The applicant-Smt. Shobha wd/o Ambadas Matre has made specific allegation that the investigating agency failed to file charge-sheet within the prescribed period of 90 days in Crime No. 80/1998, with sole object to facilitate the release of accused/non-applicants, on bail in the case, which otherwise they would not have been entitled to. Such conduct of the investigating agency is not unknown to the Court. Justice Punchi in Aslam Babalal Desai 's case has made a reference to this aspect by observing that:
"It cannot be overlooked that a bail order under section 167(2) of the Code could even be managed through a convenient investigating officer, however, heinous be the crime. The Court would have to grant bail under the mandate of law, debarred as it is to see to the merits of the case at that stage. To say that thenceforth the Court is for ever shut to see to the merits of the case, though it otherwise has power to cancel bail is to deprive it of its elementary function to administer justice and weigh the claims on merit inter se. I would rather loath for such an interpretation as what 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."
Presently it has become a very common practice to obtain bail, in default, by 'such dubious method. Therefore, this Court proposes to incorporate certain steps to be taken by the investigating officer, the prosecutor, magistrate and the disciplinary authority of the Investigating Agency, as a measure to prevent the misuse of section 167 Criminal Procedure Code for obtaining bail in default which is inherent in section 167 of Criminal Procedure Code, as observed in Aslam Babalal Desai's case thus : The prosecution cannot be allowed to trifle with individual liberty if it does not take its task seriously and does not complete it within the time allowed by law." All actions of the State or its authorities and its officers must be carried out in accordance with the Constitution and within the limits set up by law. Therefore, it is obligatory on the part of the investigating agency to conclude investigation within the prescribed period 60/90 days, as contemplated in section 167(2). A duty is cast on the Investigating officer to satisfy the Magistrate as to why he could not file the charge-sheet within the prescribed time, by filing his explanation, giving special reasons supported by an affidavit and case diary on or before last date of the prescribed period and on the date charge-sheet is filed beyond the prescribed period to enable the Magistrate to satisfy himself that in the facts and circumstances brought before him such investigation could not have been completed within prescribed period for justifiable reasons. If the Magistrate is satisfied that the explanation so given is reasonable, he may record so which will result in absolving the investigating officer and his obligation under law and committing the default. If the Magistrate finds that there is no justifiable reasons for not filing the charge-sheet within prescribed time then he should record so and then it will be the duty of the learned Public Prosecutor to submit his report to the Disciplinary authority of the Investigation Officer for appropriate action, against the investigation officer for such default in performing the duty. Thereafter the disciplinary authority is expected to proceed in the matter and submit his action taken report to the concerned Magistrate, through their prosecuting agency. This procedure will provide safeguard to the misuse of authority by investigating agency and also serve the interest of justice by promoting the mandate as enshrined in Articles 21 and 22 of the Constitution of India. {Para 13}
IN THE HIGH COURT OF BOMBAY (NAGPUR BENCH)
Cri. Applns. Nos. 600 and 601 of 1999
Decided On: 07.06.1999
Bhulabai Vs. Shankar Barkaji Matre and Ors.
Hon'ble Judges/Coram: J.N. Patel, J.
Citation: 1999 (3) Mh.L.J 227,MANU/MH/1445/1999.
1. Heard the learned counsel for the Applicants and learned Additional Public Prosecutor for the State. None present for the Respondents/accused.
2. Criminal Application No. 600/99 is filed by Smt. Bhulabai wd/o Barkaji Matre against the accused Shankar s/o Barkaji Matre and Devidas s/o Barkaji Matre for having committed an offence under sections 147, 148, 149, 302, 307 and 325 of the Indian Penal Code whereas the Criminal Application No. 601/99 is filed by Smt. Shobhabai wd/o Ambadas Matre and two others against the Respondents/accused/non-applicants viz. Shankar s/o Barkaji Matre; Devidas s/o Barkaji Matre; Eknath s/o Maroti Atalkar; Pyarelal s/o Kanhaiyyalal Prajapati; and Sudama s/o Bansilal Prajapati, who are arrested for having committed offences under sections 147, 148, 149, 302, 307 and 325 read with 34 of Indian Penal Code vide Crime No. 95/1992 registered at Police Station, Yevda and Crime No. 80/1998 respectively and facing their Sessions Trial bearing Sessions Trial Nos. 19/1993 and 137/1999 pending before the Court of Additional Sessions Judge, Achalpur. Both these applications seek cancellation of bail of the accused persons and as such are being disposed of by this common judgment.
