C.R.R. No.3080 of 2015

2nd February, 2016

Petitioner Counsel: Mr. SUMANTA CHAKRABORTY, Mr. SUKANTA CHAKRABORTY
Respondent Counsel: Mr. AYAN BASU

Cases Cited:
Uday Mohanlal Acharya Vs. State of Maharashtra, 2001 ALL MR (Cri) 713 (S.C.)=(2001) 5 SCC 453 [Para 5,9,12]
Union of India Vs. Nirala Yadav @ Raja Ram Yadav @ Deepak Yadav, 2014 ALL SCR 3451=(2014) 9 SCC 457 [Para 9,12]

JUDGMENT

JUDGMENT :- The petitioner in this case was arrested and produced before the Ld. Chief Judicial Magistrate, Barasat, 24 Parganas (North) on 27th June, 2015 in connection with Baguiati Police Station Case No. 552 of 2015 of that date under Section 20(b) (i) of the N.D.P.S. Act, 1985. He remained in detention in excess of the statutory period of sixty days prescribed in terms of the proviso (ii) of Section 167 (2) of the Code of Criminal Procedure.

2. The designated Court on 29th August, 2015 i.e. three days after the petitioner had remained in detention beyond the statutory period, allowed his application for bail. However, before he could furnish the bail bond on the very next date (30th August, 2015) which incidentally was a Sunday, the Charge Sheet No. 710 of that date was submitted against him in the Court of the Learned Chief Judicial Magistrate, 24 Parganas (North).

3. The Chief Judicial Magistrate forwarded the same to the designated Court, which received it on the following day i.e., 31st August, 2015, and took cognizance under Section 21 (b) of the N.D.P.S. Act.

4. However, separately on that very date, the bail bond was furnished on behalf of the petitioner before the Chief Judicial Magistrate, who was the competent/authorised Officer to accept the same in terms of the original bail order. Ld. Chief Judicial Magistrate accepted that bail bond on 31st August, 2015, i.e., the date on which the cognizance was taken by the designated Court. Thereafter, the said Court on the 1st of September, 2015 suo-moto passed the impugned Order cancelling the bail granted by it earlier with the following observations-

"In terms of order dated 29.08.2015, the bail bond was furnished by the accused.

It appears from the said order that due to expiry of statutory period of time, the accused was granted bail on 29.08.2015 but they could not furnish bail bond and the bail bond was accepted by the Ld. C.J.M. on 31.08.2015 and the relevant order along with the bond was received by this Court on 01.09.2015.

It also appears that in the meantime, C/S has already been submitted and the accused person failed to furnish the bail bond prior to the submission of C/S. In terms of the decision of the Hon'ble Supreme Court, I am not in a position to release the accused on bail. The bail bond as was accepted by the ld. CJM be returned to his office with direction to discharge the sureties from liabilities and to adjust the amount in the relevant register. He is also directed to release the KVP filed by Akram Ali Khan to the holder of the said KVP immediately..."

5. The contention of the petitioner in this regard is that once the statutory bail had been granted to him by the designated Court, it had no justification for recalling the order since his "indefeasible right" to apply for and avail of the benefit of bail in terms of Section 167(2) had already been "availed of". To support this contention, he has relied upon the decision of the Supreme Court reported in (2001) 5 SCC 453 : [2001 ALL MR (Cri) 713 (S.C.)] (Uday Mohanlal Acharya v. State of Maharashtra) in which the Apex Court had summarized its conclusions as to how balance can be struck between the so-called indefeasible right of the accused on failure on the part of the State to file a challan within the specified period, and the society at large in lawfully preventing an accused from being released on bail on account of inaction on the part of the prosecution agency. In this regard, reliance has been placed on behalf of the petitioner on the following observations of the Supreme Court -

"13..... (6) The expression "if not already availed of" used by this Court 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 other words, on expiry of the period specified in para (a) of the 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.

With the aforesaid interpretation of the 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 the proviso to sub-section(2) of Section 167, makes the application before the Magistrate, but the Magistrate erroneously refused the same and rejects the application and then the accused moves the higher forum and while the matter 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 thereby, and on the other hand, the accused has to be released on bail. Such an accused, who thus is entitled to be released on bail in enforcement of his indefeasible right will, however, have to be produced before the Magistrate on a charge-sheet being filed in accordance with Section 209 and the Magistrate must deal with him in matter of remand to custody subject to the provisions of the Code relating to bail and subject to the provisions of cancellation of bail, already granted in accordance with the law laid down by this Court in the case of Mohd. Iqbal v. State of Maharashtra.

