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TMI Blog1992 (9) TMI 362X X X X Extracts X X X X X X X X Extracts X X X X ..... fore 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 appellant 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 charge-sheet 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 it was open to the High Court to direct cancellat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that Chapter: At this stage we may mention that the State of Maharashtra has not made any amendment in the aforesaid provision. On a plain reading of this sub-section it becomes clear that the Magistrate to whom the accused is forwarded may authorise his detention in such custody as he may think fit for a term not exceeding 15 days in the whole. If the Magistrate has no jurisdiction to try the case or commit it for trial, and considers further detention unnecessary, he is required to order the accused to be forwarded to a Magistrate having jurisdiction. Such Magistrate may authorise his detention beyond the period of 15 days if adequate grounds exist but no Magistrate can authorise the detention of the accused persons in custody for a total period exceeding 90 days or 60 days as the case may be depending on the nature of the crime alleged to have been committed. The proviso, therefore, fixes the outer limit within which the investigation must be completed and if the same is not completed within the said prescribed period, the accused has a right to be released on bail if he is prepared to and does furnish bail. Where a person in released on bail in such circumstances under the s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f 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. (2) 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 empowers the Court which has released the person on bail under Sub-sections (1) or (2) to cause his arrest and commit him to custody, if it considers it necessary so to do. Section 439 empowers a High Court or a Court of Session to release any person accused of an offence and in custody on bail. Sub-section (2) next provides that a High Court or a Court of Session may direct that any person who has been releas ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t will be seen from the above scheme that the Code expects that once a person is arrested and detained in custody, the investigation must be completed as far as possible within 24 hours. If that is not possible, the arrested or detained person must be produced before the nearest Magistrate before the expiry of 24 hours excluding the time consumed during journey to the Magistrate's court. If the investigation cannot be completed within the said period of 24 hours, the Magistrate before whom the accused person is produced, whether he has or has not jurisdiction to try the case, can authorise his further detention in custody from time to time for a period not exceeding 15 days in the whole. If he has no jurisdiction to try the case or commit for trial and considers his further detention unnecessary, he must forward the accused to the Magistrate having jurisdiction. Such Magistrate may authorise the further detention of the accused person otherwise than in the custody of the police, beyond the period of 15 days if he is satisfied that adequate grounds exist for so doing. But even he cannot authorise the detention of the accused person in custody for a period exceeding 90 days, if t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ment w.e.f. 23rd September, 1980, vide Criminal Procedure (Amendment) Act, 1980. It is not necessary to note the background of the amendment but it is sufficient to state that once bail has been granted under that provision it can be cancelled and the accused person can be arrested and committed to custody if the court considers it necessary so to do. That is the import of Sub-section (5) of Section 437 of the Code. The circumstances in which the court will exercise the power of the cancellation of bail have been set out in a number of judgments of this Court to which we will have an occasion to refer a little later. At this stage it is sufficient to state that the Legislature has conferred on the court the power to grant bail as well as to cancel the same. Similarly Sub-section (1) of Section 439 empowers the High Court as well as the Court of Session to direct any accused person to be released on bail. Sub-section (2) thereof provides that the High Court or the Court of Session may cancel bail and direct that the person released on bail under Sub-section (1) be re-arrested and re-committed to custody. Here again the circumstances under which the court will exercise the power conf ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . Under Section 437(2) when a person is released pending inquiry on the ground that there are not sufficient grounds to believe that he had committed a non-bailable offence may be committed to custody by court which released him on bail if it is satisfied that there are sufficient grounds for so doing after inquiry is completed. As the provisions of Section 437(1), (2) and (5) are applicable to a person who has been released under Section 167(2) the mere fact that subsequent to his release a challan has been filed is not sufficient to commit him to custody. In this case the bail was cancelled and the appellants were ordered to be arrested and committed to custody on the ground that subsequently a chargesheet had been 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. 