Pending Investigation, Maximum Period of Judicial Custody

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Pending Investigation, Maximum Period of Judicial Custody

Relevant Provisions of Law

Section 167(2)(a): Procedure for release of accused on bail, when investigation cannot be completed within 60/90 days.

Basic Principles of Law

  1. Accused can be detained for 90 days only where offence is punishable with imprisonment for a complete term of 10 years or more.
  2. Principles of Commutation of statutory period of 60/90 days
  3. a) Counting will start from the date of first remand.
  4. b) The day on which the accused was remanded to judicial custody is to be included and the day, on which charge-sheet was presented, is to be excluded.
  5. Bail granted u/S 167(2) Cr.P.C. cannot be cancelled after the presentation of the charge-sheet. It can only be cancelled u/Ss 437(5)or 439(2).
  6. On the expiry of the period specified in paragraph (a) of proviso to sub-section (2) of Section 167, the accused becomes entitle to release on bail. This right does not extinguish even after the filing of the charge-sheet. This right of the accused is known as Indefeasible Right.
  7. After the exercise of this right, with the refusal of Magistrate to grant bail or delay in disposing of the matter, it does not extinguish.
  8. If the accused does not file applications for bail during the ‘default period’ and the charge-sheet is filed in between, the right of the accused extinguishes.
  9. It is not obligatory upon the Court to release the accused on bail on its own after the expiry of the prescribed period. Obligation is only to inform the accused of his right of being released on bail and enable him to make an application in that behalf.
  10. The Court should give a notice of bail application to the Public Prosecutor to resist the bail application. If Public Prosecutor applies for the extension of period, a notice should also be given to the accused to resist it. If Investigating Agency fails to complete investigation with the stipulated period, the accused becomes entitle to bail. Section 167(2) prescribes the period during which the investigation is to be completed. It divides the offences in two categories.

First category: Section 167 (2) (a) (i), when investigation relates to an offence punishable with death, imprisonment for life or imprisonment for a term of not less than ten years, the period is 90 days.

Second category: Section 167 (2) (a) (ii), in all other offences, the period is 60 days.

To simplify this preposition, the offences may be divided in the following three categories:-

  1. First Category: When the offence is punishable with death or for imprisonment for life, the period is 90 days.
  2. Second category: When the offence is punishable with imprisonment upto 3 years, 5 years or 7 years, the period is 60 days.
  3. Third category: When the offence is punishable with imprisonment for a term of not less than 10 years.
  4. Accused can be detained for 90 days only where offence is punishable with imprisonment for a complete term of 10 years or more.

Prior to the decision of Rajiv Chaudhary’s case, the High Courts were having different views. One set of High Courts was of the view that when the offence is punishable with imprisonment for a clear term of 10 years or upto 10 years, the accused can be detained for a period of 90 days. Second set was of the view that the punishment for the offence must be for a clear term of 10 years or more. 

In case Rajiv Chaudhary vs. State of Delhi 2001 Crl.L.J.2941

Brief Facts of the case

Accused of this case was arrested in connection with an offence punishable under Sections 386, 506 and 120-B of the I.P.C. He was produced before the Metropolitan Magistrate, Delhi on 31-10-1998 and was released on bail by Order dated 2-1-1999.

The ground was that charge-sheet was not submitted within 60 days as provided under Section 167(2) of the Criminal Procedure Code, 1973. That order was challenged by the State. The Additional Sessions Judge, New Delhi allowed the said revision. The learned Additional Sessions Judge held that for an offence under Section 386, I.P.C. period of sentence could be up to 10 years RI. Hence, in this case Clause (i) of the Proviso (a) to Section 167(2) is be applicable. That order was challenged by the accused.

The High Court, while interoperating the expression ‘offence punishable with imprisonment for a term of not less than 10 years’ held that it would mean an offence punishable with imprisonment for a specified period, and this period would not be less than 10 years. In other words it would be at least ten years. The words ‘not less than’ qualify the period. These words put emphasis on the period of ten years and mean period must be clear ten years. It was further held that on a plain reading of Clause (i) of Proviso (a) to sub-section (2) of Section 167, Cr. P.C. there seemed to be no doubt that offences punishable with death, imprisonment for life or imprisonment for a term of ten years or more would fall under Clause (i) and offences which are punishable with imprisonment for less than ten years would fall under Clause (ii).

The High Court set aside the order passed by the Additional Sessions Judge. The State challenged this order in appeal.

Proceedings before the Hon’ble Supreme Court

Question of Law

Short question involved in this appeal was with regard to the interpretation and construction of the expression “offence punishable with imprisonment for a term of not less than ten years” occurring in Proviso (a) to Section 167(2) of the Criminal Procedure Code in context of the expression “imprisonment which may extend to ten years” occurring in Section 386 of the I.P.C.

Findings of the Hon’ble Supreme Court

The Hon’ble Supreme Court held that clause (i) of Proviso (a) to Section 167 (2) would apply in cases where investigation relates to an offence punishable with imprisonment for a term of not less than 10 years.

