Ratan Lal Rajak v. State Of Chhattisgarh

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HIGH COURT OF CHHATTISGARH : BILASPUR S.B.: HON'BLE SHRI MANINDRA MOHAN SHRIVASTAVA._J, Cr.M.P.NO.946 of 2014 PETITIONER (In Jaill Ratan Lal Rajak

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RESPONDENT State of Chhattisgarh Cr.M.P.NO.947 of 2014 PETITIONER (In Jaill Ratan Lal Rajak /'•^..

RESPONDENT State of Chhattisgarti "E5;Wi,.

FOR PRONOUNCMENT OFSORBER OW ^^ DECEMBER, 2ffl4 Sd/- Manindra Mohan Shrivastava Judge ^IV2.1'2,UW

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^^•'^ HIGH COURT OF CHHATTISGARH; BILASPUR Cr.M.P.NO.946 of 2014 PETITIONER (In Jaill Ratan Lal Rajak

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RESPONDENT State of Chhattisgarh Cr.M.P.NO.947 of 2014 PETITIONER (In JaU) Ratan Lal Rajak

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RESPONDENT State of Chhattisgarh Petition under Sections482s0ifiaie iga.P.C, of Criminal Procedure ^- (Single BeriicWiHttiU'Mie SIiri ManinBra6!MaIilan Shrivastava. J.l SihriBBhijit Sarkar, counseElbr the petitioner/s. sj „ .IShrt Ashish ShuMa^i]wiithy^Sl|Et^Chitran]an Patel,^©overnment Advocates for the Staiet : S!VSW y g>RD%R (Pronounced on tlus y ofDecember, 2014) Both the petitic^iIsHee.M.P:Nys.946 85 947 of 2014) are being disposed off by a comnicin.^oi'3^', as they involve identical issues based on similar facts.

2.

Two criminal cases were registered against Ratan Lal Rajak, the petitioner in both the cases, by the police of Police Station Balco Nagar on 28-03-2014. One case was registered under Crune No. 106 of 2014 for alleged commission of offence under Section 420, 467, 468/34 ofIPC and another case was registered under Crime No.107/2014 for alleged commission of offence under Section 420, 467, 468/34 ofIPC.

In both the cases, the petitioner was produced before the Magistrate on 28-03-2014, on which date, first remand was granted to the investigating agency. On 26-06-2014, the petitioner preferred an application for grant of default bail under Section 167(2) of Cr.P.C. in both the cases. On that veiy day, the police also filed charge sheet in both the cases before the Court. These facts are not disputed.

3.

The learned Magistrate rejected petitioner's application under Section 167j@|.](tflBB.ff|3f|n figH?fl3e|Eases which led to filing of ^'

revisidaa,,, %hS;h has also been dismissed. T'hu,e|the afbresaid two peBtions have been filed befcire this Court.

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4.

Leamed counsel JQB the^pgtitioner in both the cases argued that as the charge sheet|c0uld not be ffled by the prosecution within a period of90 days^SroiffSt^date offirst remand i.e. within a period of 90 days frora 2S?!Q3^gQ14, the petitioners having ayailed the benefit of default bail by moving an application under Section 167(2) of Cr.P.C. on 26-06-2014 i.e. on 91't day, filing of charge sheet on that very date is of no consequence and the petitioner is entitled to bail under Section 167(2) of Cr.P.C. 5.

On the ofher hand, leamed State counsel opposed the prayer for grant of bail and submitted that the petitioner is not entitied to grant of bail, even if, charge sheet was not filed within 90 days, because the petitioner did not apply for grant of bail on the 90th day, when no charge sheet was filed. He moved application on 91st

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day, on which date, the charge sheet was filed. Thus, filing of charge sheet and moving application for grant of bail under Section 167(2) of Cr.P.C. being simultaneous on the same date, the benefit of default bail could not be granted to the petitioner. 6.

Section 167 of the Cr.P.C. lays down the procedure when investigation cannot be completed in 24 hours, it cast duty upon the pplice officer to produce any person arrested and detained in custody before the nearest Magistrate, if investigation cannot be completed wrtta.^|;ffigieN|i|T%ffy BSjg-^gslSxed by Section 57 ofthe f Cr.P.Ct.JJndBr sub section (2) of Section JW/S the Cr.P.C., the Magistrate to whom an af3(;used person is forwai-ded .ynder this section may, whether<ll^Bas oriias not jurisdiction to try the case, from time to time, autB.Ea:iz^ %M!detention of the accused in such custody as such Magistrate|/Qunks fit, for a term not exceeding fifteen days in fhe wjiofcliari.d. irh|e has no jurisdiction to try the case or commit it fai-, lEial,; ;.and considers further detention unhecessary, he may order the accused to be fonffarded to a Magistrate having such jurisdiction. Proviso to sub section (2), however, puts rider on the maximum period of detention. The provision being relevant is reproduced hereinbelow:- 167.