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 polic ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... arge-sheet the preventive detention order was served on the IPS officer and he was removed to Bhagalpur jail. The other four persons were also similarly detained in the same jail. These persons applied for bail under the proviso to Section 167(2) of the Code. The learned Magistrate granted bail but imposed a condition that the surety should be residents of Araria town. Ultimately these persons could secure sureties from Araria but could not be released as the preventive detention orders were in force. Subsequently the surety of all the five persons appeared in court and prayed to be discharged, whereupon the learned Magistrate passed an order discharging him and issued formal warrants of arrest under Section 444(2) of the Code. At this stage the detention order against the IPS officer came to be quashed. Subsequently the charge-sheet was filed in the court of the learned Magistrate by the police. The bail application of four of the accused was rejected and the High Court confirmed the same. The case was thereafter transferred to the Special Judge (Vigilance), Patna. The IPS officer moved an application offering cash security but it was rejected on the ground that the High Court had ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... umstances and situation, and the directions that we have now given for the expeditious disposal of the case, we do not think that we will be justified in exercising our discretion to interfere under Article 136 of the Constitution in these matters at this stage. It will thus be seen that this Court came to the conclusion that once an order for release on bail is made under the proviso to Section 167(2) it is not defeated by lapse of time and on the mere filing of the charge-sheet at a subsequent date. The order for release on bail can no doubt be cancelled for special reasons germane to cancellation of bail under Sections 437(5) or 439(2). This Court then set out the grounds on which generally bail once granted could be cancelled and then proceeded to state that in the peculiar facts and circumstances of the case it would not be justified in interfering with the impugned order. Therefore, the final order which the court made was in the backdrop of the special facts and circumstances of the case. 9. In Rajinikant's case (supra), Shetty, J. sitting singly during vacation was concerned with a case in which the accused persons were arrested on 23rd March, 1988 by the officers ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... He must pass an order of bail and communicate the same to the accused to furnish the requisite bail bonds. The accused cannot, therefore, claim any special right to remain on bail. If the investigation reveals that the accused has committed a serious offence and charge-sheet is filed, the bail granted under proviso (a) to Section 167(2) could be cancelled. 10. On this line of reasoning the learned Judge upheld the order of the High Court and refused to interfere. It may here be mentioned that this Court's decision in Bashir's case was not placed before the learned Judge. 11. On a conjoint reading of Sections 57 and 167 of the Code it is clear that the legislative object was to ensure speedy investigation after a person has been taken in custody. It expects that the investigation should be completed within 24 hours and if this is not possible within 15 days and failing that within the time stipulated in Clause (a) of the proviso to Section 167(2) of the Code. The law expects that the investigation must be completed with despatch and the role of the Magistrate is to over-see the course of investigation and to prevent abuse of the law by the investigating agency. As stat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... also be remembered that rejection of bail stands on one footing but cancellation of bail is a harsh order because it interferes with the liberty of the individual and hence it must not be lightly resorted to. 12. In State (Delhi Admn.) v. Sanjay Gandhi this Court observed rejection of bail when bail is applied for is one thing; cancellation of a bail already granted is quite another. It is easier to reject a bail application in a non-bailable case then to cancel a bail once granted. That is because cancellation of bail interferes with the. liberty already secured by the accused either on the exercise of discretion by the court or by the thrust of law. This Court, therefore, observed that the power to take back in custody an accused who has been enlarged on bail has to be exercised with care and circumspection. That does not mean that the power though extraordinary in character must not be exercised even if the ends of justice so demand. 13. In Bhagirathsinha S/o Mahipat Singh Judeja v. State of Gujarat this Court observed that very cogent and overwhelming circumstances are necessary for an order seeking cancellation of the bail. Even where a prima facie case is established th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ction 167(2) of the Code. It must be realised that the said proviso was introduced in the Code by way of enlargement of time for which the arrested accused could be kept in custody. Therefore, the prosecuting agency must realise that if it fails to show a sense of urgency in the investigation of the case and omits or defaults to file a charge sheet within the time prescribed, the accused would be entitled to be released on bail and the order passed to that effect under Section 167(2) would be an order under Sections 437(1) or (2) or 439(1) of the Code. Since Section 167 does not empower cancellation of the bail, the power to cancel the bail can only be traced to Section 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 Section 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 Section 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e one posed by brother Ahmadi, J.) whether an order granting bail under the proviso to Sub-section (2) of Section 167 of the CrPC, 1973 (hereafter called the Code) for failure to complete the investigation within the period prescribed thereunder, after the presentation of the challan (charge-sheet) can be recalled or reviewed and on what grounds? 