Erappa Vs. Swamy

Erappa vs Swamy

Disposition Petition allowed Court Karnataka Decided Jun 14, 1994

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Citation: sooperkanoon.com/379831
Court: Karnataka High Court
Judge: Venkataraman, J.
Decided On: Jun 14, 1994
Case Number: Crl. Petn. No. 550 of 1994
Subject: Criminal
Disposition: Petition allowed

Case Summary

AI-generated summary - not the official court judgment text.

KARNATAKA FOREST ACT, 1963 - Section 104D : CRIMINAL PROCEDURE CODE, 1973 (Central Act No. 2 of 1974) - Section 167(2) - Section applicable only to grant of bail not remand to Judicial custody granted under Code - Chargesheet not filed within 60 or 90 days, accused entitled to release on bail under Section 167(2) of...

Key legal issue: Criminal
Outcome / disposition: Petition allowed
Acts & sections: Karnataka Forest Act, 1963 - Sections 104D; Code of Criminal Procedure (CrPC) , 1973 - Sections 167(2)

Parties & Advocates

Appellant / Petitioner

Erappa

Advocate G.B. Shastry, Adv.

Respondent

Swamy

Advocate Y.R. Jagadeesh, HCGP

Legal References

Acts: Karnataka Forest Act, 1963 - Sections 104D; Code of Criminal Procedure (CrPC) , 1973 - Sections 167(2)
Reported In: ILR1994KAR2124

Excerpt

.....1973 (central act no. 2 of 1974) - section 167(2) - section applicable only to grant of bail not remand to judicial custody granted under code - chargesheet not filed within 60 or 90 days, accused entitled to release on bail under section 167(2) of code.; section 104d is applicable only with regard to the question of granting bail and it does not deal with the power of the magistrate to remand the accused to custody. even for forest offences the only provisions under which the magistrate could grant judicial custody is under section 167 cr.p.c... when once the charge sheet is not filed within the period of 60 days or 90 days, the accused is entitled to be released on bail by virtue of section 167(2) cr.p.c., and this provision is not in any way affected by section 104d of the forest act. - indian evidence act, 1872 section 114, illustration (g); [s.abdul nazeer, j] regular first appeal - suit for permanent injunction order of restraint sought by the plaintiff against the defendants from interfering with his peaceful possession and enjoyment of the schedule property-claim of the plaintiffs is based on the agreement to sell, wherein the defendants have delivered possession of the scheduled property - dismissal of suit appealed against - re-appreciation of evidence on record- failure of the defendants 1 and 2 to prove that ex..p2 agreement to sell, is a concocted document - no material on record to show that the defendants are in possession of the schedule property. defendants have not entered the witness box and subjected to cross examination held, defendant nos. 1 and 2 have failed to prove that ex.p2 is a concocted document as contended by them. ex.p2 contains a recital that plaintiff was put in possession of the suit schedule property on the same day. defendant nos. 1 and 2 have not produced any material to contend that they continued to be in possession of the property in question even after the date of execution of the sale deed. no doubt they rely on..........patel and anr. v. intelligence officer, narcotic control bureau, new delhi : 1990 crilj62 the accused had been arrested for offences under n.d.p.s. act which also contains provisions most stringent than section 104-d of the forest act. the supreme court in that case has held that an order for release on bail under section 167(2)(a) is release on bail for default of the prosecution in filing charge sheet within the prescribed period and this right is absolute. the supreme court has further held that in such a case the magistrate has to pass an order for bail and communicate the same to the accused to furnish requisite bail bonds.5. in the present case, as it is undisputed that the charge sheet was not filed within 60 days from the date of the remand of the accused the accused petitioners have become entitled to bail and the order of the magistrate declining to release on bail cannot be sustained.6. for the reasons stated above this petition is allowed and the petitioners are ordered to be released on their executing self-bond for rs. 10,000/- each with one surety in likes us to the satisfaction of the lower court.

Full Judgment

ORDER

Venkataraman, J.

1. Heard

2. The petitioners are in Judicial custody from 16.7.93. They were arrested in connection with the offences punishable under Sections 86 and 87 of the Karnataka Forest Act. As the charge sheet was not filed within 60 days from the date of their remand to judicial custody the petitioners sought for bail under Section 167(2) Cr.P.C. The learned Magistrate relying on Section 104-D of the Karnataka Forest Act has declined to release them on bail on the ground that that provision overrides Section 167(2) Cr.P.C.

3. It is no doubt true that Section 104-D of the Forest Act stipulates that no person accused of the forest offence punishable under Sections 86, 87 or 104-A or in respect of ivory shall be released on bail, if the prosecution opposes the application and if the Court is satisfied that there are reasonable grounds for believing that he is not guilty of such offence. It is also true that this is a special provision and this provision is applicable notwithstanding anything contained in the Criminal Procedure Code to the contrary with regard to the grant of bail. This provision is applicable only with regard to the question of granting bail and it does not deal with the power of the Magistrate to remand the accused to custody. Even for forest offences the only provision under which the Magistrate could grant Judicial custody is under Section 167 Cr.P.C. Section 167 specifically stipulates that the Magistrate can authorise detention of the accused for a term not exceeding 15 days at a time and a total period of 90 days, where the investigation relates to offence punishable with death or imprisonment for life or a term not less than 10 years and 60 days where the investigation relates to any other offence. Under this provision the power of the Magistrate to detain the accused comes to an end after the expiry of 90 days or 60 days as the case may be. It is only if a charge sheet is filed within that period and if the Magistrate takes cognizance then he can remand the accused under Section 309 Cr.P.C. The learned Magistrate has not at all taken this aspect into consideration. When once the charge sheet is not filed within the period of 60 days or 90 days the accused is entitled to be released on bail by virtue of Section 167(2) Cr.P.C. and this provision is not in any way affected by Section 104-D of the Forest Act.

4. In RAJNIKANT JIVANLAL PATEL AND ANR. v. INTELLIGENCE OFFICER, NARCOTIC CONTROL BUREAU, NEW DELHI : 1990 CriLJ62 the accused had been arrested for offences under N.D.P.S. act which also contains provisions most stringent than Section 104-D of the Forest Act. The Supreme Court in that case has held that an order for release on bail under Section 167(2)(a) is release on bail for default of the prosecution in filing charge sheet within the prescribed period and this right is absolute. The Supreme Court has further held that in such a case the Magistrate has to pass an order for bail and communicate the same to the accused to furnish requisite bail bonds.

5. In the present case, as it is undisputed that the charge sheet was not filed within 60 days from the date of the remand of the accused the accused petitioners have become entitled to bail and the order of the Magistrate declining to release on bail cannot be sustained.

6. For the reasons stated above this Petition is allowed and the petitioners are ordered to be released on their executing self-bond for Rs. 10,000/- each with one surety in likes us to the satisfaction of the lower Court.

Same Court & Year Karnataka · 1994 Same Parties Erappa vs Swamy Same Subject Criminal Same Judge Venkataraman, J. Acts & Sections Karnataka Forest Act, 1963 - Sections 104D; Code of Criminal ...

Criminal