Calcutta High Court (Appellete Side)
Basa @ Basu Dev @ Prasanta Dev vs The State Of West Bengal on 3 December, 2013
Author: Jayanta Kumar Biswas
Bench: Jayanta Kumar Biswas
In The High Court At Calcutta Criminal Miscellaneous Jurisdiction Appellate Side Present : The Hon'ble Mr Justice Jayanta Kumar Biswas and The Hon'ble Mr Justice Dr Mrinal Kanti Chaudhuri C.R.M. No.13423 of 2013 Basa @ Basu Dev @ Prasanta Dev
-vs-
The State of West Bengal
Mr. Milon Mukherjee
Mr. Sankar Banerjee ...for the petitioner
Mr. Manjit Singh, PP
Mr. Saryati Datta ...for the State
Mr. Sabyasachi Chjatterjee ...for the de facto complainant
Heard on: November 29, 2013
Judgement on: December 3, 2013
Jayanta Kumar Biswas, J : The petitioner accused of offences under ss.302/34 IPC and ss.25/27 Arms Act and in custody from March 1, 2013 is seeking bail under s.439 CrPC.
The bail prayer was rejected by the court below on June 4, 2013, the 92nd day, considering the nature and gravity of the offences and the charge sheet.
Mr Mukherjee appearing for the petitioner has submitted as follows. A charge-sheet was submitted on May 28, 2013; but cognizance was not taken. The court below declined to accept the charge-sheet on June 18, 2013. It ordered further investigation and allowed prayer to interrogate the petitioner once again. A fresh charge-sheet was submitted on July 30, 2013, when cognizance was taken. Hence the first charge-sheet could not extinguish the petitioner's statutory bail right under s.167(2) CrPC on June 4, 2013.
Mr. Mukherjee has relied on the decisions in Hussainara Khatoon & Ors. v. Home Secretary, State of Bihar, AIR 1979 SC 1369; Mohamed Iqbal Madar Sheikh & Ors. v. State of Maharashtra, 1996 SCC(Cri) 202; Mithabhai Pashabhai Patel & Ors. v. State of Gujarat, (2009)2 SCC(Cri) 1047.
Mr Singh, the Public Prosecutor, has submitted as follows. The first charge-sheet extinguished the petitioner's statutory bail right, even though cognizance was not taken; for cognizance is not a requirement of s.167(2) CrPC. The order dated June 18, 2013 is that the court finding the charge-sheet not satisfactory directed further investigation. The second charge-sheet, an outcome of court order, could not make the first charge-sheet non-existent.
Mr Singh has relied on the decisions in Suresh Kumar Bhikamchand Jain v. State of Maharashtra & Anr., (2013) 3 SCC 77 and Jeewan Kumar Raut & Anr. v. Central Bureau of Investigation, (2009) 7 SCC 526. Mr Mukherjee has submitted that the decision in Suresh Kumar was given on the facts of that case, and that the decision in Jeewan Kumar does not apply to this case presenting a unique problem on its peculiar facts.
The question is whether the petitioner was entitled to statutory bail under s.167(2) CrPC on June 4, 2013. Admittedly, June 4, 2013 was the 92nd day.
The order of the court below dated May 28, 2013 reveals that it perused the charge-sheet and kept the cognizance in abeyance. On June 4, 2013 the petitioner prayed for bail. The court refused bail and remanded the petitioner in custody.
Relying on Hussainara Khatoon, Mr Mukherjee has submitted that it was the duty of the court to grant the petitioner statutory bail on June 4, 2013 even if he did not apply for it. The question is whether he was actually entitled to statutory bail on June 4, 2013. According Mr Mukherjee, since cognizance was not taken till June 4, 2013, the first charge-sheet was no charge-sheet in the eye of law and in law the investigation was still in progress beyond 90 days.
The law has been clearly stated by the Supreme Court in Suresh Kumar, relied on by Mr Singh. It was held that filing of charge-sheet, irrespective of whether cognizance is taken or not, extinguishes the right of the accused to get statutory bail under s.167(2) CrPC. The proposition gets full support also from the decision in Jeewan Kumar. We are unable to accept that the principles stated in these two decisions do not apply to the present case. We do not think the decision in Mohamed Iqbal lays down a different principle.
It has been emplained in Mithabhai Pashabhai that until cognizance is taken an accused is remanded under s.167(2) CrPC; and after cognizance under s.309(2) CrPC.
In this case though the charge-sheet was submitted on May 28, 2013 cognizance, kept in abeyance, was not taken on or before June 4, 2013 and June 18, 2013, when the court refused the petitioner bail and remanded him in custody. By the order dated June 18, 2013 the court directed further investigation. Hence we do not find anything wrong with the orders of the court below remanding the petitioner in custody.
The question is what is the effect of the charge-sheet submitted on July 30, 2013. The case diary reveals that it was an original charge-sheet, though against the same accused. There are certain things regarding discharge of some accused persons who were not sent up for trial. According to Mr Mukherjee, it made the first charge-sheet non-existent, especially when the court took cognizance on the basis of it.
No provision of law empowered the court below to reject the first charge- sheet submitted on May 28, 2013; nor did any provision empower it to direct re- investigation; it was empowered only to direct further investigation under s.173(8) CrPC; and by its order dated June 18, 2013 it, expressing its inability to accept the first charge-sheet for the reasons stated in the order, directed further investigation under s.173(8) CrPC.
It is, therefore, evident that the second charge-sheet was submitted by the investigating officer because of the order of the court below dated June 18, 2013, not because of his (the investigating officer's) failure to complete the investigation and submit the charge-sheet within the statutory 90 days.
In our opinion, simply because the investigating officer submitted the second charge-sheet in original form, it cannot make the first charge-sheet non- existent. In view of the provisions of s.173(8) CrPC the investigating officer was to submit further report or reports, not a fresh report in original form. However, it is not necessary for us to give an opinion on the effects of the second charge- sheet.
Right to statutory bail under s.167(2) CrPC can be claimed by an accused only when the investigating officer fails to conclude the investigation within the specified period; no step taken or not taken by the court creates the right or keeps it alive. Once the charge-sheet is submitted, the right extinguishes. A further investigation order cannot keep the right alive. Hence the petitioner was not entitled to statutory bail on June 4, 2013 For these reasons, we dismiss the CRM. Everything said herein is only for the purpose of bail. Certified xerox.
(Jayanta Kumar Biswas, J) (Dr. Mrinal Kanti Chaudhuri, J) sb(c);ab(f)