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TMI Blog2014 (6) TMI 1018X X X X Extracts X X X X X X X X Extracts X X X X ..... ed out by the local investigating agency and thereafter, the Government of India, Ministry of Personnel, New Delhi, issued a notification No. 228/9/02- AVD/II dated 21.3.2002 handing over the investigation to the Central Bureau of Investigation (CBI) after obtaining the consent of the Government of Bihar. As per the allegations of the prosecution, on 15.2.2002 the deceased Sanjay Kumar Singh, Divisional Forest Officer, Shahabad Division with Headquarter at Sasaram, was on a surprise check in village Rehal, District Rohtas along with his subordinate staff and, at that juncture, he was surrounded by a group of 25-30 unknown naxalites and was taken outside the village and when he declined to comply with the illegal demand of the naxalites for payment of rupees five lakhs for his release, he was taken inside the forest where he was shot dead. After the criminal law was set in motion on the basis of an FIR, the investigation commenced. In course of investigation, the respondent was arrested and was sent to the judicial custody on 5.12.2006. As the charge-sheet was not filed after lapse of the statutory period of ninety days, on 14.3.2007 the respondent filed an application under Secti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Judge has failed to apply the correct principle on the right of "compulsive bail" inasmuch as such a right should be available on the date the bail application is taken up for consideration but not on the date of its presentation. He has commended us to the decisions in Sanjay Dutt (supra), State of M.P. v. Rustam & ors.[ 1995 Supp (3) SCC 221], Bipin Shantilal Panchal v. State of Gujarat[(1996) 1 SCC 718], Dinesh Dalmia v. CBI[(2007) 8 SCC 770], Mustaq Ahmed Isak v. State of Maharashtra[(2009) 7 SCC 480] and Pragyna Singh Thakur v. State of Maharashtra[(2011) 10 SCC 445]. Ms. Prerna Singh, learned counsel appearing for the respondent, per contra, has contended that the controversy is squarely covered by the decision in Uday Mohanlal Acharya (supra) and as the High Court has based its decision on the same in the backdrop of the factual scenario, the order is absolutely defensible and does not suffer from any infirmity warranting interference. She would further submit that the indefeasible right available to the accused cannot be extinguished by filing an application for extension of time to file the charge-sheet after expiry of the initial period and filing the same after certain ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... herefore, serve the ends of justice if both sides are heard on a petition for grant of bail on account of the prosecution's 'default'. Similarly, when a report is submitted by the public prosecutor to the Designated Court for grant of extension under clause (bb), its notice should be issued to the accused before granting such an extension so that an accused may have an opportunity to oppose the extension on all legitimate and legal grounds available to him. It is true that neither clause (b) nor clause (bb) of sub-section (4) of Section 20 TADA specifically provide for the issuance of such a notice but in our opinion the issuance of such a notice must be read into these provisions both in the interest of the accused and the prosecution as well as for doing complete justice between the parties." After so stating, the Court proceeded to observe as follows: - "We must as already noticed reiterate that the objection to the grant of bail to an accused on account of the 'default' of the prosecution to complete the investigation and file the challan within the maximum period prescribed under clause (b) of sub-section (4) of Section 20 TADA or within the extended period as envisaged by cla ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cused beyond the said period of 180 days. This gives rise to the right of the accused to be released on bail on expiry of the said period of 180 days or the extended period on default to complete the investigation within the time allowed." Thereafter, the Court referred to Hitendra Vishnu Thakur (supra) wherein it has been held that the Designated Court would have "no jurisdiction to deny to an accused his indefeasible right to be released on bail on account of the default of the prosecution to file the challan within the prescribed time if an accused seeks and is prepared to furnish the bail bond as directed by the court"; and that a 'notice' to the accused is required to be given by the Designated Court before it grants any extension under the further proviso beyond the prescribed period for completing the investigation. It is apt to state that learned counsel for the petitioner therein conceded the legal position that the right of the accused which is enforceable only upto the filing of the challan and does not survive for enforcement on the challan being filed in the court against him. It was further contended that the decision in Hitendra Vishnu Thakur (supra) could not be rea ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the period is rejected. In short, the grant of bail in such a situation is also subject to refusal of the prayer for extension of time, if such a prayer is made. 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. It is settled by Constitution Bench decisions that a petition seeking the writ of habeas corpus on the ground of absence of a valid order of remand or detention of the accused, has to be dismissed, if on the date of return of the rule, the custody or detention is on the basis of a valid order. (See Naranjan Singh Nathawan v. State of Punjab[1952 SCR 395]; Ram Narayan Singh v. State of Delhi[1953 SCR 652] and A.K. Gopalan v. Government of India[(1966) 2 SCR 427].) 