Om Prakash Dwivedi vs State of U.P.

S.C. Chaurasia, J.—This petition u/s 482, Code of Criminal Procedure has been filed with the prayer that the impugned order dated 20.6.2009, passed by the learned Chief Judicial Magistrate, Barabanki, may be quashed and the Petitioner may be released on bail in Case Crime No. 947 of 2008, State v. Om Prakash Dwivedi, Under Sections 419, 420, 467, 468 and 471, I.P.C., Police Station Kotwali, district Barabanki.

The brief facts, giving rise to this petition, are that the applicant-Petitioner, Om Prakash Dwivedi, is involved in Case Crime No. 947 of 2008, Under Sections 419, 420, 467, 468 and 407, I.P.C., Police Station Kotwali, district Barabanki. The first remand was granted in the said case by the Chief Judicial Magistrate, Barabanki, vide order dated 21.3.2009 and the case was investigated. After completion of the investigation, the charge-sheet was filed against the Petitioner on 19.6.2009. An application for grant of bail was moved on behalf of the Petitioner u/s 167, Code of Criminal Procedure on 20.6.2009 on the ground that the charge-sheet has been filed beyond the maximum period of 90 days and hence, he is entitled for bail. The said bail application was rejected vide impugned order dated 20.6.2009, passed by the learned Chief Judicial Magistrate, Barabanki, on the ground that the charge-sheet has been submitted in the Court on 90th day from the first date of remand and hence, the bail application u/s 167(2) of Code of Criminal Procedure is not maintainable. Feeling aggrieved by the said order, the accused has preferred this petition.

I have heard Sri Umesh Chandra Pandey, learned Counsel for the Petitioner, Sri Rajendra Kumar Dwivedi, learned A.G.A. and perused the record.

Learned Counsel for the Petitioner has drawn my attention towards the proviso appended to Sub-section (2) of Section 167, Code of Criminal Procedure and has submitted that learned Chief Judicial Magistrate was not competent to authorise the detention of the accused beyond the period of 90 days in the instant case and since the charge-sheet has been submitted beyond the period of 90 days from the first date of remand, the Petitioner was entitled to be released on bail on the expiry of the said period of 90 days as he was prepared to furnish the bail bonds. His contention is that the learned Chief Judicial Magistrate has committed illegality in computing the period of detention of 90 days and rejecting Petitioner''s application for bail and hence, the impugned order dated 20.6.2009 deserves to be quashed. In support of his contentions, he has placed reliance on the following decisions:

(1) Raghubir Singh and Others Vs. State of Bihar,

(2) Matabar Parida, Bisnu Charan Parida, Batakrushna Parida and Babaji Parida Vs. The State of Orissa,

(3) Rajnikant Jivanlal and Another Vs. Intelligence Officer, Narcotic Control Bureau, New Delhi,

(4) Babubhai Parshottamdas Patel Vs. State of Gujarat,

(5) Sudhakar alias Chunna v. State of U.P. XXII (1985) ACC 106 : 1984 ACR 558;

(6) Dinesh Dalmia Vs. C.B.I.,

(7) State of Rajasthan Vs. Bhanwaru Khan and Others,

(8) Dharmanand alias Mahto v. State 1993 UP C R 562; and

(9) Central Bureau of Investigation v. Anupam K. Kulkarni XXIX (1992) ACC 512 : 1992 ACR 498 (SC).

The learned A.G.A. has submitted that in the instant case, charge-sheet has been filed in the Court on 19.6.2009, i.e., 90th day from the date of first remand and hence, the application for bail u/s 167(2), Code of Criminal Procedure was not maintainable. He has further submitted that the learned Chief Judicial Magistrate has not committed any illegality in rejecting the bail application of the accused/Petitioner and the impugned order dated 20.6.2009, passed by him is perfectly valid and it calls for no interference. In support of his contentions, he has placed reliance on the following decisions:

(1) State of M.P. vs. Rustam and others, 1995 Supp (3) SCC 221

(2) Dinesh Dalmia Vs. C.B.I., and

(3) Sanjay Dutt Vs. State through C.B.I., Bombay,

Sub-section (2) of Section 167 of Code of Criminal Procedure may be reproduced for ready reference:

(2) The Magistrate to whom an accused person is forwarded under this section may, whether he has or has not jurisdiction to try the case, from time to lime, authorise the detention of the accused in such custody as such Magistrate thinks fit, for a term not exceeding fifteen days in the whole; and if he has no jurisdiction to try the case or commit it for trial, and considers further detention unncessary, he may order the accused to be forwarded to a Magistrate having such jurisdiction:

