Patna High Court - Orders
Devendra Sahani @ Devendra Mallah @ ... vs The State Of Bihar on 22 August, 2012
IN THE HIGH COURT OF JUDICATURE AT PATNA
Criminal Miscellaneous No.9426 of 2011
======================================================
1. Devendra Sahani @ Devendra Mallah @ Ratnakarjee Son Of Late Ram
Chandra Sahani Resident Of Village- Aora Mallikana, P.S. Tariyani,
District- Sheohar
.... .... Petitioner/s
Versus
1. The State Of Bihar
.... .... Opposite Party/s
======================================================
Appearance :
For the Petitioner/s : M/s Uma Shankar Verma & Rita Verma,
Adv.
For the Opposite Party/s : Mr. Suresh Prasad Singh, APP.
======================================================
CORAM: HONOURABLE MR. JUSTICE SHIVAJI PANDEY
CAV
4 22-08-2012This is an application for quashing the order dated 24th February 2011 passed by the Sub-Divisional Judicial Magistrate, Sikrahana, Motihari, East Champaran by which he has refused to accept the bail bond on the ground that charge-sheet has been submitted on 24th February 2011 at 10:30 A.M. before furnishing the bail bond in connection with Fenhara P.S.Case No. 28 of 2005 for the offences u/s 149, 1248, 149, 302/33 IPC , 17 of the Cr.L.A. Act and 27 of the Arms Act.
2. It appears from the record that an FIR had been instituted by one Nageshwar Mishra stating therein that his daughter, namely, Raj Kumari Devi while returning from her 2 Patna High Court Cr.Misc. No.9426 of 2011 2 / 19 house Lalgarh Kararia was caught in cross-firing between the Police and the Extrimist (Naxalites) and ultimately, she succumbed to the injury which led to filing of the present case.
3. It appears that the FIR has been lodged against unknown but the petitioner in the aforesaid case was arrested and was remanded on 28th August 2010 from Sitamarhi to Motihari in the present case on production warrant. It appears that the petitioner is in jail since 28th August 2010 and, as such, the application for bail was filed by the petitioner on 23rd February 2011 taking the plea that the petitioner is in jail since 28 th August 2010 but no charge-sheet was filed. Accordingly, on the same day, the court below granted bail to the petitioner, as provided under Section 167(2) Cr.P.C. on furnishing bail bond of Rs.10,000/- (ten thousand) with two sureties of the like amount each with the condition that one of the bailors should be the wife of the accused- petitioner and the other one, a close relative.
4. On 24th February 2011 at 10:30 A.M. the charge- sheet (Challan) was filed. When the bail bond for release of the petitioner was placed before the court below, it was found that charge-sheet has already been submitted against him and, as such, the court below refused to accept his bail bond and to release him from custody on the ground that charge sheet has already been 3 Patna High Court Cr.Misc. No.9426 of 2011 3 / 19 filed and, as such, the compulsory bail which arose due to non- filing of charge-sheet is no longer available to the petitioner.
5. Counsel for the petitioner has submitted that the court below has wrongly refused to accept the bail bond on the following grounds:
i) As the petitioner remained in jail for more than 90 days, and no charge-sheet was filed before passing of the bail order, merely because the charge-sheet was filed before submission of bail bond, the court below cannot deprive him of the benefit of bail order which has been passed in exercise of power under Section 167(2) Cr.P.C.
ii) Another point that has been raised by the petitioner is that once the order for bail has been passed, the court below cannot review his own order by refusing to accept the bail bond as it amounts to review of the earlier order which is not permissible under Section 362 Cr.P.C. and in support of his aforesaid contentions counsel for the petitioner has relied on the following judgments:
i) AIR 2001 SC 1910 (Uday Mohanlal Acharya vs. State of Maharashtra)
ii) 2002(4) PLJR 681( Bishundeo Sao vs. State of Bihar) 4 Patna High Court Cr.Misc. No.9426 of 2011 4 / 19
iii) 2006 (3) PLJR 200 (Usha Devi vs. State of Bihar)
iv) (1996)1 SCC 722 (Mohamed Iqbal Madar Sheikh vs. State of Maharashtra)
v) 1999(1) PLJR 683(Sutta Rai vs. State of Bihar)
vi) 1999 (1) PLJR 689 (Babulal Yadav vs. State of Bihar)
6. Counsel for the State disputed the argument of the petitioner, and submitted that the court below rightly refused to release the petitioner as charge sheet was filed before the bail bond. The moment charge sheet (Challan) was filed before filing of bail bond, the petitioner lost his right of compulsive bail. Before examining the rival contention of the parties and it will be safe to find out when the right accrued to the accused to be released on bail under the provisions of section 167(2) of the Code of Criminal Procedure (in short, the „Code‟) gets extinguished. It will be desirable to consider the scheme of the Code itself.
