Vetriselvi vs The State

Janarthanam, J.—Desirable it is, to pen down a common order in as much as the question involved for consideration in all these actions, is one and the same, although the relief sought for is relatable to different persons - detenus.

One Vetriselvi is the Petitioner in all these actions, which had been filed by her, in her capacity, either as a relative or as a next friend, of the alleged detenus.

H.C.P. Nos. 132 and 134 of 1996 are relatable to one person alias Othakai Pandian, who is said to have been involved in two different transactions the occurrence relating to one of the transactions is said to have happened on 19.9.1995 at Yanaikuttipalam at 14.00 hours, in the sense of his being found in possession of arms and ammunitions, resulting in die registration of a case in Crime No. 372/95 on the file of Portonovo Police Station, and in the other transaction, the occurrence is said to have happened on 21.9.1995 at about 22.45 hours at Therukadai, in which the part played by him was for the offence of conspiracy u/s 120-B I.P.C. in relation to the murders of one Ramajayam and one Copal, besides inflicting injuries on certain others, resulting in the registration of a case in Crime No. 373 of 1995 for alleged offences under Sections 147, 148, 341, 324, 325, 120-B and 302I.P.C., as against him and the respective detenus in H.C.P. Nos 133 and 135 to 138 of 1996 and certain others. One Mathivanan, Thamburan, Ramesh, Velmurugan and Kaliyamaurthi, are the alleged detenus concerned in H.C.P. Nos 133 and 135 to 138 of 1995.

(a) Pandian alias Othakai Pandian was stated to have been arrested in Crime No. 372/95 on 19.9.1995 and remanded to Judicial custody on the same day. In Crime No. 373/95, he was likewise shown arrest and remanded to Judicial custody on 23.9.1995.

(b) Mathivanan and Thamburan, it is said, were arrested on 22.9.1995 in Crime No. 373/95 and remanded to Judicial custody on 23.9.1995.

(c) Likewise, Ramesh, Velmurugan and Kaliamurthi, it is said, were arrested on 29.9.1995 and remanded to judicial custody on the same day.

(d) This apart, Pandian alias Othakai Pandian, it is said had been detained under the TamilNadu Act 14 of 1982 on 6.11.1995.

(a) The prescribed statutory period of sixty days, beyond which extension of remand u/s 167 Code of Criminal Procedure is not permissible in Crime No. 372/95 expired on 18.11.1995.

(b) Likewise, the statutory period of ninety days in Crime No. 373/95 as relatable to Mathivanan, Pandian alias Othakai Pandian and Thamburan expired on 22.12.1995 and in the case of Ramesh, Velmurugan and Kaliamurthi involved in Crime No. 373/95 expired on 28.12.1995.

It is only subsequent to the expiry of the statutory period of 60 or 90 days, as the case may be. as stated above, the bail application in respect of all of them had been filed on two different dates, namely, one on 27.12.1995 and the other on 29.12.1995. Pandian alias Othakai Pandian filed two separate bail applications before the Court below, one in C.M.P. No. 3024 of 1995 and the other in C.M.P. No. 3203 of 1995, joining with Mathivanan and Thambiran. Likewise, Ramesh, Velmurugan and Kalaiamurthi filed joint bail Application in C.M.P. No. 3037 of 1995.

It is only subsequent to the filing of the bail application, final report in both the Crime Numbers, as stated above, u/s 173 (2) Code of Criminal Procedure had been filed on 2.1.1996.

In the meantime, in this bail application, notices were ordered returnable by 3.1.1996, on which date, arguments were heard and it was posted for orders on 5.1.1996. 5.1.1996 was lately declared as a local holiday and consequently, orders were pronounced on 10.1.1996, dismissing all those bail applications, giving rise to the present actions - H.C.P. Nos 132 to 138 of 1996.

From the submissions of Mr. R. Srinivasa, learned Counsel appearing for the Petitioner (in all these actions) and Mr. I. Subramanian, learned Additional Public Prosecutor representing the Respondents (in all these actions), the following moot questions arise for consideration:

(1) Whether the right or entitlement to compulsive bail - which accrued by reason of the default committed by the Investigating Agency, in the sense of not filing a final report u/s 173(2) Code of Criminal Procedure within the prescribed statutory period of 60 or 90 days, as the case may be .....but not availed of,before the filing of the final report - survives or is enforceable subsequent to the filing of the final report, even though such a report, if any, is filed with a view to frustrate or thwart such an accrued right, subsequent to the receipt of the notice in the bail applications for the enforcement of a compulsive right of bail, as contemplated u/s 167 (2) CrPC.

