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Babubhai Parshottamdas Patel Vs. State of Gujarat - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtGujarat High Court
Decided On
Judge
Reported in1982CriLJ284; (1981)GLR1232(GJ)
AppellantBabubhai Parshottamdas Patel
RespondentState of Gujarat
Cases ReferredIn Bashir v. State of Haryana
Excerpt:
- - under sub-section (1) :whenever any person is arrested and detained in custody, and it appears that the investigation cannot be completed within the period of twenty-four hours fixed by section 57, and there are grounds for believing that the accusation or information is well-founded, the officer in charge of the police station or the police officer making the investigation, if he is not below the rank of sub-inspector, shall forthwith transmit to the nearest judicial magistrate a copy of the entries in the diary hereinafter prescribed relating to the case, and shall at the same time forward the accused to such magistrate. provided that -(a) the magistrate may authorise the detention of the accused person, otherwise than in the custody of the police, beyond the period of fifteen.....b.j. divan, c.j.1. the petitioner before us is the original accused. the petitioner along with seven other persons is charged with committing offences punishable under sections 302, 342, 323, all read with section 34 of the penal code. the case of the prosecution is that the petitioner's wife's golden chain was snatched away by some one when she had attended a 'garba' function. in respect of that offence the petitioner had filed a complaint with the police. thereafter the entire village of palla where the petitioner was residing is alleged to have gathered together and caught hold of some members of vaghari community on suspicion that the theft of the golden chain from the petitioner's wife was. committed by one or the other member of the vaghari community of the village. the members of.....
Judgment:

B.J. Divan, C.J.

1. The petitioner before us is the original accused. The petitioner along with seven other persons is charged with committing offences punishable Under Sections 302, 342, 323, all read with Section 34 of the Penal Code. The case of the prosecution is that the petitioner's wife's golden chain was snatched away by some one when she had attended a 'Garba' function. In respect of that offence the petitioner had filed a complaint with the police. Thereafter the entire village of Palla where the petitioner was residing is alleged to have gathered together and caught hold of some members of Vaghari community on suspicion that the theft of the golden chain from the petitioner's wife was. committed by one or the other member of the Vaghari community of the village. The members of the Vaghari community are alleged to have been beaten up by the residents of Palla village and it is alleged that as a result of that beating one Vaghari Soma Lala died. This incident is alleged to have happened on Oct. 16/17, 1980.

2. The petitioner filed an application for bail before the learned Judicial Magistrate, First Class, Ma tar but the bail application was rejected. Thereafter a revision application was filed before the Sessions Court, Kheda at Nadiad and the learned Additional Sessions Judge who heard the matter confirmed the order passed by the learned Judicial Magistrate, First Class. Thereafter a criminal revision application was filed before this High Court and our learned brother Gheewala, J. directed that six out of the seven applicants who had approached the High Court should be released on bail but so far as the petitioner was concerned, his application for bail was rejected.

3. The petitioner was arrested on Oct. 21, 1980 and he was produced before the learned Judicial Magistrate, First Class, Matar on Oct. 22, 1980. No charge-sheet was filed by the prosecution for a period of ninety days and the charge-sheet was actually filed on Jan. 21, 1981. It is the case of the petitioner that the charge-sheet was filed after ninety days and under the provisions of Section 167(2) of the Criminal P. C, 1973 the petitioner was entitled to be released on bail on such terms and conditions as the Court may deem fit.

4. On Jan. 20, 1981 an application for bail, in view of the provisions of Section 167(2), was filed before the learned Judicial Magistrate, First Class, Matar but instead of releasing the petitioner on bail, the learned Magistrate adjourned the hearing of the application to Jan. 23, 1981. In the meantime, the investigating authorities filed a charge-sheet on Jan. 21, 1981.

5. A criminal revision application, being Criminal Revision Application No. 55 of 1981, was filed in this High Court by the present petitioner contending that he was entitled to be released on bail on the expiry of the period of ninety days from the date when he was first produced before the learned Magistrate on Oct. 22, 1980.

