Allahabad High Court
Pankaj Kumar Yadav vs State Of U.P. on 20 July, 2022
HIGH COURT OF JUDICATURE AT ALLAHABAD AFR Reserved Court No. - 84 Case :- CRIMINAL REVISION No. - 2638 of 2022 Revisionist :- Pankaj Kumar Yadav Opposite Party :- State of U.P. Counsel for Revisionist :- Ramesh Kumar Saxena,Dashrath Lal Counsel for Opposite Party :- G.A.,Hari Bans Singh Hon'ble Sameer Jain,J.
1. Heard Sri Ramesh Kumar Saxena, learned counsel for the revisionist, Sri Hari Bans Singh, learned counsel for the informant, Sri Arvind Kumar, learned AGA for the State and perused the record of the case.
2. The instant revision has been moved by the revisionist against the order dated 17.06.2022 passed by Additional Chief Judicial Magistrate, Court No.5, Allahabad in Case Crime No. 167 of 2022, under Sections 308, 323, 504, 506, 452 IPC, Police Station Jhunsi, District Prayagraj by which, Additional Chief Judicial Magistrate dismissed the bail application moved by the revisionist under Section 167(2) Cr.P.C.
3. Filtering out unnecessary details, the basic facts, which are relevant for the purpose of present revision is that FIR of the present case was lodged on 16.04.2022 against the revisionist and one another under Sections 308, 323, 504, 452 IPC at Police Station Jhunsi, District Prayagraj. Pursuant to the FIR dated 16.04.2022 revisionist was arrested on 16.04.2022 and since then he is in custody in the present matter. As, the matter relates to Sections 308, 323, 504, 452 IPC and none of the offence is punishable for more than seven years and as charge-sheet did not submit in the court within sixty days from the date of arrest of revisionist, therefore, an application under Section 167(2) Cr.P.C. was moved by the revisionist on 17.06.2022 praying that as sixty days have already been lapsed since his arrest and till date no charge-sheet has been submitted, therefore, revisionist is entitled to be released on statutory bail provided under Section 167(2) Cr.P.C. but court below on same day i.e. 17.06.2022 dismissed his bail application moved under Section 167(2) Cr.P.C. Revisionist challenged the order dated 17.06.2022 passed by the court below in the instant revision.
4. Learned counsel for the revisionist submitted that admittedly in the present matter, revisionist is in custody in the present case since 16.04.2022 and none of the offence are having punishment of more than seven years, therefore, as per section 167(2) Cr.P.C. within sixty days from the date of arrest of revisionist, investigation must have been completed and charge-sheet must have been filed within sixty days i.e. latest by 15.06.2022 but as, till 17.06.2022, charge-sheet in the present matter did not file, therefore, on 17.06.2022 an indefeasible right to release the revisionist on bail under Section 167(2) Cr.P.C. accrued, therefore, revisionist on 17.06.2022 filed bail application before the court concerned under Section 167(2) Cr.P.C. but his bail application was wrongly dismissed by the court below, therefore, order dated 17.06.2022 is illegal and liable to be set aside and revisionist should be released on statutory bail under Section 167(2) Cr.P.C.
5. Learned counsel for the revisionist submitted that the law is settled that if within stipulated period of time, charge-sheet has not been submitted and before submission of charge-sheet, if accused applied for bail then, he has to be released on bail by virtue of Section 167(2) Cr.P.C. Learned counsel for the revisionist placed reliance on the judgment of the constitution Bench of the Apex Court in the case of Sanjay Dutt Vs. State through C.B.I., Bombay (II) (1994) 5 SCC 410 and three judge Bench of the Apex Court in the case of Bikramjit Singh Vs. State of Punjab (2020) 10 SCC 616. Learned counsel for the revisionist further submitted that the court below after placing the reliance in the case of Pragyna Singh Thakur Vs. State of Maharashtra (2011) 10 SCC 445 dismissed the bail application of revisionist moved under Section 167(2) Cr.P.C., therefore, committed an illegality of law as Pragyna Singh Thakur case (supra) has been held per incurium by three judge Bench of the Apex Court in case of Bikramjit Singh (supra). Learned counsel for the revisionist next submitted that as revisionist has applied for bail even before filing of the charge-sheet, therefore, his bail application under Section 167(2) Cr.P.C. cannot be dismissed on the ground that before filing of the charge-sheet his bail application could not be decided, therefore, order dated 17.06.2022 is illegal and is liable to be set aside and revisionist is entitled to be released on statutory bail under Section 167(2) Cr.P.C.
