Firasat vs State Of U.P. & Another
2012 Latest Caselaw 2439 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

?Court No. - 50
 
Case :- CRIMINAL REVISION No. - 1773 of 2012
 
Petitioner :- Firasat
 
Respondent :- State Of U.P. & Another
 
Petitioner Counsel :- Krishn Mohan Tripathi,V.P. Srivastava
 
Respondent Counsel :- Govt. Advocate
 
Hon'ble Rajesh Dayal Khare,J.

Heard Sri V.P. Srivasvata, learned Senior Advocate, assisted by Sri K.M. Tripathi, learned counsel for the revisionist, Sri Brijesh Sahai, learned counsel for the opposite party no.2 and learned A.G.A. for the State respondent.

The present revision has been filed against the order dated 18.5.2012 passed by Additional Sessions judge, court no.3, Rampur in criminal revision no. 289 of 2011 (case crime no. 715 of 2011) under Section 147, 148, 149, 307, 302 I.P.C., P.S. Azim Nagar District Rampur, whereby revision filed by the prosecution has been allowed and the order dated 17.10.2011 passed by Chief Judicial Magistrate, Rampur has been set aside.

The brief facts of the case are that the first information report was lodged on 12.7.2011 regarding the alleged incident, which was committed on the same day, wherein it was alleged that the revisionist and five other persons committed murder of one Zamil Ahmad, which was registered as afore-detailed case crime number under the aforementioned sections of IPC.

It is contended by the learned counsel for the revisionist that the revisionist was in jail since 1.7.2011 and period of 90 days expired on 14.10.2011 and 15.10.2011 was the 91st day; that 14.10.2011 was Friday and 15.10.2011 was Saturday; that as the investigation was not completed and revisionist was further remanded to judicial custody till 18.10.2011, the revisionist moved an application under Section 167(2), Cr.P.C. interalia on the ground that since the investigation has not been completed within the statutory period of 90 days, thus, valuable right to be released on bail under Section 167(2), Cr.P.C. has accrued in favour of the revisionist in view of the settled principle of law as laid down by the Hon'ble Apex Court Udai Mohan Lal Acharya Vs. State of Maharashtra with the undertaking that the revisionist shall furnish reliable sureties; that the aforesaid application also contains the averment to the effect that if just to defeat the application under Section 167(2), Cr.P.c. the prosecution submits charge-sheet after filing of said application, the time of filing of charge-sheet be recorded and the said application is said to have been moved at 11.30 AM before the Chief Judicial Magistrate, Rampur, who called for the report from the office on the same day while recording the time. The office sent its report on the same day at 11.45 AM reporting that charge-sheet has not been received in the court; that after receipt of the report, bail application of the revisionist was heard and after hearing the prosecution also, order for release of the revisionist was passed on 17.10.2011, copy of which has been filed as annexure-4 to the affidavit; that in the morning hours on 17.10.2011 the Investigating Officer had prayed for further remand of the revisionist for 14 days to complete the investigation, on which the Chief Judicial Magistrate had remanded the revisionist up till 18.10.2011 to judicial custody, but in order defeat the application moved under Section 167(2), Cr.PC., the prosecution in the most hurried manner, submitted the charge-sheet against the revisionist and two others accused persons on 17.10.2011 at 1.15 PM, while investigation for rest of the accused is said to have remained pending and copy of the charge-sheet has been filed as annexure-5 to the affidavit; that the prosecution, thereafter, filed revision before the Sessions Judge against the release order of the revisionist dated 17.10.2011, which was