3. At the time notice came to be issued to the non-applicants-accused in these two cases. Mr. R. M. Daga waived service for them but subsequently expressed his inability to appear in the case for want of instructions. As such, after hearing the applicants as well as the learned Additional Public Prosecutor, this Court issued Rule returnable on 19-4-1999. The non-applicants/accused were duly served but none appeared for them before this Court, and therefore, this Court proceeded to hear the learned counsel for the applicants and learned Additional Public Prosecutor for the State.
4. The non-applicants/accused Shankar s/o Barkaji Matre and Devidas s/o Barkaji Matre are alleged to have committed murder of one Uttam Matre, their own brother; and came to be arrested vide Crime No. 95/92. As the charge sheet was not filed within a period of 90 days, the applicants-accused came to be released on bail, in default. Subsequently, charge sheet was filed and case was committed to the Court of Session and they are facing trial for having committed offence under sections 302 read with 34 of Indian Penal Code vide Sessions trial No. 19/93. It so happened that on 17-7-1998 both these accused persons along with Eknath s/o Maroti Atalkar; Pyarelal s/o Kanhaiyyalal Prajapati; and Sudama s/o Bansilal Prajapati are alleged to have committed murder of their father - Barkaji Matre; brother - Ambadas Matre; sister - Sumitra Ramesh Mahore. Barkaji, Ambaji and Sumitra were the witnesses to the incident in which accused persons have committed murder of their brother - Uttam Matre and were cited as witnesses for the prosecution in Sessions Trial No. 19/1993. The applicant Bhulabai, mother of these two accused is also one of the witnesses to the incident. As these accused committed multiple murders of their relatives, i.e. father, brother and sister, along with their associates, they again came to be arrested for having committed offences under sections 147, 148, 149, 302, 307 and 325 of Indian Penal Code, registered vide Crime No. 80/1998. Even this time, they were required to be released on bail as the prosecution failed to file charge-sheet within the prescribed period of 90 days. Subsequently, charge-sheet has been filed and the accused persons are facing their trial before the learned Additional Sessions Judge, Achalpur, vide Sessions Trial No. 137/1998.
5. It is the case of the applicant- Bhulabai wd/o Barkaji Matre, that the non-applicants/accused have murdered their father, brother and sister as they were the witnesses to the incident of murder committed by them of their brother - Uttam Matre. It is further contended that, she is the sole surviving material witness to the crime and while the applicants/accused were in Jail, in Crime No. 80/1998, they were giving threat to her that, whosoever will come in their way, for taking the crops, shall be eliminated and killed and, therefore, she lodged a report of the incident at Police Station, Daryapur on 13-8-1998. As no steps were taken, she moved the Court of Additional Sessions Judge for cancellation of bail of these accused persons. Similarly, Smt. Shobha wd/o Ambadas Matre and two others also seek cancellation of the bail granted to the accused persons, viz. Shankar s/o Barkaji Matre; Devidas s/o Barkaji Matre; Eknath s/o Maroti Atalkar; Pyarelal s/o Kanhaiyyalal Prajapati; and Sudama s/o Bansilal Prajapati, on the ground that the non-applicants/accused are involved in committing heinous crime of murdering their own father-Barkaji Matre; and their own real brother - Ambadas Matre and their own real sister Sumitra Mahore on 17-7-1998 on account of dispute regarding agricultural fields and crops. After they had killed their real brother - Uttam Matre, on earlier occasion, there was immediate threat to the life of witness herself and the applicant No. 2-Ramesh s/o Pandurang Bawne. It is further contended that the police have deliberately delayed filing of the charge-sheet, within the prescribed period of 90 days in order to facilitate release of the applicants on bail, by default, as otherwise, on merits, taking into consideration the nature of the offence committed by the non-applicant-accused, they would not have been released on bail. It is submitted that these applicants have also filed separate application, for cancellation of bail before the learned Additional Sessions Judge, Achalpur, which also came to be rejected.
