Rajan Kukreja vs State of Rajasthan

Vijay Bishnoi, J.—1. Petitioner was arrested in connection with FIR No. 14/2015 of Police Station, GRP Abu Road, District Sirohi. Charge-sheet has been filed against him for the offences punishable under sections 8/22 and 8/29 of the Narcotic Drugs and Psychotropic Substances Act, (for short ''the NDPS Act'') and the Special Judge, NDPS Act Cases, Sirohi (for short ''the trial court'' hereinafter) took cognizance against the petitioner for the offences punishable under sections 8/22 and 8/29 of the NDPS Act vide order dated 28.09.2015.

The bail application moved by the petitioner under section 439 CrPC has been dismissed by the trial court vide order dated 24.11.2015 and now the petitioner has preferred this application under section 439 CrPC seeking bail.

It is argued that after filing of the charge-sheet against the petitioner on 11.09.2015, the trial court took cognizance against the petitioner only on 28.09.2015 and in such circumstance, the custody of the petitioner from 11/12.09.2015 to 27.09.2015 was illegal because after filing of the charge-sheet, the period of remand under section 167 CrPC comes to an end and if further custody of the petitioner was necessary, then it can only be done under section 309 CrPC after taking cognizance of the offence. It is submitted that after submission of the charge-sheet against the petitioner on 11.09.2015, the trial court did not take cognizance against the petitioner till 28.09.2015 and, therefore, his custody from 11/12.09.2015 to 27.09.2015 was unauthorized and as such he is entitled to be released on bail as per the provisions of sub-section (2) of section 167 CrPC. In support of the above contentions, learned counsel for the petitioner has placed reliance on decision of Karnataka High Court rendered in Devindrappa & Anr. Vs. State of Karnataka, , 2004 CRI.L.J. 1506.

Learned counsel for the petitioner has also placed reliance on decision of Hon''ble Supreme Court in Union of India Vs. Thamisharasi and Ors., , (1995) 4 Supreme Court Cases 190; decisions of this Court rendered in Shiv Raj Singh S/o Raghubir Singh Vs. The State of Rajasthan, 1979 Cr.L.R. (Raj.-Suppl.) 199, Narayan & Co. Vs. The State of Rajasthan, Crl Law Cases, 1992 Vol. VII No. 9, 315, Roop Chand S/o Nathu Kanjar Vs. The State of Rajasthan, 1997 Cr.L.R. (Raj.) 774, State Vs. Mangi Lal, RLW 2005 (1) Raj. 232, and Shankerlal Nai Vs. State of Rajasthan, 2007 (3) RCC 1217 and the decision of Punjab and Haryana High Court in Sanjeev Rai Vs. State of Punjab (Cr.Misc. No. M-29723/2015) decided on 06.01.2016.

Learned counsel for the petitioner has also argued that the petitioner has falsely been implicated in this case merely on the basis of travelling with co-accused Yusuf Hussain. He has submitted that iron box containing narcotic drug was in conscious possession of Yusuf Hussain and the petitioner had no knowledge of carrying alleged contraband and, therefore, it cannot be said that he has committed any offence.

Learned Public Prosecutor has opposed the bail application filed by the petitioner and argued that the petitioner was arrested on 17.03.2015 and the police filed charge-sheet against him on 11.09.2015 i.e. well within 180 days and, therefore, the benefit of bail cannot be extended to the petitioner while invoking the provisions of sub-section (2) of section 167 CrPC. It is also argued that by filing of the charge-sheet within 180 days, the prosecution has sufficiently complied with the provisions of sub-section (2) of section 167 CrPC and merely because cognizance has not been taken against the petitioner, it cannot be said that he is entitled to get the benefit of bail under the said section. Learned Public Prosecutor has placed reliance on decision of Hon''ble Supreme Court in Suresh Kumar Bhikamchand Jain vs. State of Maharashtra & Anr., , (2013) 3 SCC 77.

Heard learned counsel for the rival parties and perused the material available on record.

