Rakesh Kumar vs State of Punjab

Dr. Sarojnei Saksena, J.

The petitioner is claiming bail under Section 439 Cr.P.C. as he is in custody since 1.4.1997. Petitioner''s learned counsel contended that in this case challan was presented on 19.6.1997 wherein the petitioner is shown in column No. 2. He filed the bail application on 2.7.1997. Learned Magistrate committed the case on 9.7.1997 and, therefore, under the law it should be held that challan was presented against the petitioner on 9.7.1997. Since the petitioner is in custody from 1.4.1997, he is entitled to be enlarged on bail under Section 167(2)(a) of the Code. To support this contention, the learned Senior Counsel Shri R.S. Cheema has relied on an order dated 6.2.1997 passed in Criminal Misc. No. 21778M of 1996 (Mohan Lal v. State of Punjab).

It is also contended by the petitioner''s learned counsel that two of the coaccused, his sister and mother have already been enlarged on bail. His case is identical with their case. Thus, he is entitled to be enlarged on bail.

Mr. G.S. Gill, learned Deputy Advocate General, argued that petitioner was arrested on 1.4.1997 by Investigating Agency of Police Station, City Sunam and was produced thereafter in the Court and was remanded to judicial custody. Since then he is in judicial custody. After completing the investigation, challan was presented on 19.6.1997. Therefore, petitioner is not entitled to ask for statutory bail under Section 167(2) of the Code.

Uncontroverted fact is that petitioner was arrested on 1.4.1997 in connection with the investigation of F.I.R. No. 63 dated 28.3.1997 under Sections 302/304B/34 IPC registered at Police Station Sunam. After completing the investigation, Investigating Officer submitted the charge sheet under Section 173 of the Code of 19.6.1997. No doubt, petitioner is shown in column 2 in the charge sheet but that will not entitle him to raise plea that under the law it should be presumed that charge sheet was filed against him only on 9.7.1997 when the learned Magistrate committed the case to the Sessions and, therefore, on this ground since the commitment order was passed after 90 days of his arrest, he is entitled to bail in default under Section 167(2)(a) of the Code. The argument is fallacious.

Unreported judgment in Mohan Lal''s case (supra) relied on by the petitioner''s learned counsel does not help the petitioner. No doubt, at page 3, the learned Single Judge has observed :

"It is not the case of the State that the petitioner ever misused the concession of bail under Section 167(2) Cr.P.C. The learned Additional Sessions Judge preferred to cancel the bail of the petitioner on the assumption that the challan presented against other coaccused would be deemed to have been presented against the petitioner. This assumption on the part of learned Addl. Sessions Judge was not legally sound. The learned Additional Sessions Judge did not consider the right import of the provisions of Section 167(2). In these circumstances, this Court is not in agreement with the view taken by the learned Additional Sessions Judge, Ferozepur."

In K. Veeraswami v. Union of India and Ors., 1991(1) All India Cr.L.R. 261, in para 78, their Lordships have held :

"The chargesheet is nothing but a final report of police officer under Section 173(2) of the Cr.P.C. The Section 173(2) provides that on completion of the investigation the police officer investigating into a cognizable offence shall submit a report. The report must be in the form prescribed by the State Government and stating therein (a) the names of the parties; (b) the nature of the information; (c) the names of the persons who appear to be acquainted with the circumstances of the case; (d) whether any offence appears to have been committed and, if so, by whom; (e) whether the accused has been arrested; (f) whether he had released on his bond, and, if so, whether with or without sureties; and (g) whether he has been forwarded in custody under Section 170. As observed by this Court in Satya Narain Musadi and ors. v. State of Bihar, 1980(3) SCC 152 (at page 157); that the statutory requirement of the report under Section 173(2) would be complied with if the various details prescribed therein are included in the report. This report is an intimation to the Magistrate that upon investigation into a cognizable offence the investigating officer has been able to procure sufficient evidence for the Court to inquire into the offence and the necessary information is being sent to the Court. In fact, the report under Section 173(2) purports to be an opinion of the investigating officer that as far as he is concerned he has been able to procure sufficient material for the trial of the accused by the Court."

