Delhi District Court
Prakash @ Pakka vs The State on 16 December, 2021
IN THE COURT OF SHRI ANIL KUMAR
ADDL. SESSIONS JUDGE - 03 : SOUTH DISTRICT
SAKET COURT : NEW DELHI
Cr No. No.219/21
CNR no. DLST01-009301-2021
Prakash @ Pakka
S/o Sh Rajesh Pal
r/o H.No.10, Bachchu Nagar,
Vatva, Ahmadabad, Gujarat.
.....Revisionist
Versus
The State
(Through Public Prosecutor) ... Respondent
Date of Institution : 27.11.2021
Date of Arguments : 06.12.2021
Date of Judgment : 16.12.2021
JUDGMENT
1. Present revision petition is filed under section 397 read with section 401 of the Criminal Procedure Code against the orders dated 22.11.2021 refusing statutory bail to the revisionist under Section 167 (2) passed by Ld.A.C.M.M. South District, Saket District Courts, New Delhi in case FIR no. 618/21 of Police Station Mehrauli.
CR No. 219/21 Prakash @ Pakka Vs. The State Page no. 1 of 9
2. Brief facts necessary for disposal of the present revision petition are that present FIR was registered on 06.08.2021 u/s 395/412/120B/506 IPC on the complaint of Shri Shanky Sharma. As per the complaint the alleged incident took place on 02.08.2021. Applicant was arrested on 12.08.2021. Charge-sheet was filed on 08.11.2021. Ld.ACMM. did not take cognizance of the case / offence on 08.11.2021 and adjourned the case to 22.11.2021. Since 90 days of applicant's custody completed on 20.11.2021, applicant moved application for grant of bail under Section 167(2) Cr.P.C on 20.11.2021 which was dismissed by Ld.ACMM.
3. I have heard Ld. Counsel for revisionist and Ld. APP for the State and given my thoughtful consideration to their respective submission.
4. Ld. Counsel for revisionist has submitted that order passed by Id. ACMM is against the law and the facts on file and deserves to be set aside. It is further stated that the order rejecting the bail application is illegal and bad in the eyes of law, It is further stated that Ld. ACMM has failed to appreciate the ratio of the judgments passed by the Hon'ble Supreme Court, Hon'ble Rajasthan High Court as well as Hon'ble Madhya Pradesh High Court. It is further stated that Ld. ACMM has been pleased to hold that even if the Ld. ACMM has not taken cognizance of the matter the accused/ applicant therein is not entitled to statutory bail under Section 167 (2) Cr.P.C. It is further stated that Ld.ACMM has further held that the mere filing of the charge-sheet within the statutory period was enough to deny the right of bail to the accused. It is further stated that Ld. ACMM has passed the order on the bail application in a mechanical way which has resulted in miscarriage of justice. It is further stated that applicant has been falsely implicated in the present CR No. 219/21 Prakash @ Pakka Vs. The State Page no. 2 of 9 case and he has nothing to do with the alleged offence. As such it is prayed that the order dated 22.11.2021 be set aside and the revisionist be released on bail till the final decision of the case.
5. Ld.Counsel for revisionist has submitted that chargesheet in this matter was filed within the prescribed time and after filing of the charge-sheet cognizance was not taken by the Ld.ACMM before filing the application for bail u/s 167(2) Cr.P.C. It is further submitted by Ld. Counsel for petitioner that after filing of the charge-sheet Ld.ACMM has no power to remand the accused u/s 167(2) Cr.P.C and she could have further remand the accused u/s 309 Cr.P.C but only after taking the cognizance and hence detention of the accused from date of filing of charge-sheet till taking cognizance was illegal, hence, revisionist is liable to be released on bail.
6. In support of his contentions, Ld. Counsel for revisionist has relied upon following judgments:
a) Central Bureau of Investigation versus Anupam J.Kulkarni.1992 AIR 1768.
b) Sunil Kumar Sharma versus State ( NCT of Delhi) dated 27 June 2005
c) Goverdhan & 3 ors. Versus State of M.P. Crimes 1993(3) page 104
d) Prem Raj and another versus State of Rajasthan, 1976,CrlJ
455.
e) Gyanu Madhu Jamkhandi and others versus The State of Karnataka, 1977 CrLJ 632,
f) Khinvdan versus State of Rajasthan, 1975 CrLJ 1984 CR No. 219/21 Prakash @ Pakka Vs. The State Page no. 3 of 9
7. On the other hand, it is submitted by Ld.APP that the charge-sheet was filed by the IO well within the period of filing the charge-sheet. The Ld. ACMM adjourned the matter and fixed for consideration. The accused was in JC and there are several provisions in CR.P.C in which the accused can be sent to JC pending miscellaneous proceedings including 209 and 309 Cr.P.C. The act of the court cannot prejudice any of the party and in present case the police has already filed the chargesheet within period of limitation prescribed in the law. The dismissal of application of the accused for default bail was rightly dismissed by Ld.ACMM. There is no illegality or irregularity in the said order and therefore this revision petition is liable to be dismissed.
