Ramasamy vs State

Janarthanam, J.—One Ramasamy (Petitioner) next friend of the detenus, viz., (1) Ravi alias Ravichandran and (2) Murugesan (hereinafter

referred to as 1st detenu and 2nd detenu, respectively), resorted to the present action under Article 225 of the Constitution of India praying for the

issuance of a writ of habeas corpus directing the Respondent herein to cause their production before this Court and set them at liberty.

The factual edifice or the basis, on which this action had been founded, is reflected as follows:

The first detenu was arrested in connection with Crime No. 346 of 1993 on the file of Sub Inspector of Police, Kullanchavadi Police Station on

20.12.1993 at 8 p.m. when he was found in possession of gelatine sticks, detonator and fuse wires, besides other weapons. After his arrest and

recovery of the aforesaid explosive substances, he was produced before the designated Judge No. 2, Madras, on 21.12.1993, who remanded him

to judicial custody. Thereafter, the remand was extended from time to time.

The second detenu was stated to have been arrested in connection with the same crime number (i.e. Crime No. 346 of 1993) on 25.1.1994 at

about 1.30 p.m. when he was found in possession of country made live bombs, which were sophisticated explosive substances he was produced

before the designated Judge No. 2, Madras, who remanded him to judicial custody. Like the first detenu, the remand of the 2nd detenu was also

extended from time to time.

Apart from these two detenus, ten other persons, it is said, were involved in the very same crime number and they were arrested and remanded.

After the completion of investigation, a final report had been filed on 16.8.1994 before the Designated Judge No. 2, Madras, against all the

accused persons for alleged offences under Sections 120(B) , read with 147, 148, 451, 380 read with 511, 532, 333, 307, 302, read with 149 of

the Indian Penal Code., Sections 3 and 5 of the Explosive (Substances) Act, 1908 Section 25 (1-B), (a) of the Arms Act, 1950, Section 9(b)(1)

(b) of the Explosive Act, besides specific offences under Sections 3(2)(1) 4,5 of the Terrorist and Disruptive Activities (Prevention) Act, 1987,

and Section 25 (1-a)(a) read with Section 3 of the Arms Act.

In the meanwhile, along with two others, viz., Sankar and Nallarasan, the two detenus herein filed a petition, being Criminal Miscellaneous

Petition No. 166 of 1994 before the Designated Court, Madras, on 20.6.1994 u/s 437 of the Code of Criminal Procedure (herein after referred to

as ''the Code''), read with Section 20(8) of the Terrorist and Disruptive Activities (Prevention), Act (hereinafter referred to as ''the TADA Act''),

praying for their release on bail; the said application was stated to have been dismissed by order dated 29.7.1994.

In the affidavits filed in support of the present action, what is contended is that on the date when the bail application had been moved before the

Designated Court, the statutory period of 180 days had expired and since the prosecuting agency had not filed its final report within the said

period, the indefeasible right, which had accrued to them by way of a legislative command for their being released on bail, pursuant to the salient

provisions adumbrated u/s 20(4)(b) and (bb) of TADA Act coupled with Section 167(2) of the Code, their subsequent remand is not deriving the

sanction of law, thereby amounting to illegal custody and detention inasmuch as the Designated Court failed to pass orders suo motu releasing them

on bail, informing them to produce the necessary and requisite sureties and such being the case, there is no other go for this Court except to quash

their detention order and set them at liberty.

Mr. Sankarasubbu, learned Counsel for the Petitioner would, with all vehemence, reiterate the very same grounds, as had been taken in the

affidavits filed in support of the action, to which course, Mr. B. Sriramulu, learned Public Prosecutor representing the Respondent, would strike a

discordant note.

From the rival submissions, as above, the most question that crops up for consideration is whether the remand of the detenus, after the expiry of

180 days from the date of their arrest, is legal, especially when the final report had not been filed within the statutory period.