Certain dates, which are relevant to the facts of this case, are as follows:

17.03.2015: The petitioner was arrested and remanded to police custody;

26.03.2015: The petitioner was sent to judicial custody.

11.09.2015: Charge-sheet was filed against the petitioner.

From the material supplied by the counsel for the petitioner, it appears that the trial court had fixed the date 15.09.2015 for submission of result of investigation. However, in the meantime on 11.09.2015, the police filed charge-sheet against the petitioner. At the time of filing of the charge-sheet against the petitioner on 11.09.2015, the Presiding Officer of the trial court was on leave and therefore, the charge-sheet was submitted before the link court i.e. the Court of Additional Sessions Judge No. 1, Abu Road, District Sirohi, who had ordered to place the file on 15.09.2015. On 15.09.2015, the file was again put up before the Additional Sessions Judge No. 1, Sirohi, who had ordered for listing the case on 24.09.2015 and also extended the judicial custody of the petitioner till date.

In the meantime, counsel for the petitioner moved a bail application under section 439 CrPC read with section 167(2) CrPC claiming that charge-sheet has not been filed against the petitioner within 180 days, therefore, he may be released on bail.

On 24.09.2015, another application was moved on behalf of the counsel for the petitioner before the Additional Sessions Judge No. 1, Abu Road praying that the petitioner cannot be sent to judicial custody for further period as only the Special Judge, NDPS Act Cases has jurisdiction to take cognizance against the petitioner and, therefore, the Additional Sessions Judge No. 1, Abu Road should not extend the judicial custody of the petitioner. The said application of the petitioner was rejected by the Additional Sessions Judge No. 1, Abu Road on 24.09.2015 while observing that as this court is working as a link court of Special Judge, NDPS Act Cases under the orders of District and Sessions Judge, Sirohi, the judicial custody of the petitioner is extended till 26.09.2015, the date when the Presiding Officer of the trial court is going to join duties after availing leave. On 26.09.2015, the trial court took up the matter and extended the judicial custody of the petitioner up to 28.09.2015 and fixed the matter for hearing on the point of cognizance. On 28.09.2015, the trial court took cognizance against the petitioner for the offences punishable under sections 8/22 and 8/29 of the NDPS Act and by a separate order, the bail application filed by the petitioner under section 439 read with section 167(2) CrPC was rejected while holding that since the charge-sheet has been filed against the petitioner within 180 days, benefit of bail cannot be extended to him while invoking the provisions under sub-section (2) of section 167 CrPC.

From the above facts, it is clear that the judicial custody of the petitioner was extended from time to time either by the trial court or in his absence by the Additional Sessions Judge No. 1, Abu Road, who was working as a link court and, therefore, it cannot be held that the judicial custody of the petitioner from 11.09.2015 to 28.09.2015 was illegal or unauthorised.

So far as contention of the counsel for the petitioner to the effect that after filing of the charge-sheet on 11.09.2015, the trial court did not take cognizance of the offence till 28.09.2015 and judicial custody of the petitioner from 12.09.2015 to 27.09.2015 was illegal, cannot be accepted in view of the law laid down by the Hon''ble Supreme Court in Suresh Kumar Bhikamchand Jain vs. State of Maharashtra & Anr. (supra), wherein the Hon''ble Supreme Court has held as under:

