Hayarunnisa and Others vs State of Kerala

N. Krishnan Nair, J.—This application for bail is filed by accused Nos. 1 to 3 in. Crime No. 268/2000 of Parippally Police Station. The said crime was registered against the Petitioners and Ors. alleging the commission of the offences punishable under Sections 302 and 307 read with Section 34 of the Indian Penal Code and Section 57(A) of the Abkari Act.

The prosecution allegation is that all accused persons entered into a criminal conspiracy and pursuant to that conspiracy they manufactured illicit arrack mixed with methyl alcohol for being sold to the public for consumption. As a result of the consumption of the poisonous mixture sold by the accused persons, several persons died and several Ors. sustained grevious injuries. The Petitioners were arrested on 24th October 2000 and on 25th October 2000 they were produced before the Judicial First Class Magistrate, Paravoor, who remanded them to the Sub Jail. Admittedly a report u/s 173(2) of the Code of Criminal Procedure against 43 accused including the Petitioners was filed before the Magistrate on 22nd January 2001 It is stated in the final report that the investigation in respect of three of the accused persons is not completed and therefore they are not sent up for trial. According to the Petitioners, though a report purporting to be a final report was filed on 22nd January 2001, they are entitled to the benefit of the proviso to Section 167(2) of the Code of Criminal Procedure since the investigation against them continued even after the filing of the alleged final report.

The application is stoutly opposed by the Public Prosecutor. According to the Public Prosecutor, since the charge sheet was filed before the expiry of the prescribed period, Petitioners are not entitled to the benefit of the proviso to Section 167(2) of the Code of Criminal Procedure

The question for consideration is whether the Petitioners are entitled to be released on bail in view of the proviso to Section 167(2) of the Code of Criminal Procedure The proviso to Section 167(2) lays down that no Magistrate shall authorise the detention of the accused persons in custody pending investigation for an aggregate period of 90 days where the investigation relates to an offence, punishable with death, imprisonment for life or imprisonment for not less than 10 years and 60 days where the investigation relates to any other offences and the person concerned is to be released on bail if he is prepared to and does furnish bail. No doubt, if the report u/s 173(2) of the Code is not submitted within the prescribed period, the accused is entitled to get bail as of right. As observed by the Supreme Court in Uday Mohanlal Acharya Vs. State of Maharashtra, the proviso to Sub-section (2) of Section 167 of the Code is a beneficial provision for curing the mischief of indefinitely prolonging the investigation and thereby affecting the liberty of a citizen. In this case the Petitioners were remanded to custody on 25th October 2000 and the report u/s 173(2) of the Code was filed on 22nd January 2001. According to the learned Counsel for the Petitioners, since the statement of a witness was recorded by the Magistrate u/s 164 of the Code of Criminal Procedure after the submission of the charge sheet it has to be held that the investigation in the case is not completed. Therefore, according to the learned Counsel, Section 167(2) of the Code of Criminal Procedure comes into play. I cannot agree. It is true that in this case the statement of C.W. 214 was recorded by the Judicial First Class Magistrate, Karunagappally, on 23rd January 2001, i.e. after the submission of the charge sheet before the Magistrate. But merely because the statement of a witness is recorded by the Magistrate u/s 164 of the Code of Criminal Procedure after the filing of the charge sheet it cannot be said that the investigation in the case is not completed. Section 164 of the Code enables a Magistrate to record a confession or a statement not only in the course of the investigation, but also at any time afterwards, but before the commencement of enquiry or trial. Section 164(1) of the Code of Criminal Procedure reads as follows:

Any Metropolitan Magistrate or Judicial Magistrate may, whether or not he has jurisdiction in the case, record any confession or statement made to him in the course of an investigation under this Chapter or under any other law for the time being in force, or any time afterwards before the commencement of the inquiry or trial.

The words "or at any time afterwards" in Section 164(1) of the Code of Criminal Procedure denote that if the confession or statement is not recorded in the course of investigation, then it can be recorded at any time afterwards, but before the commencement of enquiry or trial. Since confession or statement can be recorded by a Magistrate u/s 164 after investigation but before the commencement of the enquiry or trial it cannot be said that recording the statement of a witness by the Magistrate u/s 164 of the Code of Criminal Procedure after the submission of the charge sheet is part of the investigation. In this case it appears that the learned Magistrate recorded the statement of C.W. 214 after the investigation, but before the commencement of enquiry or trial.

The learned Counsel for the Petitioners placed strong reliance on the decision of the Supreme Court in Jogendra Nahak v. State of Orissa 1999 (3) KLT 43 (S.C.) and contended that since Section 164(1) of the Code of Criminal Procedure does not empower a Magistrate to record the statement of a person unsponsored by the investigating agency, it has to be held that recording the statement of a witness by Magistrate u/s 164 is part of the investigation. I see no force in this contention also. No doubt, in the decision referred to by the learned counsel it has been held by the Supreme Court that section 164(1) of the Code cannot be interpreted as empowering the Magistrate to record the statement of a person unsponsored by the investigating agency. But there is nothing in the decision to indicate that recording the statement of a witness by the Magistrate u/s 164 of the Code after filing the charge sheet is part of the investigation. In this connection it is also relevant to note the definition of investigation in Section 2(h) of the Code of Criminal Procedure

Investigation includes all the proceedings under this Code for the collection of evidence conducted by a Police Officer or by any person (other than a Magistrate) who is authorised by a Magistrate in this behalf.

The learned counsel also placed much reliance on the decision of the Supreme Court in Uday Mohanlal Acharya Vs. State of Maharashtra, . According to me, the said decision is not applicable to the facts of this case. In that case the accused filed an application for bail after the expiry of the prescribed period and he was prepared to offer and furnish bail. The Magistrate rejected the application on the ground that section 167(2) of the Code of Criminal Procedure is not attracted in a case pertaining to M.P.I.D. Act, 1999. The accused approached the higher forum and in the meanwhile the charge sheet was filed. The Supreme Court held that the indefeasible right of an accused being released on bail does not get extinguished by subsequent filing of the charge sheet. In this case before filing the present application for bail, the investigation was completed and the charge sheet was laid before the Magistrate. Admittedly the case was committed to the Court of Session and it is now pending trial before the Sessions Court. Under these circumstances the Petitioners are not entitled to the benefit of the proviso to section 167(2) of the Code of Criminal Procedure

This petition is groundless and it is dismissed.