M.B. Shah, J.
1. Being aggrieved and dissatisfied by the judgment and order dated 2nd August 1984 passed by the Judicial Magistrate, First Class, Wadhwan in Criminal Case No. 269 of 1984 releasing the respondents on bail under Section 167(2) of the Criminal Procedure Code, the State has filed this revision application.
2. Before dealine with the point in controversy it would be necessary to narrate few facts. On 19th January 1984 the incident is alleged to have taken place whereby one Umarbux Mohmedsadiqbux was abducted from Surat and was brought in Fiat car to Ahmedabad. From Ahmedahad he was taken to Surendranagr side where he was murdered by revolver shot. On this allegation a complaint was filed at Wadhwan Police Station in District Surendranagar. It is the prosecution version that the accused-respondents were absconding. On 10th March 1984 the respondents were arrested at Amirgadh, Taluka Amirgadh, District Banaskantha, for an offence punishable under Section 307 of the Indian Penal Code for causing injuries to two Police Constables. It is alleged that at that time the respondents had used a revolver and tired against the Police Constables who had stopped the car on suspicion. On 16th March 1984 the respondents were produced before the Chief Judicial Magistrate, Palanpur for the offence under Section 302 of the Indian Penal Code. The Chief Judicial Magistrate had remanded the accused persons to the police custody. On 25th June 1984 the investigating officer had submitted the charge-sheet before the Judicial Magistrate, Wadhwan. Thereafter an application dated 30th June 1984 presented before the Court on 23rd July 1984 that as the charge-sheet was not filed within 90 days, hence the accused-respondents are entitled to be released on bail as a matter of right in view of the Full Bench decision of this Court in the case of Babubhai Parshottamdas v. State reported in 22 G.L.R. 1232 (F.B.).
3. This application filed by the respondents was strongly opposed by the police prosecutor. The concerned investigating P.I., C.I.D. Crime Branch has filed a detailed affidavit narrating the facts that the accused are the head strong persons; they are involved in number of cases; they are big smugglers and they have large group. It is further alleged that if the accused are released on bail, there would be further bloodshed. In affidavit-in-reply it was pointed out that under the Gujarat Amendment of Section 167 of the Criminal Procedure Code when the investigation relates to an offence punishable with death, imprisonment for life or imprisonment for a term of not less than 10 years, then the Magistrate has jurisdiction to authorise the detention of the accused persons in Judicial custody upto a period of 120 days.
4. The learned Judicial Magistrate, Wadhwan, held that he was bound to follow the decision of the Full Bench of the High Court and, therefore, he is required to release the accused on bail. In paragraph 5 he no doubt took into consideration the fact that the allegation against the accused Alamzebkhan is that he was a professional killer, but he held that Judiciary cannot take into consideration the reports published in the newspaper. He held that even if it was believed that the accused are hardened criminals, they are entitled to be released on bail under Section 167(2) of the Criminal Procedure Code.
5. After this decision of the Full Bench in the case of Babubhai Parshotamdas (supra), the Supreme Court in the case of State of U.P. v. Lakshmi Brahman : 1983CriLJ839 has considered the point that even if the charge-sheet is submitted after 90 days before release of accused, then it is not necessary that the accused should be released on bail. The Supreme Court has reversed the decision of the Allahabad High Court by holding that Magistrate has jurisdiction to authorise the detention of an accused in custody under Section 309 of the Criminal Procedure Code after charge-sheet is submitted. In paragraph 5 of the decision the Supreme Court has held as under:
In this appeal, we are concerned with Section 167 hereinabove extracted. The High Court after examining the scheme of Section 167(1) and (2) with the proviso rightly concluded that, on the expiry of 60 days from the date of the arrest of the accused, his further detention does not become ipso facto illegal or void, but if the charge-sheet is not submitted within the period of 60 days, then notwithstanding anything to the contrary in Section 437(1), the accused would' be entitled to an order for being released on bail if he is prepared to and does furnish bail.
6. In paragraph 6 of this decision the Supreme Court has quoted the view of the High Court as follows. I am quoting this because it is necessary as the Full Bench of this High Court has taken exactly identical view.
The High Court then combed other provisions of the Code, and, ultimately, concluded that since the 1973 Code does not envisage a preliminary enquiry to be held by the Magistrate under Chapter XVI, the Magistrate is not expected to hold any enquiry before committing the accused to the Court of Session nor is he competent to try the accused and therefore Section 309 Would not enable him to remand the accused to custody.... The High Court held that as the Magistrate before whom the charge-sheet was submitted remanded the respondents to custody without making the order of commitment, the order remanding the accused, to custody, cannot be sustained under Sections 167(2), 209, 309 of the Code, and no other provision under which the respondents could be remanded to the custody at that stage having been indicated to the Court, the High Court considered it a compelling necessity to accede to the request of the respondents to direct that they should be released on bail.