6. The criminal revision application came up for orders before our learned brother Bedarkar, J. and at that time the decision in Umedsinh Vakmatji Jadeja v. State of Gujarat : AIR1977Guj11 was relied on, on behalf of the prosecution, and it was contended in the light of that decision that since the charge-sheet was already filed, the Magistrate had no jurisdiction to enlarge the petitioner on bail Under Section 167(2) of the Criminal P. C. and it was further contended that the application, if any, could be made only Under Section 437 of the Code and that the present criminal revision application was therefore not maintainable,

7. On behalf of the petitioner, reliance was placed on the decision of the Supreme Court in Maneka Gandhi's case, : [1978]2SCR621 and also on the decision of the Supreme Court in : AIR1980SC846 Ved Prakash Chaudhry v. State of Haryana. Bedarkar, J. was of the opinion that sitting as a single Judge he was bound by the decision of the Division Bench in Umedsinh's case (supra) and since the question was to be considered from the point of view of constitutional law, it was necessary that the matter may be raised as and by way of a writ petition filed under Articles 226 and 227 of the Constitution. Bedarkar, J. permitted the petitioner to convert the criminal revision application into a special criminal application and hence this special criminal application came to be filed before this High Court after conversion of the criminal revision application. Our learned brother Bedarkar, J. passed this order allowing the criminal revision application to be converted into a special criminal application on Feb. 16,1981 and thereafter the matter was placed before the Division Bench consisting of M. P. Thak-kar and R. C. Mankad, JJ. on Feb. 23, 1981. Before the Division Bench Mr. A. H. Mehta, learned Advocate for the petitioner, abandoned the challenge to the constitutionality of the provisions of the Criminal P. C. but the Division Bench referred the matter to a larger Bench as in their opinion the decision in : AIR1977Guj11 required reconsideration. The Division Bench also stated 'as the matter involves the question of liberty of citizen, liberty to petitioner to move the learned Chief Justice, for appropriate orders for constituting a Bench'. This is how this special criminal application, has come up before us.

8. In the light of the facts which we have hereinabove set out, it is necessary to refer to some of the provisions of the Criminal P. C. Chapter XII of the Criminal P. C. which consists of Sections 154 to 176, both inclusive, deals with 'Information to the police and their powers to investigate.' Section 167 provides:

If, from information received or otherwise, an officer in charge of a police station has reason to suspect the commission of an offence which he is empowered Under Section 156 to investigate, he shall forthwith send a report of the same to a Magistrate empowered to take cognizance of such offence upon, a police report and shall proceed in person, or shall depute one of his subordinate officers not below such rank as the State Government may, by general or special order, prescribe in this behalf, to proceed, to the spot, to investigate the facts and circumstances of the case, and, if necessary, to take measures for the discovery and arrest of the offender.

Section 167 of the Code deals with the procedure when the investigation cannot be completed in twenty-four hours. Under Sub-section (1) :

Whenever any person is arrested and detained in custody, and it appears that the investigation cannot be completed within the period of twenty-four hours fixed by Section 57, and there are grounds for believing that the accusation or information is well-founded, the officer in charge of the police station or the police officer making the investigation, if he is not below the rank of Sub-Inspector, shall forthwith transmit to the nearest Judicial Magistrate a copy of the entries in the diary hereinafter prescribed relating to the case, and shall at the same time forward the accused to such Magistrate.

Under Sub-section (2):

The Magistrate to whom an accused person is forwarded under this section may, whether he has or has not jurisdiction to try the case, from time to time authorise the detention of the accused in such custody as such Magistrate thinks fit, for a term not exceeding fifteen days in the whole; and if he has no jurisdiction to try the case or commit it for trial, and considers further detention unnecessary, he may order the accused to be forwarded to a Magistrate having such jurisdiction.

The proviso to Sub-section (2) is material and it is in these terms:

Provided that -

(a) the Magistrate may authorise the detention of the accused person, otherwise than in the custody of the police, beyond the period of fifteen days if he is satisfied that adequate grounds exist for doing so, but no Magistrate shall authorise the detention of the accused person in custody under this paragraph for a total period exceeding -

(i) ninety days, where the investigation relates to an offence punishable with death, imprisonment for life or imprisonment for a term of not less than ten years;

(ii)... and, on the expiry of the said period of ninety days, or sixty days, as the case may be, the accused person shall be released on bail if he is prepared to and does furnish bail, and every person released on bail under this Sub-section (shall be deemed to be so released under the provisions of Chap. XXXIII for the purposes of that Chapter.

Under Clause (b) of the proviso :

No Magistrate shall authorise detention in any custody under this section unless the accused is produced before him.

Under Clause (c) of the proviso:

No Magistrate of the second class, not specially empowered in this behalf by the High Court, shall authorise detention in the custody of the police.

Explanation I to the proviso was added by Section 14 of the Code of Criminal Procedure (Amendment) Act, 1978 and Expln. I states:

For the avoidance of doubt, it is hereby declared that, notwithstanding the expiry of the period specified in para, (a) the accused shall be detained in custody so long as he does not furnish bail.

