same is irrelevant as the Court cannot delve upon the issue on the
basis of quantity recovered by considering the indefeasible right,
which has been accrued to the petitioner. Hon'ble the Supreme Court
has given specific observations in Nirala Yadav's case (supra). Even
in case, the accused-petitioner is involved in number of cases, then
also it is not a sufficient ground to defeat the indefeasible right of the
accused to be released on bail in case, the challan is not presented
within the stipulated period.
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
Criminal Misc. No. M-29723 of 2015
Date of decision: 06.01.2016.
Sanjeev Rai V State of Punjab
CORAM: HON'BLE MRS. JUSTICE DAYA CHAUDHARY
Citation: 2016 ALLMR(CRI)JOURNAL 254
The present petition has been filed under Section 439 read
with Section 167(2) of the Code of Criminal Procedure for grant of bail
to the petitioner in case FIR No.257 dated 18.10.2014 registered
under Section 20 of the Narcotic Drugs and Psychotropic Substances
Act, 1985 at Police Station Dera Bassi, District Mohali.
Learned counsel for the petitioner submits that the
petitioner was arrested on 18.10.2014 and since then he is in custody.
The challan has not been presented till date and the period of 180
days has expired on 16.04.2015. Learned counsel further submits that
an application was moved by the prosecution on 13.04.2015 for
extension of period of 60 days for presentation of challan, which was
allowed by the trial Court on the same day and period of 40 days was
granted to the prosecution for presentation of challan. Learned
counsel also submits that even after the expiry of aforesaid period of
40 days, the challan was not presented and the total period of 220
days expired on 25.05.2015. Thereafter, one more application was
moved by the prosecution for grant of another 60 days time to present
the challan, which was allowed and 60 days more time was granted to
the prosecution. But even after expiry of period of 280 days
(180+40+60), the prosecution did not present the challan.
Subsequently, again for the third time, an application was moved for
grant of extension of time and that application is still pending. The
petitioner has also moved an application under Section 167(2) Cr.P.C.
for grant of bail, but the same was rejected by the trial Court on
23.06.2015 on the ground that time for presentation of challan has
already been extended vide order dated 25.05.2015. Learned counsel
also submits that the prosecution has already availed the benefit
under Section 36A (4) on two occasions and still the challan has not
been presented before trial Court. The petitioner cannot be kept in
custody without filing of the challan for an indefinite period as an
indefeasible right has accrued to the petitioner in view of provisions of
Section 167(2) Cr.P.C. Learned counsel for the petitioner has relied
upon judgment of Hon'ble the Supreme Court in Suresh Kumar
Bhikamchand Jain vs. State of Maharashtra and another, (2013) 3
SCC 77 as well as judgments of this Court in Sahib Singh vs. State
of Punjab and others, Criminal Misc. No. M-16899 of 2014
decided on 21.07.2014 and Rajinder Pal @ Lovely vs. State of
Punjab, 2015(2) Criminal Court Cases 487 (P&H) in support of his
contentions.
Learned State counsel opposes the submissions made by
learned counsel for the petitioner and submits that the extension was
granted on the application moved by the prosecution and there was
no reason to grant bail under Section 167(2) Cr.P.C. The application
was moved before expiry of period of 180 days and the period was
extended twice for presentation of challan. Learned State counsel
also submits that the judgment relied upon by learned counsel for the
petitioner in Suresh Kumar Bhikamchand Jain' case (supra) is not
applicable in the present case as it was not a case under NDPS Act.
Heard arguments of learned counsel for the petitioner as
well as learned State counsel and have also perused the impugned
order as well as other documents available on the file.
The issue in the present case is whether the accused is
entitled for bail in view of provisions of Section 167(2) Cr.P.C. when
the period has already been extended by the trial Court on the
application moved by the prosecution.
For facilitation, Section 167(2) Cr.P.C. is reproduced as
under: -
"167. Procedure when investigation cannot
be completed in twenty-four hours.
