Jharkhand High Court
Akhtar Ansari vs The State Of Jharkhand on 22 March, 2017
Author: R. Mukhopadhyay
Bench: Rongon Mukhopadhyay
IN THE HIGH COURT OF JHARKHAND AT RANCHI
Cr.M.P. No. 144 of 2017
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Akhtar Ansari, S/o Anwar Ansari, R/o Village- Thari, P.O. +
P.S.- Chitra, District- Deoghar. ... ... Petitioner
Versus
The State of Jharkhand ... ... Opposite Party
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CORAM : HON'BLE MR. JUSTICE RONGON MUKHOPADHYAY
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For the Petitioner : Mr. Arvind Kumar Choudhary, Advocate
For the State : Ms. Vandana Bharati, A.P.P.
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05/22.03.2017Heard Mr. Arvind Kumar Choudhary, learned counsel for the petitioner and Ms. Vandana Bharti, learned A.P.P. for the State.
In this application the petitioner prays for quashing of the order dated 04.01.2017 passed by the learned 1 st Additional Sessions Judge-cum-Special Judge, Deoghar in POCSO Case No. 55 of 2016, arising out of Chitra P.S. Case No. 81 of 2016, G.R. No. 746 of 2016, whereby and whereunder the application preferred by the petitioner for being granted bail under the Provision of Section 167 (2) of the Cr.P.C. has been rejected.
A written complaint was made by the informant on 23.06.2016 against the petitioner and one Wasim Ansari that they had forcibly taken her near the bushes and had committed rape upon her and had also threatened her not to disclose about the incident. On hearing the cry of alarm of the informant several persons assembled pursuant to which the accused persons fled away.
Based on the aforesaid allegation Chitra P.S. Case No. 81 of 2016 was instituted for the offences punishable u/s 376/34 of the Indian Penal Code and 3/4 of the POCSO Act. The petitioner had surrendered in the case on 05.10.2016 and since then he is in judicial custody. Since investigation into the offence was not completed within the statutory period of 90 days the petitioner filed an application on 04.01.2017 at 11:00 A.M. for his release on bail. The report was called for from the learned trial court, pursuant to which the office had submitted -2- a report that charge-sheet was not submitted till 2:10 P.M. However, the charge-sheet was submitted immediately thereafter on 04.01.2017 itself at 2:30 P.M., and the application u/s 167(2) of the Cr.P.C. was deferred to be heard on 05.01.2017 on the prayer made by the Special Public Prosecutor. However on 04.01.2017 itself the learned trial court had rejected the application u/s 167(2) of the Cr.P.C. on the ground that charge-sheet had already been filed by the Investigating Officer.
It has been submitted by the learned counsel for the petitioner that 90 days got completed on 02.01.2017 itself and admittedly when the application for release of the petitioner on default bail u/s 167(2) of the Cr.P.C. was filed the charge-sheet having not been submitted by the Investigating Officer, the indefeasible right accruing to the petitioner could not have been extinguished by virtue of the subsequent filing of the charge- sheet. It has been submitted that the learned court below also committed an illegality in passing the order on 04.01.2017 itself whereas the matter was posted for hearing on 05.01.2017. Learned counsel for the petitioner has therefore submitted that the impugned order being not based on proper appreciation of law as well as the fact deserves to be quashed and set aside.
Learned A.P.P. for the State has opposed the prayer made by the petitioner and has submitted that once the charge-sheet has been submitted the right of the accused to be released on compulsive bail u/s 167(2) of the Cr.P.C. gets extinguished. It has been submitted that charge-sheet was submitted on the same date on which the application u/s 167(2) of the Cr.P.C. was preferred by the petitioner and since it is a settled principle of law that once the charge-sheet is submitted the right of the accused to be released on compulsive bail does not subsists and the bail application of the petitioner has to be considered only on merits. The impugned order does not merit interference.