Under Section 170:

If, upon an investigation under this Chapter, it appears to the officer in charge of the police station that there is sufficient evidence or reasonable ground as aforesaid, such officer shall forward the accused under custody to a Magistrate empowered to take cognizance of the offence upon a police report and to try the accused or commit him for trial, or, if the offence is bailable and the accused is able to give security, shall take security from him for his appearance before such Magistrate on a day fixed and for his attendance from day to day before such Magistrate until otherwise directed.

Under section 209:

When in a case instituted on a police report or otherwise, the accused appears or is brought before the Magistrate and it appears to the Magistrate that the offence is triable exclusively by the Court of Session, he shall-

(a) commit, after complying with the provisions of Section 207 or Section 208, as the case may be, the case to the Court of Session, and subject to the provisions of this Code relating to bail, remand the accused to custody until such commitment has been made.

(Emphasis supplied by us.)

section 309 of the Code empowers the presiding officer to postpone or adjourn proceedings.

Under Sub-section (1):

In every inquiry or trial, the proceedings shall be held as expeditiously as possible, and in particular, when the examination of witnesses has once begun, the same shall be continued from day to day until all the witnesses in attendance have been examined, unless the Court finds the adjournment of the same beyond the following day to be necessary for reasons to be recorded.

Under Sub-section (2) of section 309:

If the Court, after Inking cognizance of an offence, or commencement of trial, finds it necessary or advisable to postpone the commencement of, or adjourn any inquiry or trial, it may, from time to time, for reasons to be recorded, postpone or adjourn the same on such terms as it thinks fit, for such time as it considers reasonable, and may by warrant remand the accused if in custody:

Provided that no Magistrate shall remand an accused person to custody under this section for a term exceeding fifteen days at a time:

Provided further that when witnesses are in attendance, no adjournment or postponement shall be granted, without examining them, except for special reasons to be recorded in writing.

Under Explanation I to section 309 :

If sufficient evidence has been obtained to raise a suspicion that the accused may have committed an offence, and it appears likely that further evidence may be obtained by a remand, this is a reasonable cause for a remand.

Chapter XXXIII of the Code consists of Sections 436 to 450, both inclusive, and the heading of the Chapter is 'Provisions as to bail and bonds.' section 437 provides for cases when bail may be taken in case of non-bailable offence. section 437 as it stands amended by Central Act 63 of 1980 provides:

When any person accused of, or suspected of, the commission of any non-bailable offence is arrested or detained without warrant by an officer in charge of a police station or appears or is brought before a Court other than the High Court or Court of Session, he may be released on bail, but-

(i) such person shall not be so released if there appear reasonable grounds for believing that fie has been guilty of an offence punishable with death or imprisonment for life;

(ii) such person shall not be so released if such offence is a cognizable offence and he had been previously convicted of an offence punishable with death, imprisonment for life or imprisonment for seven years or more, or he had been previously convicted on two or more occasions of a non-bailable and cognizable offence:

Provided that the Court may direct that a person referred to in Clause (i) or Clause (ii) be released on bail if such person is under the age of sixteen years or is a woman or is sick or infirm :

Provided further that the Court may also direct that a person referred to in Clause (ii) be released on bail if it is satisfied that it is just and proper so to -do for any other special reason :

Provided also that the mere fact that an accused person may be required for being identified by witnesses during investigation shall not be sufficient ground for refusing to grant bail if he is otherwise entitled to be released on bail and gives an undertaking that he shall comply with such directions as may be given by the Court.

Under Sub-section (2) of section 437:

If it appears to such officer or Court at any stage of the investigation, inquiry or trial, as the case may be, that there are not reasonable grounds for believing that the accused has committed a non-bailable offence but that there are sufficient grounds for further inquiry into his guilt, the accused shall, subject to the provisions of Section 446-A and pending such inquiry, be released on bail, or, at the discretion of such officer or Court, on the execution by him of a bond without sureties for his appearance as hereinafter provided.

Sub-section (5) of section 437 provides:

Any Court which has released a person on bail under Sub-section (1) or Sub-section (2), may, if it considers it necessary so to do, direct that such person be arrested and commit him to custody,

It is purely on an interpretation of the different provisions that we have hereinabove referred to that the matter before us can be decided. It is not necessary for us to refer to the provisions of Articles 19(1)(d) and 21 of the Constitution because basically it is the question of the right or entitlement to bail conferred by Section 167(2) proviso which is required to be considered in this case.

