Criminal Application No. 1639 of 1993

7th June, 1993

Cases Cited:
AIR 1993 SC 1 : 1992 AIR SCW 2621 [Para 7]
AIR 1992 SC 1701 : (1992) 1 SCC 225 : 1992 Cri LJ 2717 : 1992 AIR SCW 1872 [Para 13]
1992 Cri LJ 1900 (Bom) (Followed) [Para 5]
Cri. Appeal No. 619 of 1990, D/- 24-9-1990 ( Bom) [Para 6]
AIR 1990 SC 71 : 1990 Cri LJ 62 [Para 14]
1989 Mah LJ 1027 [Para 5]
AIR 1987 SC 149 : 1987 Cri LJ 157 [Para 5]
AIR 1986 SC 2130 [Para 7]
AIR 1983 SC 439 : 1983 419 [Para 13]
AIR 1979 SC 1377 : 1979 Cri LJ 1052 [Para 5]
1976 Mah LJ 654 (Followed) [Para 5]
AIR 1975 SC 1465 : 1975 Cri LJ 1212 [Para 6]

JUDGMENT

Heard Shri Marwadi for the petitioners and Smt. Pingulkar, Assistant Public Prosecutor for the State.

2. This is an application for bail. The charge is under Section 302, of the Indian Penal Code. The petitioners had earlier applied to the Sessions Court for bail on 26th October, 1992 on the ground that though they were arrested on the 10th July, 1992, the remand was obtained on the 11th day of July, 1992 and the charge-sheet was filed on the 91st day i.e. to say on the 9th October, 1992. In view of the decision of the Supreme Court in the case of Chaganti Satyanarayana v. The State of Andhra Pradesh reported in AIR 1986 SC 2130, it is clear that the period of 90 days begins to run from the date of the order of remand and not from any earlier date when the accused was arrested. It does appear that the charge-sheet was despatched on the 8th October, 1990, which was the 90th day, taking 11th July, 1992 as the first day. However, the learned Sessions Judge took the view that after the charge-sheet was already submitted, the right, if any, for being enlarged on bail under proviso (a) to Section 167(2) of the Code of Criminal Procedure was defeated and/or obliterated by the filing of the charge-sheet. In this view of the matter, the learned Sessions Judge rejected the prayer on that ground. On merits, it was held that there was an eyewitness and another witness whose evidence was sufficient to implicate the petitioner and there were reasonable grounds for believing that the petitioners were guilty of the offence punishable under Section 302, I.P.C. It was also held that there was a possibility of the petitioners tampering with the prosecution evidence. It was on these grounds that the first application for bail was rejected on 29th October, 1992.

2.1. The petitioners then applied for bail again to the Sessions Court, which application was rejected on merits on 2nd April, 1993. The petitioners thereafter submitted a third application which has been rejected on 14th May, 1993. It was held that the evidence on record, prima facie, shows that the petitioners were involved in the crime and since there was no change of circumstances, the application for bail was rejected.

3. Shri Marwadi for the petitioners has contended that though the first application for bail was filed on the 26th October, 1992, inasmuch as no charge-sheet was submitted within the statutory period of 90 days, the petitioners were entitled to be enlarged on bail under proviso (a) to sub-section (2) of Section 167 of the Code of Criminal Procedure. His contention is that such a right was absolute and indefeasible. On the other hand, Smt. Pingulkar for the State contends that the right, if any, of the accused to be enlarged on bail under proviso (a) to subsection (2) of Section 167 was defeated by the filing of the charge-sheet before the accused could be ordered to be released on bail. On the filing of the charge-sheet, there was no such right which could be enforced, contends Smt. Pingulkar.