There is no pale of controversy whatever that both the detenus were arrested respectively on 20.12.1993 and 25.1.1994. Yet another fact

about which there is no dispute is that on 16.8.1994, when the final report had been filed before the designated Court, the statutory period of 180

days had already expired. No doubt true it is that the bail application had been moved before the Designated Court on 20.6.1994, on which date,

the statutory period of 180 days of course though expired for the first detenu, did not expire in respect of the second detenu. Such being the case,

the question of release on bail of the second detenu by the Designated Court would not arise for consideration on the ground of default committed

by the investigating agency in filing the final report. The question is, as to whether the rejection of bail for the first detenu and his subsequent remand

is illegal is being not in accordance with the salutary provisions adumbrated under the provisions of Section 20(4)(b) and (bb) of TADA Act read

with Section 167(2) of the Code on the facts and in the circumstances of the case.

Though at first a sight, it may appear that the rejection of bail for the first detenu by the Designated Court is not in accordance with the salutary

provisions stated above, yet, if a little bit of probe is made into the facts and circumstances of the case, it would emerge that the rejection of bail for

him is not at all illegal. To recapitulate here, the bail application in respect of both the detenus had been filed u/s 437 of the Code read with Section

20(8) of the TADA Act. By way of emphasis, it may be stated that the said application was not one, filed u/s 167(2) of the Code read with

Section 20(4)(b) and (bb) of TADA Act. Such being the case, it goes without saying that the application filed by the detenus praying for their

release on bail before the Designated Court was one on merits of the case and not on account of default committed by the investigating agency in

filing the final report before the expiry of the statutory period of 180 days. A perusal of the bail application filed before the Designated Court would

point out in a clinching fashion that it was not as if the petition had been captioned inadvertently u/s 437 of the Code read with Section 20(8) of

TADA Act, instead of mentioning the correct provisions of law, that is to say, Section 167(2) of the Code read with Section 20(4)(bb) of TADA

Act. Even the contents of the said petition, if scrutinised and scanned with a little bit care and caution, would point out that the said application had

been pressed on merits alone and not on account of default committed by the investigating agency in filing the final report within the statutory

period. To put it otherwise, what has been stated therein is that they were innocent of the offences with which they stood charged, and that apart,

the materials collected did not constitute ingredients of any offence whatever. It is to be pointed here that apart from the said application, no other

application had been filed before the Designated Court for their release on bail on the ground of default before even the final report was filed by the

investigating agency on 16.8.1994. In such a situation, the contention that the subsequent remand and custody is illegal, cannot at all be

countenanced on the facts and in the circumstances of the case.

The grant of bail on the default committed by the investigating agency in filing the final report within the statutory period u/s 20(4)(b) and (bb)

of TADA Act, is after all a modified version of the salient provisions of Section 167(2) of the Code. The question as to whether the right to get

released on bail accrues the moment when the investigating agency fails to file the final report before the period specified under the salient

provisions adumbrated u/s 167(2) of the Code, was agitated before the superior course subsequent to the insertion of such a provision in the Code

by the Amending Act, Act 45 of 1988. What was further agitated, was, whether any mandate was cast upon the Court to pass an order releasing

the accused on bail the moment when a default had been committed by the investigating agency in filing the final report on the expiry of the

specified statutory period and inform the same to the accused requiring him to furnish security in a specified sum for such release. The further

question that was agitated was, as to whether, even in the absence of an order releasing the accused on bail being passed by the Court on the

default committed by the investigating agency in filing the final report before the expiration of the statutory period, the accused shall be deemed to

have been released on bail and whether it is open to the accused placed in such a situation to furnish sufficient security and get released on bail.

The questions, referred to above, came to be canvassed before one of us (Janarthanam in the case of Sankar alias Gowri Sankar and others Vs.

State of Tamil Nadu, In that case, after taking into consideration all the relevant provisions of the Code, as interpreted by the various High Courts

and also the Apex Court, in State of Uttar Pradesh Vs. Lakshmi Brahman and Another, the legal position obtaining then, regarding the right of a

person accused of a non- bailable offence, to be enlarged on bail under the benevolent provision of Section 167(2) of the Code had succinctly

been summarized ,in the following words:

An order for release on bail under proviso (a) to Section 167(2) is an order on default. The accused is entitled to be released on bail on account of

default on the part of the prosecution to file charge sheet within the prescribed period if he is prepared to and does furnish bail. It is a legislative

command and not Court''s discretion. In other words, 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 are not to be examined. The Magistrate has no

power to remand the accused beyond the stipulated period of 90/60 days and should be released on bail if he is prepared to and furnishes bail.