6. That the prosecution have also moved an application for cancellation of bail of the non-applicants/accused in the two cases along with the applicants, but the same came to be rejected. The prosecution supports the case of the applicants for cancellation of the bail of the non-applicants-accused.
7. It is submitted by Mr. Joshi, learned counsel for the applicants that taking into consideration that the applicants are the main witnesses to the gruesome murders committed by the non-applicants/accused and as the non-applicants/accused have threatened the applicants with dire consequences, they have misused the bail granted to them by tampering the prosecution case; and their bail deserves to be cancelled. It is submitted that the murder have taken place because of quarrels and dispute, raised by the accused persons, regarding respective shares in the agricultural fields and that there is all likelihood that the non-applicants/accused will do away with the applicants, who are the main witnesses in the two cases. As they are the only surviving heirs and, therefore, this is a fit case that the bail granted to the applicant/accused in the two cases deserves to be cancelled. Mr. Joshi, has referred to the case of Aslam Babalal Desai vs. State of Maharashtra, reported in MANU/SC/0001/1993 : AIR 1993 SC 1; State Delhi Administration vs. Mahinder Singh Delhi High Court reported in 1994 I Crimes 56; 1993 II Crimes 405 (Gujarat High Court); 1995 II Crimes 481, Gayaram Mondal vs. State (Calcutta High Court); 1993 I Crimes 393 (Punjab & Haryana High Court); 1993 II Crimes 84 ( Delhi High Court) Court on its own Motion vs. Vishnu Pandit and Anr.; MANU/DE/0629/1996 : 1996 Cri LJ 3319; and MANU/SC/0028/1958 : AIR 1958 SC 376, in support of the case.
8. The learned Additional Public Prosecutor strongly supports the case of the applicants for cancellation of bail. It is submitted that this is a fit case where the bail granted to the accused persons deserves to be cancelled, as the accused persons have abused their liberty, when they were released on bail, on earlier occasion in the case of committing murder of their own brother by subsequently committing the gruesome murder of their own father, brother and sister, who were eye-witnesses in the earlier case. It is submitted that, Bhulabai, who is mother of the two accused, has herself made a complaint that she has been threatened with dire consequences, which is enough to show that the applicants/accused are tampering with the prosecution case and as the applicants-Bhulabai and Smt. Shobhabai are eye-witnesses, there is all likelihood that the accused persons may eliminate them and, therefore, their bail deserves to be cancelled.
9. Under the Criminal Justice System, the importance of bail cannot be overlooked as its denial is a restriction on the freedom of the accused, access to lawyers and preparing of defence. The presumption of innocence until proof of guilt requires the clear justification for depriving a person of their liberty before conviction. There are generally seen to be three reasons, which might justify so drastic a step; to deny bail to the accused persons, pending trial. These are :-
(1) To protect the public from those considered dangerous or likely to commit further serious offences unless kept in custody;
(2) To secure the attendance at their trial of those who are considered likely to abscond;
(3) prevent defendants from interfering with the administration of justice, by for example threatening witnesses.
