State of H.P. vs Kanti Grover

R.L. Khurana, J.—The present revision petition u/s 397 read with Section 401, Code of Criminal Procedure, has been directed by the State against the order dated 2-11-2001 of the learned Sessions Judge, Sirmaur at Nahan passed in Bail Application No. 132-BA/22 of 2001 admitting the respondent Kanti Grover to bail.

Briefly stated, the facts giving rise to the present case are these. The respondent was arrested on 14-7-2001 in Case FIR No. 207/2001. Police Station, Paonta Sahib, for the offences u/s 392 and 394 read with Section 34, Indian Penal Code. The bail application moved by him before the learned Sessions Judge was dismissed on 14-8-2001.

The investigation of the case was completed and the final report as contemplated u/s 173, Code of Criminal Procedure, was submitted to the Court on 24-9-2001. The copies of the police report as well as other relevant documents as contemplated u/s 207, Code of Criminal Procedure, were supplied to the respondent on 17-11-2001.

On 8-11-2001, the respondent again approached the learned Sessions Judge u/s 439, Code of Criminal Procedure, for being released on bail averring therein that since after the dismissal of earlier bail application on 14-8-2001, certain new events have taken place. It was also pleaded that in respect of the offence(s) for which the respondent was sought to be tried, the investigation should have been completed and final report submitted to the Court within 60 days of the arrest of the petitioner and since the police report was not submitted to the Court within the said period of sixty days, an indefeasible right had accrued to the respondent for being released on bail.

The learned Sessions Judge nothing that though the final report u/s 173, Code of Criminal Procedure against the respondent was presented to the Court well within the prescribed period of 90 days, since the relevant copies contemplated u/s 207, Code of Criminal Procedure, were supplied well beyond the said period of 90 days, the respondent was entitled to be released on bail by giving him the benefit of Section 167(2) of the Code of Criminal Procedure. He, therefore, admitted the respondent to bail on his furnishing personal bond to the tune of Rs. 20,000/- with two sureties each to the like amount to the satisfaction of Additional Chief Judicial Magistrate, Paonta Sahib. In coming to such conclusion, the learned Sessions Judge, had placed reliance on the ratio laid down by a learned single Judge of Madhya Pradesh High Court in re. Misc. Bail application 242/ 1993, decided on 24-9-1993 1993 (3) Crimes 955), wherein it has been held that where the final report though filed within the prescribed period of 90 days but copies thereof are supplied to the accused well beyond 90 days, the accused is entitled to be released on bail u/s 167(2), Code of Criminal Procedure.

Section 167(2), Code of Criminal Procedure (for short the Code) provides :

"(2) The Magistrate to whom an accused person is forwarded under this section may, whether he has or has no jurisdiction to try the case, from time to time, 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 unnecessary, 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 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 doe 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 authorising detention."

Dealing with the scope of the above Section and the question as to when the right accrues to the accused for being released on bail under the proviso to Section 167(2) of the Code, the Hon''ble Supreme Court in Uday Mohanlal Acharya Vs. State of Maharashtra, has held :

The power u/s 167 is given to detain a person in custody while the police goes on with the investigation and before the Magistrate starts the enquiry. Section 167, therefore, is the provisions which authorises the Magistrate permitting detention of an accused in custody and prescribing the maximum period for which such detention could be ordered. Having prescribed the maximum period, as stated above, what would be the consequences thereafter has been indicated in the proviso to Sub-section (2) of Section 167. The proviso is unambiguous and clear and stipulates that the accused shall be released on bail if he is prepared to and does furnish the bail which has been termed by judicial pronouncement to be "compulsive bail" and such bail would be deemed to be a bail under Chapter 33. The right of an accused to be released on bail after expiry of the maximum period of detention provided u/s 167 can be denied only when an accused does not furnish bail, as is apparent from Explanation-I to the said section. The proviso to subsection (2) of Section 167 is a beneficial provision for curing the mischief of indefinitely prolonging the investigation and thereby affecting the liberty of a citizen. Section 167 occurs in Chapter 12 dealing with the powers of the police to investigate in a criminal offence which starts with lodging of information incognizable cases u/s 154, and ultimately culminating in submission of a report on completion of investigation u/s 173. Soon after completion of investigation the officer-in-charge of the police station has to forward to the Magistrate, empowered to take cognizance of the offence, a report in the prescribed form and once such report is filed before the Magistrate which is commonly termed as "challan" then the custody of the accused is no longer required to be dealt with u/s 167 of the Code, but u/s 209."

