Karnataka High Court
Hanumantha And Anr vs The State Through on 7 August, 2017
1
IN THE HIGH COURT OF KARNATAKA
KALABURAGI BENCH
DATED THIS THE 7TH DAY OF AUGUST, 2017
BEFORE
THE HON'BLE MR.JUSTICE B. A. PATIL
CRIMINAL PETITION No.200795/2017
Between:
1. Hanumantha S/o Durugappa
Age: 25 years, Occ: Agriculture,
R/o Kasanagoddi, Tq: Manvi
Dist: Raichur
2. Basappa S/o Hanumayya
Age: 35 years, Occ: Agriculture,
R/o Kasanagoddi, Tq: Manvi
Dist: Raichur
... Petitioners
(By Sri. B. K. Hiremath, Advocate)
And:
The State Through
SHO, Sirwar P.S.
Tq: Manvi, Dist: Raichur
Represented by SPP
High Court of Karnataka
Kalaburagi Bench
... Respondent
(By Sri. Sheshadri Jaishankar, HCGP)
This Criminal Petition is filed under Section 482 of
Cr.P.C., praying to allow the bail petition under section 482
of Cr. P.C. filed by accused No.1 and 3 and release the
accused No.1 and 3 on bail in C.C.No.291/2017 in
2
Cr.No.14/2017 of Sirwar Police Station for the offences
punishable under section 143, 147, 148, 307, 326, 323, 504,
506 R/w 149 of IPC.
This petition is coming on for Orders this day, the
Court made the following:-
ORDER
This petition is filed by the petitioners/accused Nos.1 and 3 under Section 438 of Cr.P.C., praying this Court to set aside the order passed in Crl.
Rev.P.No.104/2017 passed by I Addl. District and Sessions Judge, Raichur dated 1.7.2017 consequently to set aside the order passed by the Civil Judge and JMFC, Manvi in C.C.No.291/2017 by order dated 26.4.2017.
2. Brief facts leading to filing of the complaint is that, a complaint came to be filed on 19.1.2017 alleging that complainant's daughter was given to the deceased-
Mahantesh in marriage and out of their wedlock, they begotten a child. Thereafter, as they did not lead happy marital life, daughter of the complainant started living 3 in her parental house. Thereafter, deceased-Mahantesh got married with another lady, as such, a complaint came to be registered and in that context animosity developed between them. Thereafter, somebody murdered the said Mahantesh. In this behalf, there was an animosity under the impression that persons belonging to the accused have caused the death of said Mahantesh while attending the case. In that light on, 19.1.2017 at about 8:00 a.m., when the complainant and his brother were going to attend the Court and when they came near Akalkumpi village, at that time, a private Jeep came and the petitioners alighted from the said Jeep. With the earlier animosity with an intention to cause the death of the complainant, they started quarreling with the deceased and assaulted him with stone and stick, thereby caused grievous injuries with an intention to take away the life of the deceased. As such, a case came to be registered in Crime No.14/2017 by Sirwar Police.
43. Since the concerned police did not file the charge as contemplated under the law within prescribed period, an application was moved by the petitioners under Section 167(2) of Cr.P.C. seeking default bail on the 91st day, the day on which said application has to be considered. But on 92nd day the police filed the charge sheet before the Civil Judge and JMFC, Manvi. The learned Magistrate by referring various decisions of the Hon'ble Apex Court by holding that after filing of the application under Section 167(2) of Cr.P.C by the accused before considering the same, if Investigating Officer filed the charge sheet the right of accused will be lost and accused are not entitled for bail. Against the said order, the petitioners preferred Criminal Revision Petitions in Crl.R.P.No.104/2017 on the file of I Addl.
District and Sessions Judge, Raichur. The learned Sessions Judge by his order dated 1.7.2017 confirmed the order passed by the Civil Judge and JMFC, Manvi and dismissed the criminal revision petition. Being 5 aggrieved by the said order, the petitioner Nos.1 and 2 are before this Court.
4. Heard the arguments of the learned counsel for the petitioners and learned High Court Government Pleader appearing for respondent-State.
