Punjab-Haryana High Court
Deepa Singh vs State Of Punjab on 15 January, 2013
Author: Mahesh Grover
Bench: Mahesh Grover
Criminal Misc. No.M-21243 of 2012 -1-
IN THE HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH.
Cr.M.No.M-21243 of 2012 (O&M)
DATE OF DECISION : 15.1.2013
Deepa Singh PETITIONER
VERSUS
State of Punjab RESPONDENT
CORAM : HON'BLE MR.JUSTICE MAHESH GROVER
Present:- Shri S.S.Sidhu, Advocate for the petitioner.
Shri Premjit Singh Hundal, A.A.G. Punjab.
MAHESH GROVER, J.
The question that merits attention of this Court in the instant petition is the scope of Section 167(2) Cr.P.C. and the benefit admissible to the accused/petitioner in terms thereof. Section 167(2) Cr.P.C. is extracted here below:-
"167. Procedure when investigation cannot be completed in twenty-four hours.
(1) ... ... ...
(2) The Magistrate to whom an accused person is forwarded under this section may, whether he has or has not jurisdiction Criminal Misc. No.M-21243 of 2012 -2- to try the case, from time to time, authorize the detention of the accused in such custody as 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 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 authorize 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 authorize 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 or 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 purposes of that Chapter ;Criminal Misc. No.M-21243 of 2012 -3-
(b) no Magistrate shall authorize detention of the accused in custody of the police under this section unless the accused is produced before him in person for the first time and subsequently every time till the accused remains in the custody of the police, but the Magistrate may extend further detention in judicial custody on production of the accused either in person or through the medium of electronic video linkage ;
(c) no Magistrate of the second class, not special empowered in this behalf by the High Court, shall authorize detention in the custody of the police.
(Explanation I. - For the avoidance of doubts, it is hereby declared that, notwithstanding the expiry of the period specified in paragraph (a), the accused shall be detained in custody so long as he does not furnish bail.
Explanation II. - If any question arises whether an accused person was produced before the Magistrate as required under clause (b), the production of the accused person may be proved by his signature on the order authorizing detention or by the order certified by the Magistrate as to production of the accused person through the medium of electronic video linkage, as the case may be.
Provided further that in the case of a woman under eighteen years of age, the detention shall be authorized to be in custody of a remand home or recognized social institution." The petitioner was arrested on 16.12.2011 on 16.12.2011 in a case Criminal Misc. No.M-21243 of 2012 -4- registered vide F.I.R. No.103 dated 21.10.2011 under Sections 302,427,148,149 I.P.C. and Sections 25/54/59 of the Arms Act at Police Station Dayalpura, District Bhatinda and was produced before the Court in accordance with law on 17.12.2011. The period which is mandatory for the submission of challan (report under Section 173 Cr.P.C.) would have elapsed on 15.3.2012. On 16.3.2012, the petitioner moved an application seeking his release on bail in terms of Section 167 (2) Cr.P.C. at about 10 a.m. The Court summoned a report from the Ahlmad regarding the custody of the petitioner as also the status of the report under Section 173 Cr.P.C. The Ahlmad reported as follows :-
"Sir, that in the above case accused Deepa Singh son of Ranjit Singh resident of Bhagta Bhaika as per remanded papers was arrested on dated 16.12.11 and was produced in the Hon'ble Court on dated 17.12.11. Since dated 17.12.11 uptil today dated 16.3.12 91 days are made out. In above case till now challan is not presented. Report is produced. Sd/- 16.3.12 10.30 am."
The learned Court had also summoned a report from the Naib Court on 16.3.2012 itself. The report was submitted at 12.30 p.m. on 16.3.2012 which is to the following effect :-
"Sir, it is requested that in F.I.R. No.103 dated 21.10.11 under Section 302 I.P.C. P.S.Dayalpura challan until 12.30 am on dated 16.3.12 have not been presented in the Court. Sd/-/ HC/1232 N/C PHUL 16.3.12 at 12.30 am."
The prayer for bail made by the petitioner was rejected on the ground that on 16.3.2012 itself, at about 3.50 p.m., challan had been submitted. Criminal Misc. No.M-21243 of 2012 -5-
It is in these circumstances that the petitioner prays for the benefit of Section 167(2) Cr.P.C. He has placed reliance on two judgments of the Hon'ble Supreme Court in Uday Mohanlal Acharya v. State of Maharashtra 2001(5) B.C.R. 577 and Sanjay Dutt v. State through C.B.I. Bombay 1994 SCC(Cri.) 1433.
