Mukesh vs Central Bureau of Investigation

P.K. Jain, J.

Ms. Sushil Kumari, a lady teacher, working in a school at Hisar, was allegedly abducted on 30.4.1993. Her father handed over a written complaint to the S.H.O. Police Station Civil Lines, Hisar, on the basis of which a daily diary report was recorded. On 8.5.1993, a close relation of said Sushil Kumari moved another application to the Senior Superintendent of Police, Hisar, on the basis of which F.I.R. No. 181 dated 8.5.1993 was registered at Police Station Civil Lines, Hisar, for an offence under section 364 I.P.C. Later on, the case was handed over to the Central Bureau of Investigation. The C.B.I. registered C.R. No. 28 of 7.7.1994 at Chandigarh under section 364, I.P.C.

The C.B.I. during investigation arrested the petitioner on 28.11.1994 and obtained police remand. On interrogation, a disclosure statement purported to have been made by the petitioner was recorded on 1.12.1994. At this stage, the offences under section 346/302/201, I.P.C., were added in the said crime report. On 12.12.1994, the petitioner is stated to have made a statement under section 164 of the Code of Criminal Procedure (hereinafter referred to as `the Code''). Since the Investigating Agency failed to complete the investigation and file the charge sheet within the stipulated period of 90 days, the petitioner was directed to be released on bail by the Special Judicial Magistrate, Ambala, by order dated 2.3.1995 in the aforesaid case purported to be under Section 120B, read with Sections 364, 302, 201, I.P.C.

After completing the investigation, the C.B.I. filed a chargesheet against the petitioner for the offences under sections 364/346, I.P.C. Accordingly, a charge under sections 364/346, I.P.C. was framed against the petitioner to which he pleaded not guilty and claimed trial.

An application under section 319 of the Code was filed on 18.6.1997 which was kept in abeyance till some prosecution evidence could be recorded. After examining 4 prosecution witnesses, the trial Court came to a conclusion that prima facie the present petitioner i.e. Mukesh Kumar along with Shailender Bishnoi, Subhash Bagri and Kuldip Godara abducted Sushil Kumari, wrongfully confined her, committed her murder and then threw her dead body in a canal. Consequently, Shailender Bishnoi, Subhash Bagri and Kuldip Godara were ordered to be summoned to face trial under sections 364, 346, 302, 201 read with Section 120B, I.P.C. It was separately held by an order of the even date (Annexure P.5) that the present petitioner had been released on bail under section 167(2) of the Code for the offence under sections 364, 346, I.P.C., only, and that since the congnizance had been taken for an offence under section 302, I.P.C., against the petitioner by his order dated 1.10.1997 (Annexure PA), the petitioner be taken into custody. The plea of the petitioner that he was released on bail in the case for the various offences including Section 302 I.P.C., was turned down. Feeling aggrieved, the petitioner has approached this Court for his release on bail.

I have heard the learned counsel for the parties and have perused the record.

Shri Ajai Lamba, Advocate, learned counsel for the petitioner, has argued that the petitioner was arrested in case R.C. No. 28/94 dated 7.7.1994, registered by C.B.I. at Chandigarh, and was released on bail on account of a default on the part of the prosecuting agency in not completing the investigation within the stipulated period of 90 days by order dated 2.3.1995 (Annexure P.3) by the Special Judicial Magistrate, Ambala. It has been pointed out by the learned counsel that in Annexure P.3, it is specifically mentioned that R.C. No. 28/94 dated 7.7.1994 was under section 120B read with Sections 364, 302, 201, I.P.C. It has also been argued by the learned counsel that when bail is granted on account of a default on the part of the investigating agency as envisaged under section 167(2) of the Code, the same is granted in the case itself and not for a particular offence. It has been urged that the investigating agency or the court cannot disturb the bail so granted merely by adding another offence alleged to have been committed in the course of the same transaction, and the bail so granted can only be cancelled on the well recognised principles as enunciated by the apex Court in a wellknown judgment rendered in Aslam Babalul Desai v. State of Maharashira, 1993(1) RCR(Crl.) 600 : AIR 1993 SC 1.

On the other hand Shri R.K. Handa, Advocate, learned Standing Counsel for the C.B.I., argued that with the filing of the chargesheet for the offences under sections 364, 346, I.P.C., the bail bond furnished by the petitioner for an offence under section 302, I.P.C., ceased to exist in the eyes of law. It has been further argued that it was only on an application under section 319 of the Code that the trial Court came to a prima facie conclusion that the petitioners had also committed an offence under section 302, I.P.C., and took cognizance of the said offence against the petitioner and certain other persons. It is, thus, argued that the bail granted to the petitioner under section 167(2) of the Code would not cover the offence under section 302, I.P.C., the cognizance of which was taken later on by the Court.