(2) Even assuming for argument''s sake that the detention of the respective accused detenus beyond the prescribed statutory period of 60 or 90 days as the case may be on the default committed by the Investigating Agency in filing a final report u/s 173 (2) Code of Criminal Procedure by way of extension of remand u/s 167 Code of Criminal Procedure is illegal, can it be said of the filing of the final report is, not warranted by law inasmuch as such an action shall be construed to have been done, pursuant to the sanguine provisions adumbrated u/s 309 Code of Criminal Procedure

(3) If the answer to the second question, as above, is in the negative, whether these Habeas Corpus Actions are maintainable in law?

Even at the outset, we may point out that since Pandian alias Othakai Pandian had been detained under the Tamil Nadu Act 14 of 1982 and undergoing detention, pursuant to the orders passed therefore, the question of consideration of his case, as canvassed in H.C.P. Nos. 132 and 134 of 1996 will not at all arise for consideration.

We may now delve deep into the arena of consideration, as respects Question No. 1. It is not as if, such a point did not at all come up for consideration before superior Courts of jurisdiction and the plain fact is that such a point did come up for consideration before the Apex Court on occasions more than one. We may now proceed to consider in seriatim the various cases that came up for consideration before the apex Court.

(a) (i) In Hitendra Vishnu Thakur and Others Vs. State of Maharashtra and Others, the accused - Hitendra Vishnu Thakur was prosecuted under the Terrorist and disruptive Activities (Prevention) Act, 1987 (for short ''TADA'' Act). He filed an application for grant of bail u/s 20 (4) of TADA Act before the Designated Court on the ground that 180 days had expired on 4.6.1993; but no charge-sheet or challan has been filed. On 12.7.1993, the Public Prosecutor presented a request of the Investigating Officer dated 29.6.1993 to the Designated Court seeking extension of time to complete the investigation and objections were also filed to the application for bail filed by Hitendra Vishnu Thakur. The bail application was dismissed on 31.7.1993 and the prosecution was granted time till 30.8.1993 to file the charge-sheet or challan treating the application of the Investigating Officer as a report of the Public Prosecutor. The matter has been subsequently agitated before the Supreme Court. In the meantime, the charge-sheet has been filed before the Designated Court on 26.8.1993.

(ii) The Apex Court, by order dated 12th July, 1994, held that the Designated Court shall have no jurisdiction to deny an accused his indefeasible right to be released on bail on account of the default on the part of the prosecution to file the challan within the prescribed time, if an accused seeks and is prepared to furnish bail bond, as directed by the Court and so saying, the accused - Hitendra Vishnu Thakur was ordered to be released on bail.

(b) (i) In Sanjay Dutt v. State (II) ( 1994 S.C.C. (Crl.) 1433), what was argued by Mr. Kapil Sibal, learned Senior Advocate was that the decision of the Division Bench in Hitendra Vishnu Thakur (supra) cannot be read to confer on the accused an indefeasible right to be released on bail. Once the challan is filed, if the accused continues in custody. What was further argued was that on filing of the challan, such a right, which accrued prior to the filing of the challan, has no significance and the question of grant of bail to an accused in custody, on filing of the challan, has to be considered and decided only with reference to the provisions relating to grant of bail, as applicable after filing of the challan, since Section 167 Code of Criminal Procedure has relevance only to the period of investigation.

