Chandra Pal vs State of U.P.

Bala Krishna Narayana, J.—Heard learned Counsel for the revisionist and learned A.G.A. for the State. This criminal revision is directed against the order dated 27.10.2010 passed by Chief Judicial Magistrate, Bareilly by which he has refused to release the revisionist on bail under proviso Section 167(2) Code of Criminal Procedure

Brief facts of the case as stated in the affidavit filed along with the memo of revision and which are relevant for deciding this revision are that on the basis of a first information report lodged by one Smt. Nemsri W/o Sompal regarding the murder of her husband Sompal by Dharampal, Chandra Pal, Brijpal and Onkar on 12.7.2010 at P.S. Vithari Chainpur, District Bareilly Case Crime No. 648 of 2010, u/s 307, 302 I.P.C. was registered against the aforementioned four persons. The revisionist Chandra Pal who is one of the accused in the aforesaid case was arrested on 27.7.2010 ans sent to jail on 28.7.2010. Ninety days period stipulated u/s 167(2) of the Code of Criminal Procedure for filing of the police report was completed on 26.10.2010 but no charge sheet was filed. Consequently, an application was moved on behalf of the revisionist before the Chief Judicial Magistrate, Bareilly with a prayer that the revisionist is ready to furnish bail bonds and as such he may be released on bail under the proviso to Section 167(2) Code of Criminal Procedure as no police report has been submitted by the Investigating Officer within the stipulated period. By the impugned order the learned Magistrate rejected the application of the revisionist for being released on bail under proviso to Section 167(2) Code of Criminal Procedure

Learned Counsel for the revisionist submitted that non-filing of police report within 90 days of the revisionist''s detention entitled him to be released on bail under proviso to Section 167(2) of the Code of Criminal Procedure and the learned Magistrate committed a patent illegality in rejecting the revisionist''s bail application on the ground that the charge sheet had been submitted on the date when the revisionist had enforced his right under proviso to Section 167(2) Code of Criminal Procedure

Learned Counsel for the revisionist further submitted that the filing of the charge sheet after the prescribed period on the day on which the revisionist had availed his right for being enlarged on bail under the proviso to Section 167(2) of the Code of Criminal Procedure will not extinguish the indefeasible which had accrued in his favour on account of non filing of the police report within the period envisaged u/s 167(2) Code of Criminal Procedure

Per contra learned A.G.A. submitted that the impugned order does not suffer from any perversity or infirmity warranting any interference by this Court. The court below had after considering the entire materials on record held that proviso to Section 187(2) was not attracted to the facts of the present case as the charge sheet had been submitted against revisionist on the very date on which he had invoked the proviso to Section 167(2) Code of Criminal Procedure

Learned A.G.A. further submitted that mere failure of the prosecution to file the charge sheet within the stipulated period does not ipso facto entitle an accused under detention to being released on bail unless he avails the indefeasible right accruing to him in a situation where charge sheet has not been submitted within the prescribed period and offers to furnish bail bonds.

He further submitted that if an accused does not make any application for being released on bail notwithstanding the fact that charge sheet has not been filed within the stipulated period he will not be entitled to be released on bail under proviso to Section 167(2) after the filing of the charge sheet, as in the present case.

I have very carefully examined the submissions advanced by the learned Counsel for the parties and perused the impugned order as well as the other materials brought on record.

So far as the law on the issue is concerned the same stands settled in view of the judgment of the Apex Court in Udai Mohanlal Acharya v. State of Maharashtra XIIL(2001) ACC 952 (SC). In the aforesaid case before the Apex Court, the question which arose for consideration was that whether in such a situation where the prosecution had failed to file the challan within the stipulated period and the accused enforced his indefeasible right for being released on bail under proviso to Section 167(2) Code of Criminal Procedure and offered to furnish bail bonds but before the court passed any order on the said application the charge sheet was submitted, whether the indefeasible right which had accrued to an accused on account of non filing of challan within the stipulated period stood extinguished as a result of the filing of the charge sheet subsequently. The Apex Court in Udai Mohanlal Acharya (supra) as per the majority view after referring to the Constitutional Bench decision in Sanjay Dutt v. State through C.B.I. Bombay (II) XXXI (1994) ACC 702 (SC), and other decisions on the same recorded the following conclusions in paragraph 4 of the aforesaid judgment:

Under Sub-section (2) of Section 167, a Magistrate before whom an accused is produced while the police is investigating into the offence can authorize detention of the accused in such custody as the Magistrate thinks fit for a term not exceeding 15 days in the whole.

