Barkat vs State Of U.P. & Another
2018 Latest Caselaw 3228 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

Reserved
 
A.F.R
 
Court No. - 53
 

 
Case :- CRIMINAL REVISION No. - 3395 of 2017
 

 
Revisionist :- Barkat
 
Opposite Party :- State Of U.P. & Another
 
Counsel for Revisionist :- Kameshwar Singh
 
Counsel for Opposite Party :- G.A.
 

 
Hon'ble J.J. Munir,J.

1. This Criminal Revision is directed against an order of Sri D.P.N. Singh, the then Additional Sessions Judge, Court no.1, Banda, dated 22.09.2017 passed in Criminal Misc. Case no.29 of 2017, Barkat vs. State of U.P., under Section 167(2) Cr.P.C. relating to Special Case no.16 of 2017, State vs. Barkat (arising out of Case Crime no.342 of 2017), under Section 8/20 of The Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as the 'Act'), Police Station Kotwali Nagar, District Banda, rejecting an application by the revisionist to be enlarged on default bail by lapse, under Section 167(2) Cr.P.C. in the aforesaid case.

2. Heard Sri Kameshwar Singh, learned counsel for the revisionist and Sri Akhilesh Kumar Mishra, learned A.G.A. along with Sri Avaneesh Shukla, learned counsel appearing for the State.

3. The moot question involved in the present case is: whether the right to be released on default bail under the provisions of Section 167(2) Cr.P.C. is available to an accused detained in connection with offences under the Act, and, to whom the provisions of Section 36-A(4) of the Act apply?

4. A First Information Report dated 01.06.2017 giving rise to Case Crime no.342 of 2017 was registered against the revisionist, Barkat by the Officer In-charge, Police Station Kotwali Nagar, District Banda, under Section 8/20 of the Act, on allegations that the police party, acting on a tip off from an informer, apprehended the revisionist at 19:30 hours on 01.06.2017. The revisionist on seeing the police party made an attempt to run away and was, accordingly, apprehended as a suspect. Upon inquiry about the cause for his attempt to avoid the police, the revisionist disclosed that the bag that he was carrying had dried Ganja, that he was carrying to sell. After going through the formalities of search, seizure and arrest, in accordance with the provisions of the Act, the recovered narcotic drug was found in the weight of 10 kg. and 100 grams.

5. The revisionist was arrested on 01.06.2017. He was remanded to judicial custody on 02.06.2017, and, is in jail since then. The case was investigated by the police and a charge sheet came to be filed on 31.08.2017. There is a slight issue on facts here raised by the revisionist, who says that it was not filed on 31.08.2017, but on 01.09.2017. The said fact for the purpose of answering the issue involved is not very material, because in either case, it is common ground between parties, that the charge sheet was filed beyond the statutory period of 90 days, stipulated under Section 167(2) Cr.P.C.

6. The revisionist made an application seeking release on bail under Section 167(2) Cr.P.C. on 31.08.2017, saying that it being the 91st day of his detention, and, a charge sheet having not been submitted, the revisionist is entitled to default bail. It appears that the court called for a report from the Police Station, fixing a date on 03.09.2017, that fell on a Sunday. The case was, therefore, taken up on the next working day, that is to say, 04.09.2017 when the Additional District Government Counsel prayed for and was granted 15 days time to answer the application, adjourning it for orders to 18.09.2017. The application was heard on 22.09.2017, and, was rejected by an order of the said date.

7. Aggrieved the present revision has been filed, seeking reversal of the said order.

8. The learned counsel for the revisionist has submitted that under the provisions of Section 167(2) Cr.P.C. the right to default bail crystallizes on the expiry of the 90th days of detention, and, the Magistrate and a fortiori the Special Judge under the Act, would have no option but to release an accused on bail where the right is invoked on the expiry of 90 days, even if a charge sheet is filed on the day next following, that is the 91st day.

9. He submits that in the present case on the basis of record, the charge sheet was filed on 01.09.2017, that is to say, on the 92nd day whereas the stand of the State is that it was filed on 31.08.2017, as already noticed, That does not make much of a difference to the legal position, once it is a case of detention beyond 90 days, the right being claimed immediately after the expiry of 90 days to be released. It is submitted that the supervening filing of a charge sheet on the 91st day, would not lead to defeasance of the right, already crystalized. He submits that it is quite another matter, that post filing of the charge sheet, the Investigating Agency may proceed to arrest or re-arrest the accused on the basis of the offence disclosed in the charge sheet, subject to the right of the revisionist to seek regular bail under Section 439 Cr.P.C.

