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TMI Blog2008 (1) TMI 765X X X X Extracts X X X X X X X X Extracts X X X X ..... ainder Rs. 50,00,000/-after three months of the first deposit. On these conditions the Petitioner was admitted to bail on his furnishing a Personal Bond in the sum of Rs. 50,000/-with one surety in the like amount to the satisfaction of the Trial Judge. In the event, this Bail Order has not been availed of by the Petitioner. Instead, he had assailed the Order dated 4-12-2007 by way of a Special Leave Petition (SLP), which has been withdrawn on 7-1-2008. The contention of Mr. S.S. Gandhi, learned Senior Counsel for the Petitioner before us, is that the Apex Court had clearly enunciated that conditions in the nature of a deposit could not be passed while enlarging an accused on bail. We are not concerned with the legal propriety of the Order dated 4-12-2007 of the learned Single Judge. 3. A Bail Application under Section 167(2) of the Cr. PC was filed in the Court of ACMM on 24-12-2007. The learned ACMM issued notice on the application, returnable for 4-1-2008. In the interregnum, on 26-12-2007, the present Writ Petition was filed in this Court. We have heard detailed arguments. 4. Mr. Aggarwala, learned counsel for the Respondents, has attacked the very maintainability of the pr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ithin sixty days, or 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. We may immediately record that Mr. Aggarwala has correctly confirmed that the appropriate period in the present case is sixty days since the offence for which the Petitioner is charged is punishable for a maximum period of seven years under Section 9 and 9AA of the Central Excise Act, 1944. 7. The effect of Section 167(2) of the Cr. PC is that where the investigation is not concluded even within the period of sixty days or ninety days, as the case may be, the accused has a statutory right to be released on bail if he is prepared to and does furnish bail. In other words, his personal liberty must be restored forthwith. However, there is always a clear and present danger of an accused absconding or rendering himself untraceable with a view to frustrating the Trial. It is for this reason that he is required to comply with the terms of bail. When law prescribes the furnishing of sound sureties it does so not by way of penalty but entirely to ensure that an accused participates in the Trial; so that he can be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the accused for an offence under TADA acquires the right to be released on bail, in terms of Proviso (a) to Section 167(2) of the Code. It need not be pointed out or impressed that in view of series of judgments of this Court, this right cannot be defeated by any Court, if the accused concerned is prepared and does furnish bail bonds to the satisfaction of the Court concerned. Any accused released on bail under proviso (a) to Section 167(2) of the Code read with Section 20(4)(b) or Section 20(4)(bb), because of the default on the part of the investigating agency to conclude the investigation, within the period prescribed, in view of proviso (a) to Section 167(2) itself, shall be deemed to have been so released under the provisions of Chapter XXXIII of the Code. It cannot be held that an accused charged of any offence, including offences under TADA, if released on bail because of the default in completion of the investigation, then no sooner the chargesheet is filed, the order granting bail to such accused is to be cancelled. The bail of such accused who has been released, because of the default on the part of the investigating officer to complete the investigation, can be cancelle ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. As such now it is not open to the appellants to claim bail under proviso (a) to Section 167(2) of the Code. Admittedly charge-sheet has been submitted against the appellants, and they are in custody on the basis of orders of remand passed under other provisions of the Code and at this stage proviso (a) to Se ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ies, by persons ordered to be released on bail. One of the provisions relating to bonds is Section 445 which enables the court to accept the deposit of a sum of money in lieu of execution of a bond by the person required to execute it with or without sureties. If the bond is executed (or the deposit of cash is accepted), the court admitting an accused person to bail is required by Section 442(1) to issue an order of release to the officer-in-charge of the jail in which such accused person is incarcerated. Sections 441 and 442, to borrow the language of the Civil Procedure Code, are in the nature of the provisions for the execution of orders for the release on bail of accused persons. What is of importance is that there is no limit of time within which the bond may be executed after the order for release on bail is made. Very often accused persons find it difficult to furnish bail soon after the making of an order for release on bail. This frequently happens because of the poverty of the accused persons. It also happens frequently that for various reasons the sureties produced on behalf of accused persons may not be acceptable to the court and fresh sureties will have to be produced ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ent from Explanation I to the said Section. The proviso to sub-section (2) of Section 167 is a beneficial provision for curing the mischief of indefinitely prolonging the investigation and thereby affecting the liberty of a citizen (Uday Mohanlal Acharya). The aspect with which we are directly concerned is the impact that the Bail Order dated 4-12-2007 passed by the learned Single Judge has or does not have on the Bail Application under Section 167 and the relevance of the words availed of . 