State of Rajasthan Vs. Bhanwaru Khan and ors. - Court Judgment

Kalyan Dutta, J.

1. By his order dated 4-6-1974, the Chief Judicial Magistrate, Bikaner, released Bhanwaru Khan, Mohammad, Alfu, Ganni and Bhanwaru son of Rahaman, non-petitioners on bail upon each of them furnishing a personal bond in the amount of Rs. 10,000/-, together with two sureties for Rs. 5000/-, each. Aggrieved by the order of the Chief Judicial Magistrate, the State of Rajasthan moved the Sessions Judge, Bikaner, for cancellation of bail granted to the non-petitioners. The learned Sessions Judge, Bikaner, rejected the application for cancellation of bail by his order dated 17-9-1974. Hence, the State has come up to this Court by way of an application under Sub-section (2) of Section 439 of the new Criminal Procedure Code for a direction that the non-petitioners, who have been released op bail, be arrested and committed to custody.

2. I have carefully gone through the record and heard the arguments advanced by Shri G. A. Khan for the State of Rajasthan and Mr. V. S. Dave, learned Counsel for the non-petitioners. It has been strenuously urged before me on behalf of the State that when the offence alleged to have been committed by the accused persons is a grave one like murder or an organised riot and there are reasonable grounds for believing that the accused persons have been guilty of an offence punishable with death or imprisonment for life, the Court ought not to have generally granted bail merely on the ground that the investigation could not be completed within a period of 60 days and that on the expiry of the said period of 60 days the accused person or persons became entitled to be released on bail under proviso (a) appended to Sub-section (2) of Section 167, Criminal Procedure Coda 1973. It was further urged that the provisions contained in proviso (a) to Sub-section (2) of Section 167, Cr. P. C. are not of a mandatory nature and are controlled by other provisions of the Code contained in Sections 309(2), 437 and 439 thereof, Mr. V. S. Dave appearing on behalf of the non-petitioners, on the other hand, contended that in the present case there has been unnecessary delay on the part of the investigating agency in completing the investigation and in submitting a report under Sub-section (2) of Section 173, Cr. P, C. to the Magistrate empowered to take cognizance of the offence on a police report, with the result that the non-petitioners were detained in custody for a total period exceeding 60 days and that on the expiry of the said period of 60 days the non-petitioners were rightly enlarged on bail by the Chief Judicial Magistrate as they were prepared to furnish bail bonds and in fact did furnish the same. According to Mr. V. S. Dave, the non-petitioners shall be deemed to have been released under the provisions of Chapter XXXIII of the Code which contains provisions as to bail and bonds and that their bail cannot be cancelled merely on the ground that they are involved in serious offences,

3. I have given my anxious consideration to the rival contentions. The short question that arises for determination is whether the provisions contained in proviso (a) to Sub-section (2) of Section 167 of the Criminal Procedure Code, 1973, are mandatory in the sense that non-observance thereof renders the detention of the accused illegal after a total period of 60 days from the date of his arrest. To decide this question, it is necessary to consider the actual words used in this proviso and to find out the real intention of the Legislature, The proviso (a) to Sub-section (2) of Section 167, has been newly inserted in the Code of Criminal Procedure, 1973, in the following words:

The Magistrate may authorise detention of the accused person, otherwise than in 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 section for a total period exceeding sixty days, and on the expiry of the said period of sixty 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 section shall be deemed to be so released under the provisions of Chapter XXXIII for the purposes of that Chapter;

From a bare reading of the words used in this proviso to convey the intention of the Legislature, it appears that this new provision has been inserted in Section 167, C. P. C. to ensure that every investigation under this Chapter must be completed without unnecessary delay and that for this purpose a time-limit is set to the total period of a series of orders of remand under Section 167, Cr. P. C. Before the commencement of the new Code of Criminal Procedure there had been a practice of filing, incomplete charge-sheet by the police in many cases and of moving the court for remand under Section 344, Cr. P. C. before a complete challan was forwarded to the Magistrate for taking cognizance of an offence. This practice of doubtful legality resulted in causing hardship and misery to the accused in undergoing detention on remand for a considerably long period. A satisfactory solution of this problem was considered and the Legislature in its wisdom empowered the Magistrate to extend the period of detention, otherwise than in police custody, beyond 15 days, subject, of course, to a maximum time-limit of 60 days, if he is satisfied that sufficient grounds exist for granting such extension, It appears that the Legislature felt that a drastic remedy should be provided to check prolonged investigation. It has, therefore, been provided by enacting proviso (a) to Sub-section (2) of Section 167 Criminal P. C. that where an' accused person has been in custody for a total period of 60 days during investigation and such investigation is not completed, the accused shall be entitled to be released on bail irrespective of the fact whether the offence is bailable or not. If the words used in the said proviso are considered to be directory only, the benefit intended by the Legislature to be given to the accused by what is enjoined by this proviso will be taken away and accused will have to undergo detention for a considerably long period in some cases on account of the investigation being unnecessarily delayed. In this view of the matter, I have no hesitation in holding that the provisions contained in proviso (a) to Sub-section (2) of Section 167, Cr. P. C. are of a mandatory nature, meaning thereby that the contravention thereof renders illegal the detention of the accused under Section 167, Cr. P, C. beyond a total period of 60 days from the date of his arrest.