10. In support of the proposition the learned counsel for the revisionist has relied upon the decision of the Hon'ble Supreme Court in Rakesh Kumar Paul vs. State of Assam, 2018 Cri LJ 155, where his Lordship Hon'ble Madan B. Lokur, J delivering the majority opinion held:

"Default bail as an indefeasible right

33. It was submitted by learned counsel for the State that the charge sheet having been filed against the petitioner on 24th January, 2017 the indefeasible right of the petitioner to be now released on ''default bail' gets extinguished and the petitioner must apply for regular bail.

34. What is forgotten is that the indefeasible right for ''default bail' accrued to the petitioner when the period of 60 days for completing the investigation and filing a charge sheet came to an end on 3rd or 4th January, 2017 and that the indefeasible right continued till 24th January, 2017. The question is whether during this interregnum the petitioner was entitled to ''default bail' or not? Ordinarily, the answer would be "yes" but in the present case, the petitioner was not granted bail and a charge sheet was filed against him on 24th January, 2017. Was his indefeasible right completely taken away?

35. Our attention was drawn to the decision of the Constitution Bench in Sanjay Dutt v. State. In paragraph 46 of the Report it was conceded by learned counsel appearing for the accused that the indefeasible right is enforceable only up to the filing of a charge sheet or challan and does not survive after the charge sheet or challan is filed in the court against him. This submission was not refuted by but agreed to by the learned Additional Solicitor General appearing for the State. The submission made by both the learned counsels was based on an interpretation of the decision of this Court in Hitendra Vishnu Thakur v. State of Maharashtra9 which was a case under the Terrorist and Disruptive Activities (Prevention) Act, 1987.

36. While dealing with this common stance, the Constitution Bench in Sanjay Dutt made it clear in paragraph 48 of the Report that the indefeasible right accruing to the accused is enforceable only prior to the filing of the charge sheet and it does not survive or remain enforceable thereafter, if already not availed of. In other words, the Constitution Bench took the view that the indefeasible right of ''default bail' continues till the charge sheet or challan is (1994) 5 SCC 410 (1994) 4 SCC 602 filed and it gets extinguished thereafter. This is clear from the conclusion stated by the Constitution Bench in paragraph 53(2)(b) of the Report. This reads as follows:

"(2)(b) 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 enures 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. The right of the accused to be released on bail after filing of the challan, notwithstanding the default 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 applicable at that stage."

37. This Court had occasion to review the entire case law on the subject in Union of India v. Nirala Yadav, (2014) 9 SCC 457. In that decision, reference was made to Uday Mohanlal Acharya v. State of Maharashtra, (2001) 5 SCC 453 and the conclusions arrived at in that decision. We are concerned with conclusion No. 3 which reads as follows:

"(3) 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 and furnishes the bail as directed by the Magistrate."

38. This Court also dealt with the decision rendered in Sanjay Dutt and noted that the principle laid down by the Constitution Bench is to the effect that if the charge sheet is not filed and the right for ''default bail' has ripened into the status of indefeasibility, it cannot be frustrated by the prosecution on any pretext. The accused can avail his liberty by filing an application stating that the statutory period for filing the charge sheet or challan has expired and the same has not yet been filed and therefore the indefeasible right has accrued in his or her favour and further the accused is prepared to furnish the bail bond.

39. This Court also noted that apart from the possibility of the prosecution frustrating the indefeasible right, there are occasions when even the court frustrates the indefeasible right. Reference was made to Mohamed Iqbal Madar Sheikh v. State of Maharashtra, (1996) 1 SCC 722, wherein it was observed that some courts keep the application for ''default bail' pending for some days so that in the meantime a charge sheet is submitted. While such a practice both on the part of prosecution as well as some courts must be very strongly and vehemently discouraged, we reiterate that no subterfuge should be resorted to, to defeat the indefeasible right of the accused for ''default bail' during the interregnum when the statutory period for filing the charge sheet or challan expires and the submission of the charge sheet or challan in court.