7. Section 56 of the Code provides that a Police Officer arresting the accused without warrant has to produce him before the Magistrate having jurisdiction, without unnecessary delay. The Section 57 of the Code provides that the Police Officer cannot detain in custody person arrested without warrant for a period beyond 24 hours, excluding necessary for journey 5 Patna High Court Cr.Misc. No.9426 of 2011 5 / 19 from the place of arrest to the court of Magistrate. This provision is in consonance with the Constitutional mandate as provided under Article 22(2) of the Constitution of India. Any detention beyond 24 hours has to be authorized by the Magistrate from time to time and without such special order from the Magistrate concerned, the detention would be illegal. Under Section 167 of the Code, a Magistrate is empowered to authorize the detention of the accused in custody pending investigation for an aggregate period of 90 days in cases where the investigation relates to offences punishable with death, imprisonment for life or imprisonment for not less than 10 years or more and in other cases, a period of 60 days has been provided. The object and purpose of Section 167 of the Code requires the accused to be produced before the Magistrate to enable the Magistrate to see that the remand is necessary and also to enable the accused to make representation which may wish to make. The power under section 167 is given to detain a person in custody while the police goes on with the investigation and before the Magistrate starts enquiry. Therefore, Sec. 167 is the provision which authorizes the Magistrate permitting detention of an accused in custody and prescribing the maximum period of detention and the maximum period before submission of charge sheet has been fixed to be 90 6 Patna High Court Cr.Misc. No.9426 of 2011 6 / 19 days and, as such, the power of remand before submission of charge-sheet lies to the Magistrate which can extend upto 90 days and after that the proviso to Section 167 unambiguously and in a clear term postulates that the accused shall be released on bail if he is prepared to and does furnish bail bond which has been categorized under different judgments as compulsive bail. The right of an accused to be released on bail after expiry of maximum period of detention as provided u/s 167 of the Code can be denied only when an accused does not furnish bail bond which is apparent from explanation-1 to the said Section. Proviso to Sub-Section (2) of S. 167 is a beneficial provision for curing the mischief of indefinitely prolonging investigation and thereby impinging liberty.
8. Section 167 of the Code in Chapter XII of the Code deals with power of Police to investigate criminal offences. It starts from first information report provided under Section 154 and culminating in submission of report on completion of investigation under Section 173 of the Code. After completion of investigation, Police will submit charge-sheet and the court on the basis of materials on record would take cognizance of the offence. When Challan (charge-sheet) is filed then the custody of the accused is no longer required to be dealt with under Section 167 of 7 Patna High Court Cr.Misc. No.9426 of 2011 7 / 19 the Code but it will be dealt with under Section 209 of the Code. If the Magistrate finds that the case is triable by the court of Sessions, the moment the accused is brought before the Magistrate, he would commit the case to the court of Sessions and thereafter the court of Sessions would, during the enquiry and trial, have the jurisdiction to remand the accused. It is also relevant to mention that after submission of charge-sheet and before being released on bail, the indefeasible right of compulsive bail extinguishes. The moment the Police furnished the charge-sheet, then the accused can make effort for bail as provided under Sections 437 or other provisions of the Code.
9. On analysis of aforesaid proviso, it appears that after expiry of 90 days and if no challan is filed by Police, the accused gets a right to be released on bail and the Magistrate does not possess any jurisdiction to refuse bail after the stipulated period under proviso(2) to Section 167 of the Code, subject to the condition that the accused must be ready to furnish the bail bond required. It is also to be noted down that merely the person has acquired indefeasible right of being released on bail as explained hereinabove, but the Magistrate would not release the accused on bail on its motion without any application of the accused offering to furnish bail bond.