9. The Division Bench consisting of J. B. Mehta and A. D. Desai, JJ. of this Court decided the case in Umedsinh Vakmatjj Jadeja v. State of Gujarat : AIR1977Guj11 on February 4, 1975. There the Division Bench held that the provisions of Section 167(2) and the provisions of section 437 of the Criminal P. C, 1973, operate in different fields. The Magistrate has to exercise his power of releasing the accused on bail Under Section 167(2) if the total period of detention of the accused exceeds 60 days. But this power is to be exercised during the pendency of investigation only. The power Under Section 167(2) of granting bail cannot be exercised by the Magistrate when the investigation is over or to put it in other words, when he lakes cognizance of the case either under the provisions of Section 170 or Section 173 of the Code If the Magistrate takes cognizance of the offence under either of the aforesaid sections, the Magistrate can exercise power only Under section 437 of the Code. Therefore, if an application is made Under Section 167 for bail by an accused person who is detained in custody pending investigation for a period exceeding 60 days, he is entitled to bail. Bui if pending such application for bail a charge-sheet is filed in the Court, the investigation comes to an end and so also the power of the Magistrate of granting bail to the accused under the provisions of Section 167(2). The ' Magistrate then can exercise power of granting bail only Under section 437. The Magistrate to whom an application for bail Under Section 167(2) is made has to take the subsequent event into consideration - the subsequent event being the filing of the charge-sheet, It was also held by the Division Bench that under the deeming provisions provided in proviso to Section 167 of the Criminal P. C. every person released on bail under the provisions of Section 167(2) shall be deemed to be released under the provisions of Chap. XXXIII for the purpose of that Chapter. The effect of this deeming provision, according to the Division Bench, is that if an accused person is released on bail as per the provisions of Section 167(2)(a), the bail order continues even after the charge-sheet is filed. But in view of the provisions of deeming fiction it is open to the prosecution to make an application for cancellation of bail under the provisions of Sub-section (5) of section 437 of the Code.

10. Speaking for the Division Bench, A. D. Desai J. observed at page 575 (of Guj LR): (at p. 14 of AIR 1977 Guj) of the report:

The function of the Magistrate under the provisions of Section 167(2) is to see that the police does not abuse the power of investigation. The Magistrate's functions at this stage are intended to prevent abuse. Continuation of the arrest and detention of a person for the purpose of investigation from time to time has to be authorised by the Magistrate under the provisions of Section 167(2) of the Code. The Magistrate requires the investigation to be completed within 24 hours if ' possible and at any rate before the expiry of 60 days. If the investigation is not completed within the period of 60 days, the accused is entitled to bail. The provisions of Section 167 operate during the investigation and a Magistrate exercises the power of authorising detention of the accused at a stage when he has not taken cognizance of the case. Under the provisions of Section 167, it is the Magistrate who exercises the power. Under the provisions of section 437 of the Code it is the Court which exercises the power of granting bail in non-bailable offences. Under section 437 the Court cannot release a person accused of an offence if there appears reasonable ground for believing that he is guilty of the offence punishable with death or imprisonment for life. In exercising the power Under section 437 the Court has to exercise its judicial discretion after examining the merits of the case. Under the provisions of Section 167(2) the Magistrate while granting a remand order has only lo satisfy himself as to whether there exist adequate grounds for authorising further detention [pending investigation. The Magistrate has not to decide while exercising power of granting bail Under Section 167 of the Code as to whether there are reasonable grounds for believing that the accused has been guilty of (in offence punishable with death or imprisonment for life. The provisions of Section 167(2) and the provisions of section 437 thus operate in different fields. The Magistrate has to exercise his power of releasing the accused on bail Under Section 167(2) if the total period of detention of the accused exceeds 60 days. But this power is to be exercised during the pendency of investigation only. The power Under Section 167(2) of granting bail cannot be exercised by the Magistrate when the investigation is over or to put it in other words, when he takes cognizance of the case either under the provisions of Section 170 or Section 173 of, the Code. If the Magistrate takes cognizance of the offence under either of the aforesaid sections the Magistrate can exercise power only Under section 437 of the Code. Therefore, if an application is made Under Section 167 for bail by an accused person who is detained in custody pending investigation, for a period exceeding 60 days, he is entitled to bail. But if pending such an application for bail, a charge-sheet is filed in the Court, the investigation comes to an end and so also the power of the Magistrate of granting bail to the accused under the provisions of Section 167(2).