(1) *** *** ***(2) The Magistrate to whom an
accused person is forwarded under this section
may, whether he has or has not jurisdiction to try
the case, from time to time, authorise the
detention of the accused in such custody as
such Magistrate thinks fit, for a term not
exceeding fifteen days in the whole; and if he
has no jurisdiction to try the case or commit it for
trial, and considers further detention
unnecessary, he may order the accused to be
forwarded to a Magistrate having such
jurisdiction:
Provided that-
(a) The Magistrate may authorize the detention
of the accused person, otherwise than in the
custody of the police, beyond the period of
fifteen days, if he is satisfied that adequate
grounds exist for doing so, but no Magistrate
shall authorise the detention of the accused
person in custody under this paragraph for a
total period exceeding-
(i) 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;
(ii) Sixty days, where the investigation relates to
any other offence, and, on the expiry of the said
period of ninety days, or sixty days, as the case
may be, the accused person shall be released
on bail if he is prepared to and does furnish bail,
and every person released on bail under this
subsection shall be deemed to be so released
under the provisions of Chapter XXXIII for the
purposes of that Chapter;
(b) no Magistrate shall authorize detention of the
accused in custody of the police under this
section unless the accused is produced before
him in person for the first time and subsequently
every time till the accused remains in the
custody of the police, but the Magistrate may
extend further detention in judicial custody on
production of the accused either in person or
through the medium of electronic video linkage;
(c) no Magistrate of the second class, not
specially empowered in this behalf by the High
Court, shall authorise detention in the custody of
the police.
Explanation I. - For the avoidance of doubts, it is
hereby declared that, 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.
Explanation II. - If any question arises whether
an accused person was produced before the
Magistrate as required under clause (b), the
production of the accused person may be
proved by his signature on the order authorising
detention or by the order certified by the
Magistrate as to production of the accused
person through the medium of electronic video
linkage, as the case may be.
Provided further that in case of a woman under
eighteen years of age, the detention shall be
authorised to be in the custody of a remand
home or recognised social institution."
On perusal of aforesaid provisions, it is clear that the
Court may authorise the detention of an accused person otherwise
than in the custody of the police, beyond a period of 15 days, if he is
satisfied that there are adequate grounds/reasons for doing so, but no
Court/Magistrate is authorised to detain the accused person in
custody for a total period exceeding 90 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 and 60 days where
the investigation relates to any other offence. Meaning thereby, if an
accused was ready to offer bail and stipulated period for the
investigation had completed, then the Magistrate no longer had the
authority to extend the period of detention beyond the said period of
90 days and, accordingly, he had no option but to release the accused
on bail. On perusal of Sections 167(2)(a)(i) and (ii) it is clear that on
the expiry of period of 90 days or 60 days, as the case may be, the
accused person shall be released on bail if he is prepared to and does
furnish bail. The direction upon the learned Magistrate or the Trial
Court is mandatory in nature and any detention beyond the said
period would be illegal.
The power of remand is vested in the Court at the very
initial stage before taking of cognizance under Section 167(2) Cr.P.C.
Once cognizance is taken, the power to remand shifts to the
provisions of Section 309 Cr.P.C., under which the Trial Court is
empowered to postpone or adjourn proceedings and, for the said
purpose, to extend the period of detention from time to time. Section
309(2) Cr.P.C. contemplates a situation where if the Court after taking
cognizance of an offence or commencement of trial finds it necessary
to postpone the commencement of, or adjourn, any inquiry or trial, it
may, for reasons to be recorded, postpone or adjourn the inquiry or
trial on such terms as it thinks fit, for such time as it considers
reasonable, and may by a warrant remand the accused if in custody,
for a period of fifteen days at a time. Although, the provisions of
Section 309 Cr.P.C. may not have any application to the facts of this
case, but still it is necessary to understand the issue in case at hand,
which is reproduced as under: -
“309. Power to postpone or adjourn
proceedings.—(1) In every inquiry or trial the
proceedings shall be held as expeditiously as
possible, and in particular, when the
examination of witnesses has once begun, the
same shall be continued from day to day until all
the witnesses in attendance have been
examined, unless the Court finds the
adjournment of the same beyond the following
day to be necessary for reasons to be recorded.