8 Patna High Court Cr.Misc. No.9426 of 2011 8 / 19
10. So few things are very clear that if the Police does not file a charge-sheet within the period prescribed under Section 167(2) of the Code, the accused gets an indefeasible right to be released on bail, subject to the condition that the accused must be ready to furnish bail bond but that is not the end of the matter. The indefeasible right accrued to the accused persons is enforceable only prior to filing of Challan and does not survive or remain enforceable on the Challan being filed, if already not availed of. The Hon‟ble Supreme Court was considering matter of compulsive bail as provided under section 167 of the Code in Uday Mohanlal Achayra‟s case (supra) where the Hon‟ble Supreme Court has considered every aspect of the matter and has held that the indefeasible right that occurs to an accused, extinguishes with the filing of Challan. In this case, the court has expressly held that mere crossing 90 days will not ipso fact mean to release an accused on bail but it requires that the accused must file an application and before his release, the challan remained to be filed. Once the Challan is filed before being released on bail, the indefeasible right of compulsive bail gets extinguished. The Hon‟ble Supreme Court has dealt with the issue as follows:
"This Court did not accept the plea of the State and interfered with the order of detention. 9 Patna High Court Cr.Misc. No.9426 of 2011 9 / 19 In interpreting the expression 'if not availed of' in the manner in which we have just interpreted we are conscious of the fact that accused persons in several serious cases would get themselves released on bail, but that is what the law permits, and that is what the legislature wanted and an indefeasible right to an accused flowing from any legislative provision ought not to be defeated by a Court by giving a strained interpretation of the provisions of the Act. In the aforesaid premises, we are of the considered opinion that an accused must be held to have availed of his right flowing from the legislative mandate engrafted in the proviso to sub-section (2) of S. 167 of the Code if he has filed an application after the expiry of the stipulated period alleging that no challan has been filed and he is prepared to offer the bail, that is ordered, and it is found as a fact that no challan has been filed within the period prescribed from the date of the arrest of the accused. In our view, such interpretation would subserve the purpose and the object for which the provision in question was brought on to the Statute Book. In such a case, 10 Patna High Court Cr.Misc. No.9426 of 2011 10 / 19 therefore, even if the application for consideration of an order of being released on bail is posted before the Court after some length of time, or even if the Magistrate refuses the application erroneously and the accused moves the higher forum for getting formal order of being released on bail in enforcement of his indefeasible right, then filing of challan at that stage will not take away the right of the accused. Personal liberty is one of the cherished object of the Indian Constitution and deprivation of the same can be only in accordance with law and in conformity with the provisions thereof, as stipulated under Art. 21 of the Constitution. When the law provides that the Magistrate could authorise the detention of the accused in custody up to a maximum period as indicated in the proviso to sub-section (2) of S. 167, any further detention beyond the period without filing of challan by the Investigating Agency would be a subterfuge and would not be in accordance with law and in conformity with the provisions of the Criminal Procedure Code, and as such, could be violative of Art. 21 of the Constitution. There is no
11 Patna High Court Cr.Misc. No.9426 of 2011 11 / 19 provision in the Criminal Procedure Code authorising detention of an accused in custody after the expiry of the period indicated in the proviso to sub-section (2) of S. 167 excepting the contingency indicated in Explanation I, namely, if the accused does not furnish the bail. It is in this sense it can be stated that if after expiry of the period, an application for being released on bail is filed, and the accused offers to furnish the bail, and thereby avail of his indefeasible right and then an order of bail is passed on certain terms and conditions but the accused fails to furnish the bail, and at that point of time a challan is filed then possibly it can be said that the right of the accused stood extinguished. But so long as the accused files an application and indicates in the application to offer bail on being released by appropriate orders of the Court then the right of the accused on being released on bail cannot be frustrated on the oft chance of Magistrate not being available and the matter not being moved, or that the Magistrate erroneously refuses to pass an order and the matter is moved to the higher forum and a 12 Patna High Court Cr.Misc. No.9426 of 2011 12 / 19 challan is filed in interregnum. This is the only way how a balance can be struck between the so-called indefeasible right of the accused on failure on the part of the prosecution to file challan within the specified period and the interest of the society, at large, in lawfully preventing an accused for being released on bail on account of inaction on the part of the prosecuting agency. On the aforesaid premises, we would record our conclusions as follows :-
1. Under sub-section (2) of S. 167, a Magistrate before whom an accused is produced while the police is investigating into the offence can authorise detention of the accused in such custody as the Magistrate thinks fit for a term not exceeding 15 days in the whole.
