In Re: Kumarakuppan

Maheswaran, J.—This petition is for bail.

All that the petitioner says in the petition is that he is falsely charged for alleged offences under S. 323, I.P.C. and under S. 374 of the Explosives Act, that he is innocent, that because of his political involvement in Marxist-Leninist Movement, he is deliberately charged by the police and that he is prepared to produce sureties.

A counter-affidavit tiled by the police discloses that on 13th January, 1978 when the complainant-head constable and his party were engaged in prohibition raid near Irudayapuram, the accused petitioner and another ran away on seeing the police leaving the cycle which they were riding and the police getting suspicious, chased them, and Mohan, P.C. 1337, caught hold of the petitioner, but the petitioner disengaged himself from the clutches of the constable by stabbing him and by throwing a country bomb at Mohan which exploded causing grievous injuries and that he then escaped with his company.

The averments in the counter-affidavit further show that the petitioner was arrested only on 11th May, 1978 by the police at Gingee where he committed an offence under S. 307, I.P.C. which ended In his conviction and that the appeal preferred by him was also dismissed. The counter-affidavit also states that a charge-sheet was filed on 2nd April, 1980, that the accused-petitioner Is also facing trial in three other cases including a case of murder and that the petitioner would abscond if bail is granted.

What is urged before me by the learned counsel for petitioner is that the petitioner has been in detention for over 90 days and such detention is unauthorized under S. 167(2) Crl. P.C. and the mere fact that the charge-sheet is filed after 90 days would not make the provisions of S. 167(2) Crl. P.C. inapplicable and therefore, the petitioner would be entitled to bail.

Strong reliance was placed by the learned counsel on Noor Mohd. v. State ILR 1978 Del 442. In considering the scope of S. 167 (2), Crl. P.C. and the nature of detention beyond 60 days Chawla, J. in a lengthy judgment summed up his conclusions as follows :

Detention beyond 60 days is unauthorized and unlawful under S. 167(2).

On the expiry of 60 days the accused is entitled to bail as of right.

No application for bail is necessary.

4 It is the court''s duty to make an order for bail.

If he furnishes security acceptable to the court the accused is entitled to be released on bail.

S. 167(2) does not cease to apply even if the charge-sheet is submitted after 60 days.

There is no distinction between bail under S. 167(2) and a bail on merits under Chapter XXXIII.

SS. 209 and 309(2) do not override mandatory provisions of S. 167(2). S. 209(B) is expressly subject to the provisions of bail. Similarly, S. 309(2) is subservient to S. 167(2).

Bail granted under S. 167(2) is subject to cancellation under S. 437(5); and

Filing of the charge-sheet subsequently in court is not a ground for cancellation of bail.

In Pandi and Others Vs. State, I held following Umedsinh Vakmatji Jadeja and Others Vs. The State of Gujarat, that the power of the Magistrate releasing the accused under S. 167 (2) of the Crl. P.C. comes to an end if a charge-sheet is filed into Court pending an application under S. 167 (2). The same view was expressed by Punnayya, J. of Andhra Pradesh High Court in Nethala Vinod Prabhu v. State of Andhra Pradesh. The learned Judge pointed out that even if it is found that the detention is unlawful in view of the contravention of mandatory provisions of S. 167 (2) (a), Crl. P.C. by the Magistrate, the order of remand which will be in force during the pendency of investigation comes to an end with the filing of the charge-sheet, In the view of the learned Judge, after the charge-sheet is filed a totally new situation comes into effect and a fresh legal position comes into play as the remand comes to an end and consequently, the provisions of S. 167 (2) (a) of the Crl. P.C. will cease to operate.

The learned counsel says that the occurrence took place on 13th January, 1978, and the petitioner was arrested on 11th May, 1978, and a charge-sheet was filed on 2nd April, 1980, and that the detention of the accused-petitioner three months after 11th May, 1978 is illegal detention, and he would be entitled to be released on bail under the provisions of S. 167 (2) of the Crl. P.C. even though such a law would be "a paradise for the criminals". He further pointed out that the Courts are bound to obey the law under the command of the legislature.