The provisions as to bail and bonds is given under Chapter XXXIII of the Criminal Procedure Code. Section 437 of the Criminal Procedure Code provides when bail may be taken in case of non-bailable offence. Section 437(1) prohibits grant of bail when the offence is punishable with death or imprisonment for life, except where the accused is child, woman or is sick or infirm person as provided in the first proviso to section 437. Normally, while considering the case of an accused, for bail, the Court has to record the nature and seriousness of the offence; character of the accused, previous conviction imposed association and community styles; previous record of the accused, as regards past grounds of bail; strength of the case against accused and any other factor which appears to be relevant. In case the Court finds that, if released on bail, the accused is likely to abscond or commit further offences or interfere with the witnesses or otherwise obstructs the course of justice, the best step is to deny bail to the accused. In addition to grant of bail, on merits, the Criminal Procedure Code provides certain statutory rights to bail to a person, who has been arrested in non-bailable offence, as contemplated under section 437(2) and 437(6). In addition to this, persons accused and arrested for offence are entitled to bail, in default, where the investigation cannot be completed within specified period from date of detention in custody as per section 167(2) proviso-(a). Proviso (a) to sub-section (2) of section 167 provides thus :
"167(2)(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 authorize 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 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 sub-section shall be deemed to be so released under the provisions of Chapter XXXIII for the purposes of that Chapter; (emphasis supplied).
Therefore, Criminal Procedure Code provides whether a bail is granted on merits or in default, as contemplated under section 167(2) of the Criminal Procedure Code, is one and the same and, therefore, any cancellation of such bail can only be done by the Court in exercise of its powers under sub-section (5) of section 437 and section 439(2) of the Criminal Procedure Code. The only distinction is that powers for cancellation of bail under sub-section (5) of section 437 can be exercised by any Court whereas power under section 439(2) to cancel bail vests with the High Court or Court of Session. In addition to these two provisions, while a Magistrate commits a case, in which the offence is triable exclusively by the Court of Session, under section 209 of the Criminal Procedure Code, clause (b) of section 209 provides, subject to the provisions of this Code relating to bail, remand the accused to custody during and until the conclusion of the trial. This provision need not be strictly construed to vest in the Magistrate, power to cancel the bail, but it only entitles him to reconsider bail granted to the accused and cancel the same in exercise of his powers under sub-section (5) of section 437 Criminal Procedure Code.
10. As can be seen that grounds for cancellation of bail are not provided by section 437(5) or 439(2), but such grounds are time and again specified by the Courts by judicial pronouncements and can be summed up as under :
(i) Where the person on bail, during the period of bail-
(a) commits the very same offence for which he is being tried or has been convicted, or
(b) hampers the investigation; or
(c) tampers with the evidence, e.g. by intimidating, bribing or tampering with prosecution witnesses, or removing traces or proofs of crime;
(d) runs away to a foreign country, or goes underground or beyond the control of sureties; or
(e) commits act of violence, in revenge, against the police and the prosecution witnesses and those who have booked him or are trying to book him.
(ii) where the order granting bail is found to be without jurisdiction. But mere vague allegations are not sufficient grounds for cancellation of bail.
(iii) Where the Court comes to be conclusion that the accused has committed non-bailable offence and that it is necessary that he should be arrested and committed to custody.