The accused cannot claim any special right to remain on bail. In other words, the accused cannot claim that his right to remain on bail can, under no

circumstances, be defeated if the investigation reveals that (i) the accused has committed a serious offence; and (ii) the charge sheet is filed, the bail

granted under proviso (a) to Section 167(2) could be cancelled. If the accused has not made application for his release on bail, after expiry of the

period prescribed by the proviso (a) to S. 167(c) and before filing of the charge sheet he has no right to claim his release on bail (after filing of the

charge sheet/final report), solely on the ground that the charge sheet/final report was not submitted within the prescribed period.

... The Magistrate, who is not otherwise having the power to release a person accused of a non-bailable offence acquires such a power in the

contingency of the investigating agency not filing the final report within the prescribed statutory period and such release on bail, if the person is

prepared to and does furnish bail, shall be deemed to be a release under Chapter XXXIII of the Code of Criminal Procedure and there is no

warrant for the inference or deduction that the accused shall be deemed to have been released on bail on the expiry of 90/60 days, thereby making

the further detention illegal.

A Division Bench of the Supreme Court, however, in the case of Hitendra Vishnu Thakur and Others Vs. State of Maharashtra and Others,

has held as follows:

In conclusion, we may (even at the cost of repetition) say that an accused person seeking bail u/s 20(4) has to make an application to the Court for

grant of bail on grounds of the ''default'' of the prosecution and the Court shall release the accused on bail after notice to the Public Prosecutor

uninfluenced by the gravity of the offence of the merits of the prosecution case since Section 20(8) does not control the grant of bail u/s 20(4) of

TADA and both the provisions operate in separate and independent fields. It is, however, permissible for the Public Prosecutor to resist the grant

of bail by seeking an extension under Clause (bb) by filing a report for the purpose before the Court. However, no extension shall be granted by

the Court without notice to the accused to have his say regarding the prayer for grant of extension, under Clause (bb).

In this view of the matter, it is immaterial whether the application for bail on ground of ''default'' u/s 20(4) is filed first or the report as envisaged by

Clause (bb) is filed by the Public Prosecutor first, so long as both are considered while granting or refusing bail. If the period prescribed by Clause

(b) of Section 20(4) has expired and the Court does not grant an extension on the report of the Public Prosecutor made under Clause (bb), the

Court shall release the accused on bail as it would be an indefeasible right of the accused to be so released even where the Court grants an

extension under Clause (bb) but the charge sheet is not filed within the extended period, the Court shall have no option but to release the accused

on bail, if he seeks it and is prepared to furnish the bail as directed by the Court. Moreover no extension under Clause (bb) can be granted by the

Designated Court except on a report of the Public Prosecutor nor can extension be granted for reasons other than those specifically contained in

Clause (bb) which must be strictly construed.

However a Constitution Bench of the Supreme Court consisting of five Judges on reference from a Division Bench (inter alia on the question as

to what is the proper construction and ambit of Sub-section (8) of Section 20 of the TADA Act indicating the scope for bail thereunder, reviewed

the case law on the subject, in Sanjay Dutt Vs. State through C.B.I., Bombay, and while deciding that point, reviewed the decision in Hitendra

Vishnu Thakar v. State of Maharashtra (8 1994 (2) Crimes 916 at 934), and finally held as follows:

The ''indefeasible right'' of the accused to be released on bail in accordance with Section 20(4)(bb) of the TADA 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 Thankur 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 the bail under this provision on expiry of the period of 180 days, or

the extended period, as the case may be, than 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 Application at that stage.

(emphasis supplied).

In the light of the settled law by the judgment of the Constitution Bench of the Supreme Court in Sanjay Dutt''s Case (Supra), the detention of

the two detenus involved in this case cannot at all be said to be illegal calling for interference by this Court. This petition as such deserves to be

dismissed and is accordingly dismissed.