In Uday Mohanlal Acharya v. State of Maharashtra (supra), the Hon'ble Supreme Court has observed as under :-
"12. In State of M.P. V. Rustam and others (supra), this Court set aside the order of the High Court where the High Court had released the accused on bail, charge-sheet not having been filed within the period stipulated in Section 167(2) of the Code of Criminal Procedure, as by the time the High Court entertained the bail application challan had already been filed, this Court had observed that the Court is required to examine the availability of the right to compulsive bail on the date of its considering the question of bail and not barely on the date of presentation of the petition for bail. This Court came to the conclusion "on the date when the High Court entertained the petition for bail and granted it to the accused/respondent, undeniably the challan stood filed in Court and then the right as such was not available. A conspectus of the aforesaid decisions of this Court unequivocally indicates that an indefeasible right accrues to the accused on the failure of the prosecution to file the challan within the period specified under sub- section (2) of Section 167 and that right can be availed of by the accused if he is prepared to offer the bail and abide by the terms and conditions of the bail, necessarily, therefore, an order of the Court has to be passed. It is also further clear that that indefeasible right Criminal Misc. No.M-21243 of 2012 -6- does not survive or remain enforceable on the challan being filed, if already not availed of, as has been held by the Constitution Bench in Sanjay Dutt (supra). The crucial question that arises for consideration, therefore, is what is the true meaning of the expression "if already not availed of ?" Does it mean that an accused files an application for bail and offers his willingness for being released on bail or does it mean that a bail order must be passed, the accused must furnish the bail and get him released on bail ? In our considered opinion it would be more in consonance with the legislative mandate to hold that an accused must be held to have availed of his indefeasible right, the moment he files an application for being released on bail and offers to abide by the terms and conditions of bail. To interpret the expression 'availed of' to mean actually being released on bail after furnishing the necessary bail required would cause great injustice to the accused and would defeat the very purpose of the proviso to Section 167(2) of the Criminal Procedure Code and further would make an illegal custody to be legal, inasmuch as after the expiry of the stipulated period the Magistrate had no further jurisdiction to remand and such custody of the accused is without any valid order of remand.
That apart, whether the accused files an application for bail indicating his right to be released as no challan had been filed within the specified period, there is no discretion left in the Magistrate and the only thing he is required to find out is whether the specified period under the statute has elapsed or not, and whether a challan has been filed or not. If the expression 'availed of' is interpreted to mean that the accused must factually be released on bail, then in a given Criminal Misc. No.M-21243 of 2012 -7- case where the Magistrate illegally refuses to pass an order notwithstanding the maximum period stipulated in Section 167 had expired, and yet no challan had been filed then the accused could only move to the higher forum and while the matter remains pending in the higher forum for consideration, if the prosecution files a charge-sheet then also the so-called right accruing to the accused because of inaction on the part of the Investigating Agency would get frustrated. Since the legislature have given its mandate it would be the bounden duty of the Court to enforce the same and it would not be in the interest of justice to negate the same by interpreting the expression 'if not availed of' in a manner which is capable of being abused by the prosecution. Two-Judge Bench decisions of this Court in State of M.P. v. Rustom and others (supra) setting aside the order of grant of bail by the High Court on a conclusion that on the date of the order the prosecution had already submitted a police report and therefore, the right stood extinguished, in our considered opinion, does not express the correct position in law of the expression 'if already not availed of', used by the Constitution Bench in Sanjay Dutt (supra). We would be failing in our duty, if we do not notice the decisions mentioned by the Constitution Bench in Sanjay Dutt's (supra) which decisions according to the learned counsel appearing for the State, clinches the issue. In Makhan Singh Tarsikka v.
State of Punjab, 1952 S.C.R. 368, an order of detention had been assailed in a petition filed under Article 32, on the ground that the period of detention could not be indicated in the initial order itself, as under the provisions of Preventive Detention Act, 1950, it is only when the Advisory Board reports that there is sufficient cause for Criminal Misc. No.M-21243 of 2012 -8- detention, the appropriate Government may confirm the detention order and continue the detention of the detenu for such period, as it thinks fit.