5. The main grounds urged by the learned counsel for the petitioners arethat; petitioners have filed an application under Section 167(2) of Cr.P.C on 91st day, immediately after completion of the statutory period i.e., on 90th days as contemplated under Section 167 of Cr.P.C. The learned JMFC, Manvi has not passed the order though the petitioners were ready to give bond and security as contemplated under the law.
He would further contend that on the next day after filing of the charge sheet by the police, the Magistrate by observing the same has erroneously rejected the application and the same was confirmed by the I Additional District and Sessions Judge. He would 6 further contend that, the petitioners have got statutory right under Section 167 (2) of Cr.P.C. praying for releasing them on bail. The same has not been properly exercised by the trial Court, as such, he prays for allowing the said application by setting aside the orders of the trial courts.
6. On the contrary, learned High Court Government Pleader appearing for the respondent-State has vehemently contended that before the release of the petitioners, charge sheet came to be filed, as such by referring to the Hon'ble Apex Court decision, courts below have rejected the bail application filed by accused under Section 167(2) of Cr.P.C. There are no good grounds to allow the petition. Hence, he prays for dismissal of the petition.
7. I have perused the entire material produced along with the petition including the order passed by the courts below.
78. Before going to take up the matter for adjudication, it is beneficial to refer Section 167 of Cr.P.C, which is extracted as under;
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) 1 the Magistrate may authorise the detention of the accused person, otherwise 8 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 in any custody under this section unless the accused is produced before him;
(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. 1 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 9 before the Magistrate as required under paragraph (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.
(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(2), 10 Provided that before the expiry of the period aforesaid, the Executive Magistrate shall transmit to the nearest Judicial Magistrate the records of the case together with a copy of the entries in the diary relating to the case which was transmitted to him by the officer 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 from 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 offences ought to be made, vacate the order made under sub-
11section (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.
9. The provisions of Section 16792) of Cr.P.C. is a beneficial legislation which has been given a statutory right to the accused in the event of non-filing of the charge sheet within the stipulated period of 90 days.
Under such circumstances, a legal right is going to be accrued to the accused to be released on bail under Section 167(2) of Cr.P.C. When once the application is filed, the Court should not keep the application filed under Section 167 of Cr.P.C., pending after expiry of the statutory period to enable the investigating agency to file the charge sheet. If the case is adjourned by granting time to the prosecution, not adverting to the application filed on behalf of the petitioner/accused then it would be violation of the legislative mandate.
When the charge is not filed and the right under Section 167(2) of Cr.P.C. has ripened earning the status of 12 indefensibility, it cannot be frustrated by the prosecution on some pretext or the other. The accused can avail his liberty only by filing application stating that the statutory period for filing of the charge-sheet has expired, the charge sheet has not yet been filed and an indefeasible right has accrued in his favour and further he is prepared to furnish the bail bond. Once such a bail application is filed, it is obligatory on the part of the Court to verify from the records as well as from the Public Prosecutor whether the time has expired and the charge-sheet has been filed or not or whether an application for extension which is statutorily permissible, has been filed. Under such circumstances, the Court shall deal with the application filed by the accused and release the accused on bail by taking adequate security. This proposition of law has been laid down by the Hon'ble Apex Court in the case of Union of India Through Central Bureau of Investigation vs. Nirala Yadav alias Raja Ram Yadav Allas Deepak 13 Yadav reported in (2014) 9 Supreme Court Cases
457. The Hon'ble Court has held as under;
27. Before we proceed to deal with the subsequent decisions, we should pause here to deliberate. In Mohamed Iqbal Madar Sheikh reported in (1996) 1 SCC 722: 1996 SCC (Cri) 202 it has been expressed with anguish that the Court should not keep an application filed under Section 167(2) after expiry of the statutory period pending to enable the investigation to file the charge-sheet to defeat the indefeasible right of an accused. It has been clearly stated therein that the statutory right should not be defeated by keeping the application pending so that the right which had accrued is extinguished. The aforesaid decision was rendered after pronouncement by the Constitution Bench in Sanjay Dutt's case reported in (1994)5 SCC 410: 1994 SCC (Cri) 1433 and, in fact, it has been referred to therein.