Provided that:

(a) the Magistrate may authorise the detention of the accused person, otherwise than in the custody of the police, beyond the period of fifteen days, if he is satisfied that adequate grounds exist for doing so, but no Magistrate shall authorise the detention of the accused person in custody under this paragraph for a total period exceeding:

(i) ninety days, where the investigation relates to an offence punishable with death, imprisonment for life or imprisonment for a term of not less than ten years ;

(ii) sixty days, where the investigation relates to any other offence,

and, on the expiry of the said period of ninety days, or sixty days, as the case may be, the accused person shall be released on bail if he is prepared to and does furnish bail, and every person released on bail under this sub-section shall be deemed to be so released under the provisions of Chapter XXXIII for the purposes of that Chapter :

(b) no Magistrate shall authorise detention in any custody under this section unless the accused is produced before him;

(c) no Magistrate of the second class, not specially empowered in this behalf by the High Court, shall authorise detention in the custody of the police.

Explanation I.-For the avoidance of doubts, it is hereby declared that, notwithstanding the expiry of the period specified in paragraph (a), the accused shall be detained in custody so long as he does not furnish bail.

Explanation II.-If any question arises whether an accused person was produced before the Magistrate as required under paragraph (b), the production of the accused person may be proved by his signature on the order authorizing detention.

In the case of Raghubir Singh and Ors. (supra), Hon''ble Supreme Court has held that an order for release on bail made under the proviso to Section 167(2), Code of Criminal Procedure is not defeated by lapse of time, the filing of the charge-sheet or by remand to custody u/s 309(2), Code of Criminal Procedure. The order for release on bail may however be cancelled u/s 437(5) or Section 439(2), Code of Criminal Procedure.

In the case of Natabar Parida and Ors. (supra), Hon''ble Supreme Court has held that the Court will have no inherent power of remand of an accused to any custody unless the power is conferred by law.

In the case of Rajnikant Jivanlal and Anr. (supra), Hon''ble Supreme Court has held that an order for release on bail under proviso (a) to Section 167(2), Code of Criminal Procedure may appropriately be termed as an order-on-default. Indeed, it is a release on bail on the default of the prosecution in filing charge-sheet within the prescribed period. The right to bail u/s 167(2), proviso (a) thereto is absolute. It is a legislative command and not Court''s discretion. If the investigating agency fails to file charge-sheet before the expiry of 90/60 days, as the case may be, the accused in custody should be released on bail. But at that stage, merits of the case arc not to be examined at all. In fact, the Magistrate has no power to remand a person beyond the stipulated period of 90/60 days. He must pass an order of bail and communicate the same to the accused to furnish the requisite bail bonds. If the investigation reveals that the accused has committed a serious offence and charge-sheet is filed, the bail granted under proviso (a) to Section 167(2) could be cancelled.

In the case of Babubhai Parshottamdas Patel (supra), the Full Bench of Hon''ble Gujarat High Court has held that the basic restriction on the power of the Magistrate to authorise detention of the accused concerned in jail custody must operate once the period of ninety days or sixty days expires. That is the command of the Legislature and, if that is so, the fact that Section 167(2)(a), Code of Criminal Procedure occurs in the Chapter relating to investigation and trial is totally immaterial. u/s 309, Sub-section (2), Code of Criminal Procedure, after first taking cognizance of the offence the Court may by a warrant remand the accused if in custody, but that power or remand has to be read in the light of the right of entitlement of the accused to be released on bail once the period of ninety days or sixty days mentioned in Section 167(2)(a), Code of Criminal Procedure comes to an end. It has further held that once the charge-sheet is filed, investigation being over, the power of enlarging'' the accused on bail u/s 167(2)(a), Code of Criminal Procedure comes to an end, is no longer good law.

In the case of Sudhakar alias Chunna (supra), Hon''ble single Judge of this Court has held that if a charge-sheet is not submitted within sixty days or ninety days, as the case may be, it finally decides the right of an accused and that decision is not left to the discretion of the Magistrate, who has no option but to grant him bail within the ambit of law. The proviso (a) to Section 167(2) of the Code of Criminal Procedure does not even require that the accused has to make a formal written application for exercising the right of being released. All that he has to do is to intimate that he is prepared to furnish bail bonds that may be ordered by the Court. If he does so intimate the Court, whether oral or in writing, the Court cannot refuse to pass an order directing the release on bail for want of written application. It is the duty of the Magistrate to inform the accused that he has a right to be released on bail under the proviso and if the accused is prepared to furnish bail as ordered and docs furnish bail, he has'' lo be released on bail.

