ORDER
1. State of Punjab has filed this petition under Section 439(2) read with Section 482 of the Code of Criminal Procedure for can-cellation of bail granted to accused respondent Sukhminder Singh in a murder case (F.I.R. No. 81 dated 2-10-1996 under Section 302, IPC, Police Station Longowal, District Sangrur).
2. The brief facts of the case are that accused-respondent was arrested in this case on 18-10-1996. After investigation challan was filed on 9-1-1997 against the accused that is within 82 days of the date on which the accused was taken in custody. On 4-1-1997, on the request of the Investigating Officer, accused was remanded to judicial custody till 18-1-1997 when the accused appeared, copies of the challan were supplied to him.
3. Accused filed an application on 13-1-1997 for releasing him on bail. Before this application could be decided, Additional Chief Judicial Magistrate, Sangrur, committed the case to the Court of Session and charge was also framed against the accused-respondent.
4. On 6-3-1997 accused respondent filed another application contending that regardless of the merits of the case, he is entitled to be released on bail under Section 167(2) of the Code.
5. This bail application was decided by Sessions Judge, Sangrur, vide impugned order dated 2-4-1997, Relying upon the observations made by Hon'ble Mr. Justice N. K. Kapoor of this Court in case Upkar Singh v. State of Punjab in Criminal Misc. No. 20673-M of 1996, bail petition was allowed by Ld. Sessions Judge holding that as copies of the challan papers were delivered to the accused respondent on 18-1-1997, that is beyond 90 days from the date on which he was remanded to judicial custody, therefore, he is entitled to be enlarged on bail under Section 167(2) of the Code.
6. Learned Deputy Advocate-General contended that accused was arrested on 18-10-1996. Thereafter he was remanded to judicial custody. No doubt on 4-1-1997 another remand application was submitted whereby period of judicial custody of respondent-accused was extended upto 18-1-1997 but in the meantime challan was prescribed on 9-1-1997 in the committal Court. This challan was prescribed within 82 days of the date on which accused was remanded to judicial custody. Therefore, the accused lost his indefeasible right under Section 167(2) of the Code to be enlarged on bail. According to Ld. Deputy Advocate-General, respondent-accused has been wrongly enlarged on bail by the learned Sessions Judge by passing the impugned order. Hence, he contends that since the order is illegal, the respondent-accused's bail be cancelled under Section 439(2) of the Code.
7. Learned counsel appearing for respondent-accused submitted that as copies of the challan papers were given to the accused on 18-1-1997, admittedly beyond the period of 90 days, he was entitled to be bailed out under Section 167(2)(a) of the Code. Learned lower Court has rightly granted bail under the said provision. To support this contention, he has relied on 'Khambhadhur Palshiram Thapa v. State of Maharashtra, 1989 (3) Crimes 543, Goverdhan and three others v. State of M.P., 1993 (3) Crimes 104 and Re. Misc. Bail application No. 242/1993 decided on 24-9-1993 (1993 (3) Crimes 955).
8. I have given my careful thought to the respective submissions advanced by both the counsel. No doubt in 1993 (1) Crimes 955 a single Bench of the Madhya Pradesh High Court has held that when the copies of the challan were supplied to accused beyond 90 days of his arrest, he is entitled to bail under Section 167(2)(a) of the Code. Same view is held by another single Bench of the Madhya Pradesh Court in Goverdhan's case (supra).
9. In Khimbhadur Parlshiram Thapa's case (supra) accused was produced before the Magistrate on 19-10-1988. He was remanded to judicial custody on 5-1-1989. Charge-sheet was filed on 9-1-1989. Magistrate adjourned the case to 19-1-1989, taking note of the fact that accused was absent - application for bail was filed on 17-1-1989, the 91st day of the accused being in custody. On these facts, a single Bench of the Bombay High Court held that mere filing of the charge sheet within 90 days would not amount to taking cognizance of the offence. Hence, the accused was held entitled to bail. For proper appreciation of the thought provoking arguments put forth at the Bar, it is worthwhile to reproduce Section 167(2) of the Code which runs as under :-
'(2) The Magistrate to whom an accused person is forwarded under this Section may, whether he has or has no jurisdiction to try the case from time to time, authorise 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 accused to be forwarded to a Magistrate having such jurisdiction :-
Provided that - (a) the Magistrate may authorise the detention of the accused person, otherwise than in the custody of the police, beyond the period of fifteen days, if he is satisfied that adequate ground exists for doing so, but no Magistrate shall authorise the detention of the accused person in custody under this paragraph for a total period exceeding (i) ninety days, where the investigation relates to an offence punishable with death, imprisonment for life or imprisonment for a term of not less than ten years;
(ii) sixty days, where the investigation relates to any other offence, and on the expiry of the said period of ninety days, or sixty days, as the case may be, the accused person shall be released on bail if he is prepared to and does furnish 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 authorise detention in any custody under this section unless the accused is produced before him;
(c) No Magistrate of the Second Class, not specially empowered in this behalf of the High Court, shall authorise detention in the custody of the police.