4. Shri G. A. Khan appearing on behalf of the State of Rajasthan contended before me that even after the expiry of a total period of 60 days the accused can be remanded to judicial custody under Section 309 of the Criminal Procedure Code by a Magistrate having jurisdiction to try the case although no police report has been submitted under Section 173, Cr. P. C. In support of his above contention he relied upon Explanation 1 appended to Section 309 which, according to him, contemplates such a stage prior to the submission of the final charge-sheet, if sufficient evidence has been procured to raise a suspicion that the accused may have committed an offence and it is likely that further evidence may be obtained by a remand. The above contention is without substance in view of the clear provisions embodied in Sub-section (2) of Section 309, Criminal P. C. which reads as follows:

If the Court, after taking cognizance of an offence, or commencement of trial, finds it necessary or advisable to postpone the commencement of, or adjourn, any inquiry or trial, it may, from time to time, for reasons to be recorded, postpone or adjourn the same on such terms as it thinks fit, for such time as it considers reasonable, and may by a warrant remand the accused if in custody:

Provided that no Magistrate shall remand an accused person to custody under this Section far a term exceeding fifteen days at a time;

Provided further that when witnesses are in attendance, no adjournment or postponement shall be granted, without examining them, except for special reasons to be recorded in writing.

Prior to the coming into force of the new Criminal Procedure Code, 1973, it was the view of some of the High Courts that a report under Section 173 was not a condition precedent to remand under Section 344 Criminal P. C. and that power under Section 344, old Criminal P. C. could be exercised by the Court where the police report had not been submitted under Section 173, but now the legal position has changed as Sub-section (2) of the present Section 309, which corresponds to Sub-section (1A) of the old Section 344, Criminal P. C. makes the taking of cognizance of an offence by the Magistrate or commencement of trial necessary before an order of remand can be passed under Section 309, Criminal P. C. The words 'after taking cognizance of an offence or commencement of a trial 'used in Sub-section (2) of Section 309, Criminal P. C. clearly indicate that the taking of cognizance of an offence by the court or commencement of a trial is a condition precedent to the exercise of powers of remand under this section, if the court thinks it necessary to postpone the commencement or adjourn any inquiry or trial for reasons to be recorded' for such period as it considers reasonable. Hence the contention of Shri G. A. Khan that the accused can be remanded under Section 309, Criminal Procedure Code beyond a total period of 60 days from the date of his arrest even where the police report has not been submitted and the cognizance has not been taken by the Magistrate, is untenable.

5. The next contention put forward by Shri G. A. Khan appearing on behalf of the State is that the release of the accused on bail under proviso (a) to Sub-section (2) of Section 167, Criminal P.C. may prejudice the investigation in some cases where the delay in investigation does occur on account of the conduct of the accused himself or on account of the case being of a complicated nature or on account of some other special reason. His contention, therefore, is that in such genuine cases where there is delay in investigation on account of no default of the police, the Magistrate may permit the continuance of the investigation and order detention of the accused otherwise than in police custody for a period beyond 60 days. The above contention has no substance, because proviso (a) to Sub-section (2) of Section 167, Criminal P. C. does not contemplate such a stage and because Sub-section (8) of Section 173, Criminal P. C. has been added as a new provision with a view to make it clear that evidence collected by the police after filing the charge-sheet can also be produced before the Court subject to the provisions of Sub-sections (2) to (6) thereof. The opening words contained in Sub-section (8) of Section 173, Criminal P, C. clearly emphasise that nothing in Section 173, Criminal P. C. shall be construed to preclude further investigation by the police in respect of an offence after a report under Sub-section (2) thereof has been forwarded to the Magistrate. Consequently, there is nothing in proviso (a) to Sub-section (2) of Section 167, Criminal P. C., which precludes investigation in respect of an offence beyond the total period of 60 days. The present proviso (a) to Sub-section (2) of Section 167, Criminal P. C, gives effect to the view or intention of the Legislature that where an accused person has been in custody for a total period of 60 days during investigation and such investigation is not completed, the Magistrate is not empowered to authorise his further detention and that he shall be entitled to be bailed out if he is prepared to and does furnish bail.