11. Within two months or so of the decision of the Division Bench in Umedsinh's case : AIR1977Guj11 (supra), the Supreme Court decided the case of Natabar Parida v. State of Orissa : AIR1975SC1465 . There the Supreme Court compared the provisions of the Criminal P. C, 1898 and new Criminal P. C. of 1973 and in para 3 of the report at p. 1466, Untwalia, J. pointed out that the Supreme Court was not expected to examine afresh the question of releasing the appellants on bail on merits. But the question for consideration was whether the appellants were entitled to be released on bail under the Proviso (a) of Section 167(2) of the new Code. The facts of the case before the Supreme Court were that an occurrence took place on the 8th of March, 1974 at a place situated in the District of Cuttack, Orissa. First Information Report Was lodged on the 9th March, 1974 and a police investigation started in connection with the offences alleged to have been committed Under Sections 147, 148, 307, 302 simpliciter as also with the aid of Section 149 of the Penal Code, The four appellants before the Supreme Court Were arrested by the police in the course of the investigation on 10th March and four others who had been enlarged on bail by the Sessions Judge were arrested on 14th March. They were produced before the Magistrate who remanded them to jail custody from time to time. The learned Sessions Judge released on bail four of the accused but refused to grant bail to the appellants before the Supreme Court. An argument based on Proviso (a) to Sub-section (2) of Section 167 of the Criminal P. C. was rejected by the Sessions Judge relying on the saving Clause (a) of Sub-section (2) of Section 484. The Orissa High Court repelled the argument put forward on behalf of the appellants in support of their demand for bail and thereafter the matter was taken before the Supreme Court by special leave and as pointed out earlier, the Supreme Court considered the question only from the point of view of Section 167(2) proviso Clause (a) and not on merits.

12. In para 5 at page 1467, Untwalia J, speaking for the Supreme Court, pointed out that various High Courts had taken the view Under Section 344 of the old Code that the Magistrate having jurisdiction to try a case could remand an accused to jail custody from time to him during the pendency of the investigation in exercise of the power Under Section 344, It has also been pointed out that S, 309 of the new Code of 1973 is equivalent to a part of the old Section 344. The majority view was as stated above whereas the Orissa High Court had taken the contrary view, but the Supreme Court emphasized that the Court will have no inherent power of remand of an accused to any custody unless the power is conferred by law and it cannot be assumed that such inherent power to remand any accused person to custody exists independently of the provisions of Section 344 of the old Code or section 309 of the new Code. In para 6 of the earlier decisions in A. Lakshmanrao v. Judicial Magistrate : 1971CriLJ253 and Gouri Shanker Jha v. State of Bihar, : 1972CriLJ505 , were relied upon. In A. Lakshmanrao's case it was argued before the Supreme Court that Section 344 falling in Chapter XXIV of the old Code which contained general provisions as to enquiries and trials could not apply to a case which was at the stage of investigation and collection of evidence only, and the Supreme Court repelled that argument by observing :

This argument appears to us to be negatived by the express language both of Sub-section (1-A) and the explanation. Under Sub-section (1-A) the commencement of the inquiry or trial can also be postponed. This clearly seems to refer to the stage prior to the commencement of the inquiry. The explanation makes it clear beyond doubt that reasonable cause as mentioned in Sub-section (1-A) includes the likelihood of obtaining further evidence during investigation by securing a remand, The language of Section 344 is unambiguous and clear and the fact that this section occurs in Chapter 24 which contains general provisions as to inquiries and trials does not justify a strained construction.

In Gouri Shankar Jha's case 1972 Cri LJ 505 (SC), Shelat J. delivering the judgment on behalf of the Court pointed out (Para 11):

In cases falling Under Section 167, a magistrate undoubtedly can order custody for a period it the most of fifteen days in the whole and such custody can be either police or jail custody. Section 344, on the other hand, appears in Chap. XXIV which deals with inquiries and trials. Further, the custody which it speaks of Is not such custody as the magistrate thinks fit as in Section 167, but only jail custody, the object being that once an inquiry or a trial begins it is not proper to let the accused remain under police influence. Under this section, a magistrate can remand an accused person to custody for a term not exceeding fifteen days at a time provided that sufficient evidence has been collected to raise a suspicion that such an accused person may have committed an offence and it appears likely that further evidence may be obtained by granting a remand.