Procedure for obtaining default bail

40. In the present case, it was also argued by learned counsel for the State (1996) 1 SCC 722 that the petitioner did not apply for ''default bail' on or after 4th January, 2017 till 24th January, 2017 on which date his indefeasible right got extinguished on the filing of the charge sheet. Strictly speaking this is correct since the petitioner applied for regular bail on 11th January, 2017 in the Gauhati High Court - he made no specific application for grant of ''default bail'. However, the application for regular bail filed by the accused on 11th January, 2017 did advert to the statutory period for filing a charge sheet having expired and that perhaps no charge sheet had in fact being filed. In any event, this issue was argued by learned counsel for the petitioner in the High Court and it was considered but not accepted by the High Court. The High Court did not reject the submission on the ground of maintainability but on merits. Therefore it is not as if the petitioner did not make any application for default bail - such an application was definitely made (if not in writing) then at least orally before the High Court. In our opinion, in matters of personal liberty, we cannot and should not be too technical and must lean in favour of personal liberty. Consequently, whether the accused makes a written application for ''default bail' or an oral application for ''default bail' is of no consequence. The concerned court must deal with such an application by considering the statutory requirements namely, whether the statutory period for filing a charge sheet or challan has expired, whether the charge sheet or challan has been filed and whether the accused is prepared to and does furnish bail.

41. We take this view keeping in mind that in matters of personal liberty and Article 21 of the Constitution, it is not always advisable to be formalistic or technical. The history of the personal liberty jurisprudence of this Court and other constitutional courts includes petitions for a writ of habeas corpus and for other writs being entertained even on the basis of a letter addressed to the Chief Justice or the Court.

42. In Sunil Batra II v. Home Secretary, Delhi Administration, (1980) 3 SCC 488, this Court accepted a letter, which was treated as petition, written by a prisoner in Tihar Jail, Delhi complaining of inhuman torture inflicted on another prisoner by the Jail Warder. In Hussainara Khatoon v. State of Bihar, (1980) 1 SCC 98 a number of writ petitions, some by way of a letter, were grouped together and treated as habeas corpus petitions. In Rubabbuddin Sheikh v. State of Gujarat, (2007) 4 SCC 318 the brother of the deceased wrote a letter to the Chief Justice of India complaining of a fake encounter and subsequent disappearance of his sister-in-law. This was treated as a habeas corpus petition. In Kishore Singh Ravinder Dev v. State of Rajasthan, (1981) 1 SCC 503 the petitioners sent a telegram to a learned judge of this Court complaining of solitary confinement of prisoners. The telegram was treated as a habeas corpus petition and the concerned persons were directed to be released from solitary confinement. In Paramjit Kaur (Mrs.) v. State of Punjab, (1996) 7 SCC 20 a telegram received at the residential office of a learned judge of this Court (1980) 3 SCC 488 (1980) 1 SCC 98 (2007) 4 SCC 318 (1981) 1 SCC 503 (1996) 7 SCC 20 alleging an incident of kidnapping by the police was treated as a habeas corpus petition. In Bandhua Mukti Morcha v. Union of India, (1984) 3 SCC 161 a petition addressed to a learned judge of this Court relating to the inhumane and intolerable conditions of stone quarry workers in many States and how many of them were bonded labour was treated as a writ petition on the view that the "Constitution-makers deliberately did not lay down any particular form of proceeding for enforcement of a fundamental right nor did they stipulate that such proceeding should conform to any rigid pattern or straight-jacket formula". In People's Union for Democratic Rights v. Union of India, AIR 1982 SC 1473 a letter addressed to a learned Judge of this Court concerning violation of various labour laws in the construction projects connected to the Asian Games was treated as a writ petition. In Dr. Upendra Baxi (I) v. State of Uttar Pradesh, (1983) 2 SCC 308 a letter relating to inhuman conditions in the Agra Protective Home for Women was treated as a writ petition and in Sheela Barse v. State of Maharashtra, (1983) 2 SCC 96 a letter addressed by a journalist complaining of custodial violence against woman prisoners in Bombay was treated as a writ petition. These cases are merely illustrative of the personal liberty jurisprudence of this Court and in matters pertaining to Article 21 of the Constitution of India this Court has consistently taken the view that it is not advisable to be ritualistic and formal. However, we must make it clear that we should not be understood to suggest that procedures must always be given a go-by - that is certainly not our intention.