6. Mr. G.A. Khan further urged on behalf of the State that proviso (a) to Sub-section (2) of Section 167, Criminal Procedure Code is controlled by the provisions relating to bail. In support of his contention, Shri G, A, Khan invited my attention to Sub-section (1) of Section 437, Criminal P. C. which lays down that any person accused of or suspected of commission of any non-bailable offence shall not be released on bail if there appear reasonable grounds for believing that he has been guilty of an offence punishable with death or imprisonment for life and argued that an accused can be detained in custody even after the expiry of the total period of 60 days from the date of his arrest if there are reasonable grounds for believing that he has committed an offence punishable with death or imprisonment for life. The above contention also has no force, because it has been clearly mentioned in proviso (a) to Sub-section (2) of Section 167, Criminal P. C. that every person enlarged on bail under Section 167, Criminal P. C. shall be deemed to have been released under the provisions of Chapter XXXIII for the purpose of that Chapter. Hence the bail granted to an accused person under Section 167, Criminal P. C. shall be taken to have been granted under the provisions of Chapter XXXIII which includes, apart from other sections, Section 437, Criminal P. C. also. Had it been the intention of the Legislature that the provisions contained in proviso (a) to Sub-section (2) of Section 167, Criminal P. C. are merely directory, it would have made a provision therein that for reasons and in the interests of justice the Magistrate may authorise the detention of the accused person in custody under Section 167, Criminal P. C. even after the expiry of the total period of 60 days. In the absence of any such provision, it is not difficult to get at the real intention of the Legislature which appears to be that detention of the accused person otherwise than in police custody, may be authorised by the Magistrate-beyond the period of 15 days if he is satisfied that there are adequate grounds for doing se, but no Magistrate shall authorise detention of the accused person in custody under Section 167, Criminal P. C. for a total period of more than 60 days from the date of his arrest. In this view of the legal position, I am unable to hold that the learned Chief Judicial Magistrate committed an error in releasing the non-petitioners on bail under proviso (a) to Sub-section (2) of Section 167, Criminal P.C. after the expiry of total period of 60 days from the dates of their arrests.

7. Shri G. A. Khan appearing on behalf of the State, however, urged that bai granted to the non-petitioners should be cancelled on the ground that they have misused the liberty by coming into contact with some of the prosecution witnesses and by exercising undue influence on them with a view to dissuade them from giving evidence. In support of his above contention Mr. G. A. Kham relied upon the affidavits put in by Alfu, Rasut and Shakoor witnesses cited by the prosecution and upon a certified copy of the judgment dated 27-7-1971, in Sessions Case No. 30 of 1971 State v. Ganni and Zahuruddin. I have perused all these affidavits and the copy of the judgment, Alfu swore an affidavit stating therein that the non-petitioners are holding out threats to him with a view to dissuading him from giving evidence against them in the case and that on 12-2-1975 when he went to the court of Sessions Judge, Eikaner for giving evidence in the case, Alfu, Mohammed and Bhanwaru non-petitioners threatened him with dire consequences in case he deposed against them in the court. He further stated on oath that on 14-2-75 he had gone to appear in the court of the City Magistrate, Bikaner, in a case under Section 107, Criminal P. C. and that when he was standing in the public park, these three non-petitioners threatened to kill him, his wife and children in case he appeared in the witness-box to give evidence against them. Similar are the allegations in the affidavits of Shakoor and Rasul. They also have stated in their affidavits that the non-petitioners held out threats to them and have made efforts to dissuade them from giving evidence against them all. The non-petitioners on the other hand, denied that they have intimidated the prosecution witnesses or in any manner have abused the concession of bail granted to them by the Chief Judicial Magistrate, They also put in their affidavits to controvert the allegations of threat and intimidation made in the affidavits of the prosecution witnesses. The affidavits of the non-petitioners clearly reveal that the three witnesses, Shakoor. Alfu and Rasul are involved in the murder of one Bashir who is the nephew of Bhanwani Khan son of Ajmeri Khan and Mohammed non-petitioners and that a criminal case is pending against them in the Court of Sessions Judge, Bikaner, in which the non-petitioners are cited as witnesses from the side of the prosecution. In view of bad blood and highly strained relations between them and the witnesses, it is very difficult to believe that the non-petitioners have intimidated the three witnesses or exerted undue influence on them so as to dissuade them from giving evidence in this case. The accused non-petitioners know it well that these witnesses are deadly against them and cannot be won over even by exerting undue influence. Apart from this, it cannot be lost sight of that no such allegation of 'tampering with or intimidating these witnesses was made before the learned Sessions Judge, Bikaner, or before the Chief Judicial Magistrate. They are not made even in the application for cancellation of bail filed by the State in this Court, Consequently, I am not satisfied that the non-petitioners will tamper with the prosecution evidence. Likewise the fact that out of the non-petitioners, Ganni was convicted in a criminal case under Section 325, I. P. C. previously on 27-7-1971 is no reason to cancel bail granted to him in this subsequent case.

8. The result of the above discussion is that the application for cancellation of bail granted to the non-petitioners has no force and is hereby dismissed.