It was further pointed out in Gouri Shankar Jha's case (Para 12);

The fact that Section 344 occurs in the Chapter dealing with inquiries and trials does not mean that it does not apply to cases in which the process of investigation and collection of evidence is still going on.' In para 7 Untwalia J. summarised the position thus :It would thus be seen that under the old Code the Magistrate was given the power Under Section 344 to remand an accused to jail custody as the section was also applicable to cases in which process of investigation and collection of evidence was going on. In other words, the power of remand by the Magistrate during the process of investigation and collection of evidence was an integral part of the process. The power was meant to be exercised whenever necessary, to aid the investigation and collection of further evidence.

In para 8 in Natabar Panda's case 1975 Cri LJ 1212, Untwalia, J. observed as under:

Although the expression 'reasonable cause' occurring in Sub-section (1-A) of Section 344 is nowhere to be found in section 309 of the new Code, the explanation to Section 344 of the old Code has been retained in Explanation I to section 309 in the identical language. The law as engrafted in Proviso (a) to Section 167(2) and section 309 of the new Code confers the powers of remand to jail custody during the pendency of the investigation only for the former and not under the latter. section 309 (2) is attracted only after the cognizance of an offence has been taken or commencement of trial has proceeded. In such a situation what is the purpose of Explanation 1 in section 309 is not quite clear. But then the command of the Legislature in Proviso (a) is that the accused person has got to be released on bail if he is prepared to and does furnish bail and cannot be kept in detention beyond the period of 60 days, even if the investigation may still be proceeding. In serious offences of criminal conspiracy murder's, dacoities, robberies by inter-state gangs or the like, it may not be possible for the police, in the circumstances as they do exist in the various parts of our country, to complete the investigation within the period of 60 days. Yet the intention of the Legislature seems to be to grant no discretion to the Court and to make it obligatory for it to release the accused an bail., Of course, it has been provided in Proviso (a) that the accused released on bail under S, 167 will be deemed to be so released under the provisions of Chapter XXXIII and for the purposes of that Chapter, That may empower the Court releasing him on bail, if it considers necessary so to do, to direct that such person be arrested and committed to custody as provided in Sub-section (5) of section 437 occurring in Chapter XXXIII. It is also clear that after the taking of the cognizances the power of remand is to be exercised Under section 309 of the new Code. But if it is not possible to complete the investigation within a period of 60 days then even in serious and ghastly types of crimes the accused will be entitled to be released on bail Such a law may be a 'paradise for the criminals', but surely it would not be so, as sometimes it is supposed to be because of the Courts. It would be so under the command of the Legislature.

(Emphasis supplied).

Thus, it is clear that if it is not possible to complete the investigation within a period of ninety days, even in serious and ghastly types of crimes, the accused will be entitled to be released on bail. Any reference to the provision relating to bail occurring in Section 167(2) proviso is merely with a view to enable the prosecution if necessary to apply that the person released on bail Under Section 167(2), Proviso (a) be taken back in custody. It is necessary to emphasize that the only custody which is spoken of in section 309 of the new Code is jail custody but if it is not possible to complete the investigation within a period of sixty days or ninety days the accused will be entitled to be released on bail, provided of course that he is prepared to and does furnish bail and cannot be kept in detention beyond the period of ninety days, under Clause (i) of para, (a) of the proviso to Section 167(2).

13. In Bashir v. State of Haryana AIR 978 SC 55 : 1978 Cri LJ 173 the Supreme, Court pointed out that the power of the Court to cancel bail if it considers it necessary is preserved in cases where a person has been released on bail Under section 437 (1) or (2) and these provisions are applicable to a person who has been released Under Section 167(2). The fact that before an order was passed Under Section 167(2) the bail petitions of the accused were dismissed on merits is not relevant for the purpose of taking action Under section 437 (5). Neither is it a valid ground that subsequent to release of the accused a challan was filed by the police, The Court before directing the arrest of the accused and committing them to custody should consider it necessary to do so Under section 437 (5), This may be done by the Court coming to the conclusion that after the challan had been filed there are sufficient grounds that the accused had commited a non-bailable, offence and that it is necessary that he should be arrested and committed to custody. It may also order arrest and committal to custody on other grounds such as tampering of the evidence or that his being at large is not in the interests of justice. But It is necessary that the Court should proceed on the basis that he has been deemed to have been released Under section 437 (1) and (2). In the case before the Supreme Court, bail was cancelled and the appellants before the Supreme Court were arrested, but arrested and committed only on the ground that subsequently a charge-sheet was filed and that before the appellants were directed to be released Under Section 167(2), their bail petitions were dismissed on merits by the Sessions Court and the High Court. Kailasam J. speaking for the Supreme Court observed at page 58 of the report:

The fact that before an order was passed Under Section 167(2) the bail petitions of the accused were dismissed on merits is not relevant for the purpose of taking action Under section 437 (5). Neither is it a valid ground that subsequent to release of the appellants a challan was filed by the police. The Court before directing the arrest of the accused and committing them to custody should consider it necessary to do so Under section 437 (5). This may be done by the Court coming to the conclusion that after the challan had been filed there are sufficient grounds that the accused had commited a non-bailable offence and that it is necessary that he should be arrested and committed to custody.