4. There are two Division Bench decisions of this Court which have considered the question as to whether the right of an accused to be released on bail on the expiry of the period of 90 days was so absolute and indefeasible that even if a charge-sheet was filed subsequently, before the application for

bail was made, the accused was still entitled to bail under proviso (a) to Section 167 (2). In Shrawan Hanaji Undirwade v. State of Maharashtra, reported in 1976 Mah LJ 654, a Division Bench of this Court, on a review of the relevant decisions, including the decision of the Surpeme Court in AIR 1975 SC 1465: (1975 Cri LJ 1212), Matabar Parida v. State of Orissa, held that the detention of the accused beyond the period of 90/60 days was not ipso facto illegal. In a given case, despite the order of bail, the accused may be able to avail of the order of bail and even Explanation 1 to the proviso to Section 167(2) provides that notwithstanding the expiry of the periods specified in paragraph (a), the accused shall be detained in custody so land as he does not furnish bail. This Court took the view in Shrawan's case that as soon as the chargesheet is filed by the Police Officer before the Magistrate, the right of the accused to be released on bail under proviso (a) to Section 167(2) would normally come to an end though in a given case he could be released on bail under the provisions of the Chapter, including Section 457 of the new Code.

5. The above view in Shrawan's case has been recently approved by another Division Bench of this Court in Abdul Wahid v. State of Maharashtra, reported in 1992 Cri LJ 1900. The occasion to consider this question arose on a reference being made as a result of the conflict between the decision of two learned single Judges on the point. In Baburao Wakhle's case reported in 1989 Mah LJ 1027. A.A. Desai, J. took the view that the application seeking relief under the proviso to sub-section (2) of Section 167 cannot be entertained and the relief thereunder cannot be granted after the charge-sheet has been filed during the pendency of the application seeking relief under proviso (a) to subsection (2) of Section 167. The learned Judge took the view that after the filing of the chargesheet, the question of granting bail can only be dealt with under Section 437 of the Code of Criminal Procedure because completion of the investigation divests the Magistrate of the authority to release the accused on bail under the provisions of Section 167(2) proviso (a). On the other hand, Moharir, J. in Criminal Application No. 619 of 1990 Malkit Singh v. State of Maharashtra, decided on Sept. 24,1990 felt that the decision of the Division Bench in Shrawan's case 1976 MLJ 654 could not be held any longer to be good law in view of the decision of the Supreme Court in Raghubir Singh v. State of Bihar, reported in AIR 1987 SC 149: (1987 Cri LJ 157) and Rajnikant Jivanlal v. Intelligence officer, Narcotic Control Bureau, New Delhi reported in AIR 1990 SC 71 : (1990 Cri LJ 62 ), H.D. Patel, J. after elaborately considering the conflicting decisions felt that doubt had arisen regarding the view taken by Moharir J. in Halkit Singh's case and the matter should, therefore, be appropriately decided by the Division Bench.

6. When the matter was thus considered by the Division Bench in Abdul Wahid's case, the question which had been posed was as under: -

"Whether the right accrued to the accused for being enlarged on bail under proviso (a) to Section 167(2) of the Code of Criminal Procedure is such an absolute right that it cannot be divested or obliterated by filing a charge sheet?''

The Division Bench in Abdul Wahid's case 1992 Cri LJ 1900 considered the scheme of the provisions of the Code of Criminal Procedure. It then considered in Para 4 ratio of the Supreme Court decision in Hussainara Khatoon's case AIR 1979 SC 1377 : (1979 Cri LJ 1052). It also considered the ratio of the decision of the Supreme Court in the case of State of Uttar Pradesh v. Lakshmi Brahman reported in AIR 1983 SC 439 : (1983 Cri LJ 839) and observed that if an accused did not apply to the Magistrate for being released on bail on the expiry of 60 days from the date of arrest, his continued detention would not be illegal or without any authority of law. It then considered the Supreme Court decision in Raghubir Sihgh's case AIR 1987 SC 149 : (1987 Cri LJ 157) and observed that the

question as to whether remand could be granted to the accused, who had not been released on bail during 90/60 days from the date of arrest was over, after the filing of the chargesheet did not arise for consideration in Raghubir Singh's case.

