Merabhai Chughabhai Kuvadia vs State of Gujarat

M.B. Shah, J.—Being aggrieved and dissatisfied by the judgment and order dated 5-10-85 passed by the Judicial Magistrate, First Class, Bhavnagar, in Miscellaneous Criminal Application No. 440 of 1985 rejecting the application for releasing the petitioner on bail as the charge-sheet was not filed within the prescribed period of 90 days the petitioner has filed this miscellaneous application under Sections 167(2)(a) & 439 of the Criminal Procedure Code.

The learned Magistrate has rejected the said application by holding that the accused is involved in an office punishable u/s 302 of the Indian Penal Code for which the sentence of death or imprisonment for life can fee imposed and according to his opinion this was not a fit case for releasing the accused on bail in view of the seriousness of the offence. He further held that because the charge-sheet is not submitted within 90 days, the accused does not get any right to be released on bail.

In pursuance of notice, P.S.I. Bhavnagar A Division, has filed an affidavit stating that on 4-10-85 charge-sheet with requite papers was forwarded for submission to the Honourable Court with a letter bearing outward No. 4515 of 1985 dated 4-10-85. The said papers were handed over to Court Party Constable Abdullabhai Dadahbhai at 4-90 P.M. The said Abdullabhai submitted the charge-sheet to the Judicial Magistrate, First Class, Bhavnagar on 9-10-85. This clearly reveals a sordid affair wherein the investigating officer has not taken any care to submit charge-sheet within 90 days for the reasons best known either to the P.S.I., of to the Constable and even though the charge-sheet was prepared and forwarded on 4-10-85, it was not submitted before the Court upto 9-10-85. in any case, it is a proved fact that within 90 days charge-sheet was not submitted and on 5-10-85 when the leaned Magistrate pasted the impugned order, chargesheet was not before the order passed by the learned Magistrate is on the face of it illegal in view of Section 167(2) of the Criminal Procedure Code.

The learned advocate for the petitioner vehemently submitted that in view of Section 167(2)(a) the accused has a right to be released on bail the charge-sheet is not filed within 60 or 90 days as the case may be. For this proposition there cannot be any doubt. Section 167(2)(a) provides that no Magistrate shall authorise the detention of the accused person in custody under sub Section (2) for a period exceeding 90 days where the investigation relates to an offence punishable with death, imprisonment for life or imprisonment for a term of net less than 10 years, and on the expiry of the said period of 90 days, the accused person shall be released on bail if he is prepared to and does furnish bail. In this view of the matter, the order passed by the learned Magistrate is on the face of it illegal.

Still, however, the question is whether at present I should pass an order releasing the accused on bail. It is an admitted fact that the charge-sheet is now submitted before the Court On 9-10-85. The learned "advocate for the petitioner vehemently submitted that even though on the date when the bail application is decided charge-sheet is on record, yet u/s 167(2)(a) the accused has a right to be released on bail as the charge-sheet was not filed within 90 days. In my view, this submission of the learned advocate for the petitioner cannot be accepted. In the case of State of Uttar Pradesh Vs. Lakshmi Brahman and Another, , the Supreme Court has held that Section 167 envisages a stage when a suspect is arrested and the investigation is not completed within the prescribed period. The investigation would come to an end the moment charge-sheet is submitted as required u/s 170 unless the Magistrate directs further have investigation. Once the charge-sheet is submitted, then the question would be how the accused forwarded to him with police report u/s 170 is to be dealt with by the Magistrate. The Court held that till an order of commitment is made u/s 209, Section 309(2) would enable the Magistrate to remand the accused to the custody. It further held that the view taken by the High Court which introduces a state of compulsory bail was not envisaged by the Code. Following the decision of the Supreme Court, in the case of Kantibhai Jivabhai Chauhan v. The State of Gujarat 1984 G.L.H. 1030, and in the case of State of Gujarat v. Alamzebkhan Jangrezkhan Ali 1985 G.L.R. 116, I had negatived similar contentions by dealing with the same in detail. Therefore, it would not be necessary for me to repeat the said reasoning.