7. The Supreme Court thereafter in terms held that the function of the Magistrate under Sections 207 and 209 of the Criminal Procedure Code is a judicial function and it has to be either an inquiry or a trial because the Code does not envisage discharge of judicial function by the Magistrate under the Code in any other manner. It held that the Finding of the High Court that it cannot be said that the provisions contained in Sections 204, 207 to 209 of the Code contemplate an inquiry under the Code, is not only not borne out by the relevant provisions of the Code but it overlooks the scheme of the sections and tie purpose underlying the same. Thereafter in paragraph 12 the Court held that in the case of an offence exclusively triable by the Court of Session, the police report on completion of the investigation has to be submitted to the Magistrate having jurisdiction to commit the accused for trial and it is the Magistrate who takes the cognizance of an offence and,' not the Court of Session. Therefore, when the Magistrate receives the report and the accused is produced before him, it is necessary for him to pass some order for his further detention subject to the provisions contained in Chapter XXXIII as to Bails and Bonds. In paragraph 13 the Court further held that if the Magistrate is holding the inquiry as contemplated under Sections 207 and 209 of the Criminal Procedure Code, then obviously Section 309 would enable the Magistrate to remand the accused to the custody till the inquiry to be made is complete. The Court further held as under:
Sub-section (2) of Section 309 provides that if the Court after taking cognizance of an offence or commencement of trial, finds it necessary or advisable to postpone the commencement 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 a warrant remand the accused if in custody. There are three provisos to Sub-section (2) which are not material. If, therefore, the proceedings before the Magistrate since the submission of the police report under Section 170 and till the order of commitment is made under Section 209 would be an inquiry and if it is an inquiry, during the period, the inquiry is completed, Section 309(2) would enable the Magistrate to remand the accused to the custody.
The Supreme Court thereafter held that the following view taken by the Allahabad High Court was erroneous:
the order remanding the respondents to custody, made after cognizance of offence was taken, cannot be justified under Sections 167(2), 209 and 309 of the code and no other provision under which the respondents can be remanded to custody at this stage, having been indicated by the learned Govt. advocate, we feel that it would be proper to accede to the request made by the respondents and to direct that they would be released on bail after furnishing adequate security to the satisfaction of the Chief Judicial Magistrate, Banda.
8. The Full Bench has also taken the view similar to that of Allahabad High Court in the case of Babubhai Parshottamdas (supra). In paragraph 22 the Full Bench has held as under:
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 Magistrates to authorise detention of the accused concerned in jail custody must operate once the period of ninety days or sixty days, expires. That is 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 of 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 309 can be reconciled.
The Full Bench has emphasized that 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 the power of remand has to be 'read in the light of I he 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.' The Supreme Court in the aforesaid case has in terms taken the contrary view by holding that if the charge-sheet is submitted and pending inquiry till the: order of commitment is made under Section 209, the Magistrate is empowered to remand the accused in custody under Section 309(2) of the Code and the view of the Allahabad High Court that the remand of the accused to custody made after cognizance of the offence was taken cannot be justified under Sections 167(2), 209 and 309 of the Code, was expressly overruled.
9. Further, the Full Bench has relied upon the decision of the Supreme Court in the case of Gouri Shankar v. State of Bihar : 1972CriLJ505 With regard to this decision, in paragraph 15 the Supreme Court has held that the aforesaid case is of no assistance because it dealt with the situation under the Code of Criminal Procedure, 1898 which did require the Magistrate to be satisfied with prima facie case before an order committing an accused to the Court of Session could be made.
10. The Supreme Court has further set aside the decision of the Allahabad High Court on the additional ground that the view taken by the High Court introduces a stage of compulsory bail not envisaged by the Code, In the case of Bububhai Parshottamdas (supra) the Full Bench also held in paragraph 23 as under:
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 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 prevent 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.
The Supreme Court in terms has stated that there is no such absolute right to be released on bail and it has held that the view of the Allahabad High Court which introduces the stage of compulsory bail was not envisaged by the Code.
11. In view of the legal position as enunciated in the case of Lakshmi Brahman (supra) the view taken by this Court in the case of Babubhai Parshottamdas (supra) is no longer good law. It cannot be said that if charge-sheet is submitted after 90 days or 60 days as the case may be, the accused should be released on bail and that the accused has an absolute right to be released on bail.
12. In this view of the matter, the judgment and order passed by the learned Magistrate without taking into consideration the above Supreme Court decision is on the face of it illegal and erroneous.