2. Under the proviso to aforesaid sub-
section (2) of S. 167, the Magistrate may authorise detention of the accused otherwise than the custody of police for a total period not exceeding 90 days where the investigation relates to offence punishable with death, imprisonment for life or imprisonment for a term of not less than 10 years, and 60 days 13 Patna High Court Cr.Misc. No.9426 of 2011 13 / 19 where the investigation relates to any other offence.
3. On the expiry of the said period of 90 days or 60 days, as the case may be, an indefeasible right accrues in favour of the accused for being released on bail on account of default by the Investigating Agency in the completion of the investigation within the period prescribed and the accused is entitled to be released on bail, if he is prepared to and furnish the bail, as directed by the Magistrate.
4. When an application for bail is filed by an accused for enforcement of his indefeasible right alleged to have been accrued in his favour on account of default on the part of the investigating agency in completion of the investigation within the specified period, the Magistrate/Court must dispose it of forthwith, on being satisfied that in fact the accused has been in custody for the period of 90 days or 60 days, as specified and no charge-sheet has been filed by the Investigating Agency. Such prompt action on the part of the Magistrate/Court will not enable the prosecution to frustrate the object of the 14 Patna High Court Cr.Misc. No.9426 of 2011 14 / 19 Act and the legislative mandate of an accused being released on bail on account of the default on the part of the Investigating Agency in completing the investigation within the period stipulated.
5. If the accused is unable to furnish bail, as directed by the Magistrate, then the conjoint reading of Explanation I and proviso to sub-section (2) of S. 167, the continued custody of the accused even beyond the specified period in paragraph (a) will not be unauthorised, and therefore, if during that period the investigation is complete and charge-sheet is filed then the so-called indefeasible right of the accused would stand extinguished".
11. For the purpose of this case, Item No.5 of the conclusion is relevant where the Court has considered that if the accused is unable to furnish bail bond as directed by the Magistrate, then on conjoint reading of Explanation-I and proviso (2) to section 167 of the Code the continued custody of the accused even beyond the period specified in Para-a will not be unauthorized and, therefore, if during that period the investigation is complete and charge-sheet is filed, then indefeasible right of the accused will stand extinguished. Though the majority view has 15 Patna High Court Cr.Misc. No.9426 of 2011 15 / 19 been differed with the minority view but there will be no difference in opinion with regard to issue involved in the present case.
12. Counsel for the petitioner has relied on Sutta Rai‟s case (supra) and Babulal Yadav‟s case (supra) where the Court has considered the provisions of Section 167 of the Code. In this case, the Court has taken the view that if the charge-sheet is not filed within 90 days of the upper limit and the bail application has been filed on 91 days and the accused is ready to furnish bail bond, Court passed the order for release on bail, merely because, accused failed to furnish bail bond, before the submission of charge sheet, the indefeasible released on bail cannot be taken away. It has been held that the court cannot refuse the accused to release on bail on the ground that the charge sheet was submitted before furnishing the bail bond and has been held that the Code has not debarred from taking action for cancellation of bail, if so necessary. The Court has gone to the extent, if the charge sheet has not been filed within 90 days, and during the pendency of bail application, a charge sheet is filed, the indefeasible right to be released on bail does not extinguish. But this judgment is no longer good judgment in view of the subsequent view of the Hon‟ble Supreme Court as explained hereinabove and, as such, 16 Patna High Court Cr.Misc. No.9426 of 2011 16 / 19 this judgment does not hold the field in the matter of compulsive bail as provided under Section 167 of the Code.