While holding so, the Hon’ble Supreme Court observed as under:-

Para “6. From the relevant part of the aforesaid sections, it is apparent that pending investigation relating to an offence punishable with imprisonment for a term “not less than 10 years”, the Magistrate is empowered to authorise the detention of the accused in custody for not more than 90 days. For rest of the offences, period prescribed is 60 days. Hence in case, where offence is punishable with imprisonment for 10 years or more, accused could be detained up to a period of 90 days. In this context, the expression “not less than” would mean imprisonment should be 10 years or more and would cover only those offences for which punishment could be imprisonment for a clear period of 10 years or more. Under Section 386 punishment provided is imprisonment of either description for a term which may extend to 10 years and also fine. That means, imprisonment can be for a clear period of 10 years or less. Hence, it could not be said that minimum sentence would be 10 years or more. Further, in context also if we consider Clause (i) of Proviso (a) to Section

167(2) it would be applicable in case where investigation relates to an offence punishable (1) with death; (2) imprisonment for life; and (3) imprisonment for a term of not less than ten years. It would not cover the offence for which punishment could be imprisonment for less than 10 years. Under Section 386 of the I.P.C. imprisonment can vary from minimum to maximum of 10 years and it cannot be said that imprisonment prescribed is not less than 10 years.”

  1. Commutation of statutory period of 60/90 days

Basic Principles

  1. a) Counting will start from the date of first remand.
  2. b) The day on which the accused was remanded to judicial custody is to be included and the day, on which charge-sheet was presented, is to be excluded.

(i) In case Chaganti Satyanarayana vs State of A.P., AIR 1986 SC 2130, the Hon’ble Supreme Court laid down the principle that Commutation of statutory period of 60/90 days will start from the date of first remand

Brief Facts of the Case

The accused were arrested in the forenoon of July 19, 1985 in connection with a riot which resulted in a toll of human lives and huge destruction of property. They were produced before the Munsiff Magistrate on July 20, 1985 and were remanded to judicial custody till October 18, 1985.

The police filed a charge-sheet against the appellants on October 17, 1985 that being the 90th day of remand. Even so, the accused filed a petition before the Magistrate and sought enlargement on bail in terms of proviso (a) to s. 167(2) of the Code of Criminal Procedure. The learned Magistrate, overruling the objection of the State, granted bail to the accused on the ground that the period of 90 days stipulated in the proviso had to be reckoned from the date of arrest and not from the date of remand and so computed, the charge-sheet had not been filed on the 90th day but on 91st day and hence the accused were entitled to bail.

The State challenged the order of bail before the High Court by means of a petition under s. 439(2) of the Code. A Single Judge of the High Court allowed the petition holding that the period of 90 days envisaged by the proviso to s. 167(2) has to be computed only from the date of remand. Cancelled the bail and directed the magistrate to issue warrants of arrest for the accused.

Proceedings before the Hon’ble Supreme Court

Question of Law

From which date the commutation of statutory period of 60/90 days will start?

Findings of the Hon’ble Supreme Court

The Hon’ble Supreme Court held that commutation of period will start from the date of first order of remand made by the Magistrate.

While holding so, the Hon’ble Supreme Court observed as under:-

The words used in proviso (a) are “no Magistrate shall authorise the detention of the accused person in custody”, “under this paragraph”, “for a total period exceeding i.e. 90 days/60 days”. Detention can be authorised by the Magistrate only from the time the order of remand is passed. The earlier period when the accused is in the custody of a police officer in exercise of his powers under Section 57 cannot constitute detention pursuant to an authorisation issued by the Magistrate. It, therefore, stands to reason that the total period of 90 days or 60 days can begin to run only from the date of order of remand. Thus in any view of the matter i.e. construing proviso (a) either in conjunction with sub-section (2) of Section 167 or as an independent paragraph, we find that the total period of 90 days under clause (i) and the total period of 60 days under clause (ii) has to be calculated only from the date of remand and not from the date of arrest.”

(ii) In case Jagdish Vs. State of Haryana, 1997(3) RCR Crl 736

Brief Facts of the case

Accused of this case was arrested on 4-7-1996 and was produced before the Magistrate on 5-7-96. On that day the Magistrate passed the order of first remand. The chargesheet was presented on 3-10-96.

Matter came for consideration before the Hon’ble Punjab & Haryana High Court.

While applying the above principles, the Hon’ble Punjab & Hayrana High Court included the day of first remand i.e. 5-7-96 and excluded the day of presentation of charge-sheet i.e. 3-10-96 and after preparing the following schedule:

July……………27

August……….31

September…. 30

October………02

Total…………..90

held that the accused is not entitled to bail u/S 167(2) Cr.P.C.

(i) In case Billu @ Gurjit Vs. State of Haryana 1999(3) RCR Crl 762

Brief Facts of the case

Accused of this case was arrested on 29-6-98. He was produced before the Magistrate for remand on 30-6-98. The charge-sheet was presented on 28-9-98. Accused took the plea that the period of 90 days will commence from 30-6-98 and the period of 90 days will expire on 27-9-98. As charge-sheet was presented on 28-9-98 i.e. 91st day so he

was entitled to bail.

The Hon’ble Punjab and Haryana High Court, while applying the above said principles of law included the day of first remand (i.e. 30-6-98) and excluded the day of presentation of charge-sheet (i.e. 28-9-98), and after preparing the following schedule:

June………..01

July……………31

August……….31

September…. 27

Total…………..90

held that the charge-sheet was presented within 90 days. Therefore, accused was not entitled to bail u/S 167(2) of Cr.P.C.

  1. Bail granted u/S 167(2) Cr.P.C. cannot be cancelled after the presentation of the charge-sheet. It can only be cancelled u/Ss 437(5)or 439(2).

(i) In case Raghubir Singh and others Vs. State of Bihar 1987 Cri.L.J.157

Brief Facts of the case

On the intervening night of November 29/30, 1984, the Security Police Patrol on duty near Jogbani Checkpost noticed a jeep speeding towards the Indo-Nepal border. The jeep was stopped. There were five occupants in the jeep. One of them was Simranjit Singh Mann who was dismissed from the Indian Police Service. An order of preventive

detention under the National Security Act was made against him on August 28, 1986.