The learned advocate for the petitioner further submitted that the Court has no jurisdiction to extend time-limit for submitting the charge-sheet and, therefore once the charge-sheet is not submitted within, the time-limit of 60 days or 90 days as the case may be, the accused must be released on bail. In my view, there is no question of extending time-limit of submitting the charge-sheet. The only question would be whether on the date when the application of the petitioner for releasing him on bail u/s 167(2)(a) is decided the accused should be released on bail even though the provisions of Section 167(2)(a) are not applicable. Section 167 describes the procedure when the investigation cannot be completed within 24 hours of the arrest of a person without warrant as fixed by Section 57 of the Code. Such accused is required to be forwarded before a Magistrate u/s 167(1) and u/s 167(2) the Magistrate is required to pass appropriate order with regard to his, custody. He may send him to judicial custody or police remand may be granted. With regard to this power of the Magistrate the Code has prescribed the maximum time-limit of 90 days or 60 days, as the case may be, and the Magistrate has no power to pass an order of further detention even if the investigation is not over. Once the charge-sheet is submitted there is no question of application of the said section. After the submission of charge-sheet the Courts jurisdiction to detain the accused would be u/s 209 or 309 of the Code.

The relevant part of Sections 209 and 309 reads as under:

When in a case instituted on a police report or otherwise, the accused appears or is brought before the Magistrate and it appears to the Magistrate that the offence is triable exclusively by the Court of Session, he shall-

(a) commit, after complying with the provisions of Section 207 or Section 208, as the ease may be, the case to the Court of Session, and subject to the provisions of this Code relating to bail, remand the accused to custody until such commitment has been made;

(b) subject to the provisions of this Code relating to bail, remand the accused to custody during, and until the conclusion of the trial;

(c) xx xx xx xx (d) xx xx xx xx

The aforesaid provisions clearly provide that before the committal order is passed, the Magistrate has to pass an appropriate order i.e. either to release the accused on bail or to remand the accused to custody.

The relevant part of Section 309 reads as under:

309.(1) xxx xx xx xx (2) If the Court, after taking cognizance of an offence, or commencement of trial, finds it necessary advisable to postpone the commencement of, or adjourn, any inquiry or trial, it may, from time to time, for reasons to be recorded, postpone or adjourn the same on such terms as it thinks fit, for such time as it considers reasonable, and may by a warrant remand the accused if in custody: provided that no Magistrate shall remand an accused person to custody under this section for a term exceeding fifteen days at a time:

In this view of the matter, at this stage there is no question, of releasing the accused on bail u/s 167(2) of the Code.

The learned advocate also contended that when the charge-sheet is not submitted within the stipulated time and the accused has filed the application for releasing him on bail, then if the Magistrate issues notice to the investigating officer; virtually it is extending time to file charge-sheet because the investigating officer on receipt, of the said notice would immediately file the charge-sheet before the application for releasing the accused on bail is decided and therefore also at the time of deciding the application whether the charge-sheet is submitted or not should not be taken into consideration. In my view, this submission is equally misconceived because Judicial Court cannot decide the matter without hearing the other side. The contention of the learned advocate that the Court should not issue notice and straightway grant the application of the accused for releasing him on bail, therefore, cannot be accepted. The learned Magistrate has to verify whether the charge-sheet is submitted or not. Once the charge-sheet is submitted and the cognizance of the offence is taken by the Magistrate, the stage of passing an order u/s 167 is over. After taking the cognizance of the offence the learned Magistrate has to proceed under Sections 207, 209 and u/s 309(2) he can pass an appropriate order remanding the accused to custody. u/s 209 the Magistrate has also jurisdiction to remand the accused to custody until the accused is committed to the Court of Session for trial.

Therefore, even though it is held that the order passed by the learned Magistrate is illegal, this application deserves to be rejected.

In the result, the application is rejected. Rule discharged.