Explanation - 1. For the avoidance of doubts, it is hereby declared that notwithstanding the expiry of the period specified in paragraph (a), the accused shall be detained in custody so long as he does not furnish bail.
Explanation 11. If any question arises whether an accused person was produced before the Magistrate as required under paragraph (b), the production of the accused person may be proved by his signature on the order authorising detention.'
10. The legislative history of the aforesaid section was considered by the Apex Court in 'Central Bureau of Investigation, Special Investigation Cell-I v. Anupam J. Kulkarni, AIR 1992 SC 1768 : (1992 Cri LJ 2768). The Apex Court held as under at page 2771-2772, of Cri LJ :-
'Before proceeding further it may be necessary to advert to the legislative history of this section. The old Section 167 of 1898 Code provided for the detention of an accused in custody for a term not exceeding 15 days on the whole. It was noted that this was honoured more in the breach than in the observance and that a practice of doubtful legality grew up namely the police used to file an incomplete preliminary charge-sheet and move the Court for remand under Section 344 corresponding to the present Section 309 which was not meant for during investigation. Having regard to the fact that there may be genuine cases where investigation might not be completed in 15 days, the Law Commission made certain recommendations to confer power on the Magistrate to extend the period of 15 days detention. These recommendations are noticed in the objects and reasons of the Bill thus :
'........... At present, Section 167 enables the Magistrate to authorise detention of an accused in custody for a term not exceeding 15 days on the whole. There is a complaint that this provision is honoured more in the breach than in the observance and that the police investigation takes a much longer period in practice. A practice of doubtful legality has grown where by the police file a 'preliminary' or incomplete charge sheet and move the Court for remand under Section 344 which is not intended to apply to the stage of investigation. While in some cases the delay in investigation may be due to the default of the police, it cannot be denied that there may be genuine cases where it may not be practicable to complete the investigation in 15 days. The Commission recommended that the period should be extended to 60 days, but if this is done, 50 days would become the rule and there is no guarantee that the illegal practice referred to above would not continue. It is considered that the most satisfactory solution of the problem would be to confer on the Magistrate the power to extend the period of extension beyond 15 days, whenever he is satisfied that adequate grounds exist for granting such extension ............'
The Joint Committee, however, with a view to have the desired effect made provision for the release of the accused if investigation is not duly completed in case where accused has been in custody for some period. Sub-sections (5) and (6) relating to offences punishable for imprisonment for two years were inserted and the Magistrate was authorised to stop further investigation and discharge the accused if the investigation could not be completed within six months. By the Cr.P.C. Amendment Act, 1978 (a) to sub-section (2) of Section 167 has been further amended and the Magistrate is empowered to authorise the detention of accused in custody during investigation for an aggregate period of 90 days in cases relating to major offences and in other cases 60 days. This provision for custody for 90 days is intended to remove difficulties which actually arise in completion of the investigation of offences of serious nature.'
11. This very provision was further considered by the Apex Court in Hitendra Vishnu Thakur v. State of Maharashtra (1994) 4 SCC 602 : (1995 Cri LJ 517). Their Lordships held :
'The Constitution of India as well as the Code of Criminal Procedure expect that an arrested person, who has been detained in custody, shall not he kept in detention for any unreasonable time and that the investigation must be completed as far as possible within 24 hours. Else, the police is obliged to forward the accused along with the case diary to the nearest Magistrate for further remand of the accused person. The Magistrate must scrutinise the same carefully and consider whether the arrest was legal and proper and whether the formalities required by law have been complied with and then to grant further remand, if the Magistrate is so satisfied. The law enjoins upon the investigating agency to carry out the investigation, in a case where a person has been arrested and detained, with utmost urgency and complete the investigation with great promptitude in the prescribed period.'