transferred to the court of Additional Sessions Judge, court no.3, Rampur, in which revisionist also filed his objections; that in the interregnum, the complainant/opposite party no.2 also filed criminal misc. writ petition no. 21197 of 2011 before this Court, whereby release order dated 17.10.2011 was challenged and copy of writ petition was produced before the Additional Sessions Judge, court no. 3, Rampur on 21.4.2012 where the revision was pending, on which the Additional Sessions Judge directed the prosecution to produce the current position of the writ petition by 2nd May, 2012; that on 2nd May, 2012 the prosecution moved an application that they had already filed an application before the High Court for getting the writ petition dismissed as not pressed, in which revisionist had filed his objections on 9.5.2012, on which the Additional Sessions Judge directed that the order passed by High Court be produced; that the writ petition remained pending and the revisionist moved an application that unless the writ petition is decided by the High Court, no order should be passed in the pending criminal revision by the Additional Sessions Judge, vide application dated 17.5.2012, copy of which has been filed as annexure-10 to the affidavit; that the complainant/opposite party no.2 again moved an application on 18.5.2012 that since he has already moved an application for withdrawing the writ petition, therefore, matter may be heard; that by ignoring the application of the revisionist, the Additional Sessions Judge proceeded with the matter and allowed the revision vide order impugned dated 18.5.2012; that the Additional Sessions Judge has failed to record any infirmity or illegality in the order passed by Chief Judicial Magistrate and the revisional court also recorded the fact that 90 days expired on 15.10.2011 and 16.10.2011 was Sunday and on 17.10.2011 application under Section 167(2), Cr.p.C. was moved and till the filing of the said application no charge-sheet was filed and inspite of the aforesaid fact the revision was allowed; that the revisional court committed error in law in ignoring the fact that investigation was not completed on 17.10.2011 and I.O. had sought remand for further period of 14 days, on which Chief Judicial Magistrate had remanded the revisionist under judicial custody till 18.5.2012 and which fact itself shows that charge-sheet was submitted at 1.15 PM hurriedly only to defeat the application moved under Section 167(2), Cr.P.C. Further more, the revisional court committed error in law in failing to consider that the writ petition, which was filed by the complainant/opposite party no.2 was pending consideration before this Court, therefore, unless the same was decided, no order ought to have been passed in the criminal revision; that on 15.10.2011, 91 days was completed and statutory right under Section 167(2), Cr.P.c. had accrued in favour of the revisionist, which was also authenticated by the office report/ report of clerk of Chief Judicial Magistrate and even if any challan is submitted subsequent to filing of aforesaid report, it would not take away the right of the revisionist, which accrued under Section 167(2), Cr.P.C.; that the revisionist has not misused the liberty of bail granted to him; that no revision was maintainable against the order granting bail, which an interlocutory order and that order was passed after receipt of the charge sheet, in support of his contention learned counsel for the revisionist has placed reliance of the judgment of Hon'ble Apex Court in the matter of Amar Nath Vs. State of Haryana, reported in 1977 Laws (SC)-7-2 and in the matter of Usmanbhai Dawoodbhai Memon Vs. State of Gujarat, reported in 1988 Laws (SC)-3-22 (paragraph 24). It is further submitted that bail granted under section 167(2) or under Section 439 Cr.P.C. is at par.