I have referred to my view taken in Pandi and Others Vs. State, and also the view of Punnayya, J. of the Andhra Pradesh High Court in Nethala Vinod Prabhu v. State of A.P 1979 M.L.J. Cri 509 A Division Bench of the Gujarat High Court in Umedsinh Vakmatji Jadeja and Others Vs. The State of Gujarat, to which reference has already been made is also of the view that if a charge-sheet is filed pending an application under S. 167, the investigation comes to an end and so also the power of the Magistrate granting bail to the accused under the provisions of S, 167 (2). But the view of Chawla, J. of the Delhi High Court is that the provisions of S. 167 (2) do not cease to apply even if the charge-sheet is submitted after 60 days (now 90 days). Though I am in agreement with the learned Judge on the other conclusions arrived at by him, I am unable to agree with his view that S. 167 (2) does not cease to apply even if a charge sheet is submitted after 60 days (now 90 days). The learned. Judge appears to have given no reasons for this conclusion of his, though I find that he states that the view that S, 167 (2) ceases to apply as soon as the challan has been presented in Court, is in direct conflict with the Supreme Court decision in Bashir and Others Vs. State of Haryana, . With respect, I venture to think that this observation of the learned Judge is not quite correct, for, Bashir and Others Vs. State of Haryana, dealt with a case of cancellation of bail granted under S, 167 (2) on the ground that subsequent to the release under S. 167 (2), the police had filed a charge-sheet, as is apparent from the observation of the Supreme Court that "as the provisions of S. 437 (1), (2) and (5) are applicable to a person who has been released under S. 167 (2), the mere fact that subsequent to his release a challan has been filed is not sufficient to commit him to custody". Such, however, is not the case here, for, here the petitioner was not released under S. 167 (2), but has applied for bail under SS. 437 and 439, Crl. P.C. long after the charge-sheet is filed.

The question that confronts us is whether on account of the illegal detention, even if such detention is considered illegal after 90 days, the accused, as of right, can claim grant of bail even after the charge-sheet is filed. My answer is "No". That is because after the charge-sheet is filed, the remand comes to an end and the provisions of S. 167(2) (a) of the Crl. P.C. cease to operate and the Magistrate can then exercise his powers only under S. 437 of the Crl. P. C. That this is the view of the Supreme Court also in Bashir and Others Vs. State of Haryana, is made clear from the observations of the Supreme Court that "the provisions of S. 437 (1), (2) and (5) are applicable to a person who has been released under S. 167 (2)." Therefore, it is quite clear that the powers of the Magistrate granting bail under S. 167 (2) come to an end when a charge-sheet is filed into Court. Thereafter, the Magistrate has to exercise powers only under S. 437, Crl. P.C. It should also be borne in mind that proviso (a) to S. 167 (2) is not a general provision relating to grant of bail. It is therefore, I earlier pointed out that the observations of Chawla, J. in Noormohd Vs. State, that the view that S. 167 (2) ceases to apply as soon as a challan is presented, Is in direct conflict with the view taken In Bashir and Others Vs. State of Haryana, is not quite correct.

In State of Rajasthan, Jaipur Vs. Balchand alias Baliay, the Supreme Court observed :

The basic rule may perhaps be tersely put as bail, not jail, except where there are circumstances suggestive of fleeing from justice or thwarting the course of justice or creating other troubles in the shape of repeating offences or intimidating witnesses and the like by the petitioner who seeks enlargement on bail from the Court.

The Supreme Court has also pointed out that these are only illustrative exceptions to the basic rule.

From that point, if we analyse the allegation in the counter-affidavit, it would be seen (i) ''that the petitioner has thrown a country bomb at the constable who apprehended him and also stabbed him to extricate himself from his clutches ; (2) that he was identified by the complainant Srinivasan and by two eye-witnesses, Mohan and Swaminathan, in the identification parade; (3) that he is facing trial In three other criminal cases including a case of murder; and (4) that he will abscond if he is released on bail. These are sufficient grounds for refusing bail. Petition dismissed.