In the case of Dinesh Dalmia (supra), Hon''ble Supreme Court has held that remand of an accused is contemplated at two stages, i.e., pre-cognizance and post-cognizance. Section 167(2), Code of Criminal Procedure is attracted where cognizance has not been taken, whereas, Section 309(2) is attracted only after cognizance has been taken. The right under the proviso appended to Section 167(2), Code of Criminal Procedure is a conditional one, being conditional on the investigation having remained pending, i.e., the charge-sheet not having been presented. Once a charge-sheet is filed, the right u/s 167(2), proviso ceases and does not revive only because a further investigation remains pending within meaning of Section 173(8), Code of Criminal Procedure.

In the case of State of Rajasthan (supra), Hon''ble single Judge of Rajasthan High Court has held that proviso (a) to Section 167(2), Code of Criminal Procedure is mandatory and every person enlarged on bail u/s 167 shall be deemed to have been released under the provisions of Chapter XXXIII which includes Section 437, Code of Criminal Procedure also.

In the case of Dharmanand alias Mahto (supra), Hon''ble single Judge of this Court has held that the right of the accused to be released on bail, if the charge-sheet is not filed within 90/60 days, as the case may be, is absolute and cannot be defeated or taken away on subsequent filing of charge-sheet or by remand u/s 309(2) of the Code of Criminal Procedure. The right to bail in such a case continues till the accused is released on his furnishing bail bonds etc. In default of non-filing of charge-sheet by prosecution within the prescribed period, the Magistrate should pass an order enlarging the accused on bail, irrespective of the fact whether an application for bail is or is not moved by the accused and should call upon the accused to furnish bail bonds. If the accused is prepared and does furnish bail bonds, then he has to be released on bail. If the accused fails to furnish bail bonds, then only he should be remanded under the provisions of Section 309(2), Code of Criminal Procedure. But, if after remand the accused furnishes bail bonds, even after receipt of charge-sheet, then he has to be released from the custody because the order of bail survives even after filing of charge-sheet. The Magistrate cannot detain an accused in custody on furnishing bail bonds. The Magistrate has to follow the provisions strictly if the accused furnishes bail bonds.

In the case of Central Bureau of Investigation (supra), Hon''ble Supreme Court has held that for investigation, the period of ninety or sixty days has to be computed from the date of detention as per the orders of Magistrate and not from the date of arrest by police. Thus, the first period of detention should be computed from the date of order of remand.

The principles of law laid down by the Hon''ble Supreme Court in case of State of M.P. (supra) in paras 3 and 4 of its judgment may be reproduced as under:

We find that the High Court was in error-both in the matter of computation of the period of 90 days prescribed as also in applying the principle of compulsive bail on entertaining a petition after the challan was filed as the so-called "indefeasible right" of the accused, in our view stood defeated by efflux of time. The prescribed period of 90 days, in our view, would instantly commence either from 4.9.1993 (excluding from it 3.9.1993) or 3.12.1993 (including in it 2.12.1993). Clear 90 days have to expire before the right begins. Plainly put, one of the days on either side has to be excluded in computing the prescribed period of 90 days. Sections 9 and 10 of the General Clauses Act warrant such an interpretation in computing the prescribed period of 90 days. The period of limitation thus computed on reckoning 27 days of September, 31 days of October and 30 days of November would leave two clear days in December to compute 90 days and on which date the challan was filed, when the day running was the 90th day. The High Court was, thus, obviously in error in assuming that on 2.12.1993 when the challan was filed, period of 90 days had expired.

We may also observe that the High Court''s view in entertaining the bail petition after the challan was filed was erroneous. The matter now stands settled in Sanjay Dutt v. State, in which case Hitendra Vishnu Thakur v. State of Maharashtra, has aptly been explained away. The Court is required to examine the availability of the right of compulsive bail on the dale it is considering the question of bail and not barely on the date of the presentation of the petition for bail. This well-settled principle has been noticed in Sanjay Dutt case on the strength of three Constitution Bench cases-Naranjan Singh Nathawan v. Stale of Punjab ; Ram Narayan Singh v. State of Delhi and A.K. Gopalan v. Government of India. On the dates when the High Court entertained the petition for bail and granted it to the accused-Respondents, undeniably the challan stood filed in Court, and then the right as such was not available.