49. This is the nature and extent of the right of the accused to be released on bail under Section 20(4)(bb) of the TADA Act read with Section 167 CrPC in such a situation. We clarify the decision of the Division Bench in [pic]Hitendra Vishnu Thakur, a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... explained by the Constitution Bench and it has laid down the principles pertaining to grant of bail on default. In Dr. Bipin Shantilal Panchal (supra) the Court was dealing with a controversy whereby the High Court had rejected the prayer for bail to the appellant who was an accused for offences under the Narcotic Drugs and Psychotropic Substances Act, 1985. A contention was advanced that the statutory period prescribed under the proviso (a) to sub-section (2) of Section 167 CrPC providing for completion of investigation, had expired and, therefore, the accused-appellant therein should have been released on bail. The three-Judge Bench referred to the decision in Union of India v. Thamisharasi[(1995) 4 SCC 190], reproduced a passage from Sanjay Dutt (supra) and came to hold as follows: - "... if an accused person fails to exercise his right to be released on bail for the failure of the prosecution to file the charge-sheet within the maximum time allowed by law, he cannot contend that he had an indefeasible right to exercise it at any time notwithstanding the fact that in the meantime the charge-sheet is filed. But on the other hand if he exercises the right within the time allow ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er the release, charge-sheet has been submitted against such accused for an offence under TADA. For cancelling the bail, the well-settled principles in respect of cancellation of bail have to be made out." Be it noted, in the said case, the accused-appellants were taken into custody on 16.1.1993 and the charge-sheet was submitted on 30.8.1993, obviously beyond the statutory period provided under Section 20(4)(b). However, the Court proceeded to opine thus: - "But it is an admitted position that no application for bail on the said ground was made on behalf of the appellants. Unless applications had been made on behalf of the appellants, there was no question of their being released on ground of default in completion of the investigation within the statutory period. It is now settled that this right cannot be exercised after the charge-sheet has been submitted and cognizance has been taken, because in that event the remand of the accused concerned including one who is alleged to have committed an offence under TADA, is not under Section 167(2) but under other provisions of the Code. This has been specifically considered by a Constitution Bench of this Court in the case of Sanjay Dut ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uld cause great injustice to the accused and would defeat the very purpose of the proviso to Section 167(2) of the Criminal Procedure Code and further would make an illegal custody to be legal, inasmuch as after the expiry of the stipulated period the Magistrate had no further jurisdiction to remand and such custody of the accused is without any valid order of remand. That apart, when an accused files an application for bail indicating his right to be released as no challan had been filed within the specified period, there is no discretion left in the Magistrate and the only thing he is required to find out is whether the specified period under the statute has elapsed or not, and whether a challan has been filed or not. If the expression "availed of" is interpreted to mean that the accused must factually be released on bail, then in a given case where the Magistrate illegally refuses to pass an order notwithstanding the maximum period stipulated in Section 167 had expired, and yet no challan had been filed then the accused could only move to the higher forum and while the matter remains pending in the higher forum for consideration, if the prosecution files a charge-sheet then also ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... application erroneously and the accused moves the higher forum for getting a formal order of being released on bail in enforcement of his indefeasible right, then filing of challan at that stage will not take away the right of the accused." [Underlining is ours] Thereafter the Court culled out six conclusions which are necessitous to be reproduced. They are: - "1. Under sub-section (2) of Section 167, a Magistrate before whom an accused is produced while the police is investigating into the offence can authorise detention of the accused in such custody as the Magistrate thinks fit for a term not exceeding 15 days on the whole. 2. Under the proviso to the aforesaid sub-section (2) of Section 167, the Magistrate may authorise detention of the accused otherwise than in the custody of police for a total period not exceeding 90 days where the investigation relates to offence punishable with death, imprisonment for life or imprisonment for a term of not less than 10 years, and 60 days where the investigation relates to any other offence. 3. On the expiry of the said period of 90 days or 60 days, as the case may be, an indefeasible right accrues in favour of the accused for being relea ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... if an accused is entitled to be released on bail by application of the proviso to sub-section (2) of Section 167 CrPC, makes the application before the Magistrate, but the Magistrate erroneously refuses the same and rejects the application and then the accused moves the higher forum and while the matter remains pending before the higher forum for consideration a charge- sheet is filed, the so-called indefeasible right of the accused would not stand extinguished thereby, and on the other hand, the accused has to be released on bail. The Court further proceeded to say that such an accused, thus is entitled to be released on bail in enforcement of his indefeasible right will, however, have to be produced before the