Bijendra Singh Alias Pintoo (In Jail) Vs. State of U.P. - Court Judgment

Excerpt:
- motor vehicles act, 1988 [c.a. no. 59/1988]section 168; [s.b. sinha & h.s. bedi, jj ] determination of compensation meaning of income of victim held, the term income has different connotations for different purposes. a court of law, having regard to the change in societal conditions must consider the question not only having regard to pay packet the employee carries home at the end of the month but also other perks which are beneficial to the members of the entire family. loss caused to the family on a death of a near and dear one can hardly be compensated on monetary terms. section 168 uses the word just compensation which, in our opinion, should be assigned a broad meaning. it cannot be lost sight of the fact that the private sector companies in place of introducing a pension scheme takes recourse to payment of contributory provident fund, gratuity and other perks to attract the people who are efficient and hard working. different offers made to an officer by the employer, same may be either for the benefit of the employee himself or for the benefit of the entire family if some facilities are being provided whereby the entire family stands to benefit, the same, must be held to be relevant for the purpose of computation of total income on the basis whereof the amount of compensation payable for the death of the kith and kin of the applicants is required to be determined. the amounts, therefore, which were required to be paid to the deceased by his employer by way of perks, should be included for computation of his monthly income as that would have been added to his monthly income by way of contribution to the family as contradistinguished to the ones which were for his benefit. from the said amount of income, the statutory amount of tax payable thereupon must be deducted. - provides that the magistrate may authorise the detention of the accused persons, otherwise than in the custody of the police, beyond the period of fifteen days, if he is satisfied that adequate grounds exist for doing so, but no magistrate shall authorise the detention of the accused person in custody under this paragraph for a total period exceeding 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 and on the expiry of the said period of 90 days, 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 subsection shall be deemed to be so released under the provision of chapter xxxiii for the purposes of that chapter. ghaziabad be enlarged on bail on his furnishing a personal bond and two sureties each in the like amount to the satisfaction of chief judicial magistrate, ghaziabad.orderu.s. tripathi, j.1. the applicant bijendra singh alias pintoo had moved this bail application mainly on the ground that he was arrested in this case and was produced before additional chief metropolitan magistrate, delhi on 8-9-2000 from where he was granted judicial remand. but the charge sheet in the case was not filed till 12-12-2000 i.e. even after lapse of 95 days and thereafter he was entitled to bail under the mandatory provisions of section 167(2) cr.p.c.2. initially the bail application of the applicant was rejected by the learned sessions judge, ghaziabad on merit on 3-11-2000. thereafter, the applicant moved this bail application before this court on 7-12-2000. during pendency of this bail application before this court he applied for bail under the provisions of section 167(2) before chief judicial magistrate, ghaziabad on 12-12-2000. the learned chief judicial magistrate rejected the bail application on 14-12-2000 on the ground that the applicant was remanded to judicial custody on 21-9-2000 and therefore, the statutory limit of 90 days for completion of investigation have not expired till 12-12-2000 and charge sheet was submitted in the court on 13-12-2000. therefore, the applicant was not entitled to bail under section 167(2) cr. p.c. the applicant, therefore, filed supplementary affidavit and also claimed his bail under the provisions of section 167(2) cr.p.c.3. heard the learned counsel for the applicant and the learned a.g.a.4. it is not disputed that initially report of the occurrence was lodged at p.s. sahadara, district north east (delhi) by sub inspector guru sewak singh sahib and the applicant was also arrested by police of p.s. sahadara on 7/8-9-2000. certified copy of order of a.c.m.m., delhi shows that he was remanded to judicial custody till 22-9-2000 on 8-9-2000 in f.i.r. no. nil of 2000 under sections 364, 302/34 i.p.c.p.s. sahadara. it is also not disputed that charge sheet in this case was submitted on 13-12-2000 as it is apparent from the order of the chief judicial magistrate dated 14-12-2000.5. proviso to section 167(2) cr.p.c. provides that the magistrate may authorise the detention of the accused persons, otherwise than in the custody of the police, beyond the period of fifteen days, if he is satisfied that adequate grounds exist for doing so, but no magistrate shall authorise the detention of the accused person in custody under this paragraph for a total period exceeding 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 and on the expiry of the said period of 90 days, 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 subsection shall be deemed to be so released under the provision of chapter xxxiii for the purposes of that chapter.6. the apex court held in the case of sanjay dutt v. state through c.b.i., bombay (ii), 1994 scc (cri) 1433: 1994 air scw 3857 that 'indefeasible right' of the accused to be released on bail in accordance with secion 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 v. state of maharashtra, (1994) 4 scc 602 : (1994 air scw 3699) is a right which enures to, and is enforceable by the accused only from the time of dafault till the filing of 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. the right of the accused to be released on bail after filing of the challan, notwithstanding the dafault in filing it within the time allowed, is governed from the time of filing of the challan only by the provisions relating to the grant of bail application at that stage. it is also mentioned in paragraph 48 of the said judgement that the indefeasible right accruing to the accused in such a situation 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. 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 charge sheet.7. it has also been held by the apex court in, the case of mohammad iqbal madar sheikh v. state of maharashtra, 1996 jic 499 (sc) that unless applications had been made on behalf of the appellants, there was no question of their being released on ground of default in completion of investigation within the statutory period. it is now settled that this right cannot be exercised after the charge sheet has been submitted and cognizance has been taken.8. it is clear from the remand order passed by additional chief metropolitan magistrate, delhi on 8-9-2000 that first remand of the accused was granted on 8-9-2000. the statutory period of 90 days for completion of investigation and submission of charge sheet thus expired on 9-12-2000. admittedly, the accused applicant applied for bail before chief judicial magistrate under section 167(2) cr.p.c. on 12-12-2000 and charge sheet in this case was submitted on 13-12-2000 as it is clear from the order of the chief judicial magistrate dated 14-12-2000. the learned a.g.a. contended that period of 90 days shall be counted from the date of remand given by chief judicial magistrate, ghaziabad i.e. 21-9-2000. this contention has no force as the applicant was remanded to judicial custody for the first time on 8-9-2000 and second remand on the expiry of 14 days was granted by chief judicial magistrate, ghaziabad. the relevant period for the purposes of proviso of section 167(2) cr.p.c. shall be counted from the date of first remand to judicial custody and not from subsequent or second remand.9. in this way, the right of accused to be enlarged on bail under the proviso to section 167(2) cr.p.c. accrued on 9-12-2000 and he availed that right on 13-12-2000, by which date, no charge sheet was filed. the passing of the order on the bail application on 14-12-2000 has no effect as held by the apex court in the case of mohammad iqbal madar sheikh and others (supra). therefore, the accused is entitled to bail under the proviso to section 167(2) cr.p.c.10. let the accused applicant bijendra singh alias pintoo involved in case crime no. 820 of 2000 under sections 364/302/34 i.p.c. loni, dist. ghaziabad be enlarged on bail on his furnishing a personal bond and two sureties each in the like amount to the satisfaction of chief judicial magistrate, ghaziabad.