13. The learned Additional Government Pleader for the petitioner-State relied upon the Full Bench decision of the Patna High Court in the case ofRabindra Rai v. State of Bihar 1984 Cri. L.J. 1412, in which it is held as under:
Apart from that, I have not been able to 'appreciate as to' how the petitioner can claim today that he is entitled to be released on' bail on the ground of alleged illegal detention between 14-1-1983 and 17-1-1983. Now the petitioner is in jail custody on basis of orders of remand passed from time to time in terms of Section 309(2) of the Code. There is 'no dispute) that for the present Sub-section (2) of Section 309 is applicable and the Magistrate has power under that Sub-section to remand the petitioner to custody from time to 'time till the order of commitment is passed. There is an impression in some section that if an accused was entitled to bail under proviso (a) to Sub-section (2) of Section 167 of the Code at one stage, or if for some time his detention was not under a valid order of remand, then he can enforce his right to be released on bail even at a later stage of the proceeding, (In my view, this is a misconceived stand. When proviso (a) to Sub-section (2) of Section 167 says that after expiry of the period of 'ninety days or sixty days, as the case may be, an accused, who is in custody, shall be released on bail, it does not mean to say that, thereafter, his detention in custody is 'illegal or without an authority of law. If detention of an accused after the statutory period is held to be illegal or without authority of law, then there is no question 'of his releasing on bail on furnishing security to the satisfaction of the Court concerned. He has to be released outright. Does proviso (a) to Sub-section (2) of Section 167 contemplate release of an accused after the statutory period of detention where the accused concerned tails to furnish security to the satisfaction of the court? The answer is in negative.
The Patna High Court has also followed the decision of the Supreme Court in Lakshmi Brahman's Case (supra) and, therefore, I do not think that it is necessary to deal with this decision at length.
14. The learned Advocate for the respondents vehemently submitted that as the Sessions Case is fixed before the learned Sessions Judge, the bail should not be cancelled. Even in the aforesaid case of Lakshmi Brahman the Supreme Court has ultimately held that if the trial is not over, then the accused should be taken into custody. Apart from it, here in this case it is abundantly clear that the learned Magistrate would not have released the respondents on bail but for the fact that charge-sheet was submitted beyond the prescribed period of 90 days. On no other ground the learned Magistrate has released the respondents on bail. On the contrary, the learned Magistrate has observed that allegation against the respondent No. 1 is that he is a professional killer and 'even if it is believed that the accused were hardened criminals, yet there was no alternative for him but to release the accused in view of the aforesaid decision of the Full Bench.
15. The learned Advocate for the respondents further submitted that after the release of the respondents it is not alleged by the investigating officer that some untoward incident has occurred and that there was no allegation that witnesses were tampered with by the respondents, hence there is no question of cancellation of bail. In my view, the submission of the learned Advocate for the respondents is totally misconceived in view of the fact that the learned Magistrate has released the accused solely on the ground that charge-sheet was submitted after 90 days.
16. From the record of the case it is apparent that the alleged incident took place on 19th January 1984. The investigating officers were not in a position to arrest the accused and that they were absconding. On 10th March 1984 the car of the accused was stopped near Amirgadh on some suspicion. There also it is alleged that the accused fired from the revolver and for that offence under Section 307 and other offences are registered against them. The accused were thereafter arrested and subsequently they were arrested and produced before the Magistrate for this offence which took place on 19th January 1984. So it is clear that the accused were absconding for nearly two months and but for the other incident which took place on 10th March 1984 it would have been difficult for the investigating officers to arrest the accused. Even the learned Magistrate has observed in paragraph 2 of the judgment that for strong security purpose and for various offences the accused persons are confined in judicial custody. In affidavit-in-reply filed by the P.I. before the learned Sessions Judge before whom the accused were subsequently produced, it is pointed out that against the respondents in all there are 11 cases registered for various offences. The following is the list of alleged cases filed against the respondents
(1) Nagpada Police Station 853/75 under Section 397-457 etc. I.P.C.
(2) Dongri Police Station 438/77 under Section 452, 467, 302-101 etc.
(3) Nagpada Police Station 520/78 under Section 147-148-149-430, I.P.C.
& 25A & 27 of Arms Act
(4) Nagpada Police Station 493/79 under Section 324-114 etc. I.P.C.
(5) Nagpada Police Station 660/79 under Section 342-346-347-348-364-
365-307-34 etc., I.P.C.
(6) Nagpada Police Station 690/79 under Section 324-114 etc. I.P.C.
(7) Nagpada Police Station 495/80 under Section 307-332-333 l.P.C. &
25-27 etc. of Arms Act.
(8) D.C.B.C.I.D. 58/80 under Section 120-B.I.P.C.
(9) D.C.B.C.T.D. 422/82 under Section 395-397 I.P.C.