7. The Division Bench in Abdul Wahid's case has been observed in Para 4 that the observation in Para 20 of Raghubir Singh's case would not be attracted in a case where the accused was still in custody without there being any order of his being released on bail and pending his detention, a charge-sheet has been filed. The Division Bench then considered the ratio in Rajnikant's case AIR 1990 SC 71 : (1990 Cri LJ 62). I am aware of the fact that the ambiguity arising on account of certain observations in Rajnikant's case has been set at rest by the Supreme Court in Aslam Babalal Desai v. State of Maharashtra reported in AIR 1993 SC 1, which I will make a reference later. On a consideration of all the relevant Judgments, the Division Bench in Abdul Wahid's case came to the conclusion that Shrawan's case indicated that the right created under Section 167 of the Code could be exercised by the accused before the completion of the investigation and the filing of the charge-sheet. The Division Bench after considering several other single Judge's decisions concluded as under in Para 10 :

"In our view the correct position is that, therefore, the right accrued to the accused who is in custody, under the proviso to subsection (2) of Section 167 Code of Criminal Procedure, can be exercised by him only before the charge-sheet is filed. If, however, he continues to be in custody because no order granting him bail is passed under that proviso, the Magistrate's power of granting bail once the charge-sheet is filed, can be exercised only under S. 437 of the Code. In the latter case the right to bail cannot be claimed under the proviso to sub-section (2) of S. 167 of the Code. The reference is answered accordingly."

8. As set out earlier, the charge in the present case is under Section 302, I. P. C. The petitioners had sought to contend in the first application for bail which they filed on the 26 th October, 1992 that they were entitled to bail by virtue of the proviso to sub-section (2) of Section 167 of the Cr. P. C. On the ground that the charge-sheet had already been filed on the 9th October, 1992, the learned Judge had rejected the application for bail since on merits also he came to the conclusion that there was ample evidence to connect the petitioners with the alleged crime of murder. In the subsequently filed two applications for bail, this contention has not even been agitated by the petitioners. Both the subsequent applications have been rejected on 2nd April, 1993 and on 14th May, 1993.

9. However, Shri Marwadi for the petitioners has invited my attention to the observations of the Supreme Court in some of the decisions, to which a reference must be made. He first relied upon the observations of the Supreme Court in the case of Natabar Parida v. State of Orissa, reported in AIR 1975 SC 1465 : (1975 Cri LJ 1212), Dealing with the scheme of Section 167, the Supreme Court observed in para 8 of the Judgment at page 1469 as under : -

"But it is not possible to complete the investigation within the period of 60 days, then even in serious and ghastly types of crimes the accused would be entitled to be released on bail. Such a law may be a "paradise for the criminals", but surely it would not be so, as sometimes it is supposed to be because of the courts. It would be so under the command of the Legislature."

With respect, I find nothing in the said observations to detract from the ratio of the two Division Bench decisions on the precise question which arises for my consideration as to whether the right accrued to the accused for being enlarged on bail under proviso (a) to sub-section (2) of Section 167 is such an absolute right which cannot be divested or obliterated by the filing of the charge-sheet.

This question has not even argued before the Supreme Court in the Natabar Parida's case, the ratio of the said decision, in my view, can therefore, have no bearing on the question before me.

10. Shri Marwadi then invited my attention to the Supreme Court decision in Hussainara Khatoon's case AIR 1979 SC 1377 : (1979 Cri LJ 1052). Suffice it to say that the ratio of this decision has been considered by the Division Bench in Abdul Wahid's case and in para 4 of the decision of the Division Bench, at page 1902 the position has been summarised. Moreover, the question which fell for consideration of the Division Bench was not even argued before the Supreme Court in Hussainara Khatoon's case.