6. Per contra, learned counsel for the informant and learned AGA opposed the prayer and submitted that there is no illegality in the order dated 17.06.2022 passed by the court below and as before deciding the bail application of the revisionist, charge-sheet was submitted in the court concerned, therefore, bail application of the revisionist moved under Section 167(2) Cr.P.C. was rightly dismissed by the court below.
7. Learned counsel for the informant placed reliance on the judgment of Pragyna Singh Thakur case (supra). He further placed reliance on the judgment of Uday Mohanlal Acharya Vs. State of Maharashtra AIR 2001 SC 1910. Learned counsel for the informant vehemently argued that as on the same day when bail application was moved, charge-sheet has been submitted and till the submission of charge-sheet, bail application of the revisionist moved under Section 167(2) Cr.P.C. was pending, therefore, after submission of the charge-sheet revisionist could not be released on statutory bail under Section 167(2) Cr.P.C. and there is no illegality in the order dated 17.06.2022 passed by the court below. He further submitted that the order dated 17.06.2022 is based on Pragyna Singh Thakur case (supra) of the Apex Court and law laid down in that case was binding upon the Magistrate, therefore, if Magistrate after relying upon the judgment of Pragyna Singh Thakur case (supra) dismissed the bail application of the revisionist moved under Section 167(2) Cr.P.C. then, Magistrate did not commit any illegality and order dated 17.06.2022 cannot be held to be illegal.
8. I have given anxious consideration on the rival submission and perused the record of the case.
9. Admitted facts of the case is that against revisionist, FIR was lodged on 16.04.2022 under Sections 308, 323, 504, 452 IPC at Police Station Jhunsi, District Prayagraj at Case Crime No. 167 of 2022 and revisionist is in jail since 16.04.2022 pursuant to the FIR dated 16.04.2022 and none of the offence is punishable with more than seven years. Therefore, as per Section 167(2) Cr.P.C., the charge-sheet of the present case should have been filed within sixty days from the date of arrest of revisionist and the sixty days was expiring on 15.06.2022 (after excluding first date of remand i.e. 16.04.2022) [See M. Ravindran Vs. Intelligence Officer, Director of Revenue Intelligence (2021) 2 SCC 485]. Therefore, after 15.06.2022, the indefeasible right in favour of the accused accrued under Section 167(2) Cr.P.C. to release him on default bail and revisionist moved statutory bail under Section 167(2) Cr.P.C. on 17.06.2022 and till then no charge-sheet was submitted. Although, charge-sheet was submitted on same day i.e on 17.06.2022 but at about 4.00 PM i.e. after the bail application moved by the revisionist under Section 167(2) Cr.P.C.
10. To decide the present dispute, it is necessary to visit Section 167 Cr.P.C., which runs as follows:-
"167. Procedure when investigation cannot be completed in twenty four hours.
(1) Whenever any person is arrested and detained in custody, and it appears that the investigation cannot be completed within the period of twenty- four hours fixed by section 57, and there are grounds for believing that the accusation or information is well- founded, the officer in charge of the police station or the police officer making the investigation, if he is not below the rank of sub- inspector, shall forthwith transmit to the nearest Judicial Magistrate a copy of the entries in the diary hereinafter prescribed relating to the case, and shall at the same time forward the accused to such Magistrate.
(2) 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, 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 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) 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;]
(b) no Magistrate shall authorise 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 specially empowered in this behalf by the High Court, shall authorise 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 authorising 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 case of a women under eighteen years of age, the detention shall be authorised to be in the custody of a remand home or recognise social institution].
(2A) Notwithstanding anything contained in sub- section (1) or sub- section (2), the officer in charge of the police station or the police officer making the investigation, if he is not below the rank of a sub- inspector, may, where a Judicial Magistrate is not available, transmit to the nearest Executive Magistrate, on whom the powers of a Judicial Magistrate or Metropolitan Magistrate have been conferred, a copy of the entry in the diary hereinafter prescribed relating to the case, and shall, at the same time, forward the accused to such Executive Magistrate, and thereupon such Executive Magistrate, may, for reasons to be recorded in writing, authorise the detention of the accused person in such custody as he may think fit for a term not exceeding seven days in the aggregate; and, on the expiry of the period of detention so authorised, the accused person shall be released on bail except where an order for further detention of the accused person has been made by a Magistrate competent to make such order; and, where an order for such further detention is made, the period during which the accused person was detained in custody under the orders made by an Executive Magistrate under this sub- section, shall be taken into account in computing the period specified in paragraph (a) of the proviso to sub-section (2);
Provided that before the expiry of the period aforesaid, the Executive Magistrate shall transmit to the nearest Judicial Magistrate the record of the case together with a copy of the entries in the diary relating to the case which was transmitted to him by the office in charge of the police station or the police officer making the investigation, as the case may be.
