Haripada Kumbhakar vs State of Jharkhand

R.R. Prasad, J.—This writ application is directed against the order dated 13.7.2009 passed by the Judicial Magistrate, 1st Class, Jamshedpur in G.R. No. 1080 of 2009 (arising out of Patamda P.S. case No. 33 of 2009) whereby learned Magistrate for the reasons stated therein declined to accept the bail bond furnished by the petitioner.

The case of the petitioner is that the informant, Rakhal Chandra Razak lodged a case alleging therein that on 11.4.2009 some unknown persons demanded Rs. 1 lac from him by giving threatening that if the demand is not fulfilled, he will face dire consequences. Thereafter repeatedly demands were made through Mobile, upon which a case was registered u/s 384, 387 and 120B of the Indian Penal Code.

In course of investigation, petitioner was arrested on 6.5.2009, when petitioner''s involvement was disclosed by the coaccused Laltu Kumbhakar in his confessional statement. On the same day, the petitioner was remanded to jail custody.

When the Investigation Officer failed to submit charge sheet within 60 days, the petitioner filed an application on 6.7.2009 u/s 167(2) of the Code of Criminal Procedure before the Chief Judicial Magistrate, Jamshedpur. On filing the said application, learned Chief Judicial Magistrate called for a report from the G.R. clerk as to whether final form has been submitted or not. Immediately the report was submitted to the effect that no final form has been submitted. Thereupon learned Chief Judicial Magistrate on 6.7.2009 at 1.40 P.M. directed the petitioner to be enlarged on bail on furnishing bail bond of Rs. 10,000/-(ten thousand) with two sureties of the like amount each.

Further case is that on the same day, i.e, 6.7.2009 charge sheet was submitted at 3.25 P.M, upon which learned Chief Judicial Magistrate took cognizance of the offence under Sections 384, 387 and 120B of the Indian Penal Code and transferred the case to the court of Judicial Magistrate, 1st class, Jamshedpur for disposal.

It is a case of the petitioner that as the case had been transferred from the court of Chief Judicial Magistrate to the court of Judicial Magistrate, bail bond could not be furnished in the court of Chief Judicial Magistrate, rather it was furnished on 9.7.2009 before the learned Judicial Magistrate, who, vide its order dated 13.7.2009 refused to accept the bail bonds for the reason that before furnishing bail bond, charge sheet has been submitted and as such, right of the petitioner to be released on bail in terms of the provision of Section 167(2) of the Code of Criminal Procedure stands extinguished.

Being aggrieved with that order, this application has been filed.

It was contended on behalf of the petitioner that once police failed to submit final form within the period as stipulated under proviso to Sub-section (2) of Section 167, indefeasible right, of being released on bail, accrued to the petitioner as soon as the petitioner filed an application for bail stating therein that he is prepared to offer the bail and that right cannot be extinguished on filing of the charge sheet.

In this regard it was further stated that on filing the said bail application, learned Chief Judicial Magistrate had even passed an order for releasing the appellant on bail on furnishing bail bond which could not be furnished, by the time the charge sheet was submitted. But even in that event indefeasible right of being released accrued to the petitioner will never get extinguished and this proposition of law has been laid down in a case of Uday Mohanlal Acharya Vs. State of Maharashtra, but the learned Magistrate wrongly construed the ratio laid down in that case by holding that indefeasible right of the petitioner of being released got extinguished as before furnishing bail bond, charge sheet had already been submitted and hence, the said order is fit to be set aside.

Mr. R.K. Singh, learned Counsel appearing for the State submitted that indefeasible right accruing to the accused in such a situation is enforceable only prior to filing of the bail bond in terms of the order passed by this Court and that right, if already not availed of, will not survive as soon as charge sheet is filed before furnishing of the bail bond and, therefore, the trial court has not committed any illegality whatsoever in passing the impugned order.

The power u/s 167 is given to detain a person in custody while the police goes on with the investigation and before the Magistrate starts an enquiry. Therefore, Section 167 of the Code of Criminal Procedure is the provision which authorizes the Magistrate permitting detention of an accused in custody and prescribing the maximum period for which such detention could be ordered. Having prescribed the maximum period, what would be the consequences thereafter has been indicated in the proviso to Sub-section (2) of Section 167 of the Code of Criminal Procedure which reads as follows:

Section 167(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, authorize 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 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 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 Sub-section 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 in any custody under this section unless the accused is produced before him;

(c) no Magistrate of the second class, not specially empowered in this behalf by the High Court, shall authorize 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 paragraph (b), the production of the accused person may be proved by his signature on the order authorizing detention.]

