY SRI P. PRASANNA KUMAR, ADVOCATE
for SRI H.B. CHANDRASHEKAR, ADVOCATE)
AND
STATE BY BASARALU POLICE
REPRESENTED BY STATE PUBLIC PROSECUTOR,
HIGH COURT OF KARNATAKA,
BENGALURU - 560 001.
... RESPONDENT
(BY SRI K. NAGESHWARAPPA, HCGP)
THIS CRIMINAL PETITION IS FILED UNDER SECTION 439
OF THE CODE OF CRIMINAL PROCEDURE, PRAYING TO
ENLARGE THE PETITIONER ON BAIL IN CRIME No.80/2020
REGISTERED BY BASARALU POLICE STATION, MANDYA RURAL
CIRCLE, MANDYA DISTRICT, FOR THE OFFENCES PUNISHABLE
UNDER SECTIONS 302, 201, 404, 416 AND 424 OF THE INDIAN
PENAL CODE AND SECTIONS 66(C) AND 66(D) OF THE
INFORMATION TECHNOLOGY ACT.
THIS CRIMINAL PETITION HAVING BEEN HEARD AND
RESERVED FOR ORDERS ON 29.06.2021 AND COMING ON FOR
PRONOUNCEMENT, THIS DAY THE COURT PRONOUNCED THE
FOLLOWING:
2
ORDER
This petition is filed by the petitioner-accused under Section 439 of Cr.P.C. seeking regular bail in Crime No.80/2020 registered by the Basaralu Police Station for the offences punishable under Sections 302, 201, 404, 416 and 424 of the IPC and Sections 66(c) and 66(d) of the Information Technology Act, 2000 (for short 'IT Act')
2. Heard the arguments of Sri P.Prarsanna Kumar, learned counsel appearing for Sri H.B.Chandrashekar, learned counsel for the petitioner and learned High Court Government Pleader for the respondent-State.
3. The case of the prosecution is that on the complaint of one Umashankar filed on 15.08.2020, the Police registered the case against the unknown persons. During the investigation, the Police arrested this petitioner on 18.08.2020, produced him before the Court on the same day and he was remanded back to the Police on 19.8.2020 for the purpose of getting Covid-19 test done. Subsequently, the learned Magistrate extended the time to 3 the Police till 20.08.2020. Accordingly, the accused was remanded to Police custody till 20.08.2020. Later, from 20.08.2020, the remand of accused was extended till 17.11.2020. On that date, the Police filed the charge sheet. The further case of the petitioner-accused is that on the same day, he filed an application under Section 167(2) of Cr.P.C. for default bail. The same is reflected in the order sheet of the learned Magistrate, but in the afternoon, it was mentioned in the order sheet that the Police filed the charge sheet and therefore, the right of default bail to the accused under Section 167(2) of Cr.P.C. is not applicable. Hence, the bail petition came to be rejected by order dated 17.11.2020 and again the petitioner moved the bail petition before the Sessions Judge under Section 439 of Cr.P.C., which also came to be rejected. Hence, the petitioner is before this Court.
4. Learned counsel for the petitioner seriously contended that the accused was produced before the Magistrate on 18.08.2020 and he was in custody from 4 19.08.2020. If the period is calculated till 17.11.2020, it comes to 91 days. Prior to filing of the charge sheet, the accused filed an application under Section 167(2) of Cr.P.C. and the charge sheet came to be filed only in the afternoon i.e. subsequent to the filing of the application by the accused and thereby the accused gets the indefeasible right for getting default bail under Section 167(2) of Cr.P.C. In support of the case, learned counsel for the petitioner relied upon the judgments of the Hon'ble Supreme Court in the case of Gautam Navlakha vs. National Investigation Agency reported in 2021 SCC OnLine SC 382 and S. Kasi vs. State through the Inspector of Police Samaynallur Police Station reported in 2020 SCC OnLine SC 529.
5. Per contra, learned High Court Government Pleader seriously objected the bail petition and contended that the Trial Court as well as the Sessions Court has rightly taken into account the date on which the accused was produced before the Court. The accused was given to the Police 5 custody on 19.08.2020 and 20.08.2020. The date on which the accused was given to the Police custody cannot be counted for the purpose of detention in calculating 90 days and therefore, the charge sheet is within 90 days. Hence, prayed for rejecting the bail petition.
6. Upon hearing the arguments and on perusal of the record especially, the order sheet of the learned Magistrate reveals that the accused was produced before the Magistrate in the Home Office on 18.08.2020 at 10.30 p.m. in the night. The learned Magistrate remanded the accused back to the Police on 19.08.2020. On 19.08.2020, the accused was produced through Video Conferencing and he was remanded to judicial custody till 02.09.2020. Thereafter, from time-to-time till 17.11.2020 and on 17.11.2020, it is mentioned in the order sheet that the application of the accused under Section 167(2) of Cr.P.C. came to be filed and the matter was heard and posted for orders. Again on the same day, the order sheet reveals that the Mandya Rural Police filed the charge sheet 6 along with documents and cognizance was taken as well the order under Section 167(2) of Cr.P.C. was passed dismissing the application. Hence, the only point that arises for consideration is as follows:
" Whether the calculation made by the Trial Court and the Sessions Court as 90 days is correct or as contended by the petitioner, the accused is entitled for bail?"