(3) A Magistrate authorising under this section detention in the custody of the police shall record his reasons for so doing.
(4) Any Magistrate other than the Chief Judicial Magistrate making such order shall forward a copy of his order, with his reasons for making it, to the Chief Judicial Magistrate.
(5) If in any case triable by a Magistrate as a summons-case, the investigation is not concluded within a period of six months for the date on which the accused was arrested, the Magistrate shall make an order stopping further investigation into the offence unless the officer making the investigation satisfies the Magistrate that for special reasons and in the interests of justice the continuation of the investigation beyond the period of six months is necessary.
(6) Where any order stopping further investigation into an offence has been made under sub-section (5), the Sessions Judge may, if he is satisfied, on an application made to him or otherwise, that further investigation into the offence ought to be made, vacate the order made under sub-section (5) and direct further investigation to be made into the offence subject to such directions with regard to bail and other matters as he may specify."
11. The constitution Bench of the Apex Court in Sanjay Dutt case (supra) observed in paragraph no. 53(2)(b) as:-
"(2)(b) The 'indefeasible right' of the accused to be released on bail in accordance with Section 20(4)(bb) of the TADA Act read with Section 167(2) of the Code of Criminal Procedure in default of completion of the investigation and filing of the challan within the time allowed, as held in Hitendra Vishnu Thakur is a right which ensures to, and is enforceable by the accused only from the time of default till the filing of the challan and it does not survive or remain enforceable on the challan being filed. If the accused applies for bail under this provision on expiry of the period of 180 days or the extended period, as the case may be, then he has to be released on bail forthwith. The accused, so released on bail may be arrested and committed to custody according to-the provisions of the Code of Criminal Procedure. The right of the accused to be released on bail after filing of the challan, notwithstanding the default in filing it within the time allowed, is governed from the time of filing of the challan only by the provisions relating to the grant of bail applicable at that stage."
12. Thus, from the perusal of the Constitution Bench judgement of Sanjay Dutt case (supra) if charge-sheet within stipulated period of time is not submitted then indefeasible right of accused to release him on bail under Section 167(2) CrP.C. accrues but this will remain effective only till submission of charge-sheet and if accused failed to apply bail before submission of charge-sheet then he cannot be benefited under Section 167(2) CrP.C. and for availing the benefit under Section 167(2) CrP.C., it is necessary for the accused to apply bail before submission of charge-sheet.
13. Recently, three judge Bench of the Apex Court in case of M. Ravindran Vs. Intelligence Officer, Director of Revenue Intelligence (2021) 2 SCC 485 after discussing the matter in detail observed in paragraph no. 25 as:-
"25.1 Once the accused files an application for bail under the Proviso to Section 167(2) he is deemed to have ''availed of' or enforced his right to be released on default bail, accruing after expiry of the stipulated time limit for investigation. Thus, if the accused applies for bail under Section 167(2), CrPC read with Section 36A (4), NDPS Act upon expiry of 180 days or the extended period, as the case may be, the Court must release him on bail forthwith without any unnecessary delay after getting necessary information from the public prosecutor, as mentioned supra. Such prompt action will restrict the prosecution from frustrating the legislative mandate to release the accused on bail in case of default by the investigating agency.
25.2 The right to be released on default bail continues to remain enforceable if the accused has applied for such bail, notwithstanding pendency of the bail application; or subsequent filing of the chargesheet or a report seeking extension of time by the prosecution before the Court; or filing of the chargesheet during the interregnum when challenge to the rejection of the bail application is pending before a higher Court.
25.3 However, where the accused fails to apply for default bail when the right accrues to him, and subsequently a chargesheet, additional complaint or a report seeking extension of time is preferred before the Magistrate, the right to default bail would be extinguished. The Magistrate would be at liberty to take cognizance of the case or grant further time for completion of the investigation, as the case may be, though the accused may still be released on bail under other provisions of the CrPC.