Duty of the Courts

43. This Court and other constitutional courts have also taken the view that in the matters concerning personal liberty and penal statutes, it is the obligation of the court to inform the accused that he or she is entitled to free legal assistance as a matter of right. In Khatri v. State of Bihar, (1981) 1 SCC 627 the Judicial Magistrate did not provide legal representation to the accused since they did not ask for it. It was held by this Court that this was unacceptable and that the Magistrate or the Sessions Judge before whom an accused appears must be held under an obligation to inform the accused of his or her entitlement to obtain free legal assistance at the cost of the State. In Suk Das v. Union Territory of Arunachal Pradesh, (1986) 2 SCC 401 the accused was tried and convicted without legal representation, due to his poverty. He had not applied for legal representation but notwithstanding this, this Court held that the trial was vitiated and the sentence awarded was set aside, particularly since the accused was not informed of his entitlement to free legal assistance, nor was an inquiry made from him whether he wanted a lawyer to be provided at State expense. In Rajoo @ Ramakant v. State of Madhya Pradesh, (2012) 8 SCC 553 the High Court dismissed the appeal of the accused without enquiring whether he required legal assistance at the expense of the State even though he was unrepresented. Relying on Khatri and Suk Das this Court remanded his appeal to the High Court for re-hearing after giving an opportunity to the accused to take legal assistance. Finally, in Mohammed Ajmal Mohammad Amir Kasab v. State of Maharashtra, (2012) 9 SCC 1 this Court relied on Khatri and held that in paragraph 474 of the Report as follows:

"... it is the duty and obligation of the Magistrate before whom a person accused of committing a cognizable offence is first produced to make him fully aware that it is his right to consult and be defended by a legal practitioner and, in case he has no means to engage a lawyer of his choice, that one would be provided to him from legal aid at the expense of the State. The right flows from Articles 21 and 22(1) of the Constitution and needs to be strictly enforced. We, accordingly, direct all the Magistrates in the country to faithfully discharge the aforesaid duty and obligation and further make it clear that any failure to fully discharge the duty would amount to dereliction in duty and would make the Magistrate concerned liable to departmental proceedings."

44. Strong words indeed. That being so we are of the clear opinion that adapting this principle, it would equally be the duty and responsibility of a court on coming to know that the accused person before it is entitled to ''default bail', to at least apprise him or her of the indefeasible right. A contrary view would diminish the respect for personal liberty, on which so much emphasis has been laid by this Court as is evidenced by the decisions mentioned above, and also adverted to in Nirala Yadav.

Application of the law to the petitioner

45. On 11th January, 2017 when the High Court dismissed the application for bail filed by the petitioner, he had an indefeasible right to the grant of ''default bail' since the statutory period of 60 days for filing a charge sheet had expired, no charge sheet or challan had been filed against him (it was filed only on 24 th January, 2017) and the petitioner had orally applied for ''default bail'. Under (2012) 9 SCC 1 these circumstances, the only course open to the High Court on 11 th January, 2017 was to enquire from the petitioner whether he was prepared to furnish bail and if so then to grant him ''default bail' on reasonable conditions. Unfortunately, this was completely overlooked by the High Court.

46. It was submitted that as of today, a charge sheet having been filed against the petitioner, he is not entitled to ''default bail' but must apply for regular bail - the ''default bail' chapter being now closed. We cannot agree for the simple reason that we are concerned with the interregnum between 4th January, 2017 and 24th January, 2017 when no charge sheet had been filed, during which period he had availed of his indefeasible right of ''default bail'. It would have been another matter altogether if the petitioner had not applied for ''default bail' for whatever reason during this interregnum. There could be a situation (however rare) where an accused is not prepared to be bailed out perhaps for his personal security since he or she might be facing some threat outside the correction home or for any other reason. But then in such an event, the accused voluntarily gives up the indefeasible right for default bail and having forfeited that right the accused cannot, after the charge sheet or challan has been filed, claim a resuscitation of the indefeasible right. But that is not the case insofar as the petitioner is concerned, since he did not give up his indefeasible right for ''default bail' during the interregnum between 4th January, 2017 and 24th January, 2017 as is evident from the decision of the High Court rendered on 11th January, 2017. On the contrary, he had availed of his right to ''default bail' which could not have been defeated on 11th January, 2017 and which we are today compelled to acknowledge and enforce.