8. I have gone through the judgments relied upon by Ld. Counsel for revisionist. Judgments 'Central Bureau of Investigation versus Anupam J.Kulkarni' & 'Sunil Kumar Sharma versus State ( NCT of Delhi)' are not applicable to the facts and circumstance of the case. The remaining judgments have been pronounced by the single bench of Hon'ble High Courts and in similar circumstances accused has been granted bail.
9. In Shintu Yadav Versus The State of Bihar through District Magistrate, Gaya, Criminal Writ Jurisdiction Case No.305 of 2016 decided on 18.12.2016 by Division Bench of Hon'ble High Court of Patna in a matter involved similar issue, it has been held as under:
"....40. Having taken note of the provisions embodied in Section 167 of the Code, as a whole, vis-à-vis Section 309(2) of the Code, the Supreme Court, in Suresh Kumar Bhikamchand Jain (supra),delineated the distinction between Section 167(2), on the one hand, and Section 309(2) of the Code,on the other, observing that grant of sanction is nowhere, contemplated under Section 167 of the Code. What CR No. 219/21 Prakash @ Pakka Vs. The State Page no. 4 of 9 Section 167(2) of the Code contemplates is, the completion of investigation in respect of different types of cases within a stipulated period and the right of an accused to be released on bail on the failure of the investigating authorities to do so. The scheme of the provisions relating to remand of an accused, first during the stage of investigation, and, thereafter, upon taking of cognizance, indicates that the legislature intended investigation of certain crimes to be completed within 60 days and offences, punishable with death, imprisonment for life or imprisonment for a term of not less than 10 years, within 90 days. In the event, the investigation is not completed by the investigating authorities, the accused acquires an indefeasible right to be granted bail. Accordingly, if on either the 61st day or the 91 st day, an accused makes an application for being released on bail in default of charge sheet having been filed, the court has no option but to release the accused on bail. The said provision has been considered and interpreted in various cases, such as, the ones referred to hereinbefore.
41. Referring to the cases of Natabar Parida vs State of Orissa, reported in (1975) 2 SCC 220, and Sanjay Dutt vs State, reported in (1994) 5 SCC 410, the Supreme Court, in Suresh Kumar Bhikamchand Jain (supra), observed that these cases do not detract from the position that once a charge sheet is filed within the stipulated time, the question of grant of default bail or statutory bail does not arise.
42. It is further observed, in Suresh Kumar Bhikamchand Jain (supra), that the Magistrate, exercising powers under Section 167(2) of the Code, to remand an accused to custody, is not concerned with the fact whether or not cognizance of the offence has been taken. The right, which may have accrued to the petitioner, had charge sheet not been filed, is not attracted to the facts of the case. Merely because sanction had not been obtained to prosecute the accused and to proceed to the stage of Section 309 of the Code, it cannot be said that the accused is entitled to grant of statutory bail as envisaged in Section 167 of the Code. The scheme in Code of Criminal Procedure is such that once the investigation stage is completed, the court proceeds to the next stage, which is taking of cognizance and trial. During the period of investigation, the accused is under the custody of the Magistrate before whom he or she is first produced. During that stage, under Section 167(2) of the Code, the Magistrate is vested with authority to remand the accused to custody, both police custody and/or judicial custody, for 15 days at a time, up to a maximum period of 60 days in cases of offences punishable for less than 10 years and 90 days, where the offences are punishable for over 10 years or even death CR No. 219/21 Prakash @ Pakka Vs. The State Page no. 5 of 9 sentence. In the event, an investigating authority fails to file the charge sheet within the stipulated period, the accused is entitled to be released on statutory bail. In such a situation, the accused continues to remain in the custody of the Magistrate till such time as cognizance is taken by the Court trying the offence, when the said court assumes custody of the accused for purposes of remand during the trial in terms of Section 309 of Code. The two stages are different, but one follows the other so as to maintain a continuity of the custody of the accused with a court.
43. Finally, the Supreme Court, in Suresh Kumar Bhikamchand Jain (supra), observed and concluded as under:-
"Having regard to the above, we have no hesitation in holding that notwithstanding the fact that the prosecution had not been able to obtain sanction to prosecute the accused, the accused was not entitled to grant of statutory bail since the chargesheet had been filed well within the period contemplated under Section 167(2)(a) (ii) Criminal Procedure Code. Sanction is an enabling provision to prosecute, which is totally separate from the concept of investigation which is concluded by the filing of the charge- sheet. The two are on separate footings. In that view of the matter, the special leave petition deserves to be and is hereby dismissed."