14. Having indicated the position of law, as above, and applying the same to the facts and circumstances of the present case, it appears that the prescribed period under para(a) of the proviso to sub-section (2) of Section 167 expired on 16.8.2000 and the accused filed an application for being released on bail and offered to furnish the bail on 17.8.2000. The Magistrate, however, erroneously refused the bail prayer on the ground that the proviso to sub-section (2) of Section '167 has no application to cases pertaining to the MPID Act. The accused then moved the High Court. While the matter was pending before the Division Bench of the High Court, the learned Public Prosecutor took an adjournment and the case was posted to 31.8.2000 and just the day before the charge-sheet was filed on 30.8.2000 and thus the indefeasible right of the accused stood frustrated and the High Court refused to release the accused on bail on a conclusion that the accused cannot be said to have availed of his indefeasible right, as held in Sanjay Dutt case since, he has not yet been released on bail. But in view of our conclusion as to when an accused can be said to have availed of his right, in the case in hand, it has to be held that the accused availed of his right on 17.8.2000 by filing an application for being released on bail and offering therein to furnish the bail in question. This being the position, the High Court was in error in refusing that right of the accused for being released on bail. We, therefore, direct that the accused should be released on bail on such terms and conditions to the satisfaction of the learned Magistrate, and further the Magistrate would be entitled to deal with the accused in accordance with law and observations made by us in this judgment, since the charge-sheet has already been filed."

The above observations were the expression of the majority in the Bench which accordingly went on to direct release of the appellant/accused persons on bail.

6. Ld. Counsel appearing for the State has, however, relied upon the conclusion of the Bench contained in item no. 5 which is set out as under -

"...13(5). If the accused is unable to furnish the bail as directed by the Magistrate, 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".

7. Attention of this Court has also been drawn to the dissenting judgment of Justice B.N. Agarwal, and specifically the following observations of Justice Agarwal in this regard -

"23. The Constitution Bench in the aforesaid judgment has clearly laid down that the indefeasible right of the accused "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" (emphasis added). It has further laid down that custody of the accused after the challan has been filed is not governed by the provisions of Section 167 of the Code, but different provisions of the Code. The right of the accused cannot be enforced after the challan is filed "since it is extinguished the moment challan is filed". The case of Sanjay Dutt also referred to the views expressed by the three earlier Constitution Benches of this Court in connection with the writ of habeas corpus on the ground that there was no valid order of remand passed by the court concerned. It has reiterated that a petition seeking 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 the return of the rule the custody or detention is on the basis of a valid order." (emphasis added)

8. His Lordship thereafter concluded the dissenting judgment with the following observations -

"32. The present case, where the prosecution was for an offence under the MPID Act, being a case of first impression, the court concerned was of the bona fide opinion that the provisions of Section 167(2) of the Code were not applicable. That view of the Special Judge was reversed by the High Court, but before it could fully apply its mind, the challan was filed. In this background, I am clearly of the opinion that the right of the accused to be enlarged on bail under the proviso to Section 167(2) of the Code cannot be said to have been "availed of" in the present case.

33. This being the position, I have not option but to hold that the High Court has not committed any error in passing the impugned order so as to be interfered with by this Court.

34. Accordingly, the appeal is dismissed."

9. The petitioner has also cited a subsequent decision of the Supreme Court in (Union of India v. Nirala Yadav @ Raja Ram Yadav @ Deepak Yadav) reported in (2014) 9 SCC 457 : [2014 ALL SCR 3451] in which the majority view in Uday Mohanlal Acharya [2001 ALL MR (Cri) 713 (S.C.)] (supra) was followed and it was observed -

"46.... On a careful reading of the aforesaid two paragraphs, we think, the two Judge Bench in Pragyna Singh Thakur case has somewhat in a a similar matter stated the same. As long as the majority view occupies the field it is s binding precedent. That apart, it has been followed by a three-Judge Bench in Sayed Mohd. Ahmad Kazmi case. Keeping in view the principle stated in Sayed Mohd. Ahmad Kazmi case which is based on three-Judge Bench decision in Uday Mohanlal Acharya case, we are obliged to conclude and hold that the principle laid down in paras 54 and 58 of Pragyna Singh Thakur case (which has been emphasised by us: see paras 42 and 43 above) does not state the correct principle of law. It can clearly be stated that in view of the subsequent decision of a larger Bench that cannot be treated to be good law. Our view finds support from the decision in Union of India v. Ariviva Industries India Ltd."