Provided that when the inquiry or trial relates to
an offence under Sections 376 to Section 376 D
of the Indian Penal Code (45 of 1860), the
inquiry or trial shall, as far as possible, be
completed within a period of two months from
the date of commencement of the examination
of witnesses.
(2) If the court, after taking cognizance of an
offence, or commencement of trial, finds it
necessary or advisable to postpone the
commencement of, or adjourn, any inquiry or
trial, it may, from time to time, for reasons to be
recorded, postpone or adjourn the same on
such terms as it thinks fit, for such time as it
considers reasonable, and may by a warrant
remand the accused if in custody:
Provided that no Magistrate shall remand an
accused person to custody under this section
for a term exceeding fifteen days at a time:
Provided further that when witnesses are in
attendance, no adjournment or postponement
shall be granted, without examining them,
except for special reasons to be recorded in
writing:
Provided also that no adjournment shall be
granted for the purpose only of enabling the
accused person to show cause against the
sentence proposed to be imposed on him.
Provided also that –
(a) no adjournment shall be granted at the
request of a party, except where the
circumstances are beyond the control of that
party;
(b) the fact that the pleader of a party is
engaged in another Court, shall not be a ground
for adjournment;
(c) where a witness is present in Court but a
party or his pleader is not present or the party or
his pleader though present in Court, is not ready
to examine or cross examine the witness, the
Court may, if thinks fit, record the statement of
the witness and pass such orders as it thinks fit
dispensing with the examination-in-chief or
cross examination of the witness, as the case
may be.
Explanation 1 – If sufficient evidence has been
obtained to raise a suspicion that the accused
may have committed an offence and it appears
likely that further evidence may be obtained by
a remand this is a reasonable cause for a
remand.
Explanation 2 – The terms on which an
adjournment or postponement may be granted
include, in appropriate cases, the payment of
costs by the prosecution or the accused.”
Section 167 Cr.P.C. contemplates the completion of
investigation in respect of different types of cases within a stipulated
period and the right of an accused to be released on bail on the failure
of the investigating authorities. The scheme of the provisions relating
to remand of an accused is first during the stage of investigation and,
thereafter, after taking cognizance. It indicates that the Legislature
intended investigation of certain crimes to be completed within 60
days and in case, the offences are punishable with death,
imprisonment for life or imprisonment for a term of not less than 10
years, within 90 days. In the event, the investigation is not completed
by the investigating agency, the accused acquires an indefeasible
right to be granted bail, if he/she offers to furnish bail. Meaning
thereby, if on either the 61st day or the 91st day, an accused makes
an application for being released on bail in default of charge-sheet
having been filed, the Court has no option but to release the accused
on bail. The said provision has been considered and interpreted in
various judgments of this Court as well as Hon'ble the Apex Court.
Hon'ble Supreme Court in Union of India through CBI
vs. N irala Yadav @ Raja Ram Yadav @ Deepak Yadav, 2014(3)
Criminal Court Cases 308 (SC) has held that Court is obliged to deal
with the application filed by the accused as required under Section
167(2) Cr.P.C. on the day it is moved. Such procrastination frustrates
the legislative mandate and a Court cannot act to extinguish the right
of an accused if the law so confers on him. It has specifically been
held that the prosecution cannot avail such subterfuges to frustrate or
destroy the legal right of the accused.
Right of the accused to be released on bail accrued on the
default of the prosecution in filing the challan within the stipulated
period and furthermore, in case, the application has been moved for
extension of time before the expiry of the stipulated period on the very
same day when the application for bail has been moved by the
accused for grant of bail or even before expiry of stipulated period, the
accused becomes entitled to bail as per provisions of Section 167(2)
Cr.P.C.
Even in case of NDPS, the recovery can be huge but the
same is irrelevant as the Court cannot delve upon the issue on the
basis of quantity recovered by considering the indefeasible right,
which has been accrued to the petitioner. Hon'ble the Supreme Court
has given specific observations in Nirala Yadav's case (supra). Even
in case, the accused-petitioner is involved in number of cases, then
also it is not a sufficient ground to defeat the indefeasible right of the
accused to be released on bail in case, the challan is not presented
within the stipulated period.