(ii) Such an argument, as projected, had, in fact, been agreed entirely, in reply, but learned Additional Solicitor General, Mr. K.T.S. Tulasi, who submitted that the principles enunciated by the Division Bench in Hitendra Vishnu Thakur''s case (Supra), should be so read. However, the grievance of learned Solicitor General was that the direction for grant of bail by the Division Bench in the said case, on the facts of that case, is not in consonance with such reading of that decision and indicates that the indefeasible right of the accused to be released on expiry of the time allowed for completing the investigation survives and is enforceable even after the challan has been filed, without reference to the merits of the case or the material produced in the Court with the Challan. He further submitted that it should be clarified that the direction to grant bail on this ground alone in Hitendra Vishnu Thakur''s case (Supra), after the Challan had been filed was incorrect. Such a clarification, he urged, is necessary because the decision in Hitendra Vishnu Thakur''s case (Supra) is being construed by the Designated Courts to mean that the right of the accused is to be released on bail in such a situation is indefeasible, in the sense that it survives and remains enforceable, without reference to the facts of the case even after the challan has been filed and the Court has no jurisdiction to deny the bail to the accused at any time if there has been a default in completing the investigation within the time allowed. Bail is being claimed by every accused under TADA Act for this reason alone, in all such cases. This is the occasion for seeking a fresh decision of this question by a larger Bench.

(iii) Their Lordships of the Constitution Bench of the Supreme Court considered such a question and expressed their opinion in paragraphs 48, 49 and 53.

(a) The relevant portions in various paragraphs read as under: -

"48. We have no doubt that the common stance before us of the nature of indefeasible right of the accused to be released on bail by virtue of Section 20(4) (b) is based on a correct reading of the principle indicated in that decision. The indefeasible right accruing to the accused in such a situation is enforceable only prior to the filing of the challan and it does not survive or remain enforceable on the challan being filed, if already not availed of. Once the challan has been filed, the question of grant of bail has to be considered and decided only with reference to the merits of the case under the provisions relating to grant of bail to an accused after the filing of the challan. The custody of the accused after the challan has been filed is not governed by Section 167, but different provisions of the Code of Criminal Procedure If that right had accrued to the accuse but it remained unenforced till the filing of the challan, then there is no question of its enforcement thereafter since it is extinguished the moment challan is filed because Section 167 Code of Criminal Procedure ceases to apply. The Division Bench also indicated that if there be such an application of the accused for release on bail and also a prayer for extension of time to complete the investigation according to the proviso in Section 20(4)(bb), both of them should be considered together. It is obvious that no bail can be given even in such a case unless the prayer for extension of the period is rejected. In short, the grant of bail in such a situation is also subject to refusal of the prayer for extension of time, if such a prayer is made. 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.

This is the nature of extent of the right of the accused to be released on bail u/s 20(4)(bb) of the TADA Act read with Section 167 Code of Criminal Procedure in such a situation. We clarify the decision of the Division Bench in Hitendra Vishnu Thakur and Others Vs. State of Maharashtra and Others, accordingly and if it gives a different indication because of the final order made therein, we regret our inability to subscribe to that view.

53.(2) (b) 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 Thakur and Others Vs. State of Maharashtra and Others, is a right which ensures 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.

(c) In State of M.P. v. Rustam ( 1995 S.C.C. (Crl.) 830 ), the High Court of Madhya Pradesh, on 19.1.1994, in Criminal Miscellaneous case No. 3492 of 1993, passed an order of compulsive bail holding the accused Respondent entitled to it by virtue of the provisions of Section 167(2) of the Code of Criminal Procedure on the basis that 90 days from the date of authorised detention of the Respondents had expired and the challan had not been filed within that duration, entitling them to bail. The matter was further challenged before the Apex Court. Their Lordships of the Apex Court found 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 stood defeated by efflux of time. While recording such a finding, their Lordships of the Apex Court observed in paragraph 4 as below:

"4. 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 Vs. State through C.B.I., Bombay, in which case Hitendra Vishnu Thakur and Others Vs. State of Maharashtra and Others, has aptly been explained away.

"The Court is required to examine the availability of the right of compulsive bail on the date it is considering the question of bail and not barely on the date of presentation of the petition for bail. This well-settled principle has been noticed in Sanjay Dutt Vs. State through C.B.I., Bombay, on the strength of three Constitution Bench Cases Naranjan Singh Nathawan Vs. The State of Punjab, Ram Narayan Singh Vs. The State of Delhi and Others, and A.K. Gopalan Vs. The 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.