It is contended by the learned counsel for the opposite party no.2 that no authority of Hon'ble Supreme Court or this Court has been produced before this Court, which pertains to the grant of bail or refusal of bail under Section 167(2), Cr.P.C.; that charge sheet was submitted by the prosecution on 17.10.2011, thereafter, order of release of the revisionist was passed by the Magistrate, which is illegal in view of the fact that at the time when the order was passed, charge sheet had already been filed; that the time to be considered with regard to statutory period of 90 days is not the time of filing of bail application but time of filing of bail bond after grant of bail as per the statutory provision of Section 167(2), Cr.P.C. In support of his contention learned counsel for the opposite party no.2 has relied upon the judgment of S. Pragyan Singh Thakur Vs. State of Maharashtra, reported in 2012 Vol 1 JIC 416 and has stated that against the order passed under section 167(2), Cr.P.C., revision is maintainable.

Learned counsel for the revisionist has contended that in the matter of Aslam Babalal Desai Vs. State of Maharashtra, reported in 1992 Laws (SC)-9-28, the matter relates to cancellation of bail, therefore, said judgment will not apply in the present facts and circumstance of the case.

From the above it is clear that it is undisputed that period of 90 days expired on 15.10.2011 and application for release of the revisionist under section 167(2), Cr.P.C. was filed on 17.10.2011, after calling for the office report and according to which report no charge-sheet had been filed, thereafter the matter was heard. It is also not disputed that charge-sheet was filed at 1.15 PM on 17.10.2011. The question is whether the right of revisionist to be released on bail under section 167(2), Cr.P.C. on the ground of non-filing of charge-sheet accrued immediately after filing of application or the same would accrue at the time of filing of bail bond, after passing of the bail order as per Section 167(2), Cr.P.C. the provision of which is quoted below:

167. Procedure when investigation cannot be completed in twenty-four hours.

(1)....................................

(2) The Magistrate to whom an accused person is forwarded under this section may, whether he has or has not jurisdiction to try the case, from time to time, authorise the detention of the accused in such custody as such Magistrate thinks fit, 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 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-

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 to 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 by the High Court, shall authorise detention in the custody of the police.

So far as the settled law on the aforesaid issued is concerned, which stands settled in view of the judgment of Hon'ble Apex Court in the case of in Udai Mohanlal Acharya Vs. State of Maharashtra, 2001 (42) ACC 952 (SC). In the aforesaid case the issue for consideration before Hon'ble Apex Court was that whether in such a situation where the prosecution had failed to file the charge sheet within the statutory period and the accused enforced his indefeasible right for being released on bail under proviso to Section 167(2) Cr.P.C. and also offered to furnish bail bonds but before the court passed any order on the release application, charge sheet was submitted, whether the indefeasible right which had accrued to an accused on account of non filing of charge sheet within the statutory period stood extinguished as a result of the filing of the charge sheet subsequently. The Hon'ble Apex Court has laid down that on the expiry of the said period of 90 days or 60 days, as the case may be, an indefeasible right accrues in favour of the accused for being released on bail on account of default by the investigating agency in the completion of the investigation within the period prescribed and the accused is entitled to be released on bail, if he is prepared to an furnish the bail, as directed by the Magistrate. When an application for bail is filed by an accused for enforcement of his indefeasible right alleged to have been accrued in his favour on account of default on the part of the investigating agency in completion of the investigation within the statutory period, the Magistrate must dispose it of forthwith, on being satisfied that in fact the accused has been in custody for the period of 90 days or 60 days, as the case may be and no charge sheet has been filed by the investigating agency. Such action on the part of the Magistrate will not enable the prosecution to frustrate the object of the Act and the legislative mandate of an accused being released on bail on account of the default on the part of the investigating agency in completing the investigation within the period stipulated. If the accused is unable to furnish bail, as directed by the Magistrate, then the conjoint reading of Explanation I and proviso to sub-section 2 of Section 167, the continued custody of the accused even beyond the specified period in paragraph (a) will not be unauthorized, and therefore, if during that period the investigation is completed and charge sheet is filed then the so-called indefeasible right of the accused would stand extinguished. The expression 'if not already availed of' used by the Court in Sanjay Dutt Vs. State through C.B.I. Bombay, reported in 1994 AIR SCW 3857 must be understood to mean when the accused files an application and is prepared to offer bail on being directed. In other words, on expiry of the period specified in paragraph (a) of proviso to sub-section (2) of Section 167 if the accused files an application for bail and offers also to furnish the bail, on being directed, then it has to be held that the accused has availed of his indefeasible right even though the Court has not considered the said application and has not indicated the terms and conditions of bail, and the accused has not furnished the same.

Thus, from the settled legal position, which emerges from a careful reading of the aforesaid judgments of the Hon'ble Apex Court, is that if the charge-sheet is not filed within the statutory period and accused moves an application before the concerned Magistrate for being released on bail and offers to furnish bail bonds then in such a case, even if the concerned Magistrate fails to pass any order on the bail application of the accused and keeps the same pending and in the meantime charge sheet is submitted, the indefeasible right which has accrued to the accused under proviso to Section 167(2) Cr.P.C. shall not be extinguished.

In view of the above, the submissions made by the learned counsel for the revisionist have substance.

Accordingly, the present revision is allowed and order dated 18.5.2012 passed by Additional Sessions judge, court no.3, Rampur in criminal revision no. 289 of 2011 (case crime no. 715 of 2011) under Section 147, 148, 149, 307, 302 I.P.C., P.S. Azim Nagar District Rampur is hereby set aside. No orders as to costs.

Order Date :- 1.6.2012

Ashish