Ajay Sharma vs State of Rajasthan

J.R. Goyal, J.—This bail application under S.439 Cr.P.C. has been filed by the accused-petitioner in FIR No.439/06 registered at Police Station Bajaj Nagar, Jaipur City, Jaipur for the offence under S.302,201,379 and 411 IPC.

Briefly stated, the facts of the case are that on 25.09.2006 at about 8.40 A.M. on an information, the in-charge of the Bajaj Nagar police station went behind the Jaipuria School near JLN Marg and found a dead-body of woman in a pit near the road. FIR under S.302 and 201 IPC was registered, investigation commenced and the deceased was identified as Gayatri Devi wife of Pushpendra resident of Bharatpur. During the course of investigation the police collected evidence and arrested the accused-petitioner on 30.09.06. Time to time police remand, thereafter judicial remand were granted and after completion of the investigation, police filed charge-sheet on 23.12.06 and cognizance order was passed by Judicial Magistrate on 04.01.2007.

Learned counsel Shri S.K. Gupta, appearing for the accused-petitioner strenuously contended that till cognizance was taken, remand under S.309 Cr.P.C. cannot be granted and the provisions of S.167 Cr.P.C. can only be invoked for remanding the accused-petitioner prior to the cognizance order, while in the instant case though charge-sheet was filed within the prescribed period of ninety days, cognizance could not be taken within the stipulated period and, therefore, the accused-petitioner is entitled to be released on bail by invoking the provisions of S.167 (2) Cr.P.C. Reference was made on the judgments rendered in Beni Madhava & others v. The State of Rajasthan 1982 RCC 145; Kimbhadhur Palsiram Thapa v. State of Maharashtra 1989 (3) Cri 543; and Mahaveer Singh v. State of Rajasthan 1992 (3) Cri 479. While assisting the court, learned counsel Shri S.K. Gupta, frankly admitted that touching to the point involved in this case, the Division Bench of this court had delivered a judgment in Nizzu v. State of Rajasthan 1993 R.C.C. 526.

On the other hand, learned Public Prosecutor contended that charge-sheet has been filed within a period of ninety days from the date of arrest of the accused-petitioner and, therefore, the provisions of S.167(2) Cr.P.C. are not applicable in the instant case. It was further contended that being a case triable by sessions court, enquiry needs to be conducted about the compliance of S.207 and 208 Cr.P.C, and till the case is committed, remand can be granted under S.209 Cr.P.C.

I have given my thoughtful consideration to the rival submissions and have also perused the decisions cited by the learned counsel for accused-petitioner. It is not disputed that within the prescribed period of ninety days from the date of arrest charge-sheet was filed against the accused-petitioner. Now the only point for consideration remained is -

whether the accused is entitled to get the benefit of the proviso to S.167(2) Cr.P.C. even in a situation where the investigation is complete and charge-sheet has been filed within the prescribed period but cognizance could not be taken by the magistrate for any reason whatsoever.

In this regard, though the Single Bench of this court in Beni Madhava''s case (supra) and in Mahaveer Singh''s case (supra) have held that the process of investigation is not complete till the magistrate examines the police report filed under S.173 Cr.P.C. and takes cognizance of an offence under S.190 Cr.P.C. and in such situation where cognizance has not been taken detention of the accused can be authorised under S.167 Cr.P.C. It was further observed that the period under proviso to S.167(2) Cr.P.C. has to be computed from the date of arrest till the magistrate passes an order under S.190 Cr.P.C. Similar view has also been taken by the Single Bench of Bombay High Court in Khimbhadhur Palsiram Thapa v. State of Maharashtra 1989 (3) Crimes 543, but this issue has thoroughly been examined by the Division Bench of this court in the case of Nizzu (supra) wherein ratio of judgment in Beni Madhava''s case (supra), was also disapproved and it was observed in para 5 as under -