28. In Uday Mohanlal Acharya (supra) the principle has been further elaborated to hightlight the ratio laid down in Sanjay Dutt's case. It has been clearly laid down that if a case is adjourned by the court granting time to the prosecution not adverting to the application filed on behalf of the accused, it would be a violation of the legislative mandate. The principle stated in Uday Mohanlal Acharya reported in (2001) 5 SCC 453: 2001 SCC (Cri) 760 is a binding precedent on us. Mr. Dey, learned counsel appearing for the appellant, made a feeble endeavour that it is a two-Judge Bench decision and it runs contrary to the principle stated in Sanjay Dutt's case and hence, it should be treated as per incuriam. Both the facets of the submission are absolutely fallacious. It is a judgment rendered by a three-Judge Bench 14 and not by a two Judge Bench simply because there is a dissenting opinion. Secondly, the judgment has not been rendered in ignorance of a binding precedent but, on the contrary, it has directly dealt with the decision in Sanjay Dutt (supra), appreciated, understood and analysed the principles stated therein and culled out the conclusions and, therefore, by no stretch of imagination it can be held to be per incuriam. Even if a two-Judge Bench or a three-Judge Bench disagrees with the view expressed in Uday Mohanlal Acharya (supra), it has to be referred to a larger Bench. As we notice, prior to the decision in Uday Mohanlal Acharya's case a three-Judge Bench in Mohamed Iqbal Madar Sheikh (supra) had stated the principle in a different way. We are disposed to think, that is the principle which the Constitution Bench in Sanjay Dutt's case has laid down. When the charge-sheet is not filed and the right has ripened earning the status of indefeasibility, it cannot be frustrated by the prosecution on some pretext or the other. The accused can avail his liberty only by filing application stating that the statutory period for filing of the challan has expired, the same has not yet been filed and an indefeasible right has accrued in his favour and further he is prepared to furnish the bail bond.Once such an application is filed, it is obligatory on the part of the court to verify from the records as well as from the public prosecutor whether the time has expired and the charge- sheet has been filed or not or whether an application for extension which is statutorily permissible, has been filed. If an application for extension is filed, it is to be dealt with as has been stated in the case of Sanjay Dutt (supra). That is the duty of the Court. This is the position of law as has been stated in Uday Mohanlal Acharya (supra).
1529. In Ateef Nasir Mulla v. State of Maharashtra[16], the accused was arrested on 15.4.2003 and the period of ninety days for completing the investigation was to expire on 13.7.2003. On 11.7.2003 an application was moved for extension of time to complete the investigation under Section 49(2)(b) of Prevention of Terrorism Act, 2002. The Special Judge, after hearing the counsel for the accused, allowed the application and extended the period for completing the investigation till 14.8.2003 and, accordingly, the accused was remanded to custody.The order of granting extension was challenged before the High Court. On 14.7.2003, after expiry of ninety days, an application for release of accused was filed stating that the period of ninety days had expired and hence, he was entitled to bail in terms of Section 49(2)(b) read with the provisions of Section 167(2) CrPC. The charge-sheet was filed by the investigating agency on 19.7.2003 before expiration of the extended time. The learned Special Judge rejected the application for grant of bail by order dated 25.7.2003 which was affirmed by the High Court. Noting various contentions advanced at the Bar, this Court held thus:
"17. It was then contended on behalf of the appellant that the appellant having acquired an indefeasible right to be released on bail on the expiry of 90 days from the date of his arrest, the Special Judge was not justified in rejecting theapplication for grant of bail which was filed on 14-7- 2003. By then the charge-
sheet had not been submitted by the police and, hence, there was no reason to continue the detention of the appellant.16
18. This submission overlooks the fact that by an order dated 11-7-2003 the Court had granted extension of time to the investigating agency to complete the investigation. Thus on 14-7-2003 when an application was filed for grant of bail under Section 167(2) of the Code of Criminal Procedure, there was already an order extending the time for completion of the investigation, and consequently the Court was empowered to remand the accused to judicial or police custody during the said extended period."
The purpose of citing the aforesaid decision is that an application for grant of extension was filed prior to the expiry of ninety days and the same was granted and, therefore, the indefeasible right vested in the accused stood extinguished.
