Rajasthan High Court - Jaipur
Kamlesh Chaudhary S/O Mangi Lal vs State Of Rajasthan on 10 February, 2020
Author: Pankaj Bhandari
Bench: Pankaj Bhandari
HIGH COURT OF JUDICATURE FOR RAJASTHAN
BENCH AT JAIPUR
S.B. Criminal Miscellaneous Bail Application No. 16464/2019
Kamlesh Chaudhary S/o Mangi Lal, Aged About 55 Years, R/o
Chaudhary Line Sirohi (Presently Confined In Jail Central Jail
Jaipur)
----Petitioner
Versus
State Of Rajasthan, through PP
----Respondent
For Petitioner(s) : Mr. Rajeev Surana, Sr. Adv. assisted by Mr. Sanjay Yadav.
For State : Mr. Rajendra Yadav, GA cum AAG
Mr. Arvind Bhadu, PP.
For I.O. : Mr. Satya Pal Midha.
HON'BLE MR. JUSTICE PANKAJ BHANDARI
Order
10/02/2020
1. Petitioner has filed this bail application under Section 439 of Cr.P.C.
2. F.I.R. No.24/2018 was registered at Police Station SOG, Rajasthan, Jaipur for offence under Sections 406, 409, 420, 467, 468, 471, 477-A, 201, 120-B and Section 5 of Prize Chits Money Circulation Scheme (Banning Act), 1978 and Section 65 of the IT Act.
3. It is contended by counsel for the petitioner that in the present case, petitioner was arrested on 25.05.2019 and an incomplete charge-sheet was filed on 22.07.2019. The time provided for concluding the investigation is 90 days which expired on 24.08.2019. It is contended that cognizance was taken by the (Downloaded on 17/02/2020 at 08:56:15 PM) (2 of 5) [CRLMB-16464/2019] Court on the incomplete charge-sheet on 22.07.2019 which was challenged by the petitioner before the revisional Court. Revisional Court vide Order dated 16.01.2020 has set aside the order of taking of cognizance and has remanded the case.
4. It is also contended that a request was made to the Court below to hear the charge arguments but the Court below mentioned in the order that only preliminary charge-sheet has been filed and that investigation with regard to 110 loans is underway and that the charge arguments would only be heard after the investigation is concluded and final report is filed. In the order sheet, Court directed to complete the investigation and submit the report.
5. It is contended that petitioner has remained in custody for a period of 258 days and his illegal confinement is of a period of 168 days. Still complete charge-sheet has not been filed, hence, petitioner is entitled to default bail.
6. Counsel for the petitioner has placed reliance on "Achpal vs. State of Rajasthan 2019 Crl. L. J. 401", wherein Apex Court held that if the investigation is not completed within 90 days, accused is entitled to default bail and the provision of code do not empower anyone to extend the period.
7. Counsel for the petitioner has also placed reliance on "Rakesh Kumar Pal vs. State of Assam AIR 2017 SC 3948", wherein the Apex Court held that use of section 344 for a remand beyond the statutory period fixed under section 167 can lead to serious abuse, as an arrested person can in this manner be kept in custody indefinitely while the investigation can go on in a leisurely (Downloaded on 17/02/2020 at 08:56:15 PM) (3 of 5) [CRLMB-16464/2019] manner. Referring to "Hitendra Vishnu Thakur vs State Of Maharashtra (AIR 1994 SC 2623)" it was held that right 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. The accused, so released on bail may be arrested and committed to custody according to the provisions of the Code of Criminal Procedure.
8. Learned Additional Advocate General has opposed the bail application. It is contended by Investigating Officer that charge- sheet was complete against the present petitioner and the matter was only kept pending with regard to investigation in relation to other two hundred plus suspected persons. It is contended that against order passed by the revisional Court, State has already preferred a misc. petition.
9. I have considered the contentions and have perused the charge-sheet.
10. In the charge-sheet submitted before the Court, in the last para, it is mentioned that it is proposed to continue the investigation under Section 173(8) of Cr.P.C. against 14 accused mentioned in the charge-sheet as well as other accused.
11. From perusal of the Order dated 19.09.2019 passed by Additional Chief Metropolitan Magistrate, it is apparent that a prayer was made by the petitioner for hearing the charge arguments but the prayer was declined on the ground that final report has not been filed till date and time was given to the Authorities to complete the investigation and file the final report. (Downloaded on 17/02/2020 at 08:56:15 PM)
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12. The contention of Investigating Officer that they have concluded 75% of the investigation and would be submitting the final report at the earliest cannot debar the petitioner of default bail. Law is crystallized by the Judgment in Rakesh Kumar Paul vs. State of Rajasthan (Supra) wherein it is held that use of section 344 for a remand beyond the statutory period fixed under section 167 can lead to serious abuse, as an arrested person can in this manner be kept in custody indefinitely while the investigation can go on in a leisurely manner.
13. A period of 168 days have already expired after the statutory period of 90 days which is clearly violative of the rights of the accused under Section 167 of Cr.P.C. The Apex Court in Rakesh Kumar Paul vs. State of Assam (Supra) held that default bail is indefeasible right. Similar was the view taken in Achpal vs. State of Rajasthan (Supra).
14. The contention of Investigating Officer that it is the practice of SOG to make a note that the matter is kept pending under Section 173(8) of Cr.P.C. against all is also not a ground to deny the bail, more particularly when it is clearly mentioned in the charge-sheet that the investigation is kept pending under Section 173(8) of Cr.P.C. against the present petitioner. It is true that Investigating Agency has a right to continue with the investigation but equally it is true that if the investigation is not completed within a prescribed time then the accused is entitled to default bail under the provision of Section 167 of Cr.P.C.
15. Considering the contentions put forth by counsel for the petitioner and after perusing the charge-sheet, I deem it proper to (Downloaded on 17/02/2020 at 08:56:15 PM) (5 of 5) [CRLMB-16464/2019] allow the bail application.
16. This bail application is accordingly allowed and it is directed that accused petitioner shall be released on bail provided he furnishes a personal bond in the sum of Rs.10,00,000/- (Rupees Ten Lac only) together with two sureties in the sum of Rs.5,00,000/- (Rupees Five Lac only) each to the satisfaction of the learned trial court with the stipulation that he shall appear before that Court and any court to which the matter is transferred, on all subsequent dates of hearing and as and when called upon to do so.
17. The said bail order would be operative till the date of filing of the charge-sheet. It is made clear that the default bail does not prohibit or otherwise prevent the arrest or re-arrest of the petitioner on cogent grounds in respect of the subject charge and upon arrest or re-arrest, the petitioner is entitled to petition for grant of regular bail which application should be considered on its own merit. It is also made clear that this will not impact on the arrest of the petitioner is any other case.
18. Petitioner is directed to deposit the Passport with the trial Court. He will not be entitled to leave the country without seeking prior permission of the trial Court.
(PANKAJ BHANDARI),J CHANDAN /5 (Downloaded on 17/02/2020 at 08:56:15 PM) Powered by TCPDF (www.tcpdf.org)