Jagdish Vs. State of Madhya Pradesh - Court Judgment

Excerpt:
- - orders for release on bail are effective until an order is made under section 437(5) or 8.439(2): 11. the result of our discussion and the case law in this :an order for release on bail made under the proviso to section 167(2) is not defeated by lapse of time, the filing of the charge-sheet or by remand to custody under section 309(2). 12. it may be remembered that there was no provision corresponding to the proviso to section 167(2) in the old code of criminal procedure. the commission recommended that the period should be extended to 60 days but if this is done, 60 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 to the problem would be to confer on the magistrate the power to extend the period of detention beyond 15 days, whenever he is satisfied that adequate grounds exist for granting such detention (extension ?). 13. in natabar parida v. in serious offences of criminal conspiracy murders, dacoities, robberies, by inter-state gangs or the like, it may not be possible for the police, in the circumstances, as they do exist in the various parts of our country, to complete the investigation. it was precisely this very question, which arose before the supreme court in bashir v.orderv.d. gyani, j.1. heard shri amarsingh, learned counsel for the appellant as also shri khan, learned government advocate for the state.2. the petitioner was in fact released on bail under proviso to section 167(2), cr. p.c. but on filing the charge-sheet, the learned magistrate cancelled his bail bond an application was thereafter, made to the sessions court, which was met with dismissal.3. short question which arises for consideration is whether bail once granted under section 167(2), cr. p.c. can be subsequently cancelled on mere filing of challan without there being a prayer for cancellation of bail by the prosecution and without making out grounds for cancellation of bail the question which arises for consideration is whether by mere filing of challan after the expiry of the statutory period, this fact by itself, is sufficient to cancel bail? a mere reading of proviso to section 167(2), cr. p.c. would go to show that every person released on bail under this section shall be deemed to have been released on bail under the provisions of chapter xxxiii of the criminal procedure code. 4. learned sessions judge formulated two questions for consideration, the first question being whether the balance granted under section 161(2), cr. p.c. operates, even after filing of challan or passing of committal order by the magistrate? 5. going through the impugned order it appears that this' question has not been answered by the learned judge. the other question is whether bail granted under section 167(2), cr. p.c. can be cancelled in view of section 437(5), cr. p.c. and it is this question, which has been dealt by the learned sessions judge. dealing with the merits of the case, the learned judge came to the conclusion that bail cancelled by magistrate, in the circumstances, could not be said to be erroneous. so far as the question of merits is concerned, it cannot be said that bail once granted, can never be cancelled. it can be cancelled provided, the grounds for cancellation are made out to the satisfaction of the court.6. this is not the point raised in this petition. whether a person released on bail under section 167(2), cr. p.c. by mere filing of challan at subsequent stage loses his right to continue to remain on bail? which has not been decided by the learned sessions judge. the proviso as has been noted above, makes it clear that every person so released on bail under section 167(2), cr. p.c. would be deemed to have been enlarged on bail under the provisions of chapter xxxiii of the criminal procedure code. if that is so, when it is so provided under the law, the magistrate was certainly in error in cancelling the bail on mere filing of challan and the sessions judge in upholding it.7. on merits it has been noted above, that any bail order can be cancelled but the prosecution has to make out justifiable grounds for such cancellation. filing of challan ipso facto does not lead to cancellation of bail.8. few cases in this connection may now be seen. the supreme court in raghubir singh v. state of bihar : 1987crilj157 ; has held that the effect of the proviso is to entitle an accused person to be released on bail if the investigation agency fails to complete the investigation within 60 days or 90 days as the case may be, person released on bail under the proviso to section 167(2) for the default of the investigating agency is statutorily deemed to be released under the provisions of chapter xxxiii of the code for the purpose of that chapter.9. what is of importance is that there is no limit of time within which the bond may be executed after the order for release on bail is made.10. the accused persons are not to be deprived of the benefit of the order for release on bail in their favour because of their inability to furnish bail straightway. orders for release on bail are effective until an order is made under section 437(5) or 8.439(2):11. the result of our discussion and the case law in this : an order for release on bail made under the proviso to section 167(2) is not defeated by lapse of time, the filing of the charge-sheet or by remand to custody under section 309(2).12. it may be remembered that there was no provision corresponding to the proviso to section 167(2) in the old code of criminal procedure. the proviso was introduced for the first time in the new code of 1973. the reason for the introduction of the proviso was stated in the statement of objects and reasons as follows: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. the practice of doubtful legality has grown whereby the police file a 'preliminary' or incomplete charge-sheet and move the court for a remand under section 344, which is not intended to apply to the stage of investigation. while in some cases, the delay in the investigation may be due to the fault of the police, it cannot be deemed (denied?) that there may be genuine cases, where it may not be practicable to complete the investigation in fifteen days. the commission recommended that the period should be extended to 60 days but if this is done, 60 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 to the problem would be to confer on the magistrate the power to extend the period of detention beyond 15 days, whenever he is satisfied that adequate grounds exist for granting such detention (extension ?).13. in natabar parida v. state of orissa : air1975sc1465 the court explained the mandatory character of the requirement of the proviso to bail if the investigation is not completed within sixty days. the court said (scc p. 225 para 8 scc (cr.) p. 349 para 8) (sic).14. but then the command of the legislature in proviso (a) is that the accused person has got to be related on bail if he is prepared to and does furnish bail and cannot be kept in detention beyond the period of 60 days even if the investigation may still be proceeding. in serious offences of criminal conspiracy murders, dacoities, robberies, by inter-state gangs or the like, it may not be possible for the police, in the circumstances, as they do exist in the various parts of our country, to complete the investigation. legislature seems to be to grant no discretion to the court and to make it obligatory for it to release the accused on bail. of course, it has been provided in proviso (a) that the accused released on bail under section 167, will be deemed to be so released under the provisions of chapter xxxiii and for the purposes of that chapter. that may empower the court releasing him on bail, if it considers necessary so to do, to direct that such person be arrested and committed to custody as provided in sub-section (5) of section 437 occurring in chapter xxxiii. it is also clear that after the taking of the cognizance the power of remand is to be exercised under section 309 of the new code. but if it is not possible to complete, the investigation within a period of 60 days then even in serious and ghastly types of crimes the accused will 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.15. when an under trial prisoner is produced before a magistrate, and he has been in detention for 90 days or sixty days, as the case may be, the magistrate must before making an order of further remand to judicial custody point out to the undertrial prisoner that he is entitled to be released on bail. the magistrate must take care to see, that the right of the undertrial prisoner to the assistance of a lawyer provided at state cost is secured to him. (hussainara khatoon v. state of bihar : 1979crilj1052 . 16. some high courts have taken the view that for the exercise of power, the right under section 167(2), cr. p.c. the accused should make an application to the court to enlarge him on bail this view requiring the accused to take the initiative is contrary to the provisions of the section and the observations of the supreme court in hussainara's (supra) case. reading into the provision the requirement of an application is to defeat the purpose of the section. 17. the question whether a person, who has been released under the proviso to section 167(2), cr. p.c. could later be committed to custody merely because a challan was subsequently filed? it was precisely this very question, which arose before the supreme court in bashir v. state of haryana : 1978crilj173 . the supreme court categorically held that he would not be so committed to custody. it is in this very case that the supreme court has further held that dismissal of an application for bail on merits by the sessions court or high court, before an order was passed under section 167(2), cr. p.c. (such dismissal) is not a relevant consideration for cancellation of bail, granted under section 167(2), cr. p.c. 18. as a result of the foregoing discussion, cancellation of bail by the magistrate is held to be illegal the order passed by the sessions judge cannot be upheld it is also set aside. the applicant is directed to be released on bail on the same terms and conditions as he had already been directed by the magistrate, before cancelling his bail the petitioner shall, however, furnish fresh bail bonds.