30. Presently, we shall refer to certain later decisions. In the case of Dinesh Dalmia (supra),which has been placed reliance upon by Mr. Dey, the CBI lodged the First Information Report against the appellant and three companies on a complaint made by the Securities and Exchange Board of India. As the appellant was away, the learned Magistrate, by an order dated 14.2.2005, issued a non-bailable warrant of arrest against him. In the meantime, after the completion of investigation a charge-sheet was submitted before the learned Magistrate in terms of sub-section (2) of Section 173 CrPC. The name of the appellant featured in the charge-sheet along with the companies. Eventually, after following the process the appellant was sent to police custody on 14.2.2006 till 24.2.2006. The accused was handed over to the police for conducting investigation till 8.3.2006. He, however, was remanded to judicial custody till 14.3.2006 by 17 order dated 9.3.2006 on the plea that further investigation was pending. CBI prayed for and obtained orders of remand to judicial custody from the learned Magistrate on 14.3.2006, 28.3.2006, 10.4.2006 and 28.4.2006. The appellant, on expiry of sixty days from the date of his arrest, filed an application for statutory bail purported to be in terms of the proviso appended to sub-section (2) of Section 167 CrPC on the premise that no further charge- sheet in respect of the investigation under sub- section (8) of Section 173 CrPC had been filed. When the said application was pending consideration, CBI sought for his remand into judicial custody under sub- section (2) of Section 309 thereof. The application for statutory bail was rejected by the learned Magistrate basically on the ground that the accused was arrested on the basis of non-bailable warrant issued by the court after taking cognizance of the offences in the charge-sheet. In revision, the learned Sessions Judge allowed the revision placing reliance on State v. Dawood Ibrahim Kaskar[17]. The CBI moved the High Court which overturned the decision of the learned Sessions Judge. This Court took note of the fact that the charge-sheet was submitted on 24.10.2005 and the applicant was arrested only on 12.2.2006.To the contentions raised before this Court, namely, (i) the charge-sheet filed against the appellant and the cognizance taken thereupon was illegal and invalid and by reason thereof, the valuable right of the appellant to be released on bail had been taken away; and (ii) even if the charge-sheet was legal, the right of the appellant under sub-section (2) of Section 167 CrPC continued to remain available in the facts and circumstances of the case. Noting the contentions, the Court adverted to the power conferred under the statute under Section 173 CrPC and, eventually, opined as follows: -
18"24. Concededly, the invest-igating agency is required to complete investigation within a reasonable time. The ideal period therefor would be 24 hours, but, in some cases, it may not be practically possible to do so.Parliament, therefore, thought it fit that remand of the accused can be sought for in the event investigation is not completed within 60 or 90 days, as the case may be. But, if the same is not done within the stipulated period, the same would not be detrimental to the accused and, thus, he, on the expiry thereof would be entitled to apply for bail, subject to fulfilling the conditions prescribed therefor.
25. Such a right of bail although is a valuable right but the same is a conditional one; the condition precedent being pendency of the investigation. Whether an investigation in fact has remained pending and the investigating officer has submitted the charge-sheet only with a view to curtail the right of the accused would essentially be a question of fact. Such a question strictly does not arise in this case inasmuch as, according to CBI, sufficient materials are already available for prosecution of the appellant.According to it, further investigation would be inter alia necessary on certain vital points including end use of the funds.
27. It is also not a case of the appellant that he had been arrested in course of further investigation. A warrant of arrest had already been issued against him. The learned Magistrate was conscious 19 of the said fact while taking cognizance of the offence."
31. Thereafter, the Court proceeded to the concept of remand as contemplated under the Code. We may profitably quote the same: (Dinesh Dalmia case 7 Dinesh Dalmia v. CBI, (2007) 8 SCC 770 : (2008) 1 SCC (Cri) 36), SCC p. 784, paras 38-39) "38. It is a well-settled principle of interpretation of statute that it is to be read in its entirety. Construction of a statute should be made in a manner so as to give effect to all the provisions thereof. Remand of an accused is contemplated by Parliament at two stages; pre-cognizance and post-cognizance. Even in the same case, depending upon the nature of charge- sheet filed by the investigating officer in terms of Section 173 of the Code, a cognizance may be taken as against the person against whom an offence is said to have been made out and against whom no such offence has been made out even when investigation is pending. So long a charge- sheet is not filed within the meaning of sub- section (2) of Section 173 of the Code, investigation remains pending. It, however, does not preclude an investigating officer, as noticed hereinbefore, to carry on further investigation despite filing of a police report, in terms of sub-section (8) of Section 173 of the Code.