It is an admitted fact that the petitioner had surrendered on 05.10.2016 and the statutory period of 90 days to complete the investigation had expired on 02.01.2017. The application -3- u/s 167(2) of the Cr.P.C. was preferred by the petitioner on 04.01.2017 at 11:00 A.M. which would be evident from the noting made in the said application. The order sheet of the learned trial court reveals that the report of the office discloses that till 2:10 P.M. on 04.01.2017 no charge-sheet has been submitted by the Investigating Officer. Subsequently it has been noted that on 04.01.2017 on 2:27 P.M. the charge-sheet along with the case diary was submitted.
Therefore the admitted fact which appears from the discussions made herein above is that the application for compulsive bail u/s 167(2) of the Cr.P.C. was filed prior to the submission of the charge-sheet by the Investigating Officer. The learned trial court in its order dated 04.01.2017 had rejected such application on the ground that once the investigation has been completed and charge-sheet has been submitted the benefit u/s 167(2) of the Cr.P.C. cannot be extended to the petitioner.
It is to be seen by the various judicial pronouncements as to whether the petitioner indeed enjoyed his right to be released on bail u/s 167(2) of the Cr.P.C. or as to whether such right ended once the charge-sheet was submitted.
In the case of Uday Mohanlal Acharya versus State of Maharashtra reported in 2001(5) SCC 453, while considering when the statutory bail u/s 167(2) of the Cr.P.C. has to be availed laid down the following criteria:-
2. In this appeal by grant of special leave the question that arises for consideration is when can an accused be said to have availed of his indefeasible right for being released on bail under the proviso to Section 167(2) of the Code of Criminal Procedure, if a challan is not filed within the period stipulated thereunder. In the case in hand, the accused after surrendering himself in the court was remanded to judicial custody by order of the Magistrate on 17-6-2000. A case has been instituted against him under Sections 406 and 420 of the Indian Penal Code read with the Maharashtra Protection of Interest of Depositors (in Financial Establishments) Act, 1999 (for short "MPID Act").
The period of 60 days for filing of charge-sheet was completed on 16-8-2000. On the next day i.e. 17-8-2000, an application for being released on bail was filed before the Magistrate alleging that non-filing of challan within 60 days -4- entitles the accused to be released on bail under proviso to Section 167(2) of the Code of Criminal Procedure. The Magistrate rejected the prayer on the same day on a conclusion that the provisions of Section 167(2) CrPC have no application to cases pertaining to the MPID Act. The accused, therefore, preferred a criminal application before the Bombay High Court. A learned Single Judge after hearing the contentions raised by the accused and by the State referred the matter to the Division Bench on 23-8- 2000 and the matter was listed before a Division Bench on 29-8-2000. On that date the Division Bench adjourned the matter for argument to 31-8-2000 and in the meanwhile a charge-sheet was filed before the trial Judge on 30-8-2000. The Division Bench of the Bombay High Court, on examination of the relevant provisions of the MPID Act, more particularly, Sections 13 and 14 thereof, and relying upon the judgment of this Court in Union of India v. Thamisharasi, Hitendra Vishnu Thakur v. State of Maharashtra as well as the Constitution Bench decision in Sanjay Dutt v. State through CBI came to hold that there is no interdiction in the Maharashtra Act of 1999 against the applicability of Section 167(2) proviso of the Criminal Procedure Code and, therefore, an accused arrested for commission of an offence under Section 3 of the MPID Act is entitled to claim release on bail on expiry of total period specified in Section 167 if the challan is not filed within that period. Having held so, on the entertainability of the claim of the accused invoking provisions of Section 167 of the Criminal Procedure Code the High Court ultimately refused to grant relief on the ground that by the time the application for bail before the Division Bench came to be considered on 31-8-2000, a charge-sheet had been filed before the Magistrate on 30-8-2000 and, therefore, the so-called enforceable right did not survive or remain enforceable. In coming to the aforesaid conclusion, the High Court relied upon the Constitution Bench decision of this Court in Sanjay Dutt case as well as the case of State of M.P. v. Rustam and further held that the Full Bench decision of the Gujarat High Court in Babubhai Patel case is contrary to the decision of the Supreme Court in Rustam case. On dismissal of an application filed by the accused the present appeal has been preferred to this Court.