"17. In our view, grant of sanction is nowhere contemplated under Section 167 CrPC. What the said section contemplates is the completion of investigation in respect of different types of cases within a stipulated period and the right of an accused to be released on bail on the failure of the investigating authorities to do so. The scheme of the provisions relating to remand of an accused, first during the stage of investigation and, thereafter, after cognizance is taken, indicates that the legislature intended investigation of certain crimes to be completed within 60 days and offences punishable with death, imprisonment for life or imprisonment for a term of not less than 10 years, within 90 days. In the event, the investigation is not completed by the investigating authorities, the accused acquires an indefeasible right to be granted bail, if he offers to furnish bail. Accordingly, if on either the 61st day or the 91st day, an accused makes an application for being released on bail in default of charge-sheet having been filed, the court has no option but to release the accused on bail. The said provision has been considered and interpreted in various cases, such as the ones referred to hereinbefore. Both the decisions in Natabar Parida case and in Sanjay Dutt case were instances where the charge-sheet was not filed within the period stipulated Section 167(2) CrPC and an application having been made for grant of bail prior to the filing of charge-sheet, this Court held that the accused enjoyed an indefeasible right to grant of bail, if such an application was made before the filing of the charge-sheet, but once the charge-sheet was filed, such right came to an end and the accused would be entitled to pray for regular bail on merits.

None of the said cases detract from the position that once a charge-sheet is filed within the stipulated time, the question of grant of default bail or statutory bail does not arise. As indicated hereinabove, in our view, the filing of charge-sheet is sufficient compliance with the provisions of Section 167(2)(a)(ii) in this case. Whether cognizance is taken or not is not material as far as Section 167 CrPC is concerned. The right which may have accrued to the petitioner, had charge-sheet not been filed, is not attracted to the facts of this case. Merely because sanction had not been obtained to prosecute the accused and to proceed to the stage of Section 309 CrPC, it cannot be said that the accused is entitled to grant of statutory bail, as envisaged in Section 167 CrPC. The scheme of CrPC is such that once the investigation stage is completed, the court proceeds to the next stage, which is the taking of cognizance and trial. An accused has to remain in custody of some court. During the period of investigation, the accused is under the custody of the Magistrate before whom he or she is first produced. During that stage, under Section 167(2) CrPC, the Magistrate is vested with authority to remand the accused to custody, both police custody and/or judicial custody, for 15 days at a time, up to a maximum period of 60 days in cases of offences punishable for less than 10 years and 90 days where the offences are punishable for over 10 years or even death sentence. In the event, an investigating authority fails to file the charge-sheet within the stipulated period, the accused is entitled to be released on statutory bail. In such a situation, the accused continues to remain in the custody of the Magistrate till such time as cognizance is taken by the court trying the offence, when the said court assumes custody of the accused for purposes of remand during the trial in terms of Section 309 CrPC. The two stages are different, but one follows the other so as to maintain a continuity of the custody of the accused with a court.

Having regard to the above, we have no hesitation in holding that notwithstanding the fact that the prosecution had not been able to obtain sanction to prosecute the accused, the accused was not entitled to grant of statutory bail since the charge-sheet had been filed well within the period contemplated under Section 167(2)(a)(ii) CrPC. Sanction is an enabling provision to prosecute, which is totally separate from the concept of investigation which is concluded by the filing of the charge-sheet. The two are on separate footings. In that view of the matter, the special leave petition deserves to be and is hereby dismissed."

[Emphasis supplied]

The decision of Karnataka High Court cited by learned counsel for the petitioner in Devindrappa & Anr. Vs. State of Karnataka (supra) is of no help to the petitioner in view of the law laid down by Hon''ble Supreme Court in Suresh Kumar Bhikamchand Jain vs. State of Maharashtra & Anr. (supra). The other decisions cited by learned counsel for the petitioner are in respect of the power of the court to release the accused on bail while invoking the provisions under sub-section (2) of section 167 CrPC when charge-sheet is not filed within the prescribed limitation of 60, 90 and 180 days. However, in the present case, from the facts narrated above, it is clear that the charge-sheet has been filed against the petitioner within 180 days and, therefore, the law laid down in the judgments referred to above by the learned counsel for the petitioner has no applicability and are of no help to the petitioner.

So far as merits of the case is concerned, after perusal of the charge-sheet, this Court is not in a position to give a finding to the effect that there are reasonable grounds for believing that the petitioner is not guilty of such offence. The material produced by the investigating agency after completion of the investigation prima facie connects the petitioner with the commission of crime.

In view of the above discussions, I do not find any merit in this bail application and the same is hereby dismissed.