'The object behind the enactment of Section 167 of the Code was that the detention of an accused person should not be permitted in custody pending investigation for any unreasonable longer period. However, realising that it may not be possible to complete the investigation in every case within 24 hours or even 15 days, as the case may be, even if the investigating agency proceeds with utmost promptitude. Parliament introduced the proviso to Section 167(2) of the Code prescribing the outer limit within which the investigation must be completed. The proviso to sub-section (2) fixes the outer limit within which the investigation must be completed and in case the same is not completed within the said prescribed period the accused would require a right to seek to be released on bail and if he is prepared to and does furnish bail, the Magistrate shall release him on bail and such release shall be deemed to be grant of bail under Chapter XXXIII of the Code of Criminal Procedure.'
'Section 167 read with Section 20(4) of TADA, thus strictly speaking is not a provision for 'grant of bail' but deals with the maximum period during which a person accused of an offence may be kept in custody and detention to enable the investigating agency to complete the investigation and file the charge-sheet, if necessary, in the Court. The proviso to Section 167(2) of the Code read with Section 20(4)(b) of TADA, therefore, creates an indefeasible right in an accused person on account of the 'default' by the investigating agency in the completion of the investigation within the maximum period prescribed or extended, as the case may be, to seek an order for his release on bail.'
'Such order is generally termed as an 'order on default' as it is granted on account of the default of the prosecution to complete the investigation and file the challan within the prescribed period.'
'There is yet another obligation also which is cast on the Court and that is to inform the accused of his right of being released on bail and enable him to make an application in that behalf.'
'So once the period for filing the charge-sheet has expired and either no extension under clause (bb) has been granted by the Designated Court or the period of extension has also expired, the accused person would be entitled to move an application for being admitted to bail under sub-section (4) of Section 20 TADA read with Section 167 of the Code and the Designated Court shall release him on bail, if the accused seeks to be so released and furnishes the requisite bail.'
'But that does not mean that on the expiry of the period during which investigation is required to be completed under Section 20(4) TADA read with Section 167 of the Code, the Court must release the accused on bail on its own motion even without any application from an accused person on his offering to furnish bail. The accused will be required to make an application if he wishes to be released on bail on account of the 'default' of the investigating prosecuting agency and once such an application is made, the Court should issue a notice to the public prosecutor who may either show that the prosecution has obtained the order for extension for completion of investigation from the Court under clause (bb) or that the challan has been filed in the Designated Court before the expiry of the prescribed period has actually not expired and thus resist the grant of bail on the alleged grounds of 'default'. The issuance of notice would avoid the possibility of an accused obtaining an order of bail under the 'default' clause by either deliberately or inadvertently concealing certain facts and would avoid multiplicity of proceedings. It would, therefore, serve the ends of justice if both sides are heard on a petition for grant of bail on account of the prosecution's default.'
'But accused is not entitled to be released if he does not press his bail application.'
12. The judgment of Hitendra Vishnu Thakur's case (supra) was further clarified in Sanjay Dutt v. State, 1994 (5) SCC 410 : (1995 Cri LJ 477) wherein the Apex Court, held at page 502; of Cri LJ :-
'The 'indefeasible right' of the accused to be released on bail in accordance with Section 20(4)(bb) of the TADA Act read with Section 167(2) of the Code of Criminal Procedure in default of completion of the investigation and filing of the challan within the time allowed, as held in Hitendra Vishnu Thakur is a right which ensures to, and is enforceable by the accused only from the time of default till the filing of the challan and it does not survive or remain enforceable on the challan being filed. If the accused applies for bail under this provision on expiry of the period of 180 days or the extended period, as the case may be, then he has to be released on bail forthwith. The accused, so released on bail may be arrested and committed to custody according to the provisions of the Code of Criminal Procedure. Once the challan has been filed, the question of grant of bail has to be considered and decided only with reference to the merits of the case under the provisions relating to grant of bail to an accused after the filing of the challan. The custody of the accused after the challan has been filed is not governed by Section 167 but different provisions of the Code of Criminal Procedure. If that right had accrued to the accused but it remained unenforced till the filing of the challan, then there is no question of its enforcement thereafter since it is extinguished the moment the challan is filed because. The Section 167. Cr.P.C. ceases to apply. The Division Bench in Hitendra Vishnu Thakur also indicated that if there be such an application of the accused for release on bail and also a prayer for extension of time to complete the investigation according to the provision to Section 20(4)(bb), both of them should be considered together. It is obvious that no bail can be given even in such a case unless the prayer for extension of the period is rejected. In short, the grant of bail in such a situation is also subject to refusal of the prayer for extension of time, if such a prayer is made.'