The issue in dispute is squarely covered by three Judge
Bench judgment of Hon'ble the Apex Court in Central Bureau of
Investigation vs. R.S. Pai and another, 2002(2) RCR (Criminal)
536, wherein it has been held as under: -
“7. From the aforesaid sub-sections, it is
apparent that normally, the investigating officer
is required to produce all the relevant
documents at the time of submitting the chargesheet.
At the same time, as there is no specific
prohibition, it cannot be held that the additional
documents cannot be produced subsequently. If
some mistake is committed in not producing the
relevant documents at the time of submitting the
report or the charge-sheet, it is always open to
the investigating officer to produce the same
with the permission of the court. In our view,
considering the preliminary stage of prosecution
and the context in which the police officer is
required to forward to the Magistrate all the
documents or the relevant extracts thereof on
which the prosecution proposes to rely, the word
“shall” used in sub-section (5) cannot be
interpreted as mandatory, but as directory.
Normally, the documents gathered during the
investigation upon which the prosecution wants
to rely are required to be forwarded to the
Magistrate, but if there is some omission, it
would not mean that the remaining documents
cannot be produced subsequently. Analogous
provision under Section 173(4) of the Code of
Criminal Procedure, 1898 was considered by
this Court in Narayan Rao v. State of A.P.
(SCR at p. 293) and it was held that the word
“shall” occurring in sub-section (4) of Section
173 and sub-section (3) of Section 207-A is not
mandatory but only directory. Further, the
scheme of sub-section (8) of Section 173 also
makes it abundantly clear that even after the
charge-sheet is submitted, further investigation,
if called for, is not precluded. If further
investigation is not precluded then there is no
question of not permitting the prosecution to
produce additional documents which were
gathered prior to or subsequent to the
investigation. In such cases, there cannot be
any prejudice to the accused. Hence, the
impugned order passed by the Special Court
cannot be sustained.”
In the said decision, it has been held that in case, some
mistake has been committed in not producing the relevant documents
at the time of submitting the report, it is always open to the
Investigating Officer to produce the same with the permission of the
Court.
In the present case, the petitioner was arrested on
18.10.2014 and was produced before the Illaqa Magistrate on
19.10.2014 and since then, he is in custody. The challan has not been
presented by the prosecution till date whereas the statutory period of
180 days has expired on 16.04.2015. Although, the prosecution
moved an application for extension of time on 13.04.2015 for grant of
further 60 days time, which was allowed on the same day and period
of 40 days was granted to the prosecution to present the challan.
Even after expiry of period of further 40 days, the challan was not
presented and one more application was moved for grant of further 60
days time for presentation of challan, which was allowed and again
period of 60 days was extended for presentation of challan. Even after
lapse of 280 days (180+40+60), the prosecution did not present the
challan along with the report of Chemical Examiner. On the third
occasion, another application was moved on 04.07.2015 for grant of
extension of time and the same has yet not been decided by the trial
Court. Meanwhile, an application was moved by the petitioner for
grant of bail under Section 167(2) Cr.P.C., which was rejected by the
trial Court on the ground that the investigation has yet not completed
and period has been extended for presentation of challan vide order
dated 25.05.2015. But in spite of availing various opportunities, after
getting benefit of Section 36A (4) on two occasions, the challan has
not been presented and as such, the prosecution cannot take benefit
of Section 36A (4) for an indefinite period as it is the duty of the
prosecution to act with promptness to submit the challan before the
Court and the accused-petitioner should not suffer due to faulty
investigation or slow pace of the prosecution.
The delay has occurred due to the fault of the prosecution
as the challan has not been presented even after expiry of 280 days
and an indefeasible right has accrued to the petitioner in view of the
provisions of Section 167(2) Cr.P.C.
Accordingly, in view of the facts and law position as
discussed above, the present petition is allowed and the petitioner is
directed to be released on bail in view of the provisions of Section 167
(2) Cr.P.C. to the satisfaction of the trial Court.
06.01.2016 (DAYA CHAUDHARY)
No comments:
Post a Comment