11. Shri Marwadi then sought to place reliance on the Supreme Court's observations in Lakshmi Brahman's case AIR 1983 SC 439 : ( 1983 Cri LJ 839). He invited my attention to some observations in Para 6 of the Judgment. I do not find anything in the said observations which have a bearing on the question which is being argued before me in the present case.

12. My attention was also invited to the observations of the Supreme Court in the case of Abdul Rehman Antulay v. R.S. Nayak reported in (1992) 1 SCC 225 : (AIR 1992 SC 1701) and to proposition No. 7 appearing in para 86 of the Judgment, at page 272, which reads as under :

"(7) We cannot recognize or give effect to, what is called the 'demand' rule. An accused cannot try himself if he is tried by the court at the behest of the prosecution. Hence, an accused's plea of denial of speedy trial cannot be defeated by saying the accused did at no time demand a speedy trial. If in a given case, he did make such a demand and yet he was not tried speedily, it would be a plus point in his favour, but the mere non-asking for a speedy trial cannot be put against the accused. Even in USA, the relevance of demand rule has been substantially watered down in Barkar and other succeeding cases."

With respect, I do not think that those observations have any bearing on the precise point that has been raised before me which is concluded by the observations of the two Division Bench decisions viz. Shrawan's case and Abdul Wahid's case.

13. Finally, an attempt was also made to place reliance on the recent judgment of the Supreme Court in Aslam Babulal Desai's case AIR 1993 SC 1 : (1992 AIR SCW 2621) and the fact that the ratio in Rajnikant's case was not approved in its entirety. As far as I can see, Aslam Desai's case only lays down that once an accused is released on bail under proviso (a) to Section 167(2), he cannot be taken back in custody merely on the filing of a charge-sheet. There must exist special reasons for so doing, besides the fact that the charge-sheet reveals the commission of a nonbailable crime. The ratio in Rajnikant's case AIR 1990 SC 71 : (1990 Cri LJ 62) to the extent it is inconsistent therewith cannot be said to be a good law, says the Supreme Court. This is not the question which I am called upon to decide. The question which I am called upon to decide has been squarely framed by the Division Bench in Abdul Wahid's case when a reference was made to it by H.P. Patel, J. and on that question I find nothing in any of the Supreme Court decision which detracts from or waters down the view expressed by this Court, both in Shrawan's case and in Abdul Wahid's case.

14. In the light of the above legal position, I am of the view that the right accrued to the accused for being enlarged on bail under proviso (a) to sub-section (2) of Section 167 of the Code of Criminal Procedure is not an absolute or indefensible right which cannot be divested or obliterated by filing a chargesheet. Indeed, 'the paradise for criminals' as

called by the Supreme Court in Natabar Parida's case may be lost on the filing of a charge-sheet. If the accused continues to be in custody even after the period mentioned in the said proviso (a), because there is no order granting him bail then the power to grant bail can be exercised only under Section 437 of the Code. In other words, merely because the charge-sheet has been filed after the statutory period mentioned in proviso (a) to sub-section (2) of Section 167, Cr.P.C., the accused does not continue to enjoy the right of being released on bail under the said proviso if there was no order releasing him on bail prior to the charge-sheet being filed. It would also follow from the above that the detention of the accused beyond the period of 90/60 days is not ipso facto illegal. I am, thus not inclined to accept the contention raised by Shri Marwadi for the petitioners and I accept the contention raised by Smt. Pingulkar on behalf of the State. I must hasten to add that I am in respectful agreement with the view expressed by both the Division Benches, in Shrawan's case 1976 MLJ 654 and in Abdul Wahid's case 1992 Cri LJ 1900 and indeed, I am bound by the said decisions.

15. It must fairly be stated that Shri Marwadi has not argued the matter on merits and has confined his arguments to the alleged right under the proviso to sub-section (2) of Section 167 of the Code of Criminal Procedure.

16. In view of the above, the application for bail is rejected.

17. Certified copy of this order, if applied for, to be issued expeditiously.

Application Rejected