2018 (9) TMI 1863 - SC - Indian Laws

Grant of Bail - Section 167(2) of the Code of Criminal Procedure - as on the expiry of 90th day i.e. on 07.07.2018 no report Under Section 173 of the Code was on record with the Magistrate - Can it be said that the investigation was complete for the purposes of Section 167(2) of the Code so as to deny the benefit to the Accused in terms of said provision? HELD THAT - The provision has a definite purpose in that; on the basis of the material relating to investigation, the Magistrate ought to be in a position to proceed with the matter. It is thus clearly indicated that the stage of investigation ought to be confined to 90 or 60 days, as the case may be, and thereafter the issue relating to the custody of the Accused ought to be dealt with by the Magistrate on the basis of the investigation. Matters and issues relating to liberty and whether the person Accused of a charge ought to be confined or not, must be decided by the Magistrate and not by the Police. The further custody of such person ought not to be guided by mere suspicion that he may have committed an offence or for that matter, to facilitate pending investigation. In the present case as on the 90th day, there were no papers or the charge-sheet in terms of Section 173 of the Code for the concerned Magistrate to assess the situation whether on merits the Accused was required to be remanded to further custody. Though the charge-sheet in terms of Section 173 came to be filed on 05.07.2018, such filing not being in terms of the order passed by the High Court on 03.07.2018, the papers were returned to the Investigating Officer. Perhaps it would have been better if the Public Prosecutor had informed the High Court on 03.07.2018 itself that the period for completing the investigation was coming to a close - In the absence of any such similar provision empowering the Court to extend the period, no Court could either directly or indirectly extend such period. In any event of the matter all that the High Court had recorded in its order dated 03.07.2018 was the submission that the investigation would be completed within two months by a Gazetted Police Officer. The order does not indicate that it was brought to the notice of the High Court that the period for completing the investigation was coming to an end. Mere recording of submission of the Public Prosecutor could not be taken to be an order granting extension. We thus reject the submissions in that behalf advanced by the learned Counsel for the State and the complainant. The Accused having shown their willingness to be admitted to the benefits of bail and having filed an appropriate application, an indefeasible right did accrue in their favour. The Appellants are entitled to be admitted to bail in terms of Section 167(2) of the Code on such conditions as the trial Court may deem appropriate - appeal allowed.

Summary

Issues Involved:
1. Correctness of the High Court's judgment and order dated 23.07.2018.
2. Compliance with the order for fair and impartial investigation.
3. Entitlement to bail under Section 167(2) of the Code of Criminal Procedure.
4. Interpretation of the High Court's order as an extension of the investigation period.

Issue-wise Detailed Analysis:

1. Correctness of the High Court's Judgment and Order Dated 23.07.2018:
The appeal challenges the High Court's judgment which rejected the petition for bail under Section 167(2) of the Code of Criminal Procedure. The High Court had determined that the time for filing the charge-sheet was extended by its order dated 03.07.2018, and since the charge-sheet was produced before the 90-day period but returned for non-compliance with the order, no case for bail was made out.

2. Compliance with the Order for Fair and Impartial Investigation:
An order dated 03.07.2018 by the High Court required the investigation to be conducted by a Gazetted Police Officer, not below the rank of Additional Superintendent of Police, and the report to be submitted within two months. The charge-sheet filed on 05.07.2018 was by a lower-ranking officer, thus not complying with the High Court's order. Consequently, the Magistrate returned the charge-sheet for due compliance.

3. Entitlement to Bail Under Section 167(2) of the Code of Criminal Procedure:
The appellants were in custody since 08.04.2018, and the investigation was to be completed by 07.07.2018. The charge-sheet filed on 05.07.2018 was returned due to non-compliance with the High Court's order. As of the 90th day (07.07.2018), no valid charge-sheet was on record. The appellants filed for bail under Section 167(2), which grants an indefeasible right to bail if the investigation is not completed within the stipulated period. The Supreme Court cited Uday Mohanlal Acharya v. State of Maharashtra, emphasizing that upon the expiry of the prescribed period, the accused is entitled to be released on bail if they are prepared to and furnish bail.

4. Interpretation of the High Court's Order as an Extension of the Investigation Period:
The Supreme Court examined whether the High Court's order could be construed as extending the investigation period. It concluded that the Code does not permit any extension of the investigation period. The High Court's order merely recorded the submission of the Public Prosecutor without explicitly extending the period. The Supreme Court rejected the argument that the High Court's order extended the investigation period, noting that the provisions of the Code do not empower any court to extend the investigation period.

Conclusion:
The Supreme Court allowed the appeal, holding that the appellants were entitled to bail under Section 167(2) of the Code, as no valid charge-sheet was on record by the 90th day. The Court directed that the appellants be admitted to bail on conditions deemed appropriate by the trial court. It also noted that this does not prevent the arrest or re-arrest of the appellants on cogent grounds, and they would be entitled to petition for regular bail in such an event. The appeal was thus allowed.