39. The statutory scheme does not lead to a conclusion in regard to an investigation leading to filing of final form under sub-section (2) of Section 173 and further investigation contemplated under 20 sub-section (8) thereof. Whereas only when a charge-sheet is not filed and investigation is kept pending, benefit of proviso appended to sub-section (2) of Section 167 of the Code would be available to an offender; once, however, a charge- sheet is filed, the said right ceases. Such a right does not revive only because a further investigation remains pending within the meaning of sub- section (8) of Section 173 of the Code.
32. As the aforesaid decision has been assiduously relied upon by Mr. Dey to pyramid his submission of statutory interpretation, the right of the accused and concept of remand, we have dealt with the same in detail. The ultimate conclusion, as we perceive, is that once a charge-sheet is filed the benefit of proviso appended to sub-section (2) of Section 167 CrPC ceases and it does not revive solely because the further investigation remains pending. In the said case the Court declined to interfere as the benefit was denied to the accused as the charge-sheet was filed and cognizance had been taken on which basis a non-bailable warrant of arrest was issued. Thus, the said decision does not render any assistance to the learned counsel for the appellant.
33. In Union of India v. Hassan Ali Khan and another[18], a two-Judge Bench, while adverting to the submission of the learned counsel for the Union of India pertaining to the three-Judge Bench decision in Uday Mohanlal Acharya (supra), has understood the said decision in the following manner: -
"25. Reference was also made to the decision of a three-Judge Bench of this Court in Uday Mohanlal Acharya v. State of Maharashtra wherein the scope of Section 167(2) CrPC and the proviso thereto fell for consideration and it was the majority view 21 that an accused had an indefeasible right to be released on bail when the investigation is not completed within the specified period and that for availing of such right the accused was only required to file an application before the Magistrate seeking release on bail alleging that no challan had been filed within the period prescribed and if he was prepared to offer bail on being directed by the Magistrate, the Magistrate was under an obligation to dispose of the said application and even if in the meantime a charge-sheet had been filed, the right to statutory bail would not be affected. It was, however, clarified that if despite the direction to furnish bail, the accused failed to do so, his right to be released on bail would stand extinguished.
34. From the aforesaid analysis, it is graphically clear that the learned Judges laid emphasis how an accused avails the benefit of compulsive bail and what is the obligation cast on the Magistrate in law.
35. We may presently refer to a recent three-Judge Bench decision in Sayed Mohd. Ahmad Kazmi v. State (Government of NCT of Delhi) and others[19]. In the said case, the accused had filed an application for grant of bail on 2.6.2012 since his ninety days' period of custody was to expire on 3.6.2012 and further custody was sought for by the prosecution. The learned Magistrate, by his order dated 2.6.2012, extended the period of investigation and the custody of the appellant by another ninety days. The said order was assailed by the appellant in a revision which came for consideration before the learned Additional Sessions Judge, who, on 8.6.2012, held that it was only the Sessions Court and not the Chief Metropolitan Magistrate which had the competence to extend the judicial custody of the accused and to entertain cases of such nature. On 22.6.2012, the accused-appellant was 22 produced before the learned Chief Judicial Magistrate for extension of his custody. On 17.7.2012 an application was filed under Section 167(2) CrPC seeking default bail as no charge-sheet had been filed within ninety days period of the appellant's custody. The said application was dismissed by the learned Magistrate. Thereafter, the matter was referred by the learned Chief Metropolitan Magistrate to the learned District and Sessions Judge, who directed that judicial custody of the accused-appellant be extended. The aforesaid order of the learned Sessions Judge was assailed before the High Court under Section 482 CrPC and the High Court stayed the operation of the order passed by the learned Additional Sessions Judge dated 28.6.2012 and, therefore, the application for grant of statutory bail could not be taken up by the learned Additional Sessions Judge till the High Court vacated the order of stay on 13.7.2012. As has been stated earlier, the accused moved an application for grant of