In Hitendra Vishnu Thakur and Others Vs. State of Maharashtra and Others, , the Hon''ble Supreme Court after examining in detail the objection behind the enactment of Section 167 of the Code and the object of Parliament introducing the proviso to Section 167(2) of the Code prescribing the outer limit within which the investigation must be completed, expressed that the proviso to Sub-section (2) of Section 167 of the Code creates an indefeasible right in an accused person on account of default by the investigating agency in the completion of the investigation agency within the maximum period prescribed or extended, as the case may be, to seek an order for this release on bail and such order is generally termed an "order on default". It was also held that an obligation is cast upon the Court in inform the accused of his right of being released on bail and enable him to make an application in that behalf.

Thus, the well settled position is that the accused drives an indefeasible right to be admitted to bail under the proviso to Sub-section (2) of Section 167 of the Code if the investigation of the case is not completed within the prescribed period of 60 or 90 days as the case may be. Admittedly, in the present case the prescribed period is 90 days since each of the two offences u/s 392 and 394, Indian Penal Code, is punishable with imprisonment upto ten years.

Sub-section (2) of Section 173 of the Code provides that as soon as the investigation is completed, the officer-in-charge of the police station shall forward to a Magistrate empowered to take cognizance of the offence on a police report, a report in the form prescribed by the State Government. Once such a report is submitted to the Magistrate u/s 173(2) of the Code, the Magistrate takes cognizance of the offence under Clause (b) of Section 190(1) of the Code and thereafter to proceed in the matter as per the procedure laid down in Chapter XVI of the Code relating to "Commencement of Proceedings before the Magistrate."

The investigation of a case comes to an end with the submission of the police report u/s 173 (2) of the Code. (See Parshotam Chand v. State of H. P. ILR (1976) HP 544.

A Full Bench of the Gujarat High Court in Shardulbhai Lakhmanbhai Pancholi and Another Vs. State of Gujarat, has summarised the law regarding release of accused on bail under proviso to Sub-section (2) of Section 167 of the Code as under ;

(a) Proviso (a) to Sub-section (2) of Section 167, which falls under Chapter XII of the Code which deals with "Information to the police and their powers to investigate" can be invoked only at the stage of investigation :

(b) Investigation to grant bail in case Investigation is not completed within the prescribed period time limit as provided in proviso (a) to Section 167(2) vests in the Magistrate if the accused applies and is prepared to furnish bail;

(c) The expression "Magistrate in the proviso (a) to Section 167(2) of the Code would mean the Magistrate having jurisdiction to take cognizance;

(d) The investigation would come to an end the moment charge-sheet is submitted as required by Section 173 of the Code, unless the Magistrate directs further investigation;

(e) In the case of offence triable by Court of Sessions, inquiry within the meaning of Section 2(g) of the Code would commence on submission of the police report u/s 173 of the Code;

(f) Once inquiry commences, proviso (a) to Section 167(2) of the Code has no application;

(g) After commencement of inquiry, the Magistrate has the power to remand the accused to judicial custody u/s 309(2) of the Code; and

(h) The accused does not have the right to be released on bail under proviso (a) to Section 167(2) of the Code once the investigation comes to an end by filing the police report u/s 173 of the Code.

In State of Maharashtra v. Tukaram Shiva Patil 1977 Cri LJ 394 (Bom) though the police report as required u/s 173(2) was submitted to the Magistrate within the time prescribed under proviso (a) to Section 167(2) of the Code, such police report did not accompany the documents referred to in Sub-section (5) of Section 173 of the Code. The learned Sessions Judge took the view that having regard to the provisions of Section 167(2) of the Code, notwithstanding the filing of the police report u/s 173 of the Code, in the absence of documents and extracts referred to in the police report, the investigation was not completed within the prescribed period, therefore, the accused was entitled to bail. On the matter having been carried before the High Court of Bombay, a Division Bench of the said Court held that the investigation of the case must be held to have been completed on the day the police report was submitted and that the Sessions Judge had misconceived the law in holding that if the police report contemplated by Section 173 of the Code was not filed with all the documents and papers, the investigation was not completed. The High Court accordingly after setting aside the order of the Sessions Judge, cancelled the bail granted to the accused.

To the similar effect, it has been held by the Delhi High Court in Vinay Choudhary v. The State 1989 Cri LJ 1490.

In State of Uttar Pradesh Vs. Lakshmi Brahman and Another, , the two accused therein and who were suspected of having committed an offence punishable u/s 302, Indian Penal Code, surrendered before the Magistrate on 2-11-1974. They were taken into custody. The investigation of the case was then in progress. The Investigation Officer failed to submit the charge-sheet against them within the period prescribed u/s 167(2) of the Code. Such charge-sheet was in fact not submitted till 5-2-1975. Thereupon the respondents moved an application u/s 439 of the Code invoking the powers of the High Court to grant bail.