(Emphasis is added)
44. Closely following the decision in Suresh Kumar Bhikamchand Jain (supra), one must consider, in the context of the issues, which have been raised in the present petition, the decision of the Supreme Court, in Central Bureau of Investigation vs. Rathin Dandapat, reported in (2016) 1 SCC
507), wherein the Court has considered the scope and ambit of Section 167 of the Code and powers of a Magistrate to remand an accused for investigation. The issue before the Supreme Court was "whether no remand in police custody can be given to the investigating agency in respect of the absconding accused who is arrested only after filing of the charge sheet"?
45. The Supreme Court, relying on the judgment of a three Judge bench, in Central Bureau of Investigation v. Dawood Ibrahim Kaskar and others, reported in (2000) 10 SCC 438, held, in unequivocal terms, in Rathin Dandapat (supra), as follows:-
CR No. 219/21Prakash @ Pakka Vs. The State Page no. 6 of 9 "...the High Court is not justified...in upholding refusal of remand in police custody by the Magistrate, on the ground that accused stood in custody after his arrest under Section 309 CrPC. We have already noted above the principle of law laid down by the three judge bench of this Court in State v. Dawood Ibrahim Kaskar (supra) that police remand can be sought under Section 167(2) CrPC in respect of an accused arrested at the stage of further investigation, if the interrogation is needed by the investigating agency. This Court has further clarified in said case that expression 'accused if in custody' in Section 309(2) CrPC does not include the accused who is arrested on further investigation before supplementary charge sheet is filed."
(Emphasis is added)
46. What emerges from the decision, in Rathin Dandapat (supra), is that police remand can be sought under Section 167(2) of the Code in respect of an accused arrested even at the stage of further investigation.
47. In Jeewan Kumar Raut v. Central Bureau of Investigation, reported in (2009) 7 SCC 526, too, the Supreme Court, while interpreting Section 167(2) of the Code, in the context of the Transplantation of Human Organs Act, 1994, has held, in clear terms, that only because the court itself took time in taking cognizance of the offence, i.e., after the expiry of the period of 90 days, the same would not mean that any new right would be created in favour of the appellants thereby.
48. From what has been laid down in Suresh Kumar Bhikamchand Jain (supra), Rathin Dandapat (supra) and Jeewan Kumar Raut (supra), it becomes abundantly clear that on submission of charge sheet, the Magistrate is empowered to remand an accused to custody by virtue of powers vested in him under Section 167(2) of the Code and it is only when he takes cognizance that the stage of Section 309(2) of the Code is reached and till then, the remand of the accused can be legally continued by taking resort to the provisions embodied in Section 167(2) of the Code. And even after a Magistrate has taken cognizance, an accused can still be remanded to custody, police or judicial, in exercise of the Magistrates power under Section 167(2) of the Code, if the case falls for further investigation. [See: Dawood Ibrahim Kaskar's case (supra), and Rathin Dandapat's case (supra)]. Mere delay, on the part of the Magistrate in taking cognizance CR No. 219/21 Prakash @ Pakka Vs. The State Page no. 7 of 9 of an offence, on the basis of a police report, would not vest in the accused an indefeasible right to be released unconditionally or on bail.
49. In short, on submission of charge sheet, a Magistrate is not denuded of its power to remand an accused to custody by virtue of his power under Section 167(2) of the Code. However, once cognizance is taken, the remand, if any, would be pursuant to the Court's power under Section 309(2) of the Code unless a case falls for further investigation. [See: Rathin Dandapat's case (supra)]. Only for the reason of delay in taking cognizance, on the submission of the police report, an accused cannot claim his release either unconditionally or on bail. [See: Jeevan Kumar Raut's case (supra)].
10. Point of issue involved in this matter is that whether custody of accused after filing of chargesheet and before taking of the cognizance, if cognizance is not taken by the Court on the same day of filing of charge- sheet, is illegal and in that case accused is entitled for bail or not. I find that this issue has been much deliberately dealt by the DB of Hon'ble High court of Patna and this Court would like to go with this judgment of Hon'ble High court of Patna. In view of this judgment it is clear that once a charge-sheet is filed within the stipulated time, the question of grant of default bail or statutory bail does not arise. It is further clear that after filing of the chargesheet if court takes time in taking cognizance of the offence, the same would not mean that any new right would be created in favour of the accused and on submission of the charge-sheet a Magistrate is not denuded of its power to remand an accused to custody by virtue of his power u/s 167(2) Cr.P.C but once cognizance is taken, the remand, if any would be pursuant to the court's power u/s 309 Cr.P.C.
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11. In view of above observation I find that Ld.ACMM has committed no irregularity or illegality in passing impugned order whereby prayer of revisionist for his release on bail was dismissed.
12. Hence, this revision petition is dismissed.
Copy of this judgment be sent to Ld.ACMM, South, Saket. File be consigned to record room.
Digitally signedANIL by ANIL KUMAR Date: Announced in open Court on 16.12.21. KUMAR 2021.12.23 08:54:15 +0530 (Anil Kumar) Addl. Sessions Judge-03(South) Saket Courts/New Delhi/ 16.12.21 CR No. 219/21 Prakash @ Pakka Vs. The State Page no. 9 of 9