bail under Section 167(4) and the same was listed for consideration on 17.7.2012. In the meantime, revision petition came before the learned Additional and Sessions Judge, who allowed the application and opined that the custody of the accused was illegal. In view of the order passed by the learned Additional Sessions Judge declaring the custody of the accused to be illegal, on the same day an application under Section 167(2) CrPC was filed before the learned Chief Metropolitan Magistrate, but he, instead of hearing the application on the sad date, notified the hearing for 18.7.2012. On the adjourned date, i.e., 18.7.2012 the State filed a fresh application seeking further extension of appellant's custody and the investigation period. The learned Chief Metropolitan Magistrate directed a copy of the said application to be served on the counsel for the accused and notified the matter for hearing on 20.7.2012. On that day he took up the matter for extension of custody and, instead of considering the application, extended the time of interrogation and custody of the appellant for ninety days with retrospective effect from 2.6.2012. The aforesaid order was challenged before the learned Sessions Judge who adjourned the matter to 12.10.2012 and on 31.7.2013 23 the prosecution filed the charge-sheet.When the matter travelled to this Court, a question arose with regard to getting the benefit of the default bail. Be it stated, the Court was considering the provisions contained in Section 43-D of Unlawful Activities (Prevention) Act, 1967 and Section 167(2) CrPC. In that context, it observed thus: -
"18. By virtue of the aforesaid modification to the provisions of Section 167(2) CrPC, the period of 90 days stipulated for completion of investigation and filing of charge-sheet was modified by virtue of the amended proviso, which indicated that if the investigation could not be completed within 90 days and if the court was satisfied with the report of the Public Prosecutor indicating the progress of the investigation and the specific reasons for detention of the accused beyond the period of 90 days, extend the said period up to 180 days. In other words, the custody of an accused could be directed initially for a period of 90 days and, thereafter, for a further period of 90 days, in all a total of 180 days, for the purpose of filing charge- sheet. In the event the charge-sheet was not filed even within the extended period of 180 days, the conditions directing that the accused person shall be released on bail if he is prepared to do and does furnish bail, would become operative."
37. Thereafter, the three-Judge Bench referred to the decision in Sanjay Dutt (supra), Uday Mohanlal Acharya (supra) and Bipin Shantilal Panchal (supra) and taking note of the fact situation held that: (Sayed Mohd. Ahmad Kazmi case sayed Mohd. Ahmad Kazmi v. State (Govt. of NCT of Delhi), (2012) 12 SCC 1 : (2013) 2 SCC (Cri)
488), SCC P.9, para 25) 24 " 25. Not only is the retrospectivity of the order of the Chief Metropolitan Magistrate untenable, it could not also defeat the statutory right which had accrued to the appellant on the expiry of 90 days from the date when the appellant was taken into custody. Such right, as has been commented upon by this Court in Sanjay Dutt and the other cases cited by the learned Additional Solicitor General, could only be distinguished (sic extinguished) once the charge-sheet had been filed in the case and no application has been made prior thereto for grant of statutory bail. It is well-established that if an accused does not exercise his right to grant of statutory bail before the charge-sheet is filed, he loses his right to such benefit once such charge-sheet is filed and can, thereafter, only apply for regular bail."
10. Keeping in view the above proposition of law laid down by the Hon'ble Apex Court and on going through the facts and circumstances of the case on hand, I find that both the trial courts have erred in appreciation of the provisions of Section 167(2) of Cr.P.C and have erroneously dismissed the said bail application filed by the petitioners. As such, the orders of the Courts below require to be set aside.
25Keeping in view the above said facts and circumstances of the case, the petition is allowed and the order passed in Crime No.291/2017 dated 26.4.2017 by the learned Civil Judge and JMFC at Manvi, which was confirmed by the learned I Addl.
District and Sessions Judge, Raichur in Crl.Rev. P.No. 104/2017 are hereby set aside. The petitioners are enlarged on bail under Section 167(2) of Cr.P.C.
The Court below is directed to take adequate security and bond as contemplated under the law and release the petitioners on bail, if they are not required in any other case.
Sd/-
JUDGE Ct: vk.
BL