A bare reading of Sec.167 Cr.P.C. will show that its various sub-sections deal with different situations. But one thing is clear that the procedure mentioned in the said section is attracted only when the investigation cannot be completed within the period prescribed. Sub-sec.(i) of Sec.167 Cr.P.C. will be attracted to a situation when any person is arrested and detained in custody and it appears to the investigating officer that the investigation cannot be completed within 24 hours. In such a situation, it is incumbent on the Officer Incharge of the police station or the police officer making the investigation, to forthwith transmit to the nearest Judicial Magistrate a copy of the entries in the diary relating to the case but also to forward the accused to such Magistrate. Sub-sec.(2) of Sec.167 Cr.P.C. thereafter comes into picture and it authorise any Magistrate, whether having jurisdiction in the matter or not, to order detention of the accused in such custody as he thinks fit, but in any case, the detention cannot exceed fifteen days. Then, proviso to sub-sec.(2) of Sec.167 Cr.P.C. comes into play and it prescribes different period of detention of the accused to be ordered by the Magistrate, depending on the sentence(s) which for the offences, with which the accused is charged, can be ultimately passed under the various sections of the Indian Penal Code. A reading of the aforesaid Sec.167 Cr.P.C. would show that the said section will only apply to the investigation of the case and detention of the accused can be authorised only during the investigation of the case and not thereafter. It is the mandate of the Legislature as contained in sub-sec.(1) of Section 173 Cr.P.C. that every investigation under this Chapter 12 shall be completed without unnecessary delay and under sub-sec(2) of Sec.173 Cr.P.C. as soon as the investigation is completed, the Officer lncharge of the Police Station shall forward to the Magistrate empowered to take cognizance of the offence on a police report, a report in the form prescribed by the State Government stating various facts, name of the accused etc. as contained in clauses (a) to (g) of sub-sec.(2) of Sec.173 Cr.P.C. Therefore, from a joint reading of Sections 167 and 173 Cr.P.C. it is clear that the state of investigation comes to an end no sooner the report is forwarded by the Officer Incharge of the Police Station to the Magistrate. The learned Single Judge in the case of Beni Madhav (supra) had extended the investigation even after the filing of the police report u/s 167, on the ground that even after the submission of the report u/s.173 Cr.P.C. it is open to the Magistrate to direct further investigation under sub-sec.(2) of Sec.156 Cr.P.C. With due respect to the learned Judge, we are unable to agree with him. No doubt, Sec.173(8) Cr.P.C. does not preclude further investigation in respect of offence after a report under sub-sec.(2) of Sec.173 Cr.P.C. has been forwarded to the Magistrate and the Officer Incharge of the police station obtains further evidence, oral or documentary, and forwards it to the Magistrate, a further report or reports regarding such evidence in the form prescribed but we are of the opinion that it does not mean that the investigation can be said to be still pending. It can, therefore, be concluded that proviso to Sub-sec.(2) of Sec.167 Cr.P.C. will not apply to a case where after the completion of the investigation, the Officer Incharge of the Police Station has forwarded to the Magistrate, report u/sub- sec.(2) of Sec.173 Cr.P.C. and, therefore, merely because after the investigation report or the charge-sheet has been filed within the prescribed period by the Officer Incharge of the Police Station but cognizance of the offence has not been taken by the Magistrate, it cannot be said that under proviso to sub-sec.(2) of Sec.167 Cr.P.C. the accused will be entitled for being released on bail." The Division Bench further observed-

We also hold that in a case where the charge-sheet is filed within the prescribed period, the provisions of the proviso to sub-sec.(2) of Sec.167 Cr.P.C. are not attracted and the accused does not become entitled to bail.

The provision of S.167(2) Cr.P.C. was also examined by the Hon''ble Apex Court in Uday Mohanlal Acharya Vs. State of Maharashtra, , in which after considering the judgment of Constitutional Bench delivered in the case of Sanjay Dutt Vs. State through C.B.I., Bombay, , it was held that on the expiry of the said period of ninety days or sixty days, as the case may be, prescribed under the proviso to Sub-sec.(2) of S.167 Cr.P.C, an indefeasible right accrues in favour of the accused for being released on bail on account of default of the Investigating Agency in completion of the investigation within the specified period. In the judgment delivered by the Supreme Court in Sanjay Dutt''s case (supra) it was observed that the indefeasible right of the accused does not survive or remain enforceable on the challan being filed, if already not availed of.

In the light of these authoritative pronouncements of Hon''ble the Apex Court and Division Bench of this court, the position in amply clear that indefeasible right envisaged under Sub-sec.(2) of S.167 Cr.P.C. of bail, is only available when charge-sheet has not been filed within the prescribed period from the date of arrest of the accused, and the proviso to Sub-sec.(2) of S.167 Cr.P.C. is not attracted and also the accused does not become entitled to bail on the ground that cognizance has not been taken within the stipulated period.

Coming to the merit, learned counsel for the accused-petitioner contended that there is no direct evidence against the accused-petitioner and the Investigating Agency has fabricated some circumstantial evidence. Last-seen evidence is doubtful and also does not connect the accused with the crime since according to the prosecution case the accused-petitioner was last-seen with the deceased on 24.09.06 at Bikaner but dead- body was found on 25.09.06 at Jaipur. It was further contended that false recoveries were shown at the instance of accused-petitioner and the chain of circumstances is also not complete.

Learned Public Prosecutor vehemently opposed the bail application also on merit and contended that the accused petitioner stayed at Jaipur in different hotels for couple of days prior to 24.09.06 and he was seen staying in a hotel at Bikaner with the deceased, for which registers of the hotels and other records were also seized. It was also contended that at the instance of the accused-petitioner ornaments of the deceased and other articles were recovered. Record of mobile phone was also collected, which helps the prosecution in connecting the accused-petitioner with the crime.

Without expressing any opinion on the merit, having considered the rival submissions made at the Bar, keeping in view all the facts and circumstances of this case including the nature of offence, alleged involvement of the accused petitioner in the crime and the material collected by the police during investigation. I do not find it to be a fit case where indulgence of bail to the accused should be granted.

IN THE RESULT, THIS BAIL APPLICATION IS REJECTED.