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TMI Blog2019 (2) TMI 1851X X X X Extracts X X X X X X X X Extracts X X X X ..... n provided u/s. 167 can be denied only when an accused person does not furnish bail. If an accused person is ready to offer bail, once the stipulated period for the investigation had been completed, then the Magistrate no longer has the authority to extend the period of detention beyond 90 days or 60 days, as the case may be and he has no option except to release the accused on bail. Even though the petitioner was granted bail, by considering the merits of the case and by imposing certain conditions, the same was not able to be complied with by the petitioner and as a result of the same the petitioner was not able to come out on bail. The same will not stand in the way of the petitioner to file a fresh bail petition u/s. 167 (2) of Cr.P.C, once the statutory period expires and no final report is filed by the respondent police. The earlier order has worked itself out and the petitioner is now armed with a statutory right to seek bail as a matter of right. The accused person should be released on bail if she is prepared to and does furnish the bail which has been termed by judicial pronouncements to be compulsive bail and such bail would be deemed to be a bail under chapter X ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he public, the accused persons purchased various movable and immovable properties in their names. There are totally 10 accused persons in this case and A1 to A6 are the various firms run by the accused persons, A7 is the husband of this petitioner, who had collected the deposits and purchased the movable and immovable properties and this petitioner is added as A10 on the ground that she was also involved in the entire transaction. 3. The accused person had collected from nearly 65 depositors, a sum of ₹ 2,71,90,350/-. The husband of the petitioner who was arrested, was initially granted bail and thereafter the bail was cancelled by an order dated 14.11.2018. 4. The petitioner was arrested on 02.11.2018, and she filed a bail petition before the Special Court and the Special Court, by an order dated 08.11.2018, granted bail to the petitioner by imposing certain conditions. One of the condition that was imposed was that the petitioner has to deposit an amount of ₹ 20 lakhs as cash security. This order came to be challenged before this Court in Crl. O.P. No. 26138 of 2018, and this Court dismissed the petition and refused to interfere with the condition imposed by the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l Bureau, New Delhi reported in (1989) 3 SCC 352 3. Shri Ram Singh Batra Vs. The State 4. Achpal @ Ramswaroop Another. Vs. State of Rajasthan 5. P.L. Jayaraj Vs. State rep. by the Inspector of Police, Central Crime Branch-1, Chennai reported in 2019 (1) MWN (Cr.) 31 9. Per contra, the learned Additional Public Prosecutor submitted that it is true that the accused person gets an indefeasible right on the expiry of 60 days, to be considered for Statutory Bail. However, the Court can always impose condition and if the same is not complied with, the continued detention cannot be said to be unauthorised and what the petitioner was not able to achieve in the earlier round, cannot be indirectly achieved by taking umbrage under Section 167(2) of Cr.P.C. 10. This Court has carefully considered the submissions made on either side. This Court will first consider the various judgments that have been relied upon in this case, and thereafter proceed to decide the points for consideration referred supra. 11. The learned counsel for the petitioner relied upon the following judgments and the relevant paragraphs of the judgments are extracted hereunder: 1. Uday Mohanlal Achary ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... en the so-called indefeasible right of the accused would stand extinguished. 6. The expression if not already availed of used by this Court in Sanjay Dutt case [(1994) 5 SCC 410 : 1994 SCC (Cri) 1433] must be understood to mean when the accused files an application and is prepared to offer bail on being directed. In other words, on expiry of the period specified in para (a) of the proviso to sub-section (2) of Section 167 if the accused files an application for bail and offers also to furnish the bail on being directed, then it has to be held that the accused has availed of his indefeasible right even though the court has not considered the said application and has not indicated the terms and conditions of bail, and the accused has not furnished the same . 2. Rajnikant Jivanlal Patel Another Vs. Intelligence Officer Narcotic Control Bureau, New Delhi reported in (1989) 3 SCC 352. It is not disputed and indeed cannot be disputed that when an accused is granted bail, whether under proviso (a) to Section 167(2) or under the general provisions of Chapter XXXIII, the only method by which the bail may be cancelled is to proceed under Section 437(5) or Section 439(2). That is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... has no power to remand a person beyond the stipulated period of 90/60 days. He must pass an order of bail and communicate the same to the accused to -furnish the requisite bail bonds . 3. Shri Ram Singh Batra Vs. The State. ......While Section 439 empowers the High Court and the Sessions Court to grant or refuse bail, those powers are discretionary powers. Section 167(2) does not allow for any discretion. This is a mandatory provision and whether bail has been granted or rejected under Section 439, if a case is made out for releasing the petitioner under Section 167(2), then such person has to be released irrespective of the order passed under Section 439 . 4. Achpal @ Ramswaroop Another. Vs. State of Rajasthan. 