25.4 Notwithstanding the order of default bail passed by the Court, by virtue of Explanation I to Section 167(2), the actual release of the accused from custody is contingent on the directions passed by the competent Court granting bail. If the accused fails to furnish bail and/or comply with the terms and conditions of the bail order within the time stipulated by the Court, his continued detention in custody is valid."
14. Therefore, the issue is not res-integra and it has been settled by firstly Constitution Bench of the Apex Court in Sanjay Dutt case (supra) and thereafter three judges Bench of Apex Court in the case of M. Ravindran (supra). The three judges Bench in case of M. Ravindran (supra) followed the decision of Constitution Bench and held that if charge-sheet against the accused is not filed within stipulated period of time and before filing the charge-sheet if accused applied for statutory bail under Section 167(2) Cr.P.C. then, he has to be released on bail irrespective of the fact that whether his bail application pending at the time of subsequent filing of the charge-sheet.
15. In case at hand, the court below relied upon the decision of the Apex Court in Pragyna Singh Thakur case (supra) and held that as before taking decision on the bail application moved by the revisionist under Section 167(2) Cr.P.C., charge-sheet has been filed, therefore, he cannot be released on default bail under Section 167(2) Cr.P.C., but while observing this, court below failed to consider the fact that the case of Pragyna Singh Thakur (supra) has been held per incurium by three judge Bench of the Apex Court in case of Bikramjit Singh (supra) on which reliance was placed by the learned counsel for the revisionist. In Bikramjit Singh case (supra) three judge Bench of the Apex Court after discussing the matter in detail observed as:-
"On a careful reading of the aforesaid two paragraphs, we think, the two-Judge Bench in Pragyna Singh Thakur case (2011) 10 SCC 445 has somewhat in a similar matter stated the same. As long as the majority view occupies the field it is a binding precedent. That apart, it has been followed by a three- Judge Bench in Sayed Mohd. Ahmad Kazmi case (2012) 12 SCC 1. Keeping in view the principle stated in Sayed Mohd. Ahmad Kazmi case(2012) 12 SCC 1 which is based on three-Judge Bench decision in Uday Mohanlal Acharya case (2001) 5 SCC 453, we are obliged to conclude and hold that the principle laid down in paras 54 and 58 of Pragyna Singh Thakur case (2011) 10 SCC 445 (which has been emphasised by us: see paras 42 and 43 above) does not state the correct principle of law. It can clearly be stated that in view of the subsequent decision of a larger Bench that cannot be treated to be good law. Our view finds support from the decision in Union of India v. Arviva Industries India Ltd (2014) 3 SCC 159."
16. Therefore, law laid down in the case of Pragyna Singh Thakur (supra), has already been declared per incurium by three judges Bench in the case of Bikramjit Singh (supra), therefore, no reliance can be placed on Pragyna Singh Thakur case (supra) while deciding the default bail application of the revisionist moved under Section 167(2) Cr.P.C., therefore, court below committed error of law while placing reliance on Pragyna Singh Thakur case (supra).
17. Record of the present case clearly suggest that charge-sheet in the present matter was filed on 17.06.2022 i.e. on same day when mandatory bail application was moved by the revisionist under Section 167(2) Cr.P.C. and impugned order shows that charge-sheet was filed at 4.00 PM. Thus, indisputably, charge-sheet did not file before filing the bail application of the revisionist under Section 167(2) Cr.P.C.
18. As, in the present case within stipulated period of sixty days, which was expiring on 15.06.2022, charge-sheet did not file and before submission of charge-sheet revisionist applied for default bail under Section 167(2) Cr.P.C., therefore in view of the law laid down by the Constitution Bench of the Apex Court in case of Sanjay Dutt (supra), three judges Bench in the case of Bikramjit Singh (supra) and three judge Bench in case of M. Ravindran (supra) revisionist has to be released on statutory bail under Section 167(2) Cr.P.C.
19. Therefore, from the above discussion, in my view, order dated 17.06.2022 is illegal and is liable to be set aside and revisionist is entitled to be released on default bail under Section 167(2) Cr.P.C.
20. Accordingly, the present revision is allowed. The order dated 17.06.2022 is hereby set-aside and revisionist is directed to be released on statutory bail under Section 167(2) Cr.P.C. in the aforesaid case.
Order Date :- 20.07.2022 AK Pandey