Judgment:
ORDER

U.S. Tripathi, J.

1. The applicant Bijendra Singh alias Pintoo had moved this bail application mainly on the ground that he was arrested in this case and was produced before Additional Chief Metropolitan Magistrate, Delhi on 8-9-2000 from where he was granted judicial remand. But the charge sheet in the case was not filed till 12-12-2000 i.e. even after lapse of 95 days and thereafter he was entitled to bail under the mandatory provisions of Section 167(2) Cr.P.C.

2. Initially the bail application of the applicant was rejected by the learned Sessions Judge, Ghaziabad on merit on 3-11-2000. Thereafter, the applicant moved this bail application before this Court on 7-12-2000. During pendency of this bail application before this Court he applied for bail under the provisions of Section 167(2) before Chief Judicial Magistrate, Ghaziabad on 12-12-2000. The learned Chief Judicial Magistrate rejected the bail application on 14-12-2000 on the ground that the applicant was remanded to judicial custody on 21-9-2000 and therefore, the statutory limit of 90 days for completion of investigation have not expired till 12-12-2000 and charge sheet was submitted in the Court on 13-12-2000. Therefore, the applicant was not entitled to bail Under Section 167(2) Cr. P.C. The applicant, therefore, filed supplementary affidavit and also claimed his bail under the provisions of Section 167(2) Cr.P.C.