A Division Bench of the Allahabad High Court which heard the application was of the opinion that after the charge-sheet has been submitted u/s 170, Cr. P.C. the Magistrate has no jurisdiction to authorise the detention of an accused in custody u/s 167, Cr. P.C. and, therefore, the authority to remand the accused to custody after the charge-sheet has been submitted, has to be gathered from other provisions of the Code. The High Court then posed to itself the question whether in a case instituted upon a police report exclusively triable by the Court of Sessions, the Magistrate while committing the accused to the Court of Session u/s 209, Cr. P.C. has, after the accused is brought before him and before the order committing the accused to the Court of Session is made, jurisdiction to remand the accused to custody other than the police custody? The High Court was of the opinion that since after the enactment of Code of Criminal Procedure, 1973, the proceeding before the Magistrate under Chapter XVI of the Code would not be an inquiry within the meaning of the expression in Section 2(g) and, therefore. Section 209 would not confer power on the Magistrate to commit the accused to custody. Proceeding along the line, the High Court held that in view of the provision contained in Section 207 read with Section 209 of the Cr. P.C. the Magistrate has to commit the accused forthwith to the Court of Session and only after the order of commitment is made, the Magistrate will have power to remand accused to the custody during and until the conclusion of the trial. The High Court accordingly held that the Magistrate has no jurisdiction, power or authority to remand the accused to custody after the charge-sheet is submitted and before the commitment order is made, and therefore, the accused were entitled to be released on bail. So saying, the High Court directed that the respondents be released on bail pending the trial by the Court of Session. State of U. P. went up in appeal before the Hon''ble Apex Court.

The law has been summarised by the Hon''ble Supreme Court as under :--

(i) Section 167 of the Code envisages a stage when a suspect is arrested and the investigation is not completed within the prescribed period;

(ii) The investigation would come to an end the moment charge-sheet is submitted as required by Section 170 of the Code unless the Magistrate directs further investigation;

(iii) Jurisdiction to grant bail in case investigation is not completed within the prescribed time as incorporated in proviso (a) to Section 167(2) of the Code, vests in the Magistrate, if the accused applies and is prepared to furnish bail;

(iv) On submission of the police report the Magistrate takes cognizance of the offence u/s 190(1)(b) of the Code;

(v) Taking of cognizance of an offence u/s 190(1)(b) of the Code is purely a judicial function subject to judicial review by the Court of appeal or revision to which the Magistrate is subject. Cognizance of an offence even if exclusively triable by the Court of Sessions has to be taken by the Magistrate since Section 193 of the Code precludes the Court of Sessions from taking cognizance of any offence as a Court of original jurisdiction unless the case has been committed to it by a Magistrate under the Code;

(vi) Inquiry within the meaning of Section 2(g) of the Code commences on the submission of the police report and taking of cognizance by the Magistrate;

(vii) The statutory obligation imposed by Section 207 read with Section 209 of the Code on the Magistrate to furnish free of costs copies of documents, is a judicial obligation. Section 207 of the Code is cast in mandatory language. No order committing the accused to the Court of Sessions can be made u/s 209 of the Code unless the Magistrate fully complies with the provisions of Section 207 of the Code;

(viii) The Magistrate''s function u/s 207 of the Code is not a trial but something other than a trial and being a judicial function it would necessarily be an enquiry. The making of an order committing the accused to the Court of Sessions will equally be a stage in enquiry and such enquiry culminates in making the order of commitment. Thus, from the time the accused appears or is produced before the Magistrate with the police report u/s 170 of the Code and the Magistrate proceeds to enquire into whether Section 207 of the Code has been complied with and then proceeds to commit the accused to the Court of Sessions, the proceedings before the Magistrate would be an enquiry. That being so Section 309 of the Code would enable the Magistrate to remand the accused to custody till the inquiry to be made is complete.

In view of the above settled position that investigation comes to an end the moment a police report is submitted to the Court u/s 170 read with Section 173 of the Code and that the Magistrate performs a judicial function in supplying the copies u/s 207 of the Code, the learned Sessions Judge has erred in releasing the respondent on bail u/s 167(2) of the Code on the ground that the copies u/s 207 of the Code were not supplied to the respondent within the prescribed period of 90 days and thereby treating the function of the Magistrate u/s 207 of the Code as a part of investigation.

Further the power u/s 167(2) of the Code rests with the Magistrate. An accused has to approach the Magistrate at the first instance and it is only when such Magistrate has refused/failed to exercise the powers under such Section that the accused can approach the higher Court, that is, the Court of Sessions or the High Court.

Admittedly, in the present case, the respondent had never approach the Magistrate for being released on bail u/s 167(2) of the Code. On this account also, the learned Sessions Judge has erred in admitting the respondent on bail u/s 157(2) of the Code.

As a result, the present revision petition is allowed. The order dated 21-11-2001 of the learned Sessions Judge is set aside. The bail granted to the respondent is cancelled and he is directed to surrender before the Additional Chief Judicial Magistrate, Paonta within ten days from today.