10. The Supreme Court thereafter upheld the order of the High Court setting aside the lower Court'' order of refusing bail and extending its benefit to the respondent by observing -

"47. Coming to the facts of the instant case, we find that prior to the date of expiry of 90 days which is the initial period for filing the chargesheet, the prosecution neither had filed the chargesheet nor had it filed an application for extension. Had an application for extension been filed, then the matter would have been totally different. After the respondent-accused filed the application, the prosecution submitted an application seeking extension of time for filing of the chargesheet. Mr. P.K. Dey, learned Counsel for the appellant would submit that the same is permissible in view of the decision in Bipin Shantilal Panchal but on a studied scrutiny of the same we find that the said decision only dealt with whether extension could be sought from time to time till the completion of period as provided in the statute i.e. 180 days. It did not address the issue what could be the effect of not filing an application for extension prior to expiry of the period because in the factual matrix it was not necessary to do so. In the instant case, the day the accused filed the application for benefit of the default provision as engrafted under proviso to sub-section (2) of Section 167 of Cr.P.C. the Court required the accused to file a rejoinder-affidavit by the time the initial period provided under the statute had expired. There was no question of any contest as if the application for extension had been filed prior to the expiry of time. The adjournment by the learned Magistrate was misconceived. He was obliged on that day to deal with the application filed by the accused as required under Section 167(2) Cr.P.C. We have no hesitation in saying that such procrastination frustrates the legislative mandate. A court cannot act to extinguish the right of an accused if the law so confers on him. Law has to prevail. The prosecution cannot avail such subterfuges to frustrate or destroy the legal right of the accused. Such an act is not permissible. If we permit ourselves to say so, the prosecution exhibited sheer negligence in not filing the application within the time which it was entitled to do so in law but made all adroit attempts to redeem the cause by its conduct.

48. In view of our aforesaid premised reasons we do not find any error in the order of the High Court in overturning the order refusing bail and extending the benefit to the respondent and, accordingly, the appeal fails and is hereby dismissed."

11. The petitioner in the present case would appear to stand on an even stronger footing than the applicants in the decisions discussed above. He had already been granted bail by the designated Court after expiry of the detention period, and his bail bond in compliance of the relevant order had also been accepted by the competent authority i.e., the Chief Judicial Magistrate on 31st of August, on which date the cognizance was separately taken by the designated Court. So by no means it can be said that he had failed to avail of his indefeasible right to bail after expiry of the statutory detention period. There is no doubt that the chargesheet was submitted when such period had already expired on the 26th of August. It was submitted on 30th August, which was a Sunday in the Court of the Chief Judicial Magistrate ostensibly because the designated Court was closed. But by that time the bail order had already been passed in his favour by the designated Court. That court subsequently took cognizance on the very date on which his bail bond was accepted by the Chief Judicial Magistrate. On the following day the designated Court suo-motto cancelled his bail "In terms of the decision of the Hon'ble Supreme Court" without any indication of the particular decision it was relying upon.

12. As has already been seen, the Supreme Court's decision in Union of India v. Nirala Yadav @ Raja Ram Yadav @ Deepak Yadav [2014 ALL SCR 3451] (supra) relying upon the earlier majority decision in Uday Mohanlal Acharya v. State of Maharashtra [2001 ALL MR (Cri) 713 (S.C.)] (supra) is the last binding precedent as of now, and which is squarely in favour of the entitlement of an accused to avail of his indefeasible right to bail on expiry of the statutory period. The Ld. Court below therefore acted with material irregularity in cancelling the petitioner's bail after he had furnished the bail Bonds which had already been accepted by the Chief Judicial Magistrate.

13. The impugned order is therefore set aside, and the Ld. Court below is directed to pass appropriate orders for release of the petitioner on bail on the same terms and conditions which were specified in the previous order dated 29th August, 2015. The Revisional application is thus disposed off.

Ordered accordingly.