'The decision of the Division Bench in Hitendra Vishnu Thakur is clarified accordingly, and if it gives a different indication because of the final order made therein, that view cannot be subscribed.'
13. In Dr. Bipin Shantilal Panchal v. State of Gujarat, 1996 (1) RCR 505 : (1996 Cri LJ 1652), the Apex Court has held at page 1653; of Cri LJ :-
'Therefore, if an accused person fails to exercise his right to be released on bail for the failure of the prosecution to file the charge sheet within the maximum time allowed by law, he cannot contend that he had an indefeasible right to exercise it at any time notwithstanding the fact that in the meantime the charge sheet is filed. But on the other hand, if he exercises the right within the time allowed by law and is released on bail under such circumstances, he cannot be rearrested on the mere filing of the charge sheet as pointed out in Aslam Babalal Desai v. State of Maharashtra 1993 (1) Recent Criminal Reports 600.'
14. Further, in Pramod Hariprasad Tiwari v. State of Gujarat, 1997 (3) RCR 451 : (1997 Cri LJ 1605), Gujarat High Court has held as under at page 1610; of Cri LJ :-
'Thus to sum up it is clear :
i) that 'indefeasible right' to be released on bail is created in favour of the accused, if the charge sheet is not filed on expiry of the statutory period as provided in proviso (a) to Section 167(2) of the Code;
(ii) No doubt, said right is 'indefeasible right', but the life of that right is from the expiry of the period to file the charge-sheet till the date the charge sheet is filed; and
(iii) That right does not survive or remain enforceable on the charge sheet being filed and the application filed during default period is pending for disposal, same is required to be decided like a regular bail application, be it under Code or any other Act, if it provides for bail like Code.'
15. Thus it is apparent that the Apex Court has laid down that once the challan is presented 'indefeasible right' of the accused comes to an end. Its life expires on the presentation of the challan. Therefore, a duty, is cast on the accused or on the Court to release the accused on bail if challan is not presented within 60/90 days as per Section 167 of the Code but if at all before challan is filed, neither the Court passes any order granting bail to the accused nor on the application filed by the accused order of bail is passed by the Court, that 'indefeasible right' of the accused of being released on bail in default comes to an end as soon as challan is filed. This legal position is made clear, by the Apex Court in all the judgments, referred to above. Therefore, the respondent-accused cannot claim that he is entitled to be enlarged on bail under Section 167(2)(a) of the Code simply on the ground that copies of challan were supplied to him after the expiry of statutory period of 90 days. Since all the authorities, referred to by the respondent's learned counsel, are earlier in point of time then the judgments of the Apex Court, referred to above in Upkar Singh's case (supra), these judgments of the Apex Court were not adverted to. The conclusion is inevitable but these authorities do not lay down correct position of law.
16. Hence, it is apparent that learned Sessions Judge has wrongly granted bail to the respondent-accused giving him the benefit under Section 167(2) of the Code only on the ground that copies of the challan were not supplied to him on 18-1-1997 irrespective of the fact that challan was presented on 9-1-1997. The accused is required to be vigilant to avail this 'indefeasible right' but if he does not apply for bail within the statutory period and if during that period or even after that statutory period challan is filed before the accused is bailed out under the said provision, the said 'indefeasible right' does not ensure thereafter. This legal position was not considered by the learned Sessions Judge while passing the impugned order. Thus, on this ground the impugned order is against the law laid down by the Apex Court.
17. Apparently, the accused was wrongly enlarged on bail by giving him the benefit under Section 167(2)(a) of the Code but now the question is whether such a bail granted to the accused should be cancelled under Section 439(2) read with Section 482 of the Code. Admittedly, charge has been framed against the accused respondent. Trial is at the evidence stage. Learned Deputy Advocate-General admitted, during arguments, that the accused-respondent is regularly attending each and every hearing. After being released on bail he has not caused any hinderance in the smooth progress of the trial. There is no allegation that he has given any threat or inducement to any witness or has tried to influence them in any other manner. There is no averment in the petition that respondent-accused obtained the impugned bail order by practising any fraud or playing any contrivance or making any mis-statement of any description. Hence, now, it is only an academic question whether the impugned bail order be cancelled or not. Simply on the ground, bail granted to respondent-accused cannot be cancelled now unless any such fact which renders his bail order liable to be set aside under Section 439(2) of the Code is pleaded or established. No such fact or circumstance is either averred in the petition or submitted during arguments.
Accordingly, there is no merit in the petition and is dismissed.
18. Petition dismissed.