He was wanted in that connection but had gone ‘underground’. On being questioned by the police patrol party, they first refused to disclose their names and identity. This aroused the suspicions of the police party. One of the officers was able to identify Simranjit Singh Mann. The five occupants in the jeep were searched as also their baggage. A sum of Rs. 62,722 was found with one of the occupants, who offered the police party a large amount as bribe if they were allowed to cross the Indo-Nepal Border. As a result of the search, a number of documents and other articles were seized.

From the person of Simranjit Singh Mann were seized, a copy of a letter dated June 2, 1984, from Simranjit Singh Mann to the Chief Secretary, Punjab, a copy of the letter of resignation dated June 18, 1984 of Simranjit Singh Mann, the Passport of Simranjit Singh Mann, two photographs of Jarnail Singh Bhindrawala, a letter from Simranjit

Singh Mann to Birbal Nath, a letter addressed to one Arun Kumar Agarwal asking him to help the bearer in all possible ways and an anonymous letter warning Simranjit Singh Mann of likely attempts to liquidate him and advising him to leave the country.

Simranjit Singh Mann refused to sign the seizure memo. From Kamikar Singh’s person, currency notes of the value of Rs. 62,722 were seized. An amount of Rs. 25,000, it is said, was offered as bribe to the Police Officers. From Jagpal Singh’s suitcase was seized a booklet in English entitled ‘Sikhs and Foreign Affairs’ and a combined road map of India, Pakistan, Bangladesh, Sri Lanka and Nepal. Among other articles seized were a booklet in English written by Narinder Singh Bhuller which contained anti-Government and Sikh separatist propaganda, a notebook containing material about the world’s leading underground organisations said to be in Mann’s handwriting, a register in which Mann was said to be writing the history of Amritsar in which the Indian Army have been described as the enemy, consequent on operation Blue-star, extremist Sikhs were described as nationalists and defenders of the motherland and Mrs. Gandhi, the then Prime Minister was described in a derogatory fashion. At the check-post, a

photograph of Simranjit Singh Mann was available and it was verified that the person suspected to be Simranjit Singh Mann was actually Simranjit Singh Mann. The other persons gave their names as Kamikar Singh, Charan Singh, Jagpal Singh and Raghubir Singh. Kamikar Singh was the person who had made the offer of bribe.

A First Information Report was then registered at the Jogbani Police Station for references under Ss. 121-A, 124-A, 123, 153-A, 505 and 120-B of the Penal Code and S. 5(iii) of the Prevention of Corruption Act. Investigation started. On December 4, 1984 Simranjit Singh Mann was served with the order of detention under the National Security Act and sent to Bhagalpur Jail. The other four accused were also detained under the National Security Act at Bhagalpur. On March 1, 1985 the four accused other than Simaranjit Singh Mann moved the Judicial Magistrate, First Class, Araria for bail in the criminal case which was then being investigated claiming to be released under the proviso (a) of S. 167(2) of the Code of Criminal Procedure. The learned Magistrate directed their release on bail, but

imposed a condition that the sureties should be residents of Araria town. Simranjit Singh Mann was also directed to be released under the proviso to S. 167(2) on his application on October 28, 1985. These accused could not be released on bail as they could not produce sound sureties.

On December 11, 1985 a charge-sheet was submitted before the Judicial Magistrate, First Class, Araria against the five accused persons for offences under Ss. 121-A, 123,124-A, 153-A, 165-A, 505 and 120-B of Indian Penal Code.

During the pendency of the proceedings, all the accused submitted that they be allowed to present fresh sureties and may be released on bail. The Magistrate, the Special judge and High Court rejected these pleas of the accused on the ground that a considerable time has passed and that the Court has already taken cognizance of the case. Therefore, the right of the accused to seek bail u/ S167 (2) Cr.P.C. has forfeited.

Feeling aggrieved the accused challenged these orders before the Hon’ble Supreme Court.

Proceedings before the Hon’ble Supreme Court

Question of Law

Whether after the presentation of the charge-sheet in the Court, the right of the accused which has already accrued to him, is forfeited?

Findings of the Hon’ble Supreme Court

The Hon’ble Supreme Court held that with the presentation of the charge-sheet, the right of the accused which has accrued to him u/S 167(2) Cr.P.C. is not forfeited. The bail order can only be cancelled if the accused have violated the conditions laid down u/Ss 437(5) or 439(2) Cr.P.C.

While holding so, the Hon’ble Supreme Court observed as under:-

Para “22. The result of our discussion and the case-law in this : An order for release on bail made under the proviso to S.167(2) is not defeated by lapse of time, the filing of the charge-sheet or by remand to custody under S.309(2). The order for release on bail may however be cancelled under S.437(5) or S.439(2).”