Magistrate on a charge- sheet being filed in accordance with Section 209 and the Magistrate must deal with him in the matter of remand to custody subject to the provisions of the Code relating to bail and subject to the provisions of cancellation of bail, already granted in accordance with the law laid down by the Court in the case of Mohd. Iqbal (supra). Before we proceed to deal with the subsequent decisions, we should pause here to deliberate. In Mohamed Iqbal Madar She ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er. The accused can avail his liberty only by filing application stating that the statutory period for filing of the challan has expired, the same has not yet been filed and an indefeasible right has accrued in his favour and further he is prepared to furnish the bail bond. Once such an application is filed, it is obligatory on the part of the court to verify from the records as well as from the public prosecutor whether the time has expired and the charge- sheet has been filed or not or whether an application for extension which is statutorily permissible, has been filed. If an application for extension is filed, it is to be dealt with as has been stated in the case of Sanjay Dutt (supra). That is the duty of the Court. This is the position of law as has been stated in Uday Mohanlal Acharya (supra). In Ateef Nasir Mulla v. State of Maharashtra [(2005) 7 SCC 29], the accused was arrested on 15.4.2003 and the period of ninety days for completing the investigation was to expire on 13.7.2003. On 11.7.2003 an application was moved for extension of time to complete the investigation under Section 49(2)(b) of Prevention of Terrorism Act, 2002. The Special Judge, after hearing the counse ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t of arrest against him. In the meantime, after the completion of investigation a charge-sheet was submitted before the learned Magistrate in terms of sub-section (2) of Section 173 CrPC. The name of the appellant featured in the charge-sheet along with the companies. Eventually, after following the process the appellant was sent to police custody on 14.2.2006 till 24.2.2006. The accused was handed over to the police for conducting investigation till 8.3.2006. He, however, was remanded to judicial custody till 14.3.2006 by order dated 9.3.2006 on the plea that further investigation was pending. CBI prayed for and obtained orders of remand to judicial custody from the learned Magistrate on 14.3.2006, 28.3.2006, 10.4.2006 and 28.4.2006. The appellant, on expiry of sixty days from the date of his arrest, filed an application for statutory bail purported to be in terms of the proviso appended to sub-section (2) of Section 167 CrPC on the premise that no further charge-sheet in respect of the investigation under sub-section (8) of Section 173 CrPC had been filed. When the said application was pending consideration, CBI sought for his remand into judicial custody under sub- section (2) o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... igation would be inter alia necessary on certain vital points including end use of the funds. xxx xxx xxx 27. It is also not a case of the appellant that he had been arrested in course of further investigation. A warrant of arrest had already been issued against him. The learned Magistrate was conscious of the said fact while taking cognizance of the offence." Thereafter, the Court proceeded to the concept of remand as contemplated under the Code. We may profitably quote the same: - "38. It is a well-settled principle of interpretation of statute that it is to be read in its entirety. Construction of a statute should be made in a manner so as to give effect to all the provisions thereof. Remand of an accused is contemplated by Parliament at two stages; pre-cognizance and post-cognizance. Even in the same case, depending upon the nature of charge- sheet filed by the investigating officer in terms of Section 173 of the Code, a cognizance may be taken as against the person against whom an offence is said to have been made out and against whom no such offence has been made out even when investigation is pending. So long a charge-sheet is not filed within the meaning of sub-section ( ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... required to file an application before the Magistrate seeking release on bail alleging that no challan had been filed within the period prescribed and if he was prepared to offer bail on being directed by the Magistrate, the Magistrate was under an obligation to dispose of the said application and even if in the meantime a charge-sheet had been filed, the right to statutory bail would not be affected. It was, however, clarified that if despite the direction to furnish bail, the accused failed to do so, his right to be released on bail would stand extinguished." From the aforesaid analysis, it is graphically clear that the learned Judges laid emphasis how an accused avails the benefit of compulsive bail and what is the obligation cast on the Magistrate in law. We may presently refer to a recent three-Judge Bench decision in Sayed Mohd. Ahmad Kazmi v. State (Government of NCT of Delhi) and others[(2012) 12 SCC 1]. In the said case, the accused had filed an application for grant of bail on 2.6.2012 since his ninety days' period of custody was to expire on 3.6.2012 and further custody was sought for by the prosecution. The learned Magistrate, by his order dated 2.6.2012, extended the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... took up the matter for extension of custody and, instead of considering the application, extended the time of interrogation and custody of the appellant for ninety days with retrospective effect from 2.6.2012. The aforesaid order was challenged before the learned Sessions Judge who adjourned the matter to 12.10.2012 and on 31.7.2013 the prosecution filed the charge-sheet. When the