Judgment:
ORDER

V.D. Gyani, J.

1. Heard Shri Amarsingh, learned Counsel for the appellant as also Shri Khan, learned Government Advocate for the State.

2. The petitioner was in fact released on bail under proviso to Section 167(2), Cr. P.C. but on filing the charge-sheet, the learned Magistrate cancelled his bail bond An application was thereafter, made to the Sessions Court, which was met with dismissal.

3. Short question which arises for consideration is whether bail once granted Under Section 167(2), Cr. P.C. can be subsequently cancelled on mere filing of challan without there being a prayer for cancellation of bail by the prosecution and without making out grounds for cancellation of bail The question which arises for consideration is whether by mere filing of challan after the expiry of the statutory period, this fact by itself, is sufficient to cancel bail? A mere reading of proviso to Section 167(2), Cr. P.C. would go to show that every person released on bail under this section shall be deemed to have been released on bail under the provisions of Chapter XXXIII of the Criminal Procedure Code.

4. Learned Sessions Judge formulated two questions for consideration, the first question being whether the balance granted Under Section 161(2), Cr. P.C. operates, even after filing of challan or passing of committal order by the Magistrate?

5. Going through the impugned order it appears that this' question has not been answered by the learned Judge. The other question is whether bail granted Under Section 167(2), Cr. P.C. can be cancelled in view of Section 437(5), Cr. P.C. and it is this question, which has been dealt by the learned Sessions Judge. Dealing with the merits of the case, the learned Judge came to the conclusion that bail cancelled by Magistrate, in the circumstances, could not be said to be erroneous. So far as the question of merits is concerned, it cannot be said that bail once granted, can never be cancelled. It can be cancelled provided, the grounds for cancellation are made out to the satisfaction of the Court.

6. This is not the point raised in this petition. Whether a person released on bail Under Section 167(2), Cr. P.C. by mere filing of challan at subsequent stage loses his right to continue to remain on bail? which has not been decided by the learned Sessions Judge. The proviso as has been noted above, makes it clear that every person so released on bail Under Section 167(2), Cr. P.C. would be deemed to have been enlarged on bail under the provisions of Chapter XXXIII of the Criminal Procedure Code. If that is so, when it is so provided under the law, the Magistrate was certainly in error in cancelling the bail on mere filing of challan and the Sessions Judge in upholding it.