(ii) In case Aslam Babu Lal Desai Vs. State of Maharashtra, 1993 SC (1),(Full Bench)

Brief Facts of this case

A complaint was lodged against the accused and 8 others at Miraj City Police Station, District Sangli alleging commission of offences punishable under Sections 147, 148, 302 and 323 read with Section 149 IPC, in regard to an incident which took place at about 11 p.m. on 8th September, 1990. The accused was arrested in that connection on

the next day i.e. 9th September, 1990. The appellant thereafter made an application before the Sessions Judge, Sangli for being enlarged on bail. That application was rejected. The appellant approached the High Court but later withdrew the application and then once again moved the Sessions Judge, Sangli for bail under the proviso to Section 167 (2) of the Code on the ground that the investigation had not been completed within 90 days. The learned Sessions Judge by his order dated 11th March, 1991 directed the release of the accused on bail. After the charge-sheet was submitted and the documents were tendered subsequent thereto, the State of Maharashtra moved an application under Section 439 (2) of the Code in the High Court for cancellation of bail granted by the Sessions Judge. The High Court by the impugned order dated 31st March, 1992 cancelled the bail. The High Court was of the view that since the learned Sessions Judge had granted bail on a technical ground, namely, failure to file the chargesheet within the time allowed and since the investigation revealed the commission of a serious offence of murder, on the ratio of this Court’s decision in Rajnikant Jeevanlal Patel v. Intelligence Officer NCB, New Delhi, (1989) 3 SCC 532: (AIR 1990 SC 71) it was open to the High Court to direct cancellation of the bail. On this line of reasoning the High Court cancelled the bail and directed the accused to surrender to the bail. In obedience to that order the appellant has surrendered to his bail.

Accused challenged this order in the Hon’ble Supreme Court.

Proceedings before the Hon’ble Supreme Court

Question of Law

Can bail granted under the proviso to sub-section (2) of Section 167 of the Code of Criminal Procedure for failure to complete the investigation within the period prescribed there under be cancelled on the mere presentation of the challan (charge-sheet) at any time thereafter?

Findings of the Hon’ble Supreme Court

The Hon’ble Supreme Court held that bail granted under Section 167(2) Cr.P.C. cannot be cancelled after the presentation of the charge-sheet. It can only be cancelled on the grounds mentioned in Sections 437(5) or 439(2).

While holding so, the Hon’ble Supreme Court observed as under:-

Para “14. …. Since S. 167 does not empower cancellation of the bail, the power to cancel the bail can only be traced to S. 437(5) or 439(2) of the Code. The bail can then be cancelled on considerations which are valid for cancellation of bail granted under S. 437(1) or (2) or 439(1) of the Code. The fact that the bail was earlier rejected or that it was secured by the thrust of proviso (a) to S. 167(2) of the Code then recedes in the background. Once the accused has been released on bail his liberty cannot be interfered with lightly i.e. on the ground that the prosecution has subsequently submitted a charge-sheet. Such a view would introduce a sense of complacency in the investigating agency and would destroy the very purpose of instilling a sense of urgency.”

Case in which bail granted under Section 167(2) Cr.P.C. was cancelled on the ground mentioned in Section 439(2)

(iii) In case Masook Ali vs State of Punjab 1996 Cri.L.J.784, the Hon’ble Punjab & Haryana High Court cancelled the bail granted u/S 167(2) Cr.P.C. while applying the conditions of Section 439(2) Cr.P.C.

Brief Facts of the case

On May 15, 1993 at about 8.30 p.m., in the area of village Kaunke Kalan the accused Amarjeet Singh and Ranjit Singh committed murder of one Pasa alias Asak Ali son of Fateh Mohammad and caused serious injuries to Raj Bibi and Barkati PWs on account of a dispute regarding the passage. Case FIR No. 47 dated 16-5-1993, for the offences

under Sections 302/307/325/34 Indian Penal Code, was registered against these accused on the statement of Smt. Raj Bibi at Police Station, Jagraon. Both the accused were arrested on May 28, 1993.

The investigation of this case was being conducted by ASI Om Parkash. He absented from duty for a period of four months. During his absence, he kept all the police files with him including the file pertaining to this case. Resultantly, the stipulated period of 90 days expired and both the accused were released on bail by the Magistrate u/s 167(2) Cr.P.C.

During trial, only one eye witness namely Raj Bibi was examined. Only her examination-in-chief was recorded. Cross examination was deferred. All other witnesses did not appear before the Trial Court.

After the release on bail, the accused persons started threatening the prosecution witnesses and specifically warned them that if they would appear against them in the said Court, they would also be killed and suffer dire consequences. The matter was reported to the police vide report dated 16-02-1994. The petitioner also approached the D.I.G. with an application to direct the prosecution for moving the Sessions Judge for cancellation of the bail. Accordingly, the Public Prosecutor moved an application for cancellation of the bail of the accused persons but the same was dismissed by the Additional Sessions Judge, Ludhiana.

Feeling aggrieved, the complainant filed a petition in the Hon’ble Punjab & Haryana High Court.

Proceedings before the Hon’ble Punjab & Haryana High Court

Plea of the complainant/petitioner

The Counsel of the complainant/petitioner took the following pleas:-

(a) That accused has managed the police to delay the filing of the charge-sheet and as such, obtained bail u/S 167(2) of the code.

(b) That accused are continuously threatening the complainant and other eye witnesses of the case.

(c) That there was a solitary family of Mohamdans living in the said village and both the accused are threatening the eyewitnesses with dire consequences if they would not compromise with them and if they appeared in the trial.

Plea of the respondent/accused

The Counsel of the respondent/accused took the following pleas:-

(a) That the deceased Pasa alias Ashak Ali was having his enemies in the area and he was attacked by those persons and the accused were having no dispute with the deceased and they have been falsely implicated.

(b) That these respondents have no connection with the police and when they were in the judicial custody, the question of their being in league with the Investigating Officer could not have arisen.

(c) That once bail has been granted under Section 167(2) of the Code, the same can be cancelled for strong reasons as recognised from time to time by various precedents including the judgement of the apex Court rendered in Aslam Babalal Desai v. State of Maharashtra, AIR 1993 SC 1 : (1992 Cri LJ 3712).

(d) That the security proceedings initiated against the respondents, were dropped by the Executive Magistrate.