13. In Dr. Bipin the plea for ordinary bail had been refused upto the High Court. The Petitioner was arrested under the Narcotic Drugs and Psychotropic Substances Act, 1988 on 8-11-1993 and the Charge sheet was filed on 23-5-1994. The Appeal assailed the rejection of bail by the High Court on 19-4-1994. Section 167 was sought to be relied upon in hearings before the Apex Court in January, 1996. It was in those circumstances that the Court had formulated the query as to whether the accused who was entitled to be released on bail under proviso to sub-section (2) of Section 167 of the Code, not having made an application when such a right accrued, can exercise that right at a later stage of th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lhi 425 which was cited by the Petitioner before the learned ACMM. Our learned Brother, Badar Durezz Ahmed, J. noted that investigation had continued beyond the expiry of the mandatory period prescribed under Section 167(2). The bail application under Section 167(2) was allowed by the Metropolitan Magistrate. The Complainant intervened by filing an application for cancellation of bail, apprising the Court of the fact that a regular bail application had been previously declined. Our learned Brother observed that rejection of an application for bail which has been moved under Section 439 is quite different from releasing the Petitioner in terms of the statutory provisions under Section 167(2) . As we have already articulated, Section 167 is a canon complete in itself insofar as Bail-on-Default is concerned, and upon its being given by a deeming fiction, Chapter XXXIII kicks into operation. We cannot subscribe to the view taken in the Order of the Metropolitan Magistrate passed on 8-1-2008 to the effect that Batra does not apply for the reason that regular bail under Chapter-XXXIII, Cr. PC had been ranted by the learned Single Judge of this Court in terms of the Order dated 4-12-2007 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d must be enlarged on bail on his applying for bail under this provision at the earliest. 17. Considerable arguments had been generated on the question of imposition of conditions by the learned Single Judge. Our attention has been drawn to the use of these words inter alia under Section 437(3) and 438 (1) (b) (2) of the Cr. PC. We see no reason to make a distinction between the word conditions of bail or terms of bail either in the context of Section 167(2) or Chapter-XXXIII. They have been employed as synonymous of each other. In Sreenivasulu Reddy v. State of Tamil Nadu, VII (2000) CCR 96 the accused had already deposited a sum of Rupees 35 crore out of the Rupees 50 crore imposed in the Bail Order. Their Lordships had emphasised that while exercising jurisdiction under Section 438(2) of the Cr. PC, the Court ought only to impose such conditions/terms for enlarging an accused on bail as would ensure that the accused does not abscond. These conditions should not be intended or calculated to carry out and effect recoveries from the accused. In Sandeep Jain v. State of Delhi, I (2000) SLT 368 a direction to deposit Rs. 2 lacs apart from furnishing of a bond of Rs. 50,000 with two ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Section 167. We have already discussed this aspect above, and reiterate that Section 167 is in the nature of a pandect which regulates the grant of bail from the 61st/91st day as the case may be upto the presentation of the Chargesheet. If an application for bail is filed during this period it shall be dealt with entirely on its own. Since the law provides this remedy, a Habeas Corpus writ would be maintainable in very rare cases; such petition certainly cannot be used as a surrogate for a bail application under Section 167. If a party is dissatisfied with the Order passed under Section 167 the remedy is by way of an appeal and not by way of writ of Habeas Corpus, we clarify once again. Having said this, but mindful of the fact that we have extensively heard this Petition because of the legal complexities that have been raised before us, we do not consider it proper to dismiss this Petition with a direction to the Petitioner to file an appeal against the Order dated 7-1-2008. We must perforce keep in perspective the fact that the personal liberty of a citizen is a Fundamental Right guaranteed under the Constitution of India. Legal punctilio and procedure cannot defeat or delay such ..... X X X X Extracts X X X X X X X X Extracts X X X X
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