matter travelled to this Court, a question arose with regard to getting the benefit of the default bail. Be it stated, the Court was considering the provisions contained in Section 43-D of Unlawful Activities (Prevention) Act, 1967 and Section 167(2) CrPC. In that context, it observed thus: - "18. By virtue of the aforesaid modification to the provisions of Section 167(2) CrPC, the period of 90 days stipulated for completion of investigation and filing of charge-sheet was modified by virtue of the amended proviso, which indicated that if the investigation could not be completed within 90 days and if the court was satisfied with the report of the Public Prosecutor indicating the progress of the investigation and the specific reasons for detention of the accused beyond the period of 90 days, extend the sai ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rendered by the High Court declining to enlarge the accused on bail was violative of the mandate of Articles 22(1) and 22(2) of the Constitution and also violative of the statutory provisions engrafted under Section 167(2) CrPC. In the said case, the accused was under detention from 10.10.2008 and ninety days expired on 9.1.2009 and the charge-sheet was filed on 20.1.2009. The accused-appellant filed an application under Section 167(2) CrPC read with Section 21(4) of Maharashtra Control of Organized Crime Act, 1999 (MOCA) and also under Section 439 CrPC. The said application was resisted by the prosecution on the ground that the charge-sheet was filed on 20.1.2009 which was the eighty-ninth day from the date of his remand order, i.e., 24.10.2008. The learned Special Judge rejected the application vide order dated 9.7.2009. The High Court being moved, dismissed the application vide order dated 12.3.2010. Before this Court a question arose whether the appellant was in police custody from 10.10.2008 to 22.10.2008, for the High Court had returned a finding that the accused was arrested on 23.10.2008. This Court, on a scrutiny of the facts, held that the accused was arrested on 23.10.20 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on the ground that charge-sheet was not filed within 90 days, but before the consideration of the same and before being released on bail, if charge-sheet is filed, the said right to be released on bail would be lost. After the filing of the charge-sheet, if the accused is to be released on bail, it can be only on merits. This is quite evident from the Constitution Bench decision of this Court in Sanjay Dutt (2) v. State [paras 48 and 53(2)(b)]. The reasoning is to be found in paras 33 to 49." [Underlining is ours] Be it noted, to say so, the learned Judges drew support from the decisions in Rustam (supra), Bipin Shantilal Panchal (supra), Dinesh Dalmia (supra) and Mustaq Ahmed Mohammed Isak (supra). Thereafter they adverted to Uday Mohanlal Acharya's case in following terms: - "56. In Uday Mohanlal Acharya v. State of Maharashtra a three-Judge Bench of this Court considered the meaning of the expression "if already not availed of" used by this Court in the decision rendered in Sanjay Dutt in para 48 and held that if an application for bail is filed before the charge- sheet is filed, the accused could be said to have availed of his right under Section 167(2) even though the court ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... le that even if an application for bail is filed on the ground that the charge-sheet was not filed within 90 days, but before the consideration of the same and before being released on bail, if charge- sheet is filed the said right to be enlarged on bail is lost. This opinion is contrary to the earlier larger Bench decisions and also runs counter to the subsequent three-Judge Bench decision in Mustaq Ahmed Mohammed Isak's case. We are disposed to think so, as the two-Judge Bench has used the words "before consideration of the same and before being released on bail", the said principle specifically strikes a discordant note with the proposition stated in the decisions rendered by the larger Benches. At this juncture, it will be appropriate to refer to the dissenting opinion by B.N. Agarwal, J. in Uday Mohanlal Acharya's case. The learned Judge dissented with the majority as far as interpretation of the expression "if not already availed of" by stating so:- "29. My learned brother has referred to the expression "if not already availed of" referred to in the judgment in Sanjay Dutt case for arriving at Conclusion 6. According to me, the expression "availed of" does not mean mere fil ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... it filed an application for extension. Had an application for extension been filed, then the matter would have been totally different. After the accused respondent filed the application, the prosecution submitted an application seeking extension of time for filing of the charge-sheet. Mr. P.K. Dey, learned counsel for the appellant would submit that the same is permissible in view of the decision in Bipin Shantilal Panchal (supra) but on a studied scrutiny of the same we find the said decision only dealt with whether extension could be sought from time to time till the completion of period as provided in the Statute i.e., 180 days. It did not address the issue what could be the effect of not filing an application for extension prior to expiry of the period because in the factual matrix it was not necessary to do so. In the instant case, the day the accused filed the application for benefit of the default provision as engrafted under proviso to sub- Section (2) of Section 167 CrPC the Court required the accused to file a rejoinder affidavit by the time the initial period provided under the statute had expired. There was no question of any contest as if the application for extension ..... X X X X Extracts X X X X X X X X Extracts X X X X
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