(e) That these respondents have never extended any threat as alleged to any the prosecution witnesses and the allegations leveled by the petitioner are false.

Question of Law

Whether the apprehensions of the complainant are genuine and sufficient to cancel the bail u/S 439(2) Cr.P.C. which is granted to the accused u/S 167(2) Cr.P.C?

Findings of the Hon’ble High Court

While holding that the accused has ‘procured bail’ by fraud and that in the rural areas the minority community are the victims of the majority community, and further the apprehensions of the complainant are genuine, the Hon’ble High Court cancelled the bails, while observing as under:-

Para “14. In the present case, the bail was granted to the accused persons (respondents Nos. 2 and 3) on account of a default on the part of the prosecution in not filing the challan (charge-sheet) within the stipulated period of 90 days from the day when these accused were first remanded to judicial custody by the Magistrate. The allegation of the petitioner who is the brother of the deceased is that this bail was procured by these two accused by deceitful means in collusion with the Investigating Officer ASI Om Parkash. This allegation becomes a reality in view of the admissions made by the State in its reply on affidavit sworn by Shri Sakattar Singh. S.H.O. of Police Station, Jagraon. In para 4 of this reply it is categorically stated that the investigation of this case was entrusted to ASI Om Parkash who absented from his duty for a period of about 4 months without handing over the case files under investigation to any other police officer and as such the challan could not be filed within the stipulated period and the accused persons were granted bail. It is further state that this ASI Om Parkash was charge-sheeted in a departmental enquiry and dismissed from service for his said negligence. Thus, it cannot be said that there is any imaginary apprehension on the part of the petitioner but it is a reality that the bail in this case has been procured by the accused persons by deceitful means colluding with ASI Om Parkash, the

Investigating Officer, whatever the consideration may be. It is well-settled that fraud, contrivance or covine of any description would vitiate the most solemn proceedings of the courts of Justice and nullifies all judicial acts. Therefore, in the present case it can be said without hesitation that the bail to the accused persons has not been granted but procured by them.

“15. It is a matter of common knowledge that even today, in spite of all the efforts made by the Central Government or the State Government, minority communities in the rural areas are the victims of the majority community in the respective villages. This circumstance definitely reveals a genuine apprehension on the part of the complainant party that if the accused would remain on bail, they are unable to appear and depose at the trial.”

  1. ‘Indefeasible Right’ of accused to get released on bail

(a) Meaning of Indefeasible Right

On the expiry of the period specified in paragraph (a) of proviso to sub-section (2) of Section 167, the accused becomes entitle to release on bail. This right does not extinguish even after the filing of the charge-sheet. This right of the accused is known as ‘Indefeasible Right.’

When this right accrues?, When can accused be said to have availed this right? When this right extinguishes? And whether after the exercise of this right, the refusal of Magistrate to grant bail or delay in disposing of the matter, it extinguishes?

All these questions were answered by the Full Bench of the Hon’ble Supreme Court in case Udhay Mohanlal Acharya Vs. State of Maharashtra, 2001 Cr.L.J. 1832, while holding as under:

(b) When this right accrues?

Para “8(3). On the expiry of the said period of 90 days or 60 days, as the case may be, an indefeasible right accrues in favour of the accused for being released on bail on account of default by the Investigating Agency in the completion of the investigation within the period prescribed and the accused isentitled to be released on bail, if he is prepared to and furnish the bail, as directed by the Magistrate.”

(c) When can accused be said to have availed this right?

Para “8(6) ……on expiry of the period specified in paragraph (a) of proviso to sub-section (2) of S. 167 if the accused files an application for bail and offers also to furnish the bail, on being directed, then it has to be held that the accused has availed of his indefeasible right even though the Court has not considered the said application and has not indicated the terms and conditions of bail, and the accused has not furnished the same.”

(d) When this right extinguishes?

Para “8(5) ….If the accused is unable to furnish bail, as directed by the Magistrate, then the conjoint reading of Explanation I and proviso to sub-section (2) of S. 167, the continued custody of the accused even beyond the specified period in paragraph (a) will not be unauthorised, and therefore, if during that period the investigation is complete and charge-sheet is filed then the so-called indefeasible right of the accused would stand extinguished.”

(e) Whether, after the exercise of this right, with the refusal of Magistrate to grant bail or delay in disposing of the matter, it extinguishes?

Para “8(6)… With the aforesaid interpretation of the expression ‘availed of’ if chargesheet is filed subsequent to the availing of the indefeasible right by the accused then that right would not stand frustrated or extinguished, necessarily therefore, if an accused entitled to be released on bail by application of the proviso to sub-section (2) of S. 167, makes the application before the Magistrate, but the Magistrate erroneously refuses the same and rejects the application and then accused moves the higher forum and while the matter remains pending before the higher forum for consideration a charge-sheet is filed, the so-called indefeasible right of the accused would not stand extinguished thereby, and on the other hand, the accused has to be released on bail.”—————— 

History of Landmark Case, ‘Udhay Mohanlal Acharya vs. State of Maharashtra, 2001 Cr.L.J. 1832’

Brief Facts of the case

In the case, the accused after surrendering himself in the Court was remanded to judicial custody by order of the Magistrate on 17-6-2000.

A case was instituted against the accused under Ss. 406 and 420 of the Indian Penal Code read with Maharashtra Protection of Interest of Depositors (Financial Establishment) 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 entitles the accused to be released on bail under proviso to S.167(2) of the Code of Criminal Procedure. The Magistrate rejected the prayer on the same day on the ground that the provisions of S. 167(2), Cr. P.C. has no application to cases pertaining to MPID Act.