7. Learned counsel for the petitioner relied upon the judgment of the Hon'ble Supreme Court in the case of Gautam Navlakha (supra), on paragraph 75, which is as follows;
" Therefore, while ordinarily, the Magistrate is the original Court which would exercise power to remand under Section 167, the exercise of power by the superior Courts which would result in custody being ordered ordinarily (police or judicial custody) by the superior Courts which includes the High Court, would indeed be the custody for the purpose of calculating the period within which the charge sheet must be filed, failing with the accused acquires the statutory right to default bail. We 7 have also noticed the observations of this Court in AIR 1962 SC 1506 (supra). In such circumstances broken periods of custody can be counted whether custody is suffered by the order of the Magistrate or superior courts, if investigation remains incomplete after the custody, whether continuous or broken periods pieced together reaches the requisite period; default bail becomes the right of the detained person."
Further, he relied upon paragraph 26 of the judgment in the case of S. Kasi (supra), which is as follows:
" We, thus, are of the view that neither this Court in its order dated 23.03.2020 can be held to have eclipsed the time prescribed under Section 167(2) of Cr.P.C. nor the restrictions which have been imposed during the lockdown announced by the Government shall operate as any restriction on the rights of an accused as protected by Section 167(2) regarding his indefeasible right to get a default bail on non-submission of charge sheet within the time prescribed. The learned Single Judge committed serious error in reading such 8 restriction in the order of this Court dated 23.03.2020."
8. In view of the principles laid down by the Hon'ble Supreme Court, there is no second thought in respect of the guidelines in respect of right of the accused for getting bail in view of non-filing of the charge sheet within 90 days and the accused gets the right of bail on the 91st day. Looking to the case on hand, the accused was produced on 18.08.2020 at 10.30 p.m. in the night and he was remanded back to Police custody till 19.08.2020 for getting Covid-19 test done. As per Section 57 of Cr.P.C., the Police are permitted to keep the accused in their custody for 24 hours for the purpose of investigation. If the investigation is not completed within 24 hours, they shall produce him before the Magistrate having either jurisdiction to try or seek extension of remand. The Trial Court remanded the accused to the Police custody till 19.08.2020 and even one more day for submitting the Covid-19 Test Report. If it is calculated from 19.08.2020, it comes to 90th day on 17.11.2020 and it is calculated as, 9 the date on which the accused was produced shall be excluded and the last day should be included in view of the judgment of the Hon'ble Supreme Court. In the case of Ravi Prakash Singh alias Arvind Singh vs. State of Bihar reported in (2015) 8 SCC 340 at paragraph 12 of the judgment, the Hon'ble Supreme Court has held as under;
"12. In State of M.P. v. Rustam and others, this Court has laid down the law that while computing period of ninety days, the day on which the accused was remanded to the judicial custody should be excluded, and the day on which challan is filed in the court, should be included. That being so, in our opinion, in the present case, date 5.7.2013 is to be excluded and, as such, the charge sheet was filed on ninetieth day, i.e., 3.10.2013. Therefore, there is no infringement of Section 167(2) of the Code."
9. In view of the principle laid down by the Hon'ble Supreme Court in the case of Ravi Prakash Singh (supra), if the date of production of the accused to 10 judicial custody shall have to be calculated for the purpose of detention, in this case, the accused was remanded to judicial custody only on 19.08.2020 and the period is calculated as under:
August - 12 days
September - 30 days
October - 31 days
November - 17 days
Total - 90 days.
The charge sheet is filed on 17.11.2020. Therefore, the charge sheet is within 90 days and the accused will not get the right of default bail on the 90th day, but he will get the right of bail on the 91st day if the charge sheet is not filed. Even otherwise, by excluding 18.08.2020, if the period is calculated from 19.08.2020, it comes to 91st day. 17.11.2020 falls on the 91st day and as per the endorsement made by the Magistrate in the charge sheet, the charge sheet came to be filed at 10.00 a.m. on 17.11.2020 and the learned Magistrate directe d the office to check and put-up the same by 3.00 p.m. Even if it is 11 considered on the 91st day, the application filed by the accused is at 11.00 a.m., but prior to that, the Police have already filed the charge sheet which is available in the order sheet and the Magistrate has made an endorsement regarding the receipt of charge sheet. Learned counsel appearing for the petitioner is also not disputing the endorsement made by the Magistrate on the charge sheet. He argued that the charge sheet is required to be filed during the Court hours as per Chapter-2 of the Criminal Rules of Practice. But that contention cannot be acceptable. Learned Magistrate can receive the charge sheet even at 10.00 a.m. as the office hours starts much prior to commencement of Court as the Court sitting hours starts at 11.00 a.m. When the learned counsel for the accused has not disputed the endorsement in respect of the charge sheet filed at 10.00 a.m., it amounts to filing of the charge sheet prior to filing of the application by the accused under Section 167(2) of Cr.P.C. Merely it was not mentioned in the order sheet which was written in the open the Court after 11.00 a.m., even without knowledge 12 of receiving the charge sheet by the Magistrate in the office at 10.00 a.m., it cannot be said that the accused got the right of default bail. It is a clear case that prior to filing of the application by the learned counsel for the accused, the Investigating Officer has filed the charge sheet in the office at 10.00 a.m. Therefore, the accused will not get the right of default bail under Section 167(2) of Cr.P.C.
10. In view of the above, learned counsel for the petitioner has not made out a case for granting default bail under Section 167(2) of Cr.P.C. Learned counsel for the petitioner has not argued on the merits of the case except on the sole ground of default bail. Hence, the criminal petition is dismissed.
Sd/-
JUDGE mv