Vivek Sao @ Vikky Sao vs The State of Jharkhand

Amareshwar Sahay, J.—Heard the parties.

The short question to be decided in this case is as to from which date, the period of 90 days or 60 days for completion of investigation of a case as envisaged u/s 167 Cr.P.C. should be counted i.e. from the date of remand to the Judicial custody or any other date.

The facts leading to the present case are that FIR being Jharia P.S. Case No. 004/2008 was registered on 04.01.2008 under Sections 20, 22 and 29 of the N.D.P.S. Act against the petitioner Vivek Sao @ Vikky Sao and one another. In the F.I.R, it has been alleged by the informant i.e. the Sub Inspector of Police-cum-Officer-in-charge of the Jharia Police Station that on 04.01.2008, at about 10:30 A.M., he received a secret information that one man namely Vivek Sao @ Vikky Sao was going to supply Heroine (Drugs) to one of the purchaser in Mohalla Upper Kulhi. On this information, the Officer-in-charge contacted the Jharia Police Station and thereafter, constituted a raiding party. At about 11:30 A.M., the Police party reached near the alleged place of occurrence and there they found that the two persons in suspicious conditions, arrived there. One of them asked from the other to supply the article. At that time, the Police party under the leadership of the Deputy Superintendent, surrounded both the persons. On search of their persons, from their pocked of the Full Pant, in a plastic packet, about 100 gms of powder was recovered. The accused Vivek Sao @ Vikky Sao disclosed that it was Heroine Powder which he was to supply to the other man Lali Singh for sale. The articles were seized in presence of the witnesses and both the accused persons were arrested by the Police, then and there i.e. on 04.01.2008 and thereafter, F.I.R. was lodged.

Mr. Sarkhel, learned Counsel appearing for the petitioner submitted that though the petitioner was arrested by the Police on 04.01.2008 itself, but he was produced before the Court and remanded on 05.01.2008 and thereby, Mr. Sarkhel submitted that since the Police did not submit chargesheet within 90 days from the date of the arrest of the accused/petitioner i.e. from 04.01.2008 and thereby, an application was made before the Court below under the provisions of Section 167(2) of Cr.P.C. to release him on bail under the proviso to Section 167(2) of Cr.P.C....But the learned Court below has rejected the said prayer of the petitioner holding that the chargesheet was already submitted on 03.04.2008 i.e. on 89th day from the date of remand and therefore, the petitioner was no entitled to be released on bail u/s 167(2) of Cr.P.C.

Learned Counsel for the petitioner submitted that the period of 90 days for completion of investigation has to be counted from the date of the arrest of the accused and not from the date of his remand to the judicial custody. In support of his submission, he relied on the decision of case of Uday Mohanlal Acharya v. State of Maharashtra reported in 2001 C L.J. 1832.

In the case of Uday Mohanlal Acharya v. State of Maharashtra, the question for consideration was as to when can an accused be said to have availed of his indefeasible right of being released under the provisions of Section 167(2) of Cr.P.C. if the Challan is not filed within the period stipulated therein. The following conclusions were arrived:

i. Under Sub-section (2) of Section 167, a Magistrate before whom an accused is produced while the police is investigating into the offence can authorise detention of the accused in such custody as the Magistrate thinks fit for a term not exceeding 15 days in the whole;

ii. Under the proviso to aforesaid Sub-section (2) of Section 167, the Magistrate may authorise detention of the accused otherwise than the custody of police for a total period not exceeding 90 days where the investigation relates to offence punishable with death, imprisonment for life or Imprisonment for a term of not less than 10 years, and 60 days whom the investigation relates to any other offence.

iii. On the expiry of the said period of 90 days or 60 days, as the case may be, an indefeasible right accrues in favour of the accused for being released on bail on account of default by the Investigating Agency in the completion of the investigation within the period prescribed and the accused is entitled to be released on bail, if he is prepared to and furnish the bail, as directed by the Magistrate.

iv. When an application for bail is field by an accused for enforcement of his indefeasible right alleged to have been accrued in his favour on account of default on the part of the investigating agency in completion of the investigation within the specified period, the Magistrate/Court must dispose it of forthwith, on being satisfied that in fact the accused has been in custody for the period of 90 days or 60 days, as specified and no charge-sheet has been filed by the Investigating Agency. Such prompt action on the part of the Magistrate/Court will not enable the prosecution to frustrate the object of the Act and the legislative mandate of an accused being released on bail on account of the default on the part of the Investigating Agency in completing the investigation within the period stipulated.

v. If the accused in unable to furnish bail, as directed by the Magistrate, then the conjoint reading of Explanation I and proviso to Sub-section (2) of Section 167, the continued custody of the accused even beyond the specified period in paragraph (a) will not be unauthorised, and therefore, if during that period the investigation is complete and charge-sheet is filed then the so-called indefeasible right of the accused would stand extinguished.

vi. The expression if not already availed of used by this Court in Sanjay Dutt Vs. State through C.B.I., Bombay, must be understood to mean when the accused filed an application and is prepared to offer bail on being directed. In other words, on expiry of the period specified in paragraph (a) of proviso to Sub-section (2) of Section 167, if the accused files an application for bail and offers also to furnish the bail, on being directed, then it has to be held that the accused has availed of his indefeasible right even though the Court has not considered the said application and has not indicated the terms and conditions of bail, and the accused has not furnished the same.

In the present case, it is not disputed that the petitioner was remanded to judicial custody on 05.01.2008. This fact has been stated by the petitioner also in paragraph-5 of this application. It is also not disputed that the Police had submitted chargesheet on 03.04.2008.

Now it has to be decided as to whether the period of 90 days would be counted from the date of the arrest of the petitioner i.e. 04.01.2008 or from 05.01.2008 i.e. the date on which, he was remanded to the judicial custody.

The Supreme Court, in the case of State of Maharashtra Vs. Bharati Chandmal Varma @ Ayesha Khan, was posed with this very question and in the said decision, it has been clearly held that under proviso of 167(2) Cr.P.C. the period of 90 days as contemplated, must be reckoned from the date of first remand of the accused. In the said case, it has been specifically held that where the chargesheet could not be filed within 90 days from the date of remand to the custody at the first instance, the accused would be entitled to bail.

In the present case, as I have already noticed that admittedly the petitioner was reminded to judicial custody at the first instance on 05.01.2008 and therefore, the period of 90 days has to be counted from that date only and from no other date. The submission of chargesheet by the Police on 03.04.2008 is held to be well within the period contemplated u/s 167(2) Cr.P.C., therefore, the petitioner is not entitled to take advantage of the proviso to Section 167(2) Cr.P.C. for being released on bail on the ground that the Police did not submit charge sheet within the stipulated period of 90 days.

The point for consideration in Uday Mohanlal Acharya v. State of Maharashtra (Supra) was quite different whereas, the case of State of Maharashtra v. Bharati Chandmal Varma (Mrs.) (Supra), the point which is involved in the present case has directly been decided. Therefore, relying in the decision of State of Maharashtra v. Bharati Chandmal Varma (Mrs.), I hold that the order rejecting the prayer for bail of the petitioner by the learned Sessions Judge is legal and valid and does not requires any interference.

Accordingly, having found no merit, this application is dismissed.