On a construction of the relevant provisions of the Preventive Detention Act, as it stood then, this Court accepted the contention and came to hold that the fixing of the period of detention in the initial order was contrary to the scheme of the Act and cannot be sustained. We fail to understand as to how this decision is of any assistance for arriving at a just conclusion on the issue, which we are faced in the present case. The next decision is the case of Ram Narayan Singh v. State of Delhi (supra). In this case on a habeas corpus petition being filed under Article 32, the Court was examining the legality of the detention on the date, the Court was considering the matter. from the facts of the case, it transpires that there was no material to establish that there was a valid order of remand of the accused. The Court, therefore, held that even if the earlier order of remand may be held to be a valid one, but the same having expired and no longer being in force and there being no valid order of remand, the detention was invalid. It is in this context, observation has been made that in a question of habeas corpus, lawfulness or otherwise, custody of the person concerned will have to be examined with reference to the date of the return and not with reference to the institution of the proceedings. There cannot be any dispute with the aforesaid proposition, but in the case in hand, the consequences of default on the part of the Investigating Officer in not filing the charge-sheet within the prescribed period have been indicated in the provisions of the statute itself and the language is of Criminal Misc. No.M-21243 of 2012 -9- mandatory character, namely the accused shall be released on bail. In view of the aforesaid language of the proviso to sub-section (2) of Section 167 and in view of the expression used in Sanjay Dutt's case (supra) to the effect "If not availed of", the aforesaid decision will be of no assistance. The third decision referred to in Sanjay Dutt's case (supra) is the case of A.K.Gopalan v. The Govt. of India, 1966(2) S.C.R. 427. This was also a case for issuance of a writ of habeas corpus, filed under Article 32. In this case the Constitution bench observed - "It is well settled that in dealing with a petition for habeas corpus, the Court has to see whether the detention on the date on which the application is made to the Court is legal, if nothing more has intervened between the date of application and the date of hearing." In that case, the detenu was detained by orders passed in March 4, 1965 and the earlier order of detention passed on 29th December, 1964 was no longer in force, when the detenu filed the application in the Supreme Court. The Court, therefore, observed that it is not necessary to consider the validity of the detention order made on 29th December, 1964 and the Court is only concerned with the validity of the order of detention dated 4th March, 1965.
The observations made by the Court and the principles enunciated referred to earlier would support our conclusion that the rights whether accrued or not to an accused, will have to be considered on the date, he filed the application for bail and not with reference to any later point of time. In Abdul Latif Abdul Wahab Sheikh v. B.K.Jha and another, 1987(2) SCC 22, final order of detention had been assailed, this Court had observed that in a habeas corpus proceeding it is not a sufficient answer to say that the Criminal Misc. No.M-21243 of 2012 -10- procedural requirements of the Constitution and the statute have been complied with, before the date of hearing and therefore, the detention should be upheld. The aforesaid observation had been made when there was no Advisory Board in existence to whom a reference could be made and whose report could be obtained, as required by the Constitution. Further the representation filed by the detenu had not been disposed of within the stipulated period, but an argument had been advanced that by the date of hearing of the petition the representation had been disposed of. This Court did not accept the plea of the State and interfered with the order of detention. 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 Section 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, Criminal Misc. No.M-21243 of 2012 -11- 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 objects 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 Article 21 of the Constitution. When the law provides that the Magistrate could authorize the detention of the accused in custody upto a maximum period as indicated in the proviso to sub-section (2) of Section 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 Article 21 of the Constitution. There is no provision in the Criminal Procedure Code authorizing detention of an accused in custody after the expiry of the period indicated in the proviso to sub- section (2) of Section 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 avails 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 Criminal Misc. No.M-21243 of 2012 -12- 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 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 could record our conclusions as follows :-
1. Under sub-section (2) of Section 167, a Magistrate before whom an accused is produced while the police is investigating into the offence can authorize 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 Section 167, the Magistrate may authorize detention of the accused otherwise than the custody of the 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 Criminal Misc. No.M-21243 of 2012 -13- not less than 10 years, and 60 days 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 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 of it 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 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 Criminal Misc. No.M-21243 of 2012 -14- the Magistrate, then the conjoint reading of Explanation I and proviso to sub-section (2) of Section 167, the continued custody of the accused even beyond the specified period in paragraph (a) will not be unauthorized and therefore, if during that period the investigation is completed and charge-sheet is filed then the so-called indefeasible right of the accused would stand extinguished.
6. The expression 'if not already availed of' used by this Court in Sanjay Dutt's case (supra) must be understood to mean when the accused files an application and is prepared to offer bail on being directed. In other words, on expiry of the period specified in paragraph
(a) of proviso to sub-section (2) of Section 167 if the accused files an application for bail and offers also to furnish the bail, on being directed, then it has to be held that the accused has availed of his indefeasible right even though the Court has not considered the said application and has not indicated the terms and conditions of bail, and the accused has not furnished the same.