Proviso of the aforesaid provision, appears to be quite unambiguous and clear which stipulates that the accused shall be released on bail if he is prepared to and does furnish the bail which has been termed by judicial pronouncement to be ''compulsive bail'' and such bail would be deemed to be a bail under Chapter XXXIII. The right of an accused to be released on bail after expiry of the maximum period of detention provided u/s 167 can be denied only when an accused does not furnish bail as is apparent from Explanation I to the said section.

However, in course of time the courts including the Hon''ble Supreme Court came across with a situation that when right accrued to the accused, of being released, an application for bail was filed but that application was rejected for some reason or other denying the accused to be released on bail and by the time the accused files an application for bail before the higher court, charge sheet is submitted and as such, the question arose as to whether accused is entitled to compulsive bail ? Such a situation came before the Constitution Bench of the Hon''ble Supreme Court in a case of Sanjay Dutt Vs. State through C.B.I., Bombay, where the Court held hereunder:

The indefeasible right accruing to the accused in such a situation is enforceable only prior to the filing of the challan and it does not survive or remain enforceable on the challan being filed, if already not availed of.

Subsequently, the Hon''ble Supreme Court in a case of Uday Mohanlal Acharya v. State of Maharashtra (supra) construed the meaning of the expression if already not availed of by posing the question:

Does it mean that an accused files an application for bail and offers his willingness for being released on bail or does it mean that a bail order must be passed, the accused person must furnish the bail and get him released on bail?

The question posed has been answered by the Hon''ble Supreme Court in following terms:

In our considered opinion it would be more in consonance with the legislative mandate to hold that an accused must be held to have availed of his indefeasible right, the moment he files an application for being released on bail and offers to abide by the terms and conditions of bail. To interpret the expression ''availed of to mean actually being released on bail after furnishing the necessary bail required would cause great injustice to the accused and would defeat the very purpose of the proviso to Section 167(2) of the Code of Criminal Procedure and further would make an illegal custody to be legal, inasmuch as after the expiry of the stipulated period the Magistrate had no further jurisdiction to remand and such custody of the accused is without any valid order of remand.

It has been further observed that if the expression availed of is interpreted to mean that the accused must factually be released on bail, then in a given case where the Magistrate illegally refuses to pass an order notwithstanding the maximum period stipulated in Section 167 had expired, and yet no challan had been filed then the accused could only move to the higher forum and while the matter remains pending in the higher forum for consideration, if the prosecution files charge sheet then also the so-called right accruing to the accused because of inaction on the part of the investigating agency would get frustrated.

After considering the pros and cons the Hon''ble Court for the reasons recorded came to the conclusion which were enumerated in sub-paragraphs 1 to 6 at page 1921 - 1922. The conclusion arrived at sub-paragraph 6 reads as follows:

The expression ''if not already availed of used by this Court in Sanjay Dutt Vs. State through C.B.I., Bombay, 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 indicated the terms and conditions of bail, and the accused has not furnished the same.

However, before proceeding further the conclusion arrived at paragraph 5 also needs to be taken notice of as leaned Magistrate, in the instant case, has based his finding on the observation made at paragraph 5 which reads as follows:

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 complete and charge sheet is filed then the so-called indefeasible right of the accused would stand extinguished.

The aforesaid proposition is applicable in the context of a situation when even after accrual of right neither bail application nor bail bond is filed. Thus, there would be no denying of the fact that if the accused fails to file an application of bail or fails to furnish bail bond even after expiry of the period of submission of charge sheet as stipulated under the Act, he will not be released on bail as in that case he can not be said to have availed of his right of being released but if the accused after expiry of the statutory period in case of non-submission of the final form files an application and is prepared to offer bail, on being directed, then his case would not be covered under the category laid down by his Lordship at paragraph 5, rather it would be covered under the category as laid down at sub-paragraph ''6'' as indicated above.

Coming to the instant case, I do find that when the police failed to submit final form within the statutory period of 60 days, an application for bail was filed before the court below copy of which was produced before the this Court for its perusal wherein statement was made that the petitioner is ready and willing to furnish substantial bailer to the utmost satisfaction of the Hon''ble Court.

Thus, the petitioner by filing such application has fulfilled all the conditions for being released as has been observed by the Hon''ble Supreme Court indicated hereinabove, as stated above, as the accused by filing an application offered to furnish bail on being directed and thereby indefeasible right accrued to the petitioner was availed of and in that situation, filing of the charge sheet before furnishing the bail bond will not extinguish the indefeasible right of being released accrued to him.

In that view of the matter, leaned Magistrate appears to have committed illegality in refusing to accept the bail bond and hence, it is set aside. Consequently, the petitioner be released on bail, if the bail bond filed on behalf of the petitioner, is found to be satisfactory.

In the result, this application is allowed.

Let a copy of this order be sent to the court concerned through FAX at the cost of the petitioner.