11. In the present case, the applicants/accused in both the cases i.e. in first Case, when they committed murder of their brother Uttam Matre and subsequently, when they committed the murder of their father, other brother and sister, came to be released on bail, by taking an advantage of the fact that the prosecution failed to file charge-sheet in the Court, within the period of 90 days i.e. under proviso (a) to section 167(2), since the bail granted under proviso (a) to section 167 of that provision is deemed to have been granted under Chapter XXX11I, it follows that if it is shown that the appellant has misused the bail in any manner, the Court can very well cancel the bail granted to the accused person. In Aslam Babalal Desai vs. State of Maharashtra, the Apex Court has summed up grounds for cancellation of bail under section 437(5), 439(2) which are identical viz., bail granted under section 437(1) or (2) or 439(1) can be cancelled where (i) the accused misuse his liberty by indulging in similar criminal activity, (ii), interferes with the course of investigation (iii) attempts to tamper with evidence of witnesses, (iv) threatens witnesses or indulges in similar activities which would hamper smooth investigation (v) there is likelihood of his fleeing to another country, (vi) attempts to make himself scarce by going underground or becoming unavailable to the investigating agency (vii) attempts to place himself beyond the reach of his surety, etc. The Apex Court by referring to various authorities summed up the case for cancellation of bail granted in default as under :
".........14. We sum up as under :
The provisions of the Code, in particular Sections 57 and 167 manifest the legislative anxiety that once a person's liberty has been interfered with by the police arresting him without a Courts' order or a warrant, the investigation must be carried out with utmost urgency and completed within the maximum period allowed by the proviso (a) to section 167(2) of the Code. It must be realized 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 realize 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 section 437(1) or (2) of 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 would introduce a sense of complacency in the investigating agency and would destroy the very purpose of instilling a sense of urgency expected by sections 57 and 167(2) of the Code. We are, therefore, of the view that once an accused is released on bail under section 167(2) he cannot be taken back in custody merely on the filing of a charge-sheet but there must exist special reasons for so doing besides the fact that the charge-sheet reveals the commission of a non-bailable crime. The ratio of Rajnikant's case, MANU/SC/0440/1989 : AIR 1990 SC 71 to the extent it is inconsistent herewith does not, with respect, state the law correctly.
15. Even where two views are possible, this being a matter belonging to the field of criminal justice involving the liberty of an individual, the provision must be construed strictly in favour of individual liberty since even the law expects early completion of the investigation. The delay in completion of the investigation can be on pain of the accused being released on bail. The prosecution cannot be allowed to trifle with individual liberty if it does not take its task seriously and does not complete it within the time allowed by law. It would also result in avoidable difficulty to the accused if the latter is asked to secure a surety and a few days later be placed behind the bars at the sweet will of the prosecution on production of a charge-sheet. We are, therefore, of the view that unless there are strong grounds for cancellation of the bail, the bail once granted cannot be cancelled on mere production of the charge-sheet. The view we are taking is consistent with this Court's view in the case of Bashir and Raghubir, MANU/SC/0077/1977 : AIR 1978 SC 55 and MANU/SC/0199/1986 : AIR 1987 SC 149 (supra) but if any ambiguity has arisen on account of certain observations in Rajnikant 's case, MANU/SC/0440/1989 : AIR 1990 SC 71 our endeavour is to clear the same and set the controversy at rest. " (Emphasis supplied).
In Aslam Babalal Desai 's case, Punchi, J. as he then was opted to differ with the majority view taken by Ahmadi, J., by observing thus :
"18. The question, as it appears to me, which requires determination in this appeal rather is (in contrast to the one posed by brother Ahmadi, J.) whether an order granting bail under the proviso to subsection (2) of Section 167 (hereinafter 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?"
And after considering the various decisions, Their Lordships came to a finding as reported in paras 28 and 29 of the Judgment, as under :
"28. On the analysis of the case law above discussed I have rather come to a conclusion that a compulsive bail order made by a Court under section 167(2) of the Code being one not on merit, when required to be cancelled after the filing of the challan would not involve any review of a decision made on merit. Such bail is cancellable if the Court has reason to entertain the belief that the accused has committed a non-bailable offence and that it is necessary to arrest him and commit him to custody. The occasion to grant or refuse bail on merit becomes available to the Court after the filing of the challan because earlier thereto merit of bail could not figure at the time of the grant of compulsive bail. The goal of the Court in any event is to strike a judicial balance depending on the exigencies of the situation keeping in view amongst others the claims of personal liberty and the larger interests of the State. It cannot be overlooked that a bail order under Section 167(2) of the Code could even be managed through a convenient investigating officer, however, heinous be the crime. The Court would have to grant bail under the mandate of law. debarred as it is to see to the merits of the case at that stage. To say that thenceforth the Court is for ever shut to see to the merits of the case, though it otherwise has power to cancel bail is to deprive it of its elementary function to administer justice and weigh the claims on merit inter se. I would rather loath 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.