3. Mr K.T.S. Tulsi, learned Senior Counsel appearing for the accused-appellant contended that the legislative mandate conferring right on the accused to be released on bail on the expiry of the period contemplated under the proviso to sub- section (2) of Section 167, if the accused is prepared to furnish bail, cannot be nullified by taking recourse to subterfuge and keeping the matter pending for passing of an order, allowing the prosecution to file a charge-sheet. According to Mr Tulsi, the expression "shall be released on bail" in the proviso to sub-section (2) of Section 167 not only confers indefeasible right on the accused but also casts duty/obligation on the Magistrate, since the Magistrate will -5- not be entitled to remand the accused any further. In this view of the matter, if an accused files an application on the expiry of the period contemplated under the proviso to sub- section (2) of Section 167 and offers to furnish the bail on being ordered and by the date of filing of the application no charge-sheet had been filed by the prosecution then the accused has to be released on bail and the right conferred upon him under the aforesaid provision of the Code must be enforced and subsequent filing of the charge-sheet will not alter the position. Mr Tulsi further contended that in para 48 of the judgment in Sanjay Dutt case when it has been indicated (at SCC p. 442) "the indefeasible right accruing to the accused in such a situation is enforceable only prior to the filing of the challan and it does not survive or remain enforceable on the challan being filed, if already not availed of"
it would obviously mean, if the application for being released on bail had not been made before the filing of challan. In other words, according to Mr Tulsi if an accused had not made any application for being released on bail, notwithstanding the fact, that the charge-sheet had not been filed within the stipulated period he will not be entitled to file the same after filing of the challan, but if the accused had filed the application for bail and was prepared to offer and furnish the bail, as required by the court, then subsequent filing of challan will not take away the accrued right of the accused merely because the Magistrate or any other court had not passed the order, or the accused had not been factually released. According to Mr Tulsi if the observation of this Court in Sanjay Dutt case is interpreted in the manner as it has been interpreted by the High Court in the impugned judgment then the prosecution can always frustrate the right of the accused accrued in his favour under the mandates of the statute by several dialectic tactics or even in contingency, like, absence of the Presiding Officer of the court or non-availability of the court to take up application of bail and passing orders thereon. Mr Tulsi contends that the passing of an order of bail under the proviso to sub-section (2) of Section 167 is merely a clerical act of the Magistrate or the court concerned in implementation of the legislative mandate, and at that stage, no adjudication is required to be made and in this view of the matter the provisions of the Code should be so construed so as not to frustrate the legislative mandate but it must be so construed which should be in aid of fulfilling the intention of the legislature. This being the position, Mr Tulsi contends that the impugned order is wholly erroneous and should be set aside.
4. Mr Janardhan, learned Additional Advocate General, appearing for the State of Maharashtra on the other hand contended that in several decisions of this Court including the Constitution Bench decision in Sanjay Dutt case it has been unequivocally held that the so-called indefeasible right -6- accruing to the accused remains enforceable from the time of default till the filing of the challan and does not survive or remain enforceable on the challan being filed. According to Mr Janardhan, if an accused has not been released on bail and by the time the court finally considers the application and passes an order and the accused furnishes the bail, the challan is filed then the right of being released stands extinguished since once a challan is filed the provisions of Section 167 will have no application and the custody of the accused thereafter is under the orders of the Magistrate where the case is pending. According to the learned counsel for the State, unless the provisions of Section 167 are so construed then the hard-core criminals will be allowed to be released on bail even if a challan is filed just the next day after the completion of the time provided under the Act and such an interpretation would not subserve the interest of the society at large. Mr Janardhan further contended that the dictum of the Constitution Bench in Sanjay Dutt case has been reaffirmed by a subsequent judgment of the Court in Rustam case as well as by a three-Judge Bench judgment in Mohd. Iqbal Madar Sheikh v. State of Maharashtra and therefore the question no longer remains res integra and the High Court was fully justified in rejecting the application of the accused.