16. The letter of and spirit behind enactment of Section 167 of the Code as it stands thus mandates that the investigation ought to be completed within the period prescribed. Ideally, the investigation, going by the provisions of the Code, ought to be completed within first 24 hours itself. Further in terms of sub-section (1) of Section 167, if it appears that the investigation cannot be completed within the period of twenty-four hours fixed by Section 57 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... That would have been an ideal situation. But we have to consider the actual effect of the circumstances that got unfolded. The fact of the matter is that as on completion of 90 days of prescribed period under Section 167 of the Code there were no papers of investigation before the concerned Magistrate. The accused were thus denied of protection established by law. The issue of their custody had to be considered on merits by the concerned Magistrate and they could not be simply remanded to custody dehors such consideration. In our considered view the submission advanced by Mr. Dave, learned Advocate therefore has to be accepted. We now turn to the subsidiary issue, namely, whether the High Court could have extended the period. The provisions of the Code do not empower anyone to extend the period within which the investigation must be completed nor does it admit of any such eventuality. There are enactments such as the Terrorist and Disruptive Activities (Prevention) Act, 1985 and Maharashtra Control of Organised Crime Act, 1999 which clearly contemplate extension of period and to that extent those enactments have modified the provisions of the Code including Section 167. In the abs ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... se on bail compulsorily after the expiry of the said period. The rulings made by the Supreme Court has further clarified this position by stating that a person in judicial custody must exercise the option of coming out of bail by making an application on expiry of the period before laying of charge sheet and he cannot come leisurely to the Court after the charge sheet has been filed even though the charge sheet is filed after expiry of the prescribed period in 167(2) Code of Criminal Procedure. Neither the Legislature nor the Apex Court in any of the ruling have stated that any exemption can be made in such a case where application is filed in accordance with Section 167(2). So once the bail application is filed after expiry of the prescribed period and before challan is filed, the Court has no business to look into the gravity of the crime committed to justify the judicial custody beyond the prescribed period under Section 167(2) Code of Criminal Procedure. 15. It is not as if the difficulty of prosecution agency in certain cases to file final report within the period because of the voluminous evidence or records or difficulty in gathering evidence in case of complicated matter ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... urt as cited supra. It is very unfortunate that the learned Magistrate has not even considered the submission regarding the non-filing of the charge sheet within the time stipulated and without giving any finding regarding such submission, proceeded mainly on the basis of the merits of the case. 11. The submission of the learned Government Advocate (Criminal side) makes its crystal clear that the investigation agency has filed the charge sheet only on 19.09.2006. Earlier submission of the learned Government Advocate (Criminal Side) that the draft charge sheet was filed on 10.07.2006 and the same was returned for corrections, would not amount to filing of a charge sheet as it is rightly held by this Court in the decision cited supra and filing a defective charge sheet and returning the same to rectify the defect amounts to non-filing of charge sheet. 12. It is also relevant to be noted that the petitioner is incarcerated from 18.04.2006 and now the investigation is over and the charge sheet has been filed in the case. As already stated that in view of the non~filing of the charge sheet within the time stip-, the petitioner is having indefeasible right till the charge sheet is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng for Statutory Bail and what is important for the Court is that it should be satisfied that the accused has its roots in the community and is not likely to abscond. Once the Court is satisfied about the same, the Court can release the accused person while imposing reasonable conditions taking into account the facts and circumstances of the case. 15. The expression if he is prepared to and does furnish bail should be read by keeping in mind that bail in its fundamental concept is a security for the prisoners' appearance to answer the charge at a specified time and place. At the time of considering the Statutory Bail, the Court has to keep this fundamental concept in mind and should not be swayed by the gravity of the offence. If the accused person is prepared to and does furnishes bail to the satisfaction of the Court by ensuring his appearance during investigation or at the time of trial, the Court has to necessarily release the accused person on Statutory Bail. 16. Keeping the above principles of law in mind, this Court now proceeds to decide the points for determination taken up in this petition. 17. Insofar as the first issue is concerned, even though the petiti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s: 20. Accordingly, the petitioner is ordered to be released on bail on her executing a bond for a sum of ₹ 10,000/- (Rupees ten thousand only) with two sureties, for a like sum to the satisfaction of the learned Special Judge, Special Court under TNPID Cases, Coimbatore, and on further conditions that:- [a] the sureties shall affix their photographs and Left Thumb Impression in the surety bond and the Magistrate may obtain a copy of their Aadhar card or Bank pass Book to ensure their identity. [b] the petitioner shall report before the respondent police daily at 10.30 a.m. and 5.30 p.m before the respondent police, until further orders. [c] the petitioner shall attend during every hearing date before the learned Special Judge, Special Court under TNPID Cases, Coimbatore without fail, unless her absence is condoned by filing a petition under Section 317 of Cr.P.C. [d] the petitioner shall not tamper with evidence or witness either during investigation or trial. [e] the petitioner shall not abscond either during investigation or trial. [f] On breach of any of the aforesaid conditions, the learned Magistrate/Trial Court is entitled to take appropriate actio ..... X X X X Extracts X X X X X X X X Extracts X X X X
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