Under the proviso to aforesaid Sub-section (2) of Section 167, the Magistrate may authorize detention of the accused otherwise than 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.

On the expiry of the said period of 90 days, as the case may be, an indefeasible right accrues in favour of the accused for being released on bail on account of default by the investigating agency in the completion of the investigation within the period prescribed and the accused is entitled to be released on bail, if he is prepared to an furnish the bail, as directed by the Magistrate.

When an application for bail is filed by an accused for enforcement of his indefeasible right alleged to have been accrued in his favour on account of default on the part of the investigating agency in completion of the investigation within the specified period, the Magistrate/court must dispose it of forthwith, on being satisfied that in fact the accused has been in custody for the period of 90 days or 60 days, as specified and no charge sheet has been filed by the investigating agency. Such prompt action on the part of the Magistrate/ court will not enable the prosecution to frustrate the object of the Act and the legislative mandate of an accused being released on bail on account of the default on the part of the investigating agency in completing the investigation within the period stipulated.

If the accused is unable to furnish bail, as directed by the Magistrate, then the conjoint reading of Explanation I and proviso to Sub-Section 2 of Section 167, the continued custody of the accused even beyond the specified period in paragraph (a) will not be unauthorized, and therefore, if during that period the investigation is completed and charge sheet is filed then the so-called indefeasible right of the accused would stand extinguished.

The expression ''if not already availed of'' used by this Court in Sanjay Dutt''s case (supra) 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 paragraph (a) of 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 considered the said application and has not indicated the terms and conditions of bail, and the accused has not furnished the same. With the aforesaid interpretation of the expression ''availed of'' if charge sheet is filed subsequent to the availing of the indefeasible right by the accused then that right would not stand frustrated or extinguished, necessarily therefore, if an accused entitled to be released on bail by application of the proviso to Sub-section (2) of Section 167, makes an application before the Magistrate, but the Magistrate erroneously refuses the same and rejects the application and then 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. Such an accused, who 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 law laid down by this Court in the case of Mohd. Iqbal v. State of Maharashtra (supra).

The legal position which emerges from a careful reading of the aforesaid judgment of the Apex Court is that where charge sheet has not been filed within the stipulated period and the accused moves an application before the concerned Magistrate for being released on bail and offers to furnish bail bonds then in such a case, even if the concerned Magistrate fails to pass any order on the bail application of the accused and keeps the same pending and in the meantime charge sheet is submitted the indefeasible right which has accrued to the accused under proviso to Section 167(2) Code of Criminal Procedure shall not be extinguished. If, however, an accused fails to enforce his right under proviso to Section 167(2) Code of Criminal Procedure and a charge sheet is submitted after the stipulated period in that case the indefeasible right accruing to an accused shall stand extinguished and his bail application shall considered on merits only in accordance with the relevant provisions of the Code.

Now I proceed to examine whether on the facts of the present case the revisionist was entitled to be released on bail under proviso to Section 167(2) of Code of Criminal Procedure or not.

It appears from the materials brought on record that the revisionist moved the bail application enforcing his right to be released on bail under proviso to Section 167(2) Code of Criminal Procedure on 27.10.2010 alleging therein that no charge sheet has been submitted within the period stipulated u/s 167(2) Code of Criminal Procedure On the said application report was called for by the Presiding Officer on the same date. The bail application application of the revisionist, copy whereof has been filed as annexure No. 4 to the affidavit bears two reports one by the court Moharir dated 27.10.2010 certifying that the charge sheet had been received at 2.00 pm, while the second report is to the effect that no charge sheet had been filed. However, the designation of the Officer or employee who made the aforesaid report is not disclosed. Even in the affidavit which has been filed along with this application in revision the designation of the officer or the employee who made the remark/report on the revisionist''s bail application that till 27.10.2010 no charge sheet had been filed has not been disclosed. In any view of the matter there is no challenge by the revisionist to the correctness of the report of the court Moharir dated 27.10.2010 made on the revisionist''s bail application that charge sheet had been received at 2.00 pm.

Thus, in my opinion, the court below did not commit any error in refusing to release the revisionist on bail under the proviso to Section 167(2) Code of Criminal Procedure as the date on which the revisionist enforced his right under proviso to Section 167(2) Code of Criminal Procedure charge sheet had already been filed.