Gauhati High Court
Bhargav Deka vs The State Of Assam on 29 January, 2021
Author: Rumi Kumari Phukan
Bench: Rumi Kumari Phukan
Page No.# 1/4
GAHC010001522021
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : Bail Appln./46/2021
BHARGAV DEKA
S/O SRI PADMA NATH DEKA, P/R/O FLAT NO. 1-D, NABODAY APARTMENT,
CHINAKI PATH, P.S.-GEETANAGAR, GUWAHATI, DIST-KAMRUP(M), ASSAM
VERSUS
THE STATE OF ASSAM
REPRESENTED BY THE PUBLIC PROSECUTOR, ASSAM
Advocate for the Petitioner : MR. K N CHOUDHURY
Advocate for the Respondent : MR. N J DUTTA, Addl. PP, ASSAM
BEFORE
HON'BLE MRS. JUSTICE RUMI KUMARI PHUKAN
ORDER
29.01.2021 By this application under Section 439 CrPC, petitioner, namely, Sri Bhargav Deka, who was arrested on 02.11.2020, has sought for regular bail in connection with Azara PS Case No. 624/2020, under Sections 120 (B)/419/420/406 of IPC, read with Section 66 (D) of the IT Act.
Heard Mr K N Choudhury, learned Senior Counsel for the petitioner. Also heard Mr N J Dutta, learned Additional Public Prosecutor for the State of Assam.
Perused the record and the Case Diary and the bail objection given by the IO. Accused petitioner was arrested on 02.11.2020, on his surrender before the Court of learned CJM, Kamrup (M), Guwahati, in connection with the above-mentioned case and on the same day, he was remanded to Police custody for 7 (seven) days and on completion of the custody, he was produced Page No.# 2/4 before the Court and since then, he is in judicial custody. His bail prayer before the learned Court of CJM as well as this Court was rejected on different occasions and in the meantime, the charge sheet has been laid and the present petition has been preferred for regular bail.
The allegation in the FIR that one candidate, namely, Neel Nakshatra Das, although appeared in JEE Exam, on 05.09.2020, at ION Digital Zone, Borjhar, Guwahati, but after some time, he came out of the examination hall after doing biometrics, with the help of invigilator and in his place, someone else appeared in the examination and the candidate Neel Nakshatra shown to have secured 99.8 % without appearing in the examination. It was revealed that the educational institution, namely, Global Edu Light, Guwahati, helped the candidate in the entire process against huge transaction of Rs. 15-20 lacs (approx.).
The accused petitioner is the sole proprietor of Global Edu Light, which is a consultancy firm, rendering various services to the students, in respect of their educational career. It is contended that accused is no way involved with the offence allegedand is suffering from severe back pain. Learned Senior Counsel, Mr K N Choudhury, apart from the ground above in the bail application, contended that from the day of arrest of the accused on 02.11.2020, he has completed statutory period of 60 days behind the bar as on 31.12.2020, and no charge sheet was filed and, as such, he is entitled to default bail on 01.01.2021.
The prayer for default bail has been turned down by the learned trial Court by its order dated 02.01.2021, by holding that as per report of the IO, charge sheet was filed on 31.12.2020, and the same was forwarded to the Court on 02.01.2021, as 01.01.2021 was a holiday. Accused also moved the bail application on 02.01.2021, hence, the accused is not entitled for default bail, since the charge sheet has already been laid within time. Thus, considering the prima facie involvement of the accused with the offence alleged and that charge sheet has been laid against him, the learned Court rejected the bail prayer.
So far as the materials in the Case Diary, obviously a prima facie case has been made out against the accused, suggesting his complicity and the finding of the learned trial Court in this regard, calls for no interference. As after filing of the charge sheet, case is always to be adjudged on merit and not otherwise.
As regards the claim of the petitioner to statutory bail, the learned counsel for both the parties have advanced their arguments before this Court, relying on certain decisions.
The learned Senior Counsel, Mr Choudhury, has placed his reliance upon the decision of Punjab and Haryana Court in Criminal Appeal No. 646/SB/2018, dated 06.06.2018, Master Bholu (through his Page No.# 3/4 father and natural guardian, Binod Kumar) -Vs- CBI; wherein, it has been held that for the purpose of Section 167 (2) CrPC, presentation of challan is required to be laid before the Court and merely leaving the same before the officials of the Court would not satisfy the compliance of Section 167 (2) CrPC. It is held that the date on which, the same is presented before the Court would be relevant and not the date on which, the same may have been presented before the office concerned.