(d) In Devenderpal Singh v. Government of N.C.T. of Delhi ( 1996 S.C.C. (Crl.) 5), reiterating the View held in the Constitution Bench decision of the Apex Court in Sanjay Dutt''s case (Supra) the Apex Court expressed as below (at paragraph 17 - Page 9):

".... This question was examined in Sanjay Dutt Vs. State through C.B.I., Bombay, where it has been held that the right to be released on bail for failure to complete the investigation within the prescribed time is not automatic and even if ''indefeasible'' it has to be ''availed of'' by the accused at the appropriate stage and that; (SCC P.442 - para-48);

"The indefeasible right accruing to the accused in such a situation is enforceable only prior to the filing of the challan being filed, if already not availed of. Once the challan has been filed, the question of grant of bail has to be considered and decided only with reference to the merits of the case under the provisions relating to grant of bail to an accused after the filing of the challan. The custody of the accused after the challan has been filed is not governed by Section 167 but different provisions of the Code of Criminal Procedure. If that right had accrued to the accused but it remained unenforced till the filing of the challan, then there is no question of its enforcement thereafter since it is extinguished the moment challan is filed because Section 167 Code of Criminal Procedure ceases to apply.

(e) In Mohamed Iqbal Madar Sheikh and Others Vs. State of Maharashtra, , Their Lordships of the Supreme Court, while reiterating the dictum enunciated in Sanjay Dutt''s case {Supra) observed in paragraph 12 as below:

"12. During hearing of the appeal, it was pointed out by the Counsel appearing on behalf of the Appellants that some Courts in order to defeat the right of the accused to be released on bail under proviso (a) to Section 167(2) after expiry of the statutory period for completion of the investigation, keep the applications for bail pending for some days so that in the meantime, charge-sheets are submitted. Any such act on the part of any Court cannot be approved. If an accused charged with any kind of offence, becomes entitled to be released on bail under proviso (a) to Section 167(2) that statutory right should not be defeated by keeping the applications pending till the charge-sheets are submitted, so that the right which had accrued is extinguished and defeated.

From a survey of the various decisions of the Apex Court, as referred to above, it is crystal clear that the views expressed in Sanjay Dutt''s case (Supra) holds the Field and the observation made in Mohamed Iqbal M.S. and Ors. case (Supra) has to be taken as an anguish expressed by die Apex Court and that is all and nothing further.

In the instant case, the final report u/s 173(2), Code of Criminal Procedure had been filed on 2.1.1996, much earlier to the date of consideration of the bail applications filed before the Court below, which event happened on 3.1.1996 and eventually orders were passed of dismissal of those applications on 10.1.1996. Such being the case, to say that they are entitled to compulsive bail under the sanguine provisions adumbrated u/s 167(2) Code of Criminal Procedure cannot at all be acceded to.

In the case of the Petitioners involved in H.C.P. Nos. 133 and 135 of 1996, the prescribed statutory period of 90 days expired on 22.12.1995 and in the case of the Petitioners in H.C.P. Nos. 136 and 138 of 1995, the prescribed statutory period of 90 days expired only on 28.12.1995. Admittedly, as already adverted to the final report has been filed on 2.2.1966 in all these cases. Even assuming the period of detention between the date of expiry of the statutory period of 90 days as referred to above and the date of filing of the final report, to be illegal, the question is whether the detenus concerned in those cases are entitled to be set at liberty forthwith. Our answer to such a question is nothing but an emphatic ''no'', inasmuch as the detention on and from the date of filing of the final report, which event happened on 2.1.1996 shall have to be construed to have been done, pursuant to the sanguine provisions adumbrated u/s 309 Code of Criminal Procedure in all those cases on and from 2.1.1996.

All these H.C.Ps. had been filed before this Court on 31st January, 1996, on which date, learned Government Advocate took notice on behalf of the Respondents. At this juncture, worthy it is to note that it settled by the Constitution Bench decisions that a petition seeking the writ of Habeas Corpus on the ground of absence of a valid order of remand or detention of the accused has to be dismissed, if on the date of return of the rule, the custody or detention is on the basis of a valid order. (Vide Naranjan Singh Nathawan Vs. The State of Punjab, Ram Narayan Singh Vs. The State of Delhi and Others, and A.K. Gopalan Vs. The Government of India, In such state of affairs, it goes without saying that the second point, as posed above, has to be and is answered in the negative, that is to say, against the Petitioners.

16.. On the face of the answer to Point No. 2, the necessary corollary that has to follow is that all these Habeas corpus actions are not at all maintainable in law. This point is answered accordingly.

For the reasons as above, all these Habeas Corpus Petitions deserve to be dismissed and they are accordingly dismissed.