"Procedure when investigation cannot be coinpleted in twenty-four hours.-(1) Whenever any person is arrested and detained in custody, and it appears that the investigation cannot be completed within the period of twentyfour hours fixed by Section 57, and there are grounds for believing that the accusation or information is well-founded, the officer in charge of the police station or the police officer

making the investigation, if he is not below the rank of subinspector, shall forthwith transmit to the nearest Judicial Magistrate a copy of the entries in the diary hereinafter prescribed relating to the case, and shall at the same time forward the accused to such Magistrate.

(2) The Magistrate to whoru an accused person is forwarded under this secdon ruay, whether he has or has not jurisdiction to try the case, from dme to dme, authorize 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 aG!@uggH jg;.l|^P|JFyaEU|jdHis% Magistrate having such juris^ici|pni:s»!s''":'~'

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•'E'rQi'Ned that- {a) the Magistra.te':.may.authorize the detentioii;x3f the accused;]:peiist»Q,l3tiierwisethan in the custddy of the police, be|y®nid^fftei^periodof fifteen days, if he is satisfied thatj'aBequiate grounds exist for doing so, but no Magj%eaLte,shall authorize the detention of the accus®i|iperSein;in?;custody under this paragraph for a tota| jgeife^^exceeding,- (i) ninety da^s^'ByhefeEthe investigation relates to an offence punishable with death, imprisonment for life or iinprisonruent for a term of not less than ten years;

(i'i) sixty days, where the investigation relates to any other offence, and, on the expiiy of the said period of ninety days, or ssity days, as the case may be, the accused person shall be released on bail ifhe is prepared to and does fumish 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 authorize detention of the accused in custody of the police under this section

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unless the accused is produced before hira in person for the first time and subsequently eveiy tiine dll the accused remains in the custody of the police, but the Magistrate may extend further detention in judicial custody on production of the accused either in person or through the niedium of electa-onic video linkage;] (c) no Magistrate of the second class, not specially empowered in this behalf by the High Court, shall authorize detention in the custody of the police. 2-A -- xxx --

3. -- xxx 4.

--aBi3QJjS> Kl-fl.i 5s.'|-ifcsrtl''t3SES-?*S V 6m Bi|-Ba-xxx-- ;/- 7^1"^ The statutory scheme 6f Section 167 for grant?ofydefault bail came up for consideratsffi.^belorerthe Supreme Court in the case of Uday Mohanlal AchdrycK^s.^tal.e of Maharashtra1, wherein it was held by the Suprem.e«(%ua-b5a.sunder:- "Section leftsigaafagigssupplementary to Section 57, in consonance wiffi tfae'principle fhat the accused is entifled to demand that justice is not delayed. The object of requiring the accused to be produced before a Magistrate is to enable the Magistrate to see that remand is necessary and also to enable the accused to make a representation which he rnay wish to make. The power under Section 167 is given to detain a person in custody while fhe police goes on with the investigation and before fhe Magistrate starts the enqiiiiy. Section 167, therefore, authorizes the Magistrate to permit detention of an accused in custody and prescribes the maximum period for which such detention coi-dd be ordered. Under sub- ' (2001) 5 SCC 453

section (2) of Section 167, a Magistrate before whora an accused is produced while the police is investigating into the offence, can authorize detention of the accused in such custody as the Magistrate thinks fit for a term not exceeding 15 days on the whole.

Having prescribed the maximum period what would be the consequences thereafter has been indicated in the proviso to sub-seetion (2) of Section 167. On the expiry of the said period of 90 days or 60 days, as the case may be, an indefeasible right accrues in favour ofthe accused for being released on bail on account of default by the ,r:

investigatpigrs^^tt^l'igJinMffig'i. ^pompletion of fhe in'veSfi^afeai'""within the penbU?;preiS|nbed and the saeeused is entitled to be released onl^iiatl, if he is ^prepared to and dpes fumish the bail as dtrecijecl by the Magistrate. Th^;pFGretSQiis|uriambiguous and ctear and stipulates that tlae aleei.isedfshall be released on bail if he is prepared to aritf (iaes sfia.rnish the bail which has been termed by judicialrgrmiouncement to be 'compiilsive bail and such bail,fwouiybeideemed to be a bail under Chapter 33. The^i-osis^^sSUb-section (2) of Section 167 is a beneficial prewsion 1for curing the mischief of indefinitely prolonging the investigation and thereby affecting the liberty of a citizen."