Thus, in the present matter, serious controversy has been raised, as to, on which date challan came to be filed before the Court. Referring to the order of the learned Court below, dated, 02.01.2021, it has been urged by the learned counsel for the petitioner that the learned Court has itself mentioned in the order that at the time of moving the bail application before the learned SDJM, charge sheet was not on record and the order of the learned CJM, dated 02.01.2021, reveals that charge sheet was laid before him on the same very day.
Referring to the decision rendered in CBI -Vs- Anupam J. Kulkarni; 1992 AIR 1768, it has been submitted by the learned Senior Counsel for the petitioner, Mr Choudhury, that the Magistrate is authorized to detention of the accused person under Section 167 CrPC, for 60 days and 90 days, as the case may be, and the accused has to be released on bail, as provided under Section 167(2) CrPC, if the charge sheet is not laid within the stipulated period and the period of 60 days/90 days has to be counted from the date of detention, when the accused was first produced before the Magistrate, not from the date of arrest.
Now, we may look into the controversy that has arisen regarding filing of charge sheet. The Investigating Officer submitted before the Court on 02.01.2021, that they have already laid the charge sheet on 31.12.2020, but same was not laid before the Court. On the other hand, from the order of the learned trial Court, dated 02.01.2021 itself reveals that the same was laid before the Court on the same day. On verification of the relevant register about receipt of charge sheet also indicates that the same was received on 02.01.2021. Thus, although IO has signed the charge sheet on 31.12.2020, but the same does not enter into the relevant register.
Vehemently opposing the contention raised by the petitioner's side, learned Additional Public Prosecutor, Mr N J Dutta, has submitted that there is no illegality in the impugned order and the charge sheet can be held to have been submitted in due compliance of Section 167 (2) CrPC. Reliance has been placed on the decision in N Sureya Reddy & Others -Vs- State of Orissa; 1985 (1) OLR 105, wherein it has been held that the authority has the right to submit charge sheet on the 90 th day, which happen to fall on a holiday, then, by all standards of justice and fairness, he should be held to have complied with the mandate of law, if he has taken the action at the earliest instance, which would be Page No.# 4/4 only on the working day, following the holiday. There will be no infringement of rights under Section 167 (2) (a) CrPC.
Further, the learned Additional Public Prosecutor has argued that while computing the prescribed period under the provision of Section 167 (2), the day on which, the accused was remanded to judicial custody, should be excluded and the day on which, challan was filed in the Court should be included. Reliance has been placed on the decision rendered by the Hon'ble Supreme Court in State of MP -Vs- Rustom & Others; 1995 Supp. (3) SCC 221, in support of his submission. It has been held in the aforesaid decision that right to compulsive bail does not survive after filing of challan. The Court must examine the availability of the right to compulsive bail on the date, it is considering the question of bail, not barely on the date of presentation of the petition of bail.
Said proposition of law is reiterated in subsequent decisions in Pragyna Singh Thakur -Vs- State of Maharashtra; (2011) 10 SCC 445.
Another decision of the Hon'ble Supreme Court in Ravi Singh @ Arvind Singh -Vs- State of Bihar; in Criminal Appeal No. 325/2015, has been relied upon by the learned Additional Public Prosecutor, Mr Dutta, wherein, it has been discussed and held that, if ninetieth day is a holiday, filing of charge sheet on the next day should be treated sufficient compliance of filing of charge sheet within a period of ninety days and it cannot be said that provision contained in Section 167(2) of the Code is infringed. Similarly, it has also been held that while computing the period of 90 days, the day on which the accused was remanded to judicial custody should be excluded and the day on which, challan was filed, should be included.
Having regard to the rival contentions of both the parties, let us examine the matters on record. In the present case, the accused petitioner was produced and remanded on 02.11.2020 and charge sheet is stated to be laid on 31.12.2020, before the Office and before the Court on 02.01.2021. By excluding the date of first remand, i.e., 02.11.2020, the statutory period of 60 days will be completed on 01.01.2021 (although according to IO, it was submitted on 31.12.2020, i.e., on 59 th day). Going by the proposition laid down by the Apex Court, filing of charge sheet on 02.01.2021, being 01.01.2021 a holiday, there is no infringement of Section 167 (2) CrPC.
For the reasons discussed above, in the considered opinion of this Court, petitioner is not entitled to default bail.
Bail Application stands disposed of.
JUDGE Comparing Assistant