19. The facts giving rise to the instant appeal appear in detail in the judgment prepared by my learned brother Ahmadi, J. and those need not bear repetition. The culled out provisions of the Code too, so far relevant to the facts of the instant case figuring in the said judgment would also bear no reproduction. It is to the case law developed by this Court that I venture to give an explanation which differs with the views thereon expressed by my learned brother Ahmadi, J. 20. A three-member Bench of this Court in State (Delhi Administration) v. Sanjay Gandhi made the following elemental distinction in defining the nature of exercise while cancelling bail: Rejection of bail when bail is applied for is one thing; cancellation of bail already granted is quite another, It is easier to reject a bail application in a non-bailable case ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f an individual to ensure amongst others, domestic tranquillity and security of public and State. Hence the see-saw for and against bail witnessed in courts. The tests to be applied by courts in granting bail is by reference to many considerations, such as the nature of the accusation, the evidence in support thereof, the severity of punishment on conviction which would entail; the character, behaviour, means and standing of the accused etc. etc. But alongside is the larger interest of the State to be kept in view in granting or refusing bail. By no means are the afore-mentioned factors exhaustive. There may be ether considerations which may be determinative for taking one view or the other. The Court is obligated, all the same, to strike a balance. The decision of the Court after consideration of the afore factors and other of the like conceivable results in a verdict judicial in character capable of being reviewed or altered again by a judicial exercise within judicially set out parameters. A bail order-on-default is, as goes the coined expression, a specie apart which involves no such deliberation and so cannot, in my understanding, be equated with bail orders passed on merit by ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 acting 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 committed 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 necessary that the court should proceed on the basis that he has been deemed to have been released under Section 437(1) (2). (emphasis supplied) 26. The emphasised words are reflective of the view that the court could at that stage after the challan is filed be of the opinion that there appear sufficient grounds for enterta ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Bench in Raghubir Singh and Ors. etc. v. State of Bihar by stating as follows: Where bail has been granted under the proviso to Section 167(2) for the default of the prosecution is not completing the investigation in sixty days, after the defect is cured by the filing of a charge-sheet, the prosecution may seek to have the bail cancelled on the ground that there are reasonable grounds to believe that the accused has committed a non-bailable offence and that it is necessary to arrest him and commit him to custody. In the last mentioned case, one would expect very strong grounds indeed. 28. The strong grounds referred in the context obviously are grounds on merits of the case, which are reflective from the formal accusation put in the challan which the accused has to face at the trial. 29. Reghubir Singh's case was followed by a decision of a Vacation Judge of this Court in Rajnikant Jivanlal and Anr. v. Intelligence Officer, Narcotic Control Bureau, New Delhi . It was observed at page 536 as follows: An order for release on bail under proviso (a) to Section 167(2) may appropriately be termed as an order-on-default. Indeed, it is a release on bail on the default of th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... loathe for such an interpretation as that would frustrate justice, and would on the other hand let the Court have the power to cancel bail, for once examining the merits of the case in such a situation. 32. The High Court in the instant case when approached for cancellation of bail applied its mind on the merits of the case and had relied in Rajnikant Jeevan Lal's case (supra). In my view the High Court rightly relied on this decision when Raghubir Singh's case (supra) was the basis thereof. These two cases have summed up and have drawn the demarcation between bail orders granted on merit and bail granted under the compulsion and thrust of Section 167(2) of the Code and the parameters of cancellation. Challan for prosecution has been filed. I have seen the imputation against the appellant. He is described to be a gang leader who had arrived at the scene of the occurrence along with some others and committed the murder of a man on account of gang rivalry. He is accused of having taken part in it by inflicting wounds on the deceased. The allegations have supportive eye-witnesses. The accusation against the appellant is pointedly there. His role in the crime as an active p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 7(61 of the old Code) entitles the investigation officer to detain the arrested person in custody, but within imposed statutory limit, namely he shall not detain the arrested person in custody for more than 24 hours excluding the requisite time necessary for the journey from the place of arrest to the Magistrate Court. 