29. 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 on Rajnikunt Jeevan Lal's case, MANU/SC/0440/1989 : AIR 1990 SC 71 (supra). In my view the High Court rightly relied on this decision when Raghubir Singh's case, MANU/SC/0199/1986 : AIR 1987 SC 149 (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 under 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 participant could lead the High Court to entertain the view that the appellant has committed a non-bailable offence which may invite capital punishment or imprisonment for life and that there were sufficient grounds to arrest him and commit him into custody. And on coming to that view, the strong ground for cancellation of bail was made out. The view of the High Court thus seems to me right. For the aforesaid reasons this appeal must fail and is accordingly dismissed."
Therefore, the ratio laid down in the Aslam Babaial Desai's case is that, unless there are strong grounds for cancellation of the bail, the bail once granted cannot be cancelled on mere production of the charge sheet. In the facts and circumstances of the case, at hand, the application of Bhulabai wd/o Barkaji Matre and Smt. Shobha wd/o Ambadas Matre itself makes out a case for cancellation of bail of non-applicants/accused for the simple reason that the non-applicants/accused have misused their liberty by indulging in similar criminal activities and this is a case which cannot be said merely an attempt to tamper with the prosecution case, but they have so conducted themselves in a manner that, they have committed the murder of Barkaji (father); Ambadas Barkaji Matre (brother) and Sou. Sumitra Ramesh Mahore (sister), while they were on bail for the murder of their brother - Uttam Matre. In addition to the nature and seriousness of the offence committed by the applicants/accused even otherwise do not entitle them for bail on merits, in view of the bar imposed in sub-section (1) of section 437, as the offence committed by them is punishable with death or imprisonment for life bail is absolutely prohibited to them and as they have misused the bail granted earlier this Court is satisfied that in order to prevent the applicants/accused from interfering with the administration of justice, the bail granted to them deserves to be cancelled, particularly, when their very relatives who have been threatened by the non-applicants/accused have approached the Court for cancellation of bail.
12. The order passed by the two learned Additional Sessions Judge, rejecting the application for cancellation of bail is not only erroneous, but defeat the purpose and object of free and fair trial. The learned Additional Sessions Judges have misdirected themselves while rejecting the application by observing that no case for cancellation of bail is made out in spite of the fact that the accused repeated the offence without any fear of the law as to its consequence and were again successful in getting bail by default.
13. The applicant-Smt. Shobha wd/o Ambadas Matre has made specific allegation that the investigating agency failed to file charge-sheet within the prescribed period of 90 days in Crime No. 80/1998, with sole object to facilitate the release of accused/non-applicants, on bail in the case, which otherwise they would not have been entitled to. Such conduct of the investigating agency is not unknown to the Court. Justice Punchi in Aslam Babalal Desai 's case has made a reference to this aspect by observing that:
"It cannot be overlooked that a bail order under section 167(2) of the Code could even be managed through a convenient investigating officer, however, heinous be the crime. The Court would have to grant bail under the mandate of law, debarred as it is to see to the merits of the case at that stage. To say that thenceforth the Court is for ever shut to see to the merits of the case, though it otherwise has power to cancel bail is to deprive it of its elementary function to administer justice and weigh the claims on merit inter se. I would rather loath for such an interpretation as what 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."
