Hira Ram and Another vs State of Rajasthan

A.K. Mathur, J.—Heard learned Counsel and the learned Public Prosecutor.

Mr. Garg, learned Counsel for the accused petitioners submits that the accused are entitled to bail under proviso to Sub-section (2) of Section 167, Cr.P.C. as the challan was not filed within 90 days. Learned counsel submits that the view taken by the learned Sessions Judge is based on the judgment of the Gujarat High Court in Umedsinh Vakmatji Jadeja and Others Vs. The State of Gujarat, which has been over ruled by a Full Bench of the Gujarat High Court in Babubhai Purshottamdas Patel v. State of Gujarat 1982 Cri. LJ 282. Therefore, learned Counsel submits that the learned Sessions Judge has relied upon a over-ruled judgment and refused to grant bail. As such the accused persons are entitled to bail. Learned counsel further submitted that in the present case accused Hira Ram was arrested on 15-10-1988 and was produced before the Magistrate on 17-10-1988 and he was remanded to judicial custody. Like-wise, accused Himmat Ram was arrested on 12-10-1988 and produced before the learned Chief Judicial Magistrate on 13-10-1988 and he was remanded to judicial custody. The challan was filed against him on 21-1-1989 along with accused Hira Ram. Both the accused persons were charge-sheeted u/s 8/21 of the NDPS Act.

Learned counsel submits that under proviso to Sub-section (2) of Section 167 of Cr.P.C. a right has accrued to the accused that he shall be released on bail after the expiry of 60 days or 90 days as the case may be. This valuable right of the accused cannot be condoned by filing the challan after the expiry of the period of 90 days. In support of the aforesaid contention, learned Counsel has invited my attention to the following observations made in Babubhai Parshottam Das Patel''s case (supra):

To prevent any such abuse of the power to carry on the investigation, the right or the entitlement conferred on the accused to be released on bail after ninety days, must be considered to be absolute right, subject of course of the cancellation of the bail if the requirements of Section 437 are satisfied Mrs. Maneka Gandhi Vs. Union of India (UOI) and Another, and Ved Prakash Chaudhry Vs. State of Haryana and Others, Rel. on.

As against this Mr. Mathur, learned Public Prosecutor submits that the challan has now been filed though belatedly. Therefore, the accused''s right covered by proviso to Sub-section (2) of Section 167, Cr.P.C. stands curtailed.

I have considered the rival contentions of the learned Counsel for the parties and I think once the prosecution fails to file the challan after a maximum of 60 days or 90 days, as the case may be, the valuable right of the accused to be enlarged on bail accrues to him. Simply because the prosecution takes leisurely the conduct of the investigation and allows the individual''s liberty to be suffered then no premium can be given to the Investigating Agency for its negligence in completing the investigation in scheduled time. The legislature has specifically engrafted this provision keeping in view the easy approach taken by the Investigating Agency in investigating the matter and curtailing the liberty of an individual. Therefore, the intention of the legislature is apparent that in such cases the accused shall be released on bail and it should be a matter of inquiry against the Investigating Officer as to why the challan was not filed within the stipulated time as a result of which the accused was enlarged on bail. It is for the concerned Police authorities to see that in cases where the accused was enlarged on bail on account of non-completion of the investigation in scheduled time, the Investigating Officers should be dealt with strictly for their high handedness. But the mandate of the legislature is that individual''s liberty is paramount in a democratic set up like ours and the same should not be jeopardised and individual cannot be placed at the mercy of the Investigating Officer. In this connection, their Lordships of the Supreme Court have also observed as under in State of Uttar Pradesh Vs. Lakshmi Brahman and Another,

On the expiry of 60 days from the date of the arrest of the accused, his further detention does not become ipso facto illegal or void, but if the charge sheet is not submitted within the period of 60 days, then not with standing any thing to the contrary in Section 437(1), the accused would be entitled to an order for being released On bail if he is prepared to and does furnish bail.

Similarly, in Raghubir Singh and Ors. and Raghubir Singh and Others Vs. State of Bihar, their Lordships of Supreme Court have observed as under:

An order for release on bail made under the proviso to Section 167(2) is not defeated by lapse of time, the filing of the charge-sheet or by remand to custody u/s 309(2). The order for release on bail may how ever be cancelled u/s 437(5) or S 439(2). Generally the grounds for cancellation of bail, broadly, are interference or attempt to interfere with the due course of administration of justice, or evasion or attempt to evade the course of justice, or abuse of the liberty granted to him. The due administration of justice may be interfered with by intimidating or suborning witnesses, by interfering with investigation by creating or causing disappearance of evidence etc. The course of justice may be evaded or attempted to be evaded by leaving the country or going underground or otherwise placing himself beyond the reach of the sureties. He may abuse the liberty granted to him by indulging in similar or other unlawful acts. Where bail has been granted under the proviso to Section 167(2) for the default of the prosecution in not completing the investigation in sixth days, after the defect is cured by the filing of a charge sheet, the prosecution may seek to have the bail cancelled on the ground that there are reasonable grounds to believe that the accused has committed a non bailable offence and that it is necessary to arrest him and commit him to custody. In the last mentioned case, one would expect very strong grounds indeed. Decision of Patna High Court, Reversed.

Therefore, in this view of the matter, the view taken by the learned Sessions Judge, that by filing the challan after the expiry of 90 days the right of the accused is curtailed for entitling the accused to be released on bail cannot be sustained.

In the result, the petition u/s 482, Cr.P.C. is allowed, the order passed by the learned Sessions Judge, dated 31-1-1989 is quashed and both the accused persons are released on bail provided each one of them furnishes a personal bond in the sum of Rs. 1,00,000/- with two sureties in the sum of Rs. 50,000/- each to the satisfaction of the learned Sessions Judge, Sirohi for their appearance before that court on each and every date of bearing and as and when called for.