By now, it is not resintegra that Magistrate has the jurisdiction to differ with the conclusion of police in the report under Section 173 of the Code. Hence, Magistrate has the jurisdiction to direct that the accused not sent up for trial and mentioned in column No. 2 thereof, could also be summoned and committed to the Court of Sessions under Section 209 of the Code. Reliance is placed on Division Bench judgment of this Court in Surat Singh v. State of Punjab, 1981 C.L.R. 547 and Hanif and ors. v. State of Haryana, 1984(1) R.C.R. 571 .

In Nirmal Singh v. Balwant Singh and ors., 1992(2) R.C.R. 72 , learned Single Judge had the occasion to consider whether an accused mentioned in column No. 2 of the Report under Section 173 Cr.P.C. can be summoned after the period of limitation prescribed under Section 468 of the Code. The learned Judge held :

"Section 319, subsection (1), thus, clearly lays down that the case shall proceed against those persons summoned under the Sections as if these persons are accusedpersons when the Court took cognizance of the offence. Section 468 speaks of a bar of taking cognizance of an offence and not cognizance of the offender. The legal position is, thus, clear that if in the course of a trial, in which the Court has already taken cognizance of an offence within the period of limitation, some other persons are summoned to stand trial as the accused persons no bar of limitation shall arise."

While conducting investigation under Chapter XII when the report is lodged with the police under Section 154 Cr.P.C. with regard to cognizable offence, the police officer has jurisdiction to investigate such cognizable case without order of the Magistrate and after completing the investigation he submits report under Section 173 of the Code. As per Section 173(2)(d) of the Code, the Investigating Officer has to submit a report whether any offence appears to have been committed and, if so, by whom. No doubt, the petitioner was arrested by the Police on 1.4.1997 and thereafter under order of the Court he was remanded to judicial custody. Challan was presented on 19.6.1997. In C. Satyanarayana v. State of A.P., A.I.R. 1986 S.C. 2130, it is held :

"Construing proviso (a) either in conjunction with subsec. (2) of S. 167 or as an independent paragraph, it is clear that the total period of 90 days under clause (i) and the total period of 60 days under clause (ii) has to be calculated only from the date of remand and not from the date of arrest."

In this case, the Apex Court has further held :

"The historical background of the legislative changes which took place in S. 167 reveal that Proviso (a) to S. 167(2) has been enacted to not only safeguard the liberty of the citizens but also to safeguard the interest of the State or in other words the public. The right of bail granted to remand prisoners at the end of 90 days or 60 days as the case may be does not have the effect of rendering the subsequent period of detention ipso facto illegal or unlawful. The Explanation 1 to the Proviso obligates the accused being detained in custody in spite of the expiry of the prescribed period of 90 days or 60 days as the case may be so long as he does not furnish bail. It will thus be seen that the anxiety of the Legislature to secure to the remand prisoners their release from custody is circumscribed by its concern in equal measure to safeguard the interests of the State as well."

Committal order does not tantamount to report under Section 173(2) of the Code submitted by the Investigating Officer. After considering all the papers/documents submitted alongwith the report filed under Section 173 of the Code if the Magistrate considers that the case is required to be committed to the Court of Session against all the accused persons, the committing Magistrate passes an order under Section 209 of the Code and forwards all such accused persons to the Court of Session for their trial in that Court. Therefore, this argument has no legal bearing that since the case was committed by the Magistrate on 9.7.1997 and as the petitioner was arrested on 1.4.1997 it should be held that the charge sheet was filed against the petitioner on 9.7.1997, that is, the date of commitment.

In Sanjay Dutt v. State, (1994) 5 SCC 410, the Apex Court considered, this `indefeasible right'' of accused to be released on bail under Section 167(2) of the Code and held that :

"It arises from the time of default and continues till filing of challan but does not survive thereafter. After filing of challan grant of bail would be decided on merits."

So far as the merits of the case are concerned charge has already been framed against accused persons on 14.10.1997. One witness has already been examined on 20.1.1998 and now case is fixed for prosecution evidence for 23.4.1998. From the perusal of the F.I.R., it is evident that role of harassment to the deceased before her death is also attributed to the petitioner. Thus considering all the facts enumerated above, in my considered view, the petitioner is neither entitled to be enlarged on bail in default, as there is none under Section 167(2)(a) of the Code, nor on merits, At this stage of the trial he is not entitled to the concession of bail. Resultantly, bail application is dismissed.