13. This Court has considered the issue on compulsive bail as provided under Section 167 of the Code in the case of Bishundeo Sao (supra) where the Court has considered the case of Uday Mohan Acharya (supra) and held that an accused must avail his right flowing from legislative mandate mandated in proviso (2) to Section 167 of the Code, if he has filed an application after expiry of the stipulated period stating that no challan has been filed and is prepared to furnish bail bond and it is found that no challan has been filed within the period prescribed from the date of arrest of the accused the court would pass order of bail in favour of accused. The court has considered the meaning and interpreted the meaning of "availed of" and has endorsed the view that „availed of‟ does not mean that the application filed for bail expressing therein willingness to furnish bail bond but the stage for actual furnishing of bail bond must reach. The Court has considered that where after bail under Section 167(2) of the Code is granted by the Court on the ground that charge sheet has not been submitted within the stipulated period and pursuant thereto the accused files a bail bond, nothing further remains to be done by him and in such case it must be held that he has availed of the 17 Patna High Court Cr.Misc. No.9426 of 2011 17 / 19 indefeasible right. In Bishundeo Sao case the Court has found that the bail bond was already furnished before the filing of the charge- sheet and the Magistrate has refused to release the accused person on bail on the ground of filing of charge sheet. The Court has held that his indefeasible right cannot be taken away as it will be deemed to have availed of the said privilege and the Court has granted bail to the accused in that case.
14. In a recent judgment, the Hon‟ble Supreme Court has also considered and interpreted Section 167(2) of the Code in (2011)10 SCC 445 (Pragya Singh Thakur v . State of Maharashtra) and the Court has considered the Constitutional Bench Judgment in Sanjay Datt (II) vs. State (1994)5 SCC 410 and held as follows:
"In the other words, even if an application for bail is filed on the ground that charge sheet was not filed within 90 days but before consideration of the same and being released on bail if the charge sheet is filed, the said right to be released on bail would be lost".
15. The Court has further held that when an application for default bail is filed, the merits of the matter are not gone into. A conspectus of the aforesaid judgment is very clear that if the charge-sheet is not filed within the upper limit of 90 days, the person gets indefeasible right to be enlarged on bail 18 Patna High Court Cr.Misc. No.9426 of 2011 18 / 19 subject to the condition that he must file a bail application with a prayer that he is ready to furnish the bail bond but if the charge sheet is filed before furnishing the bail bond, then the right of the accused-petitioner extinguishes. If the charge sheet is filed after submission of bail blond that indefeasible right cannot be taken away.
16. Applying the aforesaid principle in the present case it is apparently clear that the petitioner has filed an application for bail as charge sheet was not submitted even after the expiry of 90 days on 23rd February 2011 and in pursuance of the bail order, petitioner has submitted bail bond on 24 th February 2011 i.e. on the next day and the order sheet shows that the Police submitted the charge sheet at 10:30 A.M. on 24 th February 2011 and only thereafter the bail bond of the petitioner was filed.
17. In view of forgoing discussion, the right which had accrued to the petitioner on filing of the charge sheet extinguishes and as such, the Magistrate has rightly refused to enlarge the petitioner on bail. As the court has not passed the order on merit as such, this Court is not required to deal with the case on its merit.
18. Another point that has been raised by the petitioner is that refusing to accept the bail bond amounts to 19 Patna High Court Cr.Misc. No.9426 of 2011 19 / 19 review of the earlier order which is not permissible as provided under Section 362 of the Code. As has been dealt with earlier, petitioner was granted bail as the Police had not filed charge sheet within 90 days which had created the indefeasible right to the petitioner to be released on bail and in pursuance thereof on the bail petition filed by the petitioner, bail order was passed on 23rd February 2011 and in the bail application, petitioner was ready to furnish the bail bond as provided under the order. But before his bail bond could have been filed, the Police filed the charge-sheet and thereby by implication, the indefeasible right that had occurred to get bail under Section 167 of the Code gets extinguished and, as such, when the right of bail which was granted to the petitioner vide order dated 23rd February 2011 gets automatically extinguished the question of reviewing the earlier order does not arise and the court below has rightly refused to accept the bail bond and to release the petitioner.
19. In this view of the matter, this Court does not find any merit in the present case and it is, accordingly, dismissed.
Jay/- (Shivaji Pandey, J)