(10) D.C.B.C.T.D. 474/82 &) under Section 120-B, 1302-143-
574/82) 146-147-427 T.P.C., & 25A of
Arms Act etc.
(11) Gaikwad Haveli 158/83 under Section 307-120-B.I.P.C.
AhmedabadCity 135(1) B.P. Act & 25(1), A.
Police Station. Indian Arms Act.
It is further stated that in 5 cases after the respondent No. 1 was released on bail, he had not remained present before the Court when required. 'It is further alleged in the affidavit filed on behalf of the investigating officer that respondent No. 1 was having a gang of smugglers and was carrying on other illegal activities and that there is enmity with the gang of one Daud Ibrahim Shaikh.
17. The learned Advocate for the respondents relied upon the decisions of the Supreme Court in the cases of Delhi Admn. v. Sanjay Gandhi : 1978CriLJ952 Gudikanti Narasimhulu v. Public Prosecutor, A.P., : 1978CriLJ502 Gurcharm Singh v. State A.I.R. 1978 Supreme Court 179. and Baba Singh v. State of U.P. : 1978CriLJ651 and Bhagirathsinh Jadeja v. State of Gujarat : 1984CriLJ160 As against this, the learned Additional Public Prosecutor relied upon the decisions of the Supreme Court in the case of State v. Jagjit Singh : 3SCR622 Gurcharan Singh v. State A.I.R. 1978 Supreme; Court 179, Gudikanti Narasimhuln v. Public Prosecutor A.P. : 1978CriLJ502 and also the decision of the Supreme Court in the case of State v. Jaspal Singh Gill, 1984 Cri. L.J. 1211, and particular paragraph 9 thereof relevant portion of which reads as under:
On a consideration of the above three decisions, I am of the view that the Court before granting bail in cases involving non-bailable offences particularly where the trial has not yet commenced should take into consideration various matters such as the nature and seriousness of the offence, the character of the evidence, circumstances which are peculiar to the accused, a reasonable possibility of the presence of the accused not being secured at the trial, reasonable apprehension of witnesses being tampered with, the larger interests of the public or the State and similar other considerations.
In my view it is not necessary to deal with all these decisions as the question in this case is whether the order passed by the learned Magistrate was legal or not.
18. After the learned Magistrate passed the order on 2nd August 1984 the case was committed to the Sessions Court, and the learned Sessions Judge, Surendranagar has released the accused on bail on 1-9-84. Those orders are also challenged. The learned Additional Public Prosecutor for the petitioner-State submitted that the accused were continued on bail because the learned Magistrate had passed the order releasing them on bail. It is apparent from the orders passed by the learned Sessions Judge that he has not considered the applications of the respondents on merits. He has passed the order that the accused-respondents be released on, bail on executing a bond of particular amount. He has not decided the applications of the respondents on merits. The learned Additional Public Prosecutor for the State submitted and tendered ,an affidavit staling that even before the Sessions Court the bail applications filed by the respondents were strongly opposed. Once the case was committed to the Sessions Court, the learned Sessions Judge was required to decide whether the accused should be kept in judicial custody or should be released on bail.
19. In view of the facts stated above, the orders passed by the learned Sessions Judge also require to be quashed and set aside and the learned Sessions Judge is directed to decide the bail applications filed by the respondents on merits after considering all the relevant materials at the earliest. In the result, the revision application is allowed. The judgment and order dated 2nd August 1984 passed by the Judicial Magistrate, First Class. Wadhwan, in Criminal Case No. 269/84 releasing the respondents on bail is quashed and set aside. The judgment and order dated 1st September 1984 releasing the respondents No. 1 & 3 on bail and the judgment and order dated 1st September 1984 releasing the respondent No. 2 on bail passed by the Sessions Judge, Surendranagar in Sessions Case No. 37/84 are quashed and set aside. It is directed that the learned Sessions Judge would decide the bail applications of the respondents on merits after hearing both the sides at the earliest.
20. The respondents-accused to surrender to custody forthwith. Rule made absolute. The learned advocate for the respondents at this stage submitted that the operation of this order be stayed for four weeks so that the respondents can approach the Supreme Court. This submission was vehemently opposed by the learned Additional Public Prosecutor for the State. He submitted that the investigating officer was present in the Court and that he apprehends that if the order is known to 'the. respondents, then immediately they would flee and it would be difficult for the investigating officer to again re-arrest them. The learned advocate for the respondents submitted that as the investigating officer 'has not filed such an affidavit, that should not be taken into consideration and till today no such apprehension was expressed by the learned Public Prosecutor. Considering the allegations against the respondents as narrated above and considering the fact that I have directed the learned Sessions Judge to decide the bail applications filed by the respondents at the earliest, I think that it is not necessary to stay the operation of this order as prayed for by the respondents. The request is, therefore refused.