14. It is clear that the two decisions of the Supreme Court in Natabar Parida's case 1975 Cri LJ 1212 (supra) and in Bashir's case (supra) proceed on the footing that the provisions of Section 167(2) are provisions relating to bail and to quote from the decision of Dua J. in A. Lakshmanrao's case 1971 Cri LJ 253 (supra), the fact that Section 167(2) occurs in Chapter XII which deals with information to police and (heir powers to investigate, does not justify a strained construction to be placed on the provisions of Section 167(2), once it in found that the language of Section 167(2) is unambiguous and clear.

15. It is clear that so far as section 209 is concerned, the powers of remanding the accused to custody when the Magistrate takes cognizance or when the case is exclusively triable by the Court of Session the power of committing the accused to custody, are all subject to the provisions of the Code relating to bail. It is true that Chapter XXXIII of the Code is headed 'Provisions as to bail and bonds' but if the Legislature wanted that the provisions of the Code relating to bail referred to in section 209 should only be the provisions of Chap. XXXIII, the Legislature would have mentioned the provisions of Chapter XXXI11 instead of referring to the generic phrase 'provisions of the Code relating to bail'.

16. It cannot be gainsaid that Section 167 of the Criminal P. C. in para 2 and particularly proviso Clause (a) provides for bail and is one of the provisions relating to bail. It may be pointed out that after the amendment Act of 1978, para (a) of the proviso to Sub-section (2) of Section 167 splits up the case into sixty days and ninety days, whereas before the amendment of 1978 the period was only sixty days. So far as Expln. I to Section 167(2) proviso is concerned, it is clear that the accused shall be detained in custody so long as he does no) furnish bail but the right of the accused of the entitlement of the accused to be released on bail is clear once the period of ninety days from the accused being first presented before the Court is over. The accused has to show his preparedness to furnish bail and has to furnish bail. On the facts of the case before us, the accused was presented before the Magistrate for the first time after his arrest on October 22, 1980. Therefore, counting nine days of October, thirty days of November, thirty-one days of December, 1980 und twenty days of January 1981, the period of ninety days expired on January 20, 1981 and to use the words of para, (a) of the proviso to Section 167(2), no Magistrate can authorise detention of the accused person in jail custody beyond the period of ninety days, that is, beyond Jan. 20, 1981, on. the facts of this case. The right is absolute and clear. It may be pointed out that Under Section 167 the investigating officer is required to complete this investigation within twenty-four hours from the accused person being arrested and detained in custody. If the investigation cannot be so completed, he is to be produced before the nearest Magistrate after twenty-four hours and the Magistrate can remand the accused in custody or in police custody if the facts of the case require, for a period of fifteen days. From time to time the Magistrate concerned may remand the accused to police custody or jail custody, as the case may be, but the period of jail custody will be after the first initial period of fifteen days. But on the expiry of the period of ninety days the accused person has to be released on bail if he is prepared to and does furnish bail and every person released on bail under this Sub-section (shall be deemed to be re/ leased under Chapter XXXIII for the purposes of that Chapter. The Supreme Court in the two cases which we have mentioned above in the course of their judgments clearly indicated that the deeming fiction is for the purpose of enabling the prosecution to apply to the Court and empowering the Court to cancel the bail and to take the concerned accused in custody if the requirements of Sec-lion 437 (5) are met.

17. As the Supreme Court has pointed out, the power of remanding into custody is to be found in section 309 but ultimately that is in the source of the power through which, even [during the pendency of investigation, the accused can be remanded into jail custody.

18. The decision in Bashir's case 1978 Cri LJ 173 (supra) brings out the legal position that even if bail has been refused on the merits of the case, the case has to be considered purely in the light of Section 167(2) proviso when the period of ninety days is over. Mere subsequent filing of charge-sheet will not authorise the accused being taken back in custody and, as Untwalia J. pointed out in Natabar Parida's case 1975 Cri LJ 1465 (supra), the only question before the Supreme Court was whether the appellants were entitled to be released on bail under proviso (a) to Section 167(2) of the Code of 1973 if (he conditions laid down in Section 167(2) Proviso (a) were satisfied.