The words "if he is prepared to and does furnish bail" have also been interpreted by fhe Apex Court in Uday SSohanlal Acharya (supra) as under:- If, however, the accused is unable to furnish the bail as directed by the Magista'ate, then on a conjoint reading of Explanation I and the proviso to sub-section

(2) of Section 167, the continued custody of the accused even beyond the specified period in para (a) will not be unauthorized, and therefore, if during that period the investigation is complete and the charge-sheet is filed

then the so-called indefeasible right of the accused would stand extinguished.

The indefeasible right of the accused does not survive or remain enforceable on the charge sheet being filed, if already not availed of, as has been held by the Constitution Bench of the Supreme Court in Sanjay Dutt's case, 1994 SCC (Cri.) 1433 (Sanjay Dutt v. State). The expression "if not already availed of used in Sanjay Dutt case must be understood to mean when the accused files an application and is prepared to offer bail on being directed. In ofher words, on expiry of the period specified in para (aVgf|Bae||i|g|||EBtofig ^ection (2) of Section 167 if the ajceysl6d?:files an applicatfeilnj'Bir teail, alleging that ^:U(iiifclferge sheet has been fUed and he is "gregai'ed to offer :lhe bail that is orderey., and it is found as a faGtsthat no charge sheet has|l3eeEtuflIediiwithin the period prescribed from the date of;tUe?

aEreStiof the accused, ftien it has to be held that the acou.sedi 2aas availed of his indefeasible right even though tBte^eOurt has not considered the said application andT;'yia.s notjandicated the terms and conditions of 'bsBsss'ids'&ies.iafScused has not furnished the same. With the aiBiE-gsSidsSiterpretation of fhe expression "availed of, if the charge sheet is filed subsequent to the availing of the indefeasible right by the accused then that right would not stand frustrated or extinguished.

Necessarily therefore, if an accused entitled to be released on bail by application of fhe proviso to subsection (2) of Section 167, makes the application before the Magistrate, but the Magistrate erroneously refuses the same and rejects the application and then the accusedmoves the higher forum and while the inatter remains pending before the higher forum for consideration, a charge sheet is filed, the so-called indefeasible right of the accused would not stand

extinguished fhereby and on the other hand, the accused has to be released on bail."

8.

The aforesaid exposition of law entitles the accused to be released on bail under proviso to sub-section (2) of Section 167 of the Cr.P.C., if the charge sheet is not filed within a period of 60 days or 90 days, as the case may be, depending upon the natiu-e of offence.

9.

As to whether the penod of 60 days or 90 days would comraence fr^!ai|fl|%,lflflrW Brreslsfcr^laffillple date of remand, the issue^'asvia.d" longer res integra, in view iEjf:l;!tMe|._authoritative pronJEnSncement of the cSj-igiremegaOpurt in the casesff •Ehaganti Satyanarayana and'"otttersyws.i,'State of Andhra Pradesh2, wherein the Supreme Coyrtilisffiias under:- "The words,,WecKirtr|)3K)yiso (a) to Section 167(2) are "no Magistrate^iaIPautBiEirizethe detention of fhe accused person in ;.cij(stQd^", "under this paragraph", "for a total period exceeding i.e. 90 days/60 days". Detention can be authorized by the Magistrate only from the time the order ofremand is passed. The earlier period when the accused is in the custody of a public offlcer in exercise of his powers under Section 57 cannot constitute detention pursuant an authorization issued by the Magistrate. It, therefore, stands to reason that the total period of 90 days or 60 days can begin to run only from the date of order ofremand".

AIR 1986 SC2130

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In a later decision in the case of Sadhwi Pragyna Singh Thakur v. State of ISaharashtra3, the aforesaid legal position has been reiterated by the Supreme Court that it is the date of first remand and not the date of arrest which is relevant date for counting the period of detention.

10.