36. Section 57, is supplemental to and effectuates the constitutional mandate of Article 22(2) that every person who is arrested and detained in custody shall be produced before the nearest Magistrate within a period of 24 hours of such arrest excluding the time necessary for the journey from the place of the arrest to the Court of the Magistrate and no such person shall be detained in custody beyond the said period without the authority of a Magistrate. Clause (3)(b) lifts the rigour when the person is arrested under the provision of the Code or preventive detention law providing for preventive detention. In other words the precious personal liberty would be deprived only according to law. The intendment of Section 57 appears to be that investigation needs completion without 24 hours, but in practice and invariably it is difficult to complete the investigation wi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e in an appropriate case, the investigation and also obtain detention (police custody or judicial custody) to a maximum of 90/60 days based on the nature of offences. On its failure to complete the investigation and filing the charge-sheet under Section 173, the law mandates the Magistrate to have the accused relased, if he is prepared to and does furnish the bail. The expression the accused person shall be released on bail indicates the legislative mandatory duty of the Magistrate to release the accused on bail. By operation of explanation 1 to Section 167(2), notwithstanding the expiry of the period specified in paragraph (a), the accused shall be detained in custody 'so long as he does not furnish bail'. The object underlying the proviso is to prevent the police of the laxity in investigation and detention of the accused in the police or judicial custody, during the investigation. The law obviously disfavours the detention of the accused in the custody of the police and if further detention within the outer limit is necessary, the reason for such detention in writing shall be laid before the Magistrate concerned and the detention is not a matter of course. Whenever the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ircumstances as they do exist in the various parts of our country, the 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 on bail. Of course, it has been provided in proviso (a) that the accused released on bail under Section 167 will be deemed to be so released under the provisions of Chapter XXXIII and for the purposes of that Chapter. That may empower 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 cognizance 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 paradise for the criminals but surely it would not be so, as sometimes it is supposed to be, because of the courts, i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s released a person on bail under Sub-section (2), may, if it considers it necessary so to do, direct that such person be arrested and commit him to custody. xxx xxx xxx 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 any committing them to custody should consider it necessary to do so under Section 437(5). (emphasis supplied) 42. In Raghubir Singh and Ors. v. State of Bihar , in similar circumstances, this Court held at p.826 thus: The result of our discussion and the case-law in this : An order for release on bail made under the proviso to Section 167(2) is not defeated by lapse of time, the filing to the charge-sheet or by remand to custody under Section 309(2). The order for release on bail may however be cancelled under Section 437(5) or Section 439(2). Generally the grounds for cancellation of bail, broadly, are, interference or attempt to interfere with the d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . The doubtful procedure of seeking further detention on securing order of remand under Section 344 of the Old Code and Section 309 of the present Code was to be put to an end to, while preserving the power to the court to cancel the bail, if circumstances warrant to take the accused into custody. At the earliest this Court in Natabar Parida's case also took note of the fact that even under Section 167(2) proviso, it might not be possible to complete the investigation into grave crimes within the outer limit of the time set out in the proviso. In the light of the statutory animation to have the accused released from detention on expiry of 90/60 days if the accused shall be prepared to and does furnish bail, the consequences are inevitable and the release is a statutory paradise to the criminals not by judicial fiat but legislative mandate. 45. The purpose of interpretation is to sustain the law. The court must interpret the words or the language in the statute to promote public good and misuse of power is interdicted. Criminal law primarily concerns with social protection and prescribes rules of behaviour to be observed by all. Law punishes for deviance, transgression, viola ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , etc. are independent of the merits in the matter. Cancellation of the bail would be necessitated by the conduct of the accused himself after the release. I agree with brother Punchhi, J. that it might be possible to abuse the proviso by deliberate delay in completing the investigation to facilitate the release of the accused on bail. I also agree that merits brought out in the charge-sheet and attending circumstances are relevant, as the bail, was granted due to default of the investigating officer without court's adverting to the merits but strong grounds are necessary to cancel the bail. To that extent brother Ahmadi, J. also laid emphasis, namely, strong grounds are to be made out in the charge-sheet. With respect I agree with brother Ahmadi's emphasis that filing the charge-sheet (challan) itself is not sufficient. However, I lay emphasis that the High Court or the Court of Sessions should consider the merits of the case. With respect, K.J. Shetty, J., laid emphasis on the subsequent filing of the charge-sheet and the power for cancellation under Sections 437 and 439 of the Code. Unfortunately, the ratio in Parida's and Bashir's cases was not brought to the no ..... X X X X Extracts X X X X X X X X Extracts X X X X
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