13. With the aforesaid interpretation of the expression 'availed of' if charge-sheet is filed subsequent to the availing of the indefeasible right by the accused then that right would not stand frustrated or extinguished, necessarily therefore, if an accused entitled to be released on bail by application of the proviso to sub-section (2) of Section 167, makes the application before the Magistrate, but the Criminal Misc. No.M-21243 of 2012 -15- Magistrate erroneously refuses the same and rejects the application and then accused moves the higher forum and while the matter remains pending before the higher forum for consideration of a charge-sheet is filed, the so-called indefeasible right of the accused would not stand extinguished thereby, and on the other hand, the accused has to be released on bail. Such an accused, who thus is entitled to be released on bail in enforcement of his indefeasible right will, however, have to be produced before the Magistrate on a charge-sheet being filed in accordance with Section 209 and the Magistrate must deal with him in the matter of remand to custody subject to the provisions of the Code relating to bail and subject to the provisions of cancellation of bail, already granted in accordance with law laid down by this Court in the case of Mohd. Iqbal v. State of Maharashtra (supra).
Having indicated the position of law, as above, an applying the same to the facts and circumstances of the present case, it appears that the prescribed period under paragraph (a) of the proviso to sub-section (2) of Section 167 expired on 16.8.2000 and the accused filed an application for being released on bail and offered to furnish the bail on 17.8.2000. The Magistrate, however, erroneously refused the bail prayer on the ground that the proviso to sub-section (2) of Section 167 has no application to case pertaining to MPID Act. The accused then moved the High Court. While the matter was pending before the Division Bench of the High Court, the learned Public Prosecutor took an adjournment and the case was posted to 31st August, 2000 and just the day before the charge-sheet was filed on 30th August 2000 and thus the indefeasible right of the accused Criminal Misc. No.M-21243 of 2012 -16- stood frustrated and the High Court refused to release the accused on bail on a conclusion that the accused cannot be said to have availed of his indefeasible right, as held in Sanjay Dutt's case (supra) since, he has not yet been released on bail. But in view of our conclusion as to when an accused can be said to have availed of his right, in the case in hand, it has to be held that the accused availed of his right on 17th August, 2000 by filing an application for being released on bail and offering therein to furnish the bail in question. This being the position, the High Court was in error in refusing that right of the accused for being released on bail. We, therefore, direct that the accused should be released on bail on such terms and conditions to the satisfaction of the learned Magistrate, and further the Magistrate would be entitled to deal with the accused in accordance with law and observations made by us in this judgment, since the charge-sheet has already been filed."
Similar was the position in Sanjay Dutt v. State through C.B.I. Bombay (supra).
In the recent judgment of the Hon'ble Supreme Court in Sayed Mohd.Ahmed Kazmi v. State, GNCTD and others 2012(5) Recent Apex Judgments 582, the aforesaid view has been reiterated approvingly.
The matter is therefore, no longer res integra that an indefeasible right accrues to the accused if the report under Section 173(3) Cr.P.C. is not submitted by the Investigating Agency within the time stipulated and the Magistrate has no option but to grant bail. The subsequent filing of the challan during the pendency of the bail application would be of no consequence in so far as the right accruing to the accused is concerned.
For the aforesaid reasons, the impugned order declining the prayer Criminal Misc. No.M-21243 of 2012 -17- for bail of the petitioner is unsustainable in law. The same is accordingly set aside and the petitioner is directed to be enlarged on bail in terms of Section 167(2) Cr.P.C. subject to his furnishing bail bonds to the satisfaction of the learned C.J.M., Bhatinda.
Before parting with the judgment, this Court cannot loose sight of the fact that the petitioner is facing serious accusations in a case registered under Section 302 for a double murder and the benefit of bail under Section 167(2) Cr.P.C. by creating an indefeasible right in favour of the petitioner has occurred only due to the fault of the Investigating Agency. The period of 90 days was to expire on 15.3.2012 and the report was submitted on 16.3.2012 after the application for bail had been submitted. The Court cannot, but accept this fact with a pinch of salt. In such serious offences, if the investigating agency faulters in submitting the challan thereby giving an undue advantage to the accused, the same has necessarily to be viewed with suspicion more particularly, when the challan was submitted promptly upon the application having been filed which suggests that the challan was ready, but was not produced before the Court.
In the given set of circumstances, therefore, this Court directs that an enquiry be got conducted into the cause which led to this lapse. The enquiry shall be conducted by an officer not less than the rank of a D.I.G. and the complete report submitted to this Court within a period of three months. The enquiry shall positively be concluded within this period.
The petition stands allowed.
(MAHESH GROVER)
January 15, 2013 JUDGE
GD
WHETHER TO BE REFERRED TO REPORTER? YES/NO
Criminal Misc. No.M-21243 of 2012 -18-