19. The Division Bench deciding Umed-sinh's case : AIR1977Guj11 (supra) had not the benefit of decision of the Supreme Court in Natabar Parida's case 1975 Cri LJ 1465 (supra) since the case was decided by the Supreme Court subsequent to the decision in Umedsinh's case and the decision in Bashir's case 1978 Cri LJ 173 (supra) came only in October 1977.

20. It was contended by Mr. Shah, learned Public Prosecutor appearing for the State, that in view of Explanation I to Section 167(2) proviso and in view of section 209, once the charge-sheet is filed and the investigation comes to an end, the Court can grant bail only Under section 437 of the Criminal P. C.

21. This contention of Mr. Shah cannot be accepted because the reference to the provisions of the Code relating to bail in section 209 (a) contains reference also to Section 167(2)(a) and once the period of ninety days is over, as Untwalia J. pointed out, by virtue of the command of the Legislature the accused concerned has got to be released on bail if he is prepared to and does furnish bail. We want to bring to the notice of all subordinate Courts, and particularly the Magistrates concerned, that once the period of ninety days or sixty days is over and an application has been made on behalf of the accused showing his preparedness to furnish bail, the order must be passed without any delay to enlarge the accused on bail on such terms and conditions as the Magistrate deems proper. The power of the Magistrate to remand the accused to jail custody comes to an end with the expiry of ninety days or sixty days from the date when the accused was first produced before the Magistrate after his arrest in accordance with Section 167(1). That basic restriction on the power of the Magistrate to authorise detention of the accused concerned in jail custody must operate once the period of ninety days or sixty days expires. That if the command of the Legislature and, if that is so, the fact that Section 167(2)(a) occurs in the Chapter relating to investigation and trial is totally immaterial. Under section 309, Sub-section (2), after first taking cognizance of the offence the Court may by a warrant remand the accused if in custody, but that power or remand has to be read in the light of the right of entitlement of the accused to be released on bail once the period of ninety days or sixty days mentioned in Section 167(2)(a) comes to an end. This is the only way in which the provisions of Sections 167, 209 and 30S can be reconciled. The mandate or the command of the Legislature, as set out in Section 167(2)(a), cannot be overlooked where considering the question of custody and, at Dua J. pointed out in A. Lakshmanrao's case 1971 Cri LJ 253 (supra), Expln. I to Section 30? indicates that the power of remand partially spoken of in section 309 at least refers to remand in jail custody during the pendency of the investigation.

22. Under these circumstances, the conclusion of the Division Bench in Umedsinh's case (AIR 1977 Guj II) (supra) that once the charge-sheet is filed, investigation being over, the power of enlarging the accused on bail Under Section 167(2)(a) comes to an end, is no longer good law in view of the decision of the Supreme Court in Natabar Parida's case 1975 Cri LJ 1465 (supra) and Bashir's case 1978 Cri LJ 173 (supra).

23. If Umedsinh's decision is correct, as contended by the learned Public Prosecutor, it would raise many questions as to whether the Magistrate could not dispose of the application of the accused Under Section 167(2) on valid and justifiable grounds before charge-sheet was filed so that the Magistrate's power Under Section 167(2) came to an end. What the Legislature intended and directed to be the outside limit, namely, ninety days or sixty days, can be converted in such cases to conferring power on the investigating officer to delay the completion of the investigation, when the whole scheme as set out in Section 167 is that the investigation should be completed as early as possible. To pre vent any such abuse of the power to carry on the investigation, the right or the entitlement conferred on the accused to be released on bail after ninety days, must be considered to be an absolute right, subject of course to the cancellation of the bail if the requirements of section 437 (5) are satisfied.

24. We have already indicated by our order dated March 3, 1981 that this special criminal application is allowed and the rule is made absolute. There will be no order as to costs.

25. After the above judgment is pronounced, the learned Public Prosecutor Mr. M. B. Shah applies for a certificate for leave to appeal to the Supreme Court under Article 134(1) of the Constitution. In our opinion, since we have decided the matter in the light of the two decisions of the Supreme Court in Natabar Parida's case 1975 Cri LJ 1212) (supra) and Bashir's case 1978 Cri LJ 173 (supra) there is no longer any substantial question of law surviving in this case. Hence the oral application is rejected.


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