5. Before examining the correctness of the rival submissions and finding out as to when the right accrues to the accused for being released on bail under the proviso to sub-section (2) of Section 167 and when that right gets extinguished, it will be appropriate to notice the very scheme of the Code. Under Section 56 of the Code of Criminal Procedure it is the bounden duty of the police officer arresting a person to produce him before a Magistrate having jurisdiction without unnecessary delay. Under Section 57 of the Code there is an embargo on the police officer to detain in custody a person arrested beyond 24 hours excluding the time necessary for the journey from the place of arrest to the Court of the Magistrate. The object behind the aforesaid two provisions which are required to be read together is that the accused should be brought before a Magistrate without much delay and that the Magistrate will have succinct of the matter within 24 hours. The aforesaid provision in fact is in consonance with the constitutional mandate engrafted under Article 22(2). The continuance of detention for the purpose of investigation beyond 24 hours has to be authorised by the Magistrate from time to time and without such special order from the Magistrate the detention may be illegal. Under the Criminal Procedure Code of 1878 a Magistrate was not entitled to allow detention of an accused in custody for a term exceeding 15 days on the whole. It was also found that the investigation could not ordinarily be completed within 15 days. The Law Commission, therefore, suggested that an accused could be denied to remain in custody for more than -7- 60 days which got engrafted in Section 167 of the present Code (Criminal Procedure Code, 1973). The legislature, however, felt that a drastic change was called for to alter the tardy pace of investigation and, therefore, by the Criminal Procedure Code (Amendment) Act, 1978 (Act 45 of 1978), proviso (a) to sub-section (2) of Section 167 has been added. Under the amended provision, therefore a Magistrate is empowered to authorise detention of the accused in custody, pending investigation for an aggregate period of 90 days in cases where the investigation relates to offence punishable with death, imprisonment for life or imprisonment for not less than 10 years or more and in other cases the period of 60 days has been kept. The extended period of 90 days was brought into the Criminal Procedure Code by an amendment as it was found that in several cases of serious nature it was not possible to conclude the investigation. This provision of Section 167 is in fact supplementary to Section 57, in consonance with the principle that the accused is entitled to demand that justice is not delayed. The object of requiring the accused to be produced before a Magistrate is to enable the Magistrate to see that remand is necessary and also to enable the accused to make a representation which he may wish to make. The power under Section 167 is given to detain a person in custody while the police goes on with the investigation and before the Magistrate starts the enquiry.
Section 167, therefore, is the provision which authorises the Magistrate permitting detention of an accused in custody and prescribing the maximum period for which such detention could be ordered. Having prescribed the maximum period, as stated above, what would be the consequences thereafter has been indicated in the proviso to sub-section (2) of Section 167. The proviso is unambiguous and clear and stipulates that the accused shall be released on bail if he is prepared to and does furnish the bail which has been termed by judicial pronouncement to be "compulsive bail" and such bail would be deemed to be a bail under Chapter 33. The right of an accused to be released on bail after expiry of the maximum period of detention provided under Section 167 can be denied only when an accused does not furnish bail, as is apparent from Explanation I to the said section. The proviso to sub-section (2) of Section 167 is a beneficial provision for curing the mischief of indefinitely prolonging the investigation and thereby affecting the liberty of a citizen. Section 167 occurs in Chapter 12 dealing with the powers of the police to investigate in a criminal offence which starts with lodging of information in cognizable cases under Section 154, and ultimately culminating in submission of a report on completion of investigation under Section 173. Soon after completion of investigation the officer-in-charge of the police station has to forward to the Magistrate, empowered to take cognizance of the offence, a report in the prescribed form and once such report is filed before the -8- Magistrate which is commonly termed as "challan" then the custody of the accused is no longer required to be dealt with under Section 167 of the Code, but under Section 209. On submission of the challan under Section 173 in a case instituted on a police report or otherwise, when it appears to the Magistrate that the offence is exclusively triable by the Court of Session, the moment the accused is brought before the Magistrate or he himself appears then the Magistrate commits the case to the Court of Session and subject to the provisions of the Code relating to bail, remand the accused to custody until such commitment has been made. The procedure for commitment to the Court of Session as provided in