I have given my careful thought to the respective arguments advanced at the Bar.

It may be stated that an order for release on bail under proviso (a) to Section 167(2) of the Code is not an order on merits of the case, but an order on default of the prosecution in not filing the chargesheet within the stipulated period. The right to bail under section 167(2) of the Code is absolute and the Court has got no discretion in the matter. In Natabar Parida and others v. State of Orissa, AIR 1975 Supreme Court 1465, their Lordships of the apex Court viewed the nature and scope of the bail granted under section 167(2) of the Code as follows :

"But then the command of the Legislature in proviso (a) is that the accused person has got to be released on bail if he is prepared to and does furnish bail and cannot be kept in detention beyond the period of 60 days even if the investigation may still be proceeding. In serious offences of criminal conspiracy, murders, dacoities, robberies by interstate gangs or the like, it may not be possible for the police, in the circumstances as they do exist in the various parts of our country, to complete investigation within the period of 60 days. Yet the intention of the Legislature seems to be to grant no discretion to the court and to make it obligatory for it to release the accused on bail. Of course, it has been provided in proviso (a) that the accused released on bail under section 167 will be deemed to be so released under the provisions of Chapter XXXIII and for the purposes of that Chapter, that may empower the Court releasing him on bail, if it considers necessary so to do, to direct that such person be arrested and committed to custody as provided in subsection (5) of S. 437 occurring in Chapter XXXIII. It is also clear that after taking of the cognizance the power of remand is to be exercised under Section 309 of the New Code. But if it is not possible to complete the investigation within a period of 60 days then even in serious and ghastly types of crimes the accused will be entitled to be released on bail. Such a law may be "paradise for the criminals." But surely it would not be so, as sometimes it is supposed to be, because of the courts. It would be so under the command of the Legislature."

It is, thus, clear that the bail will have to be granted under section 167(2) of the Code irrespective of the serious nature of the offences involved, and that bail is granted in the case and not for any specific offence since such a bail is being granted on account of a default on the part of the investigating agency not to complete the investigation and file a chargesheet within the stipulated period.

The question is as to whether such an absolute right to bail can be defeated or interfered with either by the police or the Court, merely by adding another offence found or alleged to have been committed during the course of the same transaction. According to me, the answer ought to be in the negative. In Central Bureau of Investigation, Special Investigation Cell1, New Delhi v. Anupam J. Kulkarni, 1992(2) RCR(Crl.) 147 : 1992 Cr. L.J. 2768, a question arose as to whether remand of an accused to police custody can be granted after the expiry of 15 days police custody remand merely by adding an offence found to have been committed during the investigation of that case. Their Lordships of the apex Court were pleased to lay down the following law :

"The learned Additional Solicitor General submitted that as a result of the investigation carried on and the evidence collected by the police the arrested accused may be found to be involved in more serious offences than the one for which he was originally arrested and that in such a case there is no reason as to why, the accused who is in magisterial custody should not be turned over to police custody at a subsequent stage of investigation when the information discloses his complicity in more serious offences. We are unable to agree. In one occurrence it may so happen that the accused might have committed several offences and the police may arrest him in connection with one or two offences on the basis of the available information and obtain police custody. If during the investigation his complicity in more serious offences during the same occurrence is disclosed, that does not authorise the police to ask for police custody for a further period after the expiry of the first fifteen days. If that is permitted then the police can go on adding some offence or the other of a serious nature at various stages and seek further detention in police custody repeatedly; this would defeat the very object underlying Section 167. However, we must clarify that this limitation shall not apply to a different occurrence in which complicity of the arrested accused is disclosed."

The aforesaid law laid down by the apex Court, although not directly applicable to the facts in hand, provides a guideline that the law cannot be defeated or overreached by the investigating agency by adding some offence or the other of a serious nature at a subsequent stage. In the present case, the petitioner was arrested for the offences under sections 364, 346, I.P.C. During the investigation offences under sections 302/120B I.P.C., were added. Bail under section 167(2) of the Code was granted to the petitioner in the case itself, although, at that time it was alleged that the petitioner had committed offences under sections 302, 364, 346 and 120B I.P.C. The mere fact that subsequently a chargesheet was filed under section 364/346, I.P.C., or that on an application made by the prosecution under section 319 of the Code, an offence under section 302/120B I.P.C., was added against the petitioner, would not affect the right of the petitioner to remain on bail unless the bail is cancelled on the well recognised principles detailed by the apex Court apex Court in Aslant Babalal Desi''s case (supra).

As a result of the above discussion, this petition is allowed and the petitioner is directed to be released on bail on his furnishing bail bond in the sum of Rs. 15000/ with two sureties each in the like amount to the satisfaction of the trial court.