The accused, thereafter, filed 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 23rd August, 2000. The matter was listed before a Division Bench on 29th August, 2000. On that date the Division Bench adjourned the matter for argument to 31st August, 2000 and in the meanwhile a charge-sheet was filed before the trial Judge on 30th August, 2000.

On the entertainability of the claim of the accused, invoking provisions of S. 167 of 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 31st August, 2000, a charge-sheet had been filed before the Magistrate on 30th August, 2000 and, therefore, the so-called enforceable right did not survive or remain enforceable.

Feeling aggrieved the accused filed an appeal in the Hon’ble Supreme Court.

Proceedings before the Hon’ble Supreme Court

Plea of the accused

The plea of accused was 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 subsection (2) of S. 167, if the accused is prepared to furnish bail, cannot be nullifled by taking recourse to subterfuge and keeping the matter pending for passing of an order, allowing the prosecution to file a charge-sheet.

Plea of the State Counsel

The plea of the State Counsel was that so-called indefeasible right 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. If an accused has not been released on bail and by the time the Court finally considers the application and passes an order and accused furnishes the bail, challan is filed, then the right of being released stands extinguished, since once a challan is filed the provisions of S. 167 will have no application and the custody of the accused thereafter is under the orders of the Magistrate where the case is pending.

Questions of Law

When this right accrues? When can accused be said to have availed this right? When this right extinguishes? And whether after the exercise of this right, the refusal of Magistrate to grant bail or delay in disposing of the matter, it extinguishes?

Findings of the Hon’ble Supreme Court

While deciding this case, the Hon’ble Supreme Court answered these questions of law as mentioned above.

Finding on Facts

After applying the above principles the Hon’ble Supreme Court held that the accused in this case availed of his right on 17th August, 2000 by filing an application and offering therein to furnish the bail in question. He became entitled to bail on 17th August, 2000. Dealy in deciding the matter did not extinguish his right.

While holding so, the Hon’ble Supreme Court observed as under:-

Para “8. …. it appears that the prescribed period under paragraph (a) of the proviso to sub-section (2) of S. 167 expired on 16-8-2000 and the accused filed an application for being released on bail and offered to furnish the bail on 17-8-2000. The Magistrate, however, erroneously refused the bail prayer on the ground that the proviso to subsection (2) of S. 167 has no application to case pertaining to MPID Act. The accused then moved the High Court. While the matter was pending before the Division Benchof the High Court, the learned Public Prosecutor took an adjournment and the case was posted to 31st August, 2000 and just the day before the charge-sheet was filed on 30th August, 2000 and thus the indefeasible right of the accused stood frustrated and the High Court refused to release the accused on bail on a conclusion that the accused cannot be said to have availed of his indefeasible right, as held in Sanjay Dutt’s case (1994 AIR SCW 3857 : 1995 Cri LJ 477) (supra) since, he has not yet been released on bail. But in view of our conclusion as to when an accused can be said to have availed of his right, in the case in hand, it has to be held that the accused availed of his right on 17th August, 2000 by filing an application for being released on bail and offering therein to furnish the bail in question. This being the position, the High Court was in error in refusing that right of the accused for being released on bail. We, therefore, direct that the accused should be released on bail on such terms and conditions to the satisfaction of the learned Magistrate, and further the Magistrate would be entitled to deal with the accused in accordance with law and observations made by us in this judgment, since the charge-sheet has already been filed.”

  1. It is not obligatory upon the Court to release the accused on bail on its own after the expiry of the prescribed period. Obligation is only to inform the accused of his right of being released on bail and enable him to make an application in that behalf.
  2. The Court should give a notice of bail application to the Public Prosecutor to resist the bail application. If Public Prosecutor applies for the extension of period, a notice should also be given to the accused to resist it. 

In case Hitendra Vishnu Thakur vs. State of Maharashtra, 1995 Cr.L.J. 517

Brief Facts of the case

On 9-10-89 one Suresh Narsingh Dubey, a Real Estate Developer, was shot dead at about 10.30 a.m. at Nalasopara Railway Station in District Thane in the presence of his brother-in-law, A. S. Tripathi. The brother of the deceased, Shri Shyam Sunder Dubey, on receipt of the information went to Palghar Police Station and a first information report was lodged resulting in the registration of a case C.R. No.90 of 1989. During the investigation, Patrick Frances Truskar and Ananda Ramachandra Patil were arrested in connection with the said case on 20-10-1989. A charge sheet was filed against them in the Court of Sessions on 8-7-90. Sessions Case No. 88 of 1991 was pending disposal in that connection.

In February, 1992, the DIG of Police (Maharashtra Railway Police) visited Palghar Police Station and after going through the record of the case, was of the opinion that the investigation had not been properly conducted in C. R. No. 90 of 1989 and he, therefore, summoned the complainant, Shyam Sunder Dubey. Subsequently, however, the wife of the deceased met the DIG of Police and presented an application, dated 18-5-92 executed by Shyam Sunder Dubey, the complainant. The DIG of Police, on receipt of the application ordered reinvestigation. An application was also addressed to the Sessions Judge, Thane under Section 173(8), Cr. P. C. by the prosecuting agency seeking

permission for reinvestigation, after detailing the reasons therein, which was granted by the Court. During the reinvestigation, some more accused persons were arrested in the said case and remanded to judicial custody on various days. The accused No. 1 Hitendra Vishnu Thakur and two others read a news item in some local newpaper

indicating that they were likely to be arrested in respect of the murder of the deceased Suresh Narsinh Dubey in C. R. 90/1989 and therefore they approached the Bombay High Court for grant of anticipatory bail on 25-9-92. After notice to the Public Prosecutor, the Bombay High Court granted interim anticipatory bail to the applicants on 29-9-92.