3. Heard the learned counsel for the applicant and the learned A.G.A.

4. It is not disputed that initially report of the occurrence was lodged at P.S. Sahadara, district North East (Delhi) by Sub Inspector Guru Sewak Singh Sahib and the applicant was also arrested by police of P.S. Sahadara on 7/8-9-2000. Certified copy of order of A.C.M.M., Delhi shows that he was remanded to judicial custody till 22-9-2000 on 8-9-2000 in F.I.R. No. nil of 2000 Under Sections 364, 302/34 I.P.C.P.S. Sahadara. It is also not disputed that charge sheet in this case was submitted on 13-12-2000 as it is apparent from the order of the Chief Judicial Magistrate dated 14-12-2000.

5. Proviso to Section 167(2) Cr.P.C. provides that the Magistrate may authorise the detention of the accused persons, otherwise than in the custody of the police, beyond the period of fifteen days, if he is satisfied that adequate grounds exist for doing so, but no Magistrate shall authorise the detention of the accused person in custody under this paragraph for a total period exceeding 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 and on the expiry of the said period of 90 days, 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 subsection shall be deemed to be so released under the provision of Chapter XXXIII for the purposes of that Chapter.

6. The Apex Court held in the case of Sanjay Dutt v. State through C.B.I., Bombay (II), 1994 SCC (Cri) 1433: 1994 AIR SCW 3857 that 'indefeasible right' of the accused to be released on bail in accordance with Secion 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 v. State of Maharashtra, (1994) 4 SCC 602 : (1994 AIR SCW 3699) is a right which enures to, and is enforceable by the accused only from the time of dafault till the filing of 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. The right of the accused to be released on bail after filing of the challan, notwithstanding the dafault in filing it within the time allowed, is governed from the time of filing of the challan only by the provisions relating to the grant of bail application at that stage. It is also mentioned in paragraph 48 of the said judgement that the indefeasible right accruing to the accused in such a situation 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. 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 charge sheet.

7. It has also been held by the Apex Court in, the case of Mohammad Iqbal Madar Sheikh v. State of Maharashtra, 1996 JIC 499 (SC) that unless applications had been made on behalf of the appellants, there was no question of their being released on ground of default in completion of investigation within the statutory period. It is now settled that this right cannot be exercised after the charge sheet has been submitted and cognizance has been taken.

8. It is clear from the remand order passed by Additional Chief Metropolitan Magistrate, Delhi on 8-9-2000 that first remand of the accused was granted on 8-9-2000. The statutory period of 90 days for completion of investigation and submission of charge sheet thus expired on 9-12-2000. Admittedly, the accused applicant applied for bail before Chief Judicial Magistrate Under Section 167(2) Cr.P.C. on 12-12-2000 and charge sheet in this case was submitted on 13-12-2000 as it is clear from the order of the Chief Judicial Magistrate dated 14-12-2000. The learned A.G.A. contended that period of 90 days shall be counted from the date of remand given by Chief Judicial Magistrate, Ghaziabad i.e. 21-9-2000. This contention has no force as the applicant was remanded to judicial custody for the first time on 8-9-2000 and second remand on the expiry of 14 days was granted by Chief Judicial Magistrate, Ghaziabad. The relevant period for the purposes of proviso of Section 167(2) Cr.P.C. shall be counted from the date of first remand to judicial custody and not from subsequent or second remand.

9. In this way, the right of accused to be enlarged on bail under the proviso to Section 167(2) Cr.P.C. accrued on 9-12-2000 and he availed that right on 13-12-2000, by which date, no charge sheet was filed. The passing of the order on the bail application on 14-12-2000 has no effect as held by the Apex Court in the case of Mohammad Iqbal Madar Sheikh and others (supra). Therefore, the accused is entitled to bail under the proviso to Section 167(2) Cr.P.C.

10. Let the accused applicant Bijendra Singh alias Pintoo involved in case crime no. 820 of 2000 Under Sections 364/302/34 I.P.C. Loni, Dist. Ghaziabad be enlarged on bail on his furnishing a personal bond and two sureties each in the like amount to the satisfaction of Chief Judicial Magistrate, Ghaziabad.