7. On merits it has been noted above, that any bail order can be cancelled but the prosecution has to make out justifiable grounds for such cancellation. Filing of challan ipso facto does not lead to cancellation of bail.

8. Few cases in this connection may now be seen. The Supreme Court in Raghubir Singh v. State of Bihar : 1987CriLJ157 ; has held that the effect of the proviso is to entitle an accused person to be released on bail if the investigation agency fails to complete the investigation within 60 days or 90 days as the case may be, person released on bail under the proviso to Section 167(2) for the default of the investigating agency is statutorily deemed to be released under the provisions of Chapter XXXIII of the Code for the purpose of that Chapter.

9. What is of importance is that there is no limit of time within which the bond may be executed after the order for release on bail is made.

10. The accused persons are not to be deprived of the benefit of the order for release on bail in their favour because of their inability to furnish bail straightway. Orders for release on bail are effective until an order is made Under Section 437(5) or 8.439(2):

11. The result of our discussion and the case law in this : An order for release on bail made under the proviso to Section 167(2) is not defeated by lapse of time, the filing of the charge-sheet or by remand to custody under Section 309(2).

12. It may be remembered that there was no provision corresponding to the proviso to Section 167(2) in the old Code of Criminal Procedure. The proviso was introduced for the first time in the new Code of 1973. The reason for the introduction of the proviso was stated in the Statement of Objects and Reasons as follows:

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. The practice of doubtful legality has grown whereby the police file a 'preliminary' or incomplete charge-sheet and move the court for a remand under Section 344, which is not intended to apply to the stage of investigation. While in some cases, the delay in the investigation may be due to the fault of the police, it cannot be deemed (denied?) that there may be genuine cases, where it may not be practicable to complete the investigation in fifteen days. The Commission recommended that the period should be extended to 60 days but if this is done, 60 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 to the problem would be to confer on the Magistrate the power to extend the period of detention beyond 15 days, whenever he is satisfied that adequate grounds exist for granting such detention (extension ?).

13. In Natabar Parida v. State of Orissa : AIR1975SC1465 the Court explained the mandatory character of the requirement of the proviso to bail if the investigation is not completed within sixty days. The Court said (SCC p. 225 para 8 SCC (Cr.) p. 349 para 8) (sic).

14. But then the command of the Legislature in proviso (a) is that the accused person has got to be related on bail if he is prepared to and does furnish bail and cannot be kept in detention beyond the period of 60 days even if the investigation may still be proceeding. In serious offences of criminal conspiracy murders, dacoities, robberies, by inter-State gangs or the like, it may not be possible for the police, in the circumstances, as they do exist in the various parts of our country, to complete the investigation. Legislature seems to be to grant no discretion to the Court and to make it obligatory for it to release the accused on bail. Of course, it has been provided in proviso (a) that the accused released on bail Under Section 167, will be deemed to be so released under the provisions of Chapter XXXIII and for the purposes of that Chapter. That may empower the court releasing him on bail, if it considers necessary so to do, to direct that such person be arrested and committed to custody as provided in Sub-section (5) of Section 437 occurring in Chapter XXXIII. It is also clear that after the taking of the cognizance the power of remand is to be exercised under Section 309 of the new Code. But if it is not possible to complete, the investigation within a period of 60 days then even in serious and ghastly types of crimes the accused will 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.

15. When an under trial prisoner is produced before a magistrate, and he has been in detention for 90 days or sixty days, as the case may be, the magistrate must before making an order of further remand to judicial custody point out to the undertrial prisoner that he is entitled to be released on bail. The Magistrate must take care to see, that the right of the undertrial prisoner to the assistance of a lawyer provided at State cost is secured to him. (Hussainara Khatoon v. State of Bihar : 1979CriLJ1052 .

16. Some High Courts have taken the view that for the exercise of power, the right Under Section 167(2), Cr. P.C. the accused should make an application to the Court to enlarge him on bail This view requiring the accused to take the initiative is contrary to the provisions of the section and the observations of the Supreme Court in Hussainara's (supra) case. Reading into the provision the requirement of an application is to defeat the purpose of the section.

17. The question whether a person, who has been released under the proviso to Section 167(2), Cr. P.C. could later be committed to custody merely because a challan was subsequently filed? It was precisely this very question, which arose before the Supreme Court in Bashir v. State of Haryana : 1978CriLJ173 . The Supreme Court categorically held that he would not be so committed to custody. It is in this very case that the Supreme Court has further held that dismissal of an application for bail on merits by the Sessions Court or High Court, before an order was passed Under Section 167(2), Cr. P.C. (such dismissal) is not a relevant consideration for cancellation of bail, granted under Section 167(2), Cr. P.C.

18. As a result of the foregoing discussion, cancellation of bail by the Magistrate is held to be illegal The order passed by the Sessions Judge cannot be upheld It is also set aside. The applicant is directed to be released on bail on the same terms and conditions as he had already been directed by the Magistrate, before cancelling his bail The petitioner shall, however, furnish fresh bail bonds.