The principle of law, laid down by the Hon''ble Supreme Court in para 53(2)(b) of its judgment in the case of Sanjay Dutt (supra) may be reproduced as under:

53(2)(b). The "indefeasible right" of the ccused to be released on bail in accordance with Section 20(4)(bb) of the T.A.D.A. Act read with Section 167(2) of the Code of Criminal Procedure in default of completion of the investigation and filing of the challan within the time allowed, as held in Hitendra Vishnu Thakur is a right which enures to, and is enforceable by the accused only from the time of default till the filing of the challan and it does not survive or remain enforceable on the challan being filed. If the accused applies for bail under this provision on expiry of the period of 180 days or the extended period, as the case may be, then he has to be released on bail forthwith. The accused, so released on bail may be arrested and committed to custody according to the provisions of the Code of Criminal Procedure. The right of the accused to be released on bail after filing of the challan, notwithstanding the default in filing it within the time allowed, is governed from the time of filing of the challan only by the provisions relating to the grant of bail applicable at that stage.

In the instant case, the first remand was granted on 21.3.2009 and the charge-sheet was filed on 19.6.2009. In the case of Central Bureau of Investigation v. Anupam K. Kulkarni (supra), Hon''ble Supreme Court has held that the first period of detention should be computed from the date of order of remand. In the case of State of M.P. v. Rustam and Ors. (supra), the Hon''ble Supreme Court has held that one of the days on cither side has to be excluded in computing the prescribed period of 90 days and the clear 90 days have to expire before the right begins.

In the light of the principles of law laid down by the Hon''ble Supreme Court, the period of 90 days would be computed as under:

a) From 21.3.2009 to 31.3.2009 (21.3.2009 included) 11 days

(b) From 1.4.2009 to 30.4.2009 30 days

(c) From 1.5.2009 to 31.5.2009 31 days

(d) From 1.6.2009 to 19.6.2009 (19.6.2009 is excluded) 18 days

Total: 90 day

From the calculation chart, as mentioned above, it is clear that the charge-sheet was filed against the accused/Petitioner on 90th day and hence, the accused was not entitled to be released on bail u/s 167(2), Code of Criminal Procedure. The contention of the learned Counsel for the Petitioner that the charge-sheet was filed beyond the period of 90 days is not acceptable to me because the day of first remand as well as the day of filing of the charge-sheet, i.e., both days cannot be included while computing the period of 90 days as it would be contrary to the principles of law laid down by the Hon''ble Supreme Court. In fact, one of the days only on either side has to be excluded while computing the prescribed period of 90 days.

After the submission of the charge-sheet on 19.6.2009, the cognizance was taken by the competent court. Thereafter, the bail application was moved on behalf of the accused/Petitioner in the Court of Chief Judicial Magistrate, Barabanki, on 20.6.2009 for releasing him on bail u/s 167(2), Code of Criminal Procedure. The said application was rejected vide impugned order dated 20.6.2009, i.e., on the same day on the ground, that the charge-sheet has been submitted in the Court on 19.6.2009, i.e., 90th day and hence, the application u/s 167(2), Code of Criminal Procedure is not maintainable. I find no manifest error of law in the said order. The impugned order dated 20.6.2009, passed by the learned Chief Judicial Magistrate is perfectly valid and it calls for no interference.

The other several decisions of the Hon''ble Supreme Court and Hon''ble High Courts relied upon by the parties are not helpful for disposal of this petition because the charge-sheet was filed on 90th day, i.e., within the statutory period and not beyond the statutory period of 90 days as prescribed under proviso (a)(i) appended to Sub-section (2) of Section 167, Code of Criminal Procedure and the bail application u/s 167(2), Code of Criminal Procedure, moved on behalf of the accused after submission of the charge-sheet, was disposed of on the same day. There was no occasion'' for the concerned Magistrate to pass an order for bail u/s 167(2), Code of Criminal Procedure and to inform the accused about his right to be released on bail under the said provisions. The right of the accused to compulsive bail under the proviso to Section 167(2), Code of Criminal Procedure does not survive after filing of the charge-sheet.

In view of the foregoing discussions, I am of the view that this petition lacks merit and it deserves to be and is dismissed accordingly.