Presently it has become a very common practice to obtain bail, in default, by 'such dubious method. Therefore, this Court proposes to incorporate certain steps to be taken by the investigating officer, the prosecutor, magistrate and the disciplinary authority of the Investigating Agency, as a measure to prevent the misuse of section 167 Criminal Procedure Code for obtaining bail in default which is inherent in section 167 of Criminal Procedure Code, as observed in Aslam Babalal Desai's case thus : The prosecution cannot be allowed to trifle with individual liberty if it does not take its task seriously and does not complete it within the time allowed by law." All actions of the State or its authorities and its officers must be carried out in accordance with the Constitution and within the limits set up by law. Therefore, it is obligatory on the part of the investigating agency to conclude investigation within the prescribed period 60/90 days, as contemplated in section 167(2). A duty is cast on the Investigating officer to satisfy the Magistrate as to why he could not file the charge-sheet within the prescribed time, by filing his explanation, giving special reasons supported by an affidavit and case diary on or before last date of the prescribed period and on the date charge-sheet is filed beyond the prescribed period to enable the Magistrate to satisfy himself that in the facts and circumstances brought before him such investigation could not have been completed within prescribed period for justifiable reasons. If the Magistrate is satisfied that the explanation so given is reasonable, he may record so which will result in absolving the investigating officer and his obligation under law and committing the default. If the Magistrate finds that there is no justifiable reasons for not filing the charge-sheet within prescribed time then he should record so and then it will be the duty of the learned Public Prosecutor to submit his report to the Disciplinary authority of the Investigation Officer for appropriate action, against the investigation officer for such default in performing the duty. Thereafter the disciplinary authority is expected to proceed in the matter and submit his action taken report to the concerned Magistrate, through their prosecuting agency. This procedure will provide safeguard to the misuse of authority by investigating agency and also serve the interest of justice by promoting the mandate as enshrined in Articles 21 and 22 of the Constitution of India. In the present case this Court is prima facie of the opinion that in Crime No. 80/1998, the investigating Officer was negligent in filing the charge-sheet against the non-applicants/accused, within the prescribed time and for no justification, though the investigation was almost over well within time. The learned Additional Public Prosecutor has assured the Court that a Departmental Enquiry in the matter is being initiated and this Court would not like to observe anything, which would affect and influence the Departmental proceedings, initiated against the Investigation Officer, but expects that, in case the Investigation Officer is found guilty of such misconduct, the authorities will sternly deal with him.
14. It is made clear that failure to comply with the above requirements apart from rendering the official concerned liable for departmental action, would also render him liable to be punished for contempt of Court and any person interested, if aggrieved by non-compliance of these directions will be entitled to initiate proceedings for contempt of Court. The Court, therefore, directs all concerned to scrupulously follow the steps, as proposed and for the said purpose, the copy of this Judgment and Order be forwarded to the Principal Home Secretary, State of Maharashtra, Home Department and Director General of Police, State of Maharashtra; and it shall be their obligation to circulate them to every police station, under their charge and get the same notified at every police station at a conspicuous place, within a reasonable time. Copies of the Judgment and Order be also forwarded to Director of Public Prosecution at Mumbai and to all Sessions Judges in the State of Maharashtra, for circulating the same to all Courts and Magistrates, exercising powers of remand under section 167 of Criminal Procedure Code, during investigation. This is with the hope that, in case the steps are followed, it will work as a check on one and all concerned, with the investigation of the case, remand and filing of the charge-sheet.
15. The applications are allowed.
16. The bail granted to the non-applicants/accused in the two cases i.e. Crime No. 95/1992 of Police Station, Yevda, Tehsil Daryapur, District Amravati (Sessions Trial No. 19/1993) and Crime No. 80/1998, Police Station, Daryapur (Sessions Trial No. 137/1998) now pending before the Additional Sessions Judge, Achalpur, is cancelled and the accused persons are directed to surrender before the learned Additional Sessions Judge, on or before 15th June, 1999, who shall commit them to custody. In case the non-applicants/accused fail to surrender, as directed, then it is further directed that the learned Additional Sessions Judge, shall issue non-bailable warrant for their arrest and take appropriate steps for forfeiting their surety, bonds and take action against the sureties in accordance with law; and commit them to custody on securing their arrest. On their arrest, the police protection granted to witnesses may be withdrawn.
17. Rule is made absolute in the aforesaid terms.
18. The operative part of the order be communicated to the learned Additional Sessions Judge, Achalpur and Superintendent of Police, Amravati to act on the order.
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