Now reverting to the facts of fhe present two cases, it is clear that though the charge sheet was not filed within a period of 90 days, the petitioner moved an application for grant of default bail under Section l-iSg^O'SDBBSlBfi.P.iBI'il'By'feoth the cases on 26-062014. Itsas,,a|sosriot in dispute that sirnurt£fhe!Eiu§]gE,,on the date of rripWalglan application fpr :g,rant of default bail, cKar^ssheet was alg@ filed. Therefore, tlig^Bi%seB;fcW|tibt a case where tHe benefit of grant of default bail undsrySecttonsl67(2) of Cr.P.C. was availed by the petitioner in two cases tteibre Gling of charge sheet. 11.

In that view of tHeMn;atjeE,..:i:Kie,lpetitioner in both the cases is not entitled to grant of ISaU'tinffer5 Section 167(2) of Cr.P.C., as it cannot be said to be a case of having availed benefit of default bail before filing of charge sheet, as held by the Supreme Court in the case of Uday Mohanlal Acharya (supra).

12.

On the other hand, in the facts and circumstances of the present two cases, the ratio of the judgment of the Supreme Court in the case of Sadhwi Prdgyna Singh Thakur (supra) is appUcable wherein it has been held that once charge sheet has been filed, the bail cannot be granted on the ground of default of (2011) 14 (ADDL.) S.C.R. 617 'S^S^KveSsW^SSss^^^M

filing of charge sheet and it can only be granted on the merits of the case. The Supreme Court in the case of Sadhwi Pragyna Singh Thakur (supra) held as under:-

21. "There is yet another aspect of the matter. The right under Section 167(2) CrPC to be released on bail on default if charge-sheet is not filed within 90 days from the date of first remand is not an absolute or indefeasible right. The said right would be lost if charge-sheet is filed and would not survive after the filing of the charge-sheet. In other words, ey^rysf, saxiaydicsLtion for bail is filed on the f'

ground tttat:^GKiSPg8-!sBieeffwaf|i:£|6|:G|e^within 90 days, but befbre the consideration of fhe sarnel^aia^ before being released on bail, tf charge-sheet is filed, the S!|,|B[,fi|ght to be released on bailtWGvS^JW'lQst. After the fiHng'^of the charge-sheet, if fltefaeCSLtseSiiaS to be released on bail, rt can be only on mentsA'p'Iiis^ is quite evident from the Constitution Benc&iadecisiQh of this Court in Sanjay Dutt

(2) v. 5tate8 [paras31-.8fanci5%(2)(&)]. The reasoning is to be fbund in paras 33;,tQ 49; Thislprinciple has been reiterated in the following deGisions,,ofithis Court:

(-?) State ofM.P. v. RustamL, SCC para 4;

(2) Bipin Shantilal Panchal v. State of GujaralS., SCC para 4. It may be mentioned that this judgment was delivered by a three-Judge Bench of this Court;

(3) DineshDalmia v. CBjiO^ gCC para 39; and (4) Mustaq Ahmed Mohammed Isak v.

State of MaharashtraX^-, SCC para 12.

In Uday Mohanlal Acharya v. State of Maharashtral^ a three-Judge Bench of this Court considered the meaning of the expression "if already not availed of used by this Court in the decision rendered in Sanjay Dut& in para 48

and held that if an application for bail is filed before the charge-sheet is filed, the accused could be said to have availed of his right under Section 167(2) even though the court has not considered the said application and granted him bail under Section 167(2) CrPC. This is quite evident if one refers to para 13 ofthe reported decision as well as the conclusion of the Court at p.747.

22. It is well settled that when an application for default bail is filed, the merits of the matter are not to be gone into. This is quite evident from the principle laid down in Union oflndia v. ThamisharasilS., SCC para 10, placita o- ^

23. Froni' the discussion ma.de;'iap3yg,lit is quite clear that even if an application for bail is fSe^sEP^ie ground that charge-sheet was iiot jiled within 90 daya,iii|ie^ire fhe consideration of tUe^am.etaiid befbre being released on bail if charge-sheet;iis[tiled, tEie said right to be released on bail, can be only on meritsABo far as merits are concemed the learned counsel &)i- the appellant has not addressed this Court at all and in fact bail is not claimed on merits in the present appeal SEK-allA ,[;'g v^ 13.

In view of the above, no relief can be granted to the petitioner in both the cases, because the application under Section 167(2) of Cr.P.C. and filing of chargesheet was simultaneous being done on the same date.

14.

In the result, the aforesaid two petitions are dismissed. ^..M^-a Tumane