On 30th September, 1992, the prosecution filed an application in the High Court stating that since in the instant case, provisions of TADA were applicable, and the accused could not be admitted to anticipatory bail, because Section 438, Cr. P. C. was excluded in its application to offences under TADA. The High Court consequently dismissed the anticipatory bail application of Hitendra Vishnu Thakur and others.

On 5-12-92, accused no.1 Hitendra Vishnu Thakur along with one other co-accused surrendered before the Director General of Police, Maharashtra. On 04.01.1993 he was remanded to judicial custody. The charge-sheet was to be presented in 180 days. On 6-7-93 the petitioner, Hitendra Vishnu Thakur filed an application for grant of bail under Section 20(4) of the Act on the ground that 180 days had expired on 4-6-93 but no charge sheet/challan had been filed. On 12-7-93, the Public Prosecutor presented a request of the investigating officer dated 29-6-1993 to the Designated Court seeking extension of time to complete the investigation and objections were also filed to the application for bail filed by Hitendra Vishnu Thakur under Section 20(4) of the Act by the Public Prosecutor. The bail application was dismissed by the Designated Court on 31-7-93 and the prosecution was granted extension of time till 30th of August, 1993 to file the challan/ charge sheet treating the application of the investigating officer as a report of the Public Prosecutor.

Feeling aggrieved, the accused filed an appeal in Hon’ble Supreme Court.

Proceedings before the Hon’ble Supreme Court

Plea of the petitioner/accused

The Counsel of the accused assailed the order dated 31-7-93 by urging that the extension to complete the investigation has been granted ignoring the requirements of law as contemplated by clause (bb) and that the prayer for bail under Section 20(4) has been rejected on extraneous considerations. Learned counsel submitted that once it is found that extension under clause (bb) was erroneously granted, the right to be released on bail under Section 20(4) of TADA could not be defeated on any account. It was further contended that after the expiry of the stipulated period, the Court was bound to release the accused on bail even in the absence of such application.

Plea of the State Counsel

The Counsel for the State/respondent submitted that the Designated Court rightly rejected the application for grant of bail sought under Section 20(4) of TADA by taking into consideration the objections filed by the public prosecutor and the application of the investigating officer seeking extension, after detailing the progress of the investigation and furnishing specific reasons for seeking extension of time. It was further contended that the Court was not bound to release the accused on bail suo moto.

Questions of Law

  1. Whether after the expiry of the stipulated period, the Court is bound to release the accused on its own motion even without an application from the accused?
  2. Whether bail to the accused can be refused on extraneous considerations?

Findings of the Hon’ble Supreme Court

While deciding this case, the Full Bench of the Hon’ble Supreme Court held that It is not obligatory upon the Court to release the accused on bail on its own after the expiry of the prescribed period. Obligation is only to inform the accused of his right of being released on bail and enable him to make an application in that behalf.

The Hon’ble Supreme Court further suo-moto observed that the Court should give a notice of bail application to the Public Prosecutor to resist the bail application. If Public Prosecutor applies for the extension of period, a notice should also be given to the accused to resist it.

While holding so, the Hon’ble Supreme Court observed as under:-

Para “20. …. We are not impressed with the argument of the learned counsel for the appellant that on the expiry of the period during which investigation is required to be completed under S. 20(4) TADA read with S. 167 of the Code, the Court must release the accused on bail on its own motion even without any application from an accused person, on his offering to furnish bail. In our opinion as an accused is required to make an application if he wishes to be released on bail on account of the ‘default’ of the investigating / prosecuting agency and once such an application is made, the Court should issue a notice to the public prosecutor, who may either show that the prosecution has obtained the order for extension for completion of investigation from the Court under Cl. (bb) or that the challan has been filed in the Designated Court before the expiry of the prescribed period or even that the prescribed period has actually not expired and, thus resist the grant of bail on the alleged ground of ‘default’. The issuance of notice would avoid the possibility of an accused obtaining an order of bail under the ‘default’ clause by either deliberately or inadvertently concealing certain facts and would avoid multiplicity of proceedings. It would, therefore, serve the ends of justice if both sides are heard on a petition for grant of bail on account of the prosecution’s ‘default’. Similarly, when a report is submitted by the public prosecutor to the Designated Court for grant of extension under Cl. (bb), its notice should be issued to the accused before granting such an extension so that an accused may have an opportunity to oppose the extension on all legitimate and legal grounds available to him. It is true that neither Cl. (b) nor (bb) of sub-sec. (4) of S. 20 TADA specifically provide for the issuance of such a notice but in our opinion the issuance of such a notice must be read into these provisions both in the interest of the accused and the prosecution as well as for doing complete justice between the parties. This is a requirement of the principles of natural justice and the issuance of notice to the accused or the public prosecutor, as the case may be, would accord with fair play in action, which the courts have always encouraged and even insisted upon. It would also strike a just balance between the interest of the liberty of an accused on the one hand and the society at large, through the prosecuting agency on the other hand. There is no prohibition to the issuance of such a notice to the accused or the public prosecutor in the scheme of the Act and no prejudice what so ever can be casued by the issuance of such a notice to any party.”

Finding on Facts

The Hon’ble Supreme Court further held that bail to the accused cannot be refused on extraneous considerations.