Section 209 of the present Code is radically different from the commitment proceedings under the 1898 Code. No enquiry is contemplated by the Magistrate under the present scheme. All that the Magistrate is required to do is to grant copies, prepare the records, notify the Public Prosecutor and formally commit the case to the Court of Session. Section 209(b) provides that the Magistrate shall remand the accused to custody subject to the provisions of the Code relating to bail, necessarily, therefore, subject to the provisions in Sections 436, 437 and 439. Thus, under clause (b) of Section 209 the committing Magistrate has the power to remand the accused to custody during and until the conclusion of the trial, subject to the provisions relating to bail. When the committing Magistrate passes an order of commitment and the accused, at the stage is found to be on bail, the committing Magistrate has the power to cancel the bail and commit him to custody, if he considers it necessary to do so. But such a cancellation would be in accordance with sub- section (5) of Section 437 of the Code and there must be proper grounds for cancellation and not that the Magistrate would cancel the bail ipso facto on a challan being filed and the accused being produced for the purpose of passing an order of committal. Any order a Magistrate passes under Section 209(b) to remand an accused to custody would also obviously be subject to the provisions of the Code relating to bail. In a case where the committing Magistrate while passing an order of committal remands the accused to custody in exercise of power under Section 209(b), the power of the learned Sessions Judge under sub-section (2) of Section 309 is not whittled down in any manner at any time after commencement of trial, but ordinarily if the committing Magistrate has already passed an order remanding the accused to custody while passing an order of commitment no further order is required to be passed by the Sessions Judge in exercise of power under sub-section (2) of Section 309. Bearing in mind the aforesaid scheme in the Code of Criminal Procedure we would now examine the point in issue.
6. There cannot be any dispute that on expiry of the period indicated in the proviso to sub-section (2) of Section 167 of the Code of Criminal Procedure the accused has to -9- be released on bail, if he is prepared to and does furnish the bail. Even though a Magistrate does not possess any jurisdiction to refuse the bail when no charge-sheet is filed after expiry of the period stipulated under the proviso to sub-section (2) of Section 167 and even though the accused may be prepared to furnish the bail required, but such furnishing of bail has to be in accordance with the order passed by the Magistrate. In other words, without an order of the Magistrate the legislative mandate engrafted in the proviso to sub-section (2) of Section 167 cannot be given effect to and there lies the rub. The grievance of the accused is that for a variety of reasons the Magistrate or even the superior court would refuse to pass an order releasing the accused on bail, notwithstanding the preconditions required under the proviso are satisfied and then when the accused moves the High Court or the Supreme Court during the interregnum the police files a challan. It was also contended by Mr Tulsi that a Public Prosecutor may take adjournment from the court when the bail application was being moved and then would persuade the investigating agency to file a challan and then contend that the court would not be entitled to release the accused on bail under the proviso to sub-section (2) of Section 167, and in that situation not only the positive command of the legislature is flouted but also an unauthorised period of custody is being legalised and this would be an infraction of the constitutional provision within the meaning of Article 22. In Hitendra Vishnu Thakur v. State of Maharashtra two learned Judges of this Court construed the provisions of Section 167 of the Code of Criminal Procedure Code read with sub-section (4) of Section 20 of TADA. After examining in detail the object behind the enactment of Section 167 of the Code of Criminal Procedure and the object of Parliament introducing the proviso to sub-section (2) of Section 167 prescribing the outer limit within which the investigation must be completed the Court expressed that the proviso to sub-section (2) of Section 167 read with Section 20(4)(b) of TADA creates an indefeasible right in an accused person on account of the default by the investigating agency in the completion of the investigation within the maximum period prescribed or extended, as the case may be, to seek an order for his release on bail and such order is generally termed as an "order on default". The Court also held that an obligation is cast upon the court to inform the accused of his right of being released on bail and enable him to make an application in that behalf. It was also further held that the accused would be entitled to move an application for being admitted on bail and the Designated Court shall release him on bail if the accused seeks to be so released and furnishes the requisite bail. The Court declined to agree with the contention of the accused that the Magistrate must release the accused on bail on its own motion even without any application from an accused person on his offering to furnish bail.