While accepting appeal, the Hon’ble Supreme Court observed as under:-

Para “40. From the aforesaid discussion it follows that the order of the Designated Court granting extension of time for completion of investigation to the investigating agency to file the challan and therefore authorising his detention beyond the prescribed period of compulsory custody in the case of appellant Hitendra Vishnu Thakur and the refusal of bail to him under Section 20(4) of the Act on extraneous considerations cannot be sustained and we, consequently accept the appeal of Hitendra Vishnu Thakur to that extent, and set aside the order of the Designated Court refusing to grant bail to him under Section 20(4) of the Act.”

  1. If accused does not apply for bail during the ‘default period’, after the filing of the charge-sheet, his right to bail extinguishes.

In case Sanjay Dutt Vs. State, 1995 Cr.L.J. 477, the Constitutional Bench of the Hon’ble Supreme Court laid down this principle, while observing as under:-

Para “55. (2)(b)…. The ‘indefeasible right’ of the accused to be released on bail in accordance with Section 20(4)(bb) of the TADA Act read with Section 167(2) of the Code of Criminal Procedure in default of completion of the investigation and filing of the challan within the time allowed, as held in Hitendra Vishnu Thakur is a right which enures 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. If the accused applies for bail under this provision on expiry of the period of 180 days or the extended period, as the case may be, then he has to be released on bail forthwith. The accused, so released on bail may be arrested and committed to custody according to the provisions of the Code of Criminal Procedure. The right of the accused to be released on bail after filing of the challan, notwithstanding the default in filing it within the time allowed is governed from the time of filing of the challan only by the provisions relating to the grant of bail applicable at that stage.” 

Part-B

Procedure and Practice

  1. Remand can be extended in the absence of the accused. Remand extended on the reverse of the original warrant is an irregularity and is curable

In case Rahul Gupta v/s State of M.P., 1995 Cri.L.J.3340

Brief Facts of the case

The petitioner was an accused in case registered u/Ss 147, 148, 302/149 IPC. The petitioner was arrested on 15.08.1993 and was duly produced before the Magistrate. The charge-sheet was filed on 20.10.1993.

The petitioner filed an application seeking bail u/S 167(2) of Cr.P.C. on the ground that on 25.08.1993, 08.09.1993, 22.09.1993 and 06.10.1993, he was not produced before the Magistrate and no vaid order of remand was passed. It was further contended that copy of the charge-sheet was supplied to him on 14.12.1993 beyond the stipulated period of 90 days. Therefore, was entitled to bail. The Magistrate dismissed the prayer.

Feeling aggrieved, accused filed a revision petition in the Hon’ble Madhya Pradesh High Court.

Proceedings before the Hon’ble High Court

Plea of the petitioner/accused

The plea of the petitioner/accused was that from 25.08.1993 to 20.10.1993, the detention of the accused was illegal and he was not physically produced before the Magistrate. It was further contended that there was no proper remand extension order in the order sheet and that remand has been extended by making endorsement on the reverse of the

original warrant itself. Therefore, the accused was entitled to bail u/S 167(2) Cr.P.C.

Plea of the State Counsel

The plea of the State Counsel was that accused was actually brought to the Court from jail but was not physically produced before the Magistrate due to unavoidable circumstances. It was further contended that endorsement on the reverse side of the original warrant is merely an irregularity and is curable.

Questions of Law

  1. Whether remand can be extended in the absence of the accused?
  2. Whether endorsement on the reverse side of the original warrant is an illegality which makes the detention of accused as illegal?

Findings of the Hon’ble High Court

While holding that if the Magistrate is satisfied that non-production of accused is on account of reasons beyond control of authorities, the remand can be extended even in the absence of the accused, observed as under:-

Para “5. …. Where the Magistrate is satisfied that physical non-production of the accused is on account of reasons beyond control of the authorities, he may expressly or impliedly waive production and if satisfied that remand needs to be extended, he may do so. On the facts of the case, learned Magistrate was satisfied about it and this does not call for interference.”

While holding that extension of remand on the reverse of the original warrant is merely an irregularity, the Hon’ble High Court observed as under:-

Para “6. …. In these circumstances, it cannot be said that this Court has laid down a proposition of law to the effect that whenever order of extension of remand is made in the original warrant itself, the order of detention is illegal. This is not to say that the Magistrates are not to conform the requirements of law. They shall do so. We are concerned in this case with the consequences of failure to do so. It is only a curable irregularity and not an incurable illegality which renders the detention itself illegal.” 

Cases Referred:-

  1. Rajiv Chaudhary Vs. State of Delhi (SC) 2001(2) RCR Crl 754, 2001 Crl.L.J.2941
  2. Chaganti Satyanarayana vs State of A.P., AIR 1986 SC 2130
  3. Jagdish Vs. State of Haryana, 1997(3) RCR Crl 736
  4. Billu @ Gurjit Vs. State of Haryana 1999(3) RCR Crl 762
  5. Raghubir Singh and others Vs. State of Bihar AIR 1987 SC 149 (Full Bench)
  6. Aslam Baba Lal Desai Vs. State of Maharashtra, 1993 SC (1) (Full Bench)
  7. Masook Ali vs State of Punjab 1996 Cri.L.J.784
  8. Udhay Mohanlal Acharya Vs. State of Maharashtra, 2001 Cr.L.J. 1832 (Full Bench)
  9. Hitendra Vishnu Thakur Vs. State of Maharashtra, 1995 Cr.L.J. 517 (Full Bench)
  10. Sanjay Dutt Vs. State, 1995 Cr.L.J. 477 ( Constitutional Bench)
  11. Rahul Gupta v/s State of M.P., 1995 Cri.L.J.3340

 

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