-10-In the aforesaid judgment it was also held that if the charge-sheet is filed subsequent to the availing of the indefeasible right by the accused then that right would not stand frustrated or extinguished if an accused is entitled to be released on bail by application of the proviso to sub-section (2) of Section 167 of the Cr.P.C. What would thus fall from the above is that if an accused avails of his remedy u/s 167(2) of the Cr.P.C. and if the charge-sheet is filed subverting the enforcement of his rights, such subsequent filing of charge- sheet shall not frustrate the petitioner's claim for being released on bail u/s 167(2) of the Cr.P.C.
In the case of Sanjay Dutt versus State through C.B.I., Bombay reported in 1994(5) SCC 410 it was held that if the right accrues to the accused but it remained unenforced till the filling of the challan the moment challan is filled the question of enforcement of such right gets extinguished. The learned trial court while rejecting the application of the petitioner has referred to a judgment of the Hon'ble Supreme Court in the case of Kunal @ Kunal Kumar Mahto versus State of Jharkhand in S.L.P. (Cri) No. 7537 of 2016 on the ground that once charge sheet has been submitted the right of the petitioner gets annihilated. The facts of the case under reference suggests that the petitioner was granted default bail u/s 167(2) of the Cr.P.C. on 07.09.2015 but he had not furnished the bail bond and in the mean time on 08.09.2015 charge-sheet was submitted. It was thus held in the facts and circumstances that since bail bond was not furnished by the petitioner his right to be released on bail stood extinguished.
However, the facts of the present case do suggest otherwise. The petitioner had filed an application for grant of bail prior to filing of the charge-sheet and the learned trial court should have considered this aspect of the matter before deciding such application.
This Court in similar circumstances in the case ofJalil Ansari versus The State of Jharkhand reported in 2016 (3) JBCJ had held as follows:-
-11-"6. It is amply clear that the learned court below has mis-interpreted the principle and proposition of law and the ratio laid down by the Hon'ble Apex Court in the aforesaid decision. Looking to the facts of the present case it is evident that the charge-sheet was not filed within the prescribed period of 60 days and the accused had filed the application at 11:30 am of 04.04.2015 for being released on bail and was ready to furnish the sufficient sureties. After filing of the application at 11:30 am. the court below adjourned the matter and called for a report from the G.R. Clerk who submitted the report that the chargesheet has been submitted at 3:10 PM on 04.04.2015 i.e. much after the filing of the application under Section 167(2) Cr.P.C. It is well settled that the date when the accused filed the application for benefit of default of provisions as en-grafted under Section 167(2) of the Cr.P.C, the indefeasible right to e released on bail had accrued and the prosecution cannot adopt the subterfuge of filing the charge-sheet after the expiry of the statutory period and that too after the filing of the application under Section 167(2) Cr.P.C. to destroy the legal right of the accused to be enlarged on bail."
The rejection of the application preferred by the petitioner u/s 167(2) of the Cr.P.C. by the learned court below has basically frustrated the object and purpose behind enactment of Section 167(2) of the Cr.P.C. More so when 90 days had expired on 02.01.2017 itself and the charge-sheet was filed on 04.01.2017 perhaps in haste to frustrate the application preferred by the petitioner u/s 167(2) of the Cr.P.C. much prior to filing of the charge-sheet. The indefeasible right which had accrued to the petitioner cannot be doused by the subsequent filing of the charge-sheet. This fact has not been properly appreciated by the learned court below while refusing to entertain such application preferred by the petitioner.
Accordingly, in view of what has been discussed above, this application is allowed and the impugned order dated 04.01.2017 passed by the learned 1 st Additional Sessions -12- Judge-cum-Special Judge, Deoghar in POCSO Case No. 55 of 2016, arising out of Chitra P.S. Case No. 81 of 2016, G.R. No. 746 of 2016 is hereby quashed and set aside and the petitioner named above is directed to be released on bail on furnishing bail bond of Rs. 10,000/- (Ten Thousand) with two sureties of the like amount each, to the satisfaction of learned 1 st Additional Sessions Judge-cum-Special Judge, Deoghar in connection with POCSO Case No. 55 of 2016, arising out of Chitra P.S. Case No. 81 of 2016, G.R. No. 746 of 2016.
(R. Mukhopadhyay, J) Alok/-