47. Consequently, we are of opinion that the petitioner had satisfied all the requirements of obtaining ''default bail' which is that on 11th January, 2017 he had put in more than 60 days in custody pending investigations into an alleged offence not punishable with imprisonment for a minimum period of 10 years, no charge sheet had been filed against him and he was prepared to furnish bail for his release, as such, he ought to have been released by the High Court on reasonable terms and conditions of bail.

48. It may be mentioned that learned counsel for the petitioner had contended that the extended period of 90 days for filing a charge sheet would not apply to the petitioner since he is not covered by the provisions of the Lokpal and Lokayuktas Act, 2013 and therefore the maximum sentence that could be awarded to him would be 7 years under the Prevention of Corruption Act, 1988. This argument of desperation is recorded only to be summarily rejected. Even if the petitioner is not within the purview of the Lokpal and Lokayuktas Act, 2013 he is certainly not outside the purview of the PC Act and can be prosecuted and punished for a violation of Section 13(1) thereof. There is absolutely no cogent reason for excluding the petitioner from the rigours of the PC Act as amended by the Lokpal and Lokayuktas Act, 2013.

Conclusion

49. The petitioner is held entitled to the grant of ''default bail' on the facts and in the circumstances of this case. The Trial Judge should release the petitioner on ''default bail' on such terms and conditions as may be reasonable. However, we make it clear that this does not prohibit or otherwise prevent the arrest or re-arrest of the petitioner on cogent grounds in respect of the subject charge and upon arrest or re-arrest, the petitioner is entitled to petition for grant of regular bail which application should be considered on its own merit. We also make it clear that this will not impact on the arrest of the petitioner in any other case."

11. The above enunciation of the law that takes into consideration the decision of the Constitution Bench in Sanjay Dutt vs. State of Maharashtra, (1994) 5 SCC 410, as also the decision of their Lordships in Hitendra Vishnu Thakur vs. State of Maharashtra, (1994) 4 SCC 602 and, upon review of a wealth of authority relating to the issue of liberty, holds the right to default bail under Section 167(2) Cr.P.C. to be indefeasible subject, of course, to the right of the Investigating Agency, to re-arrest the accused on the basis of charges that appear against him, vindicated by the charge sheet filed.

12. This, however, is all that the law generally is, by the terms of Section 167(2). Given the said legal position, a statutory modification of the period of detention can certainly be there, in case there is a special statute in the field operating to modify the calendar of investigation, envisaged under Section 167(2) Cr.P.C.

13. The learned A.G.A. submits that this is precisely the position in the present case, of which the learned Trial Judge has taken note in the concluding part of his order. He has fallen back on the provisions of Section 36-A(4) of the Act to deny, amongst other grounds, the right of default bail to the revisionist. It is submitted that the provisions of Section 36-A(4) of the Act, do modify the calendar of investigation in express terms, otherwise envisaged under Section 167 Cr.P.C. The provisions of Section 36-A(4) may be extracted here:

"36-A - Offences triable by Special Courts -(1) x x x

(2) x x x x

(3) x x x x

(4) In respect of persons accused of an offence punishable under section 19 or section 24 or section 27-A or for offences involving commercial quantity the references in sub-section (2) of section 167 of the Code of Criminal Procedure, 1973 (2 of 1974), thereof to "ninety days", where they occur, shall be construed as reference to "one hundred and eighty days":

Provided that, if it is not possible to complete the investigation within the said period of one hundred and eighty days, the Special Court may extend the said period up to one year on the report of the Public Prosecutor indicating the progress of the investigation and the specific reasons for the detention of the accused beyond the said period of one hundred and eighty days.

(5) x x x x"

14. A perusal of the impugned order shows that the learned Special Judge has invoked the provisions of Section 36-A(4), on foot of the provisions of Section 27A read with Section 2(viii-a)(iii) of the Act, to apply the longer schedule of remand of 180 days, in place of 90 days, envisaged under Section 167(2) Cr.P.C.

15. It may be noticed, and, was for a fact, argued by the learned counsel for the revisionist, that the provisions of Section 36-A(4) of the Act would not apply, inasmuch as, the revisionist has not been remanded under Section 27-A at all, but under Section 8/20 of the Act. Learned counsel has submitted that the Trial Judge has erred in resting his reasoning on the provisions of Section 27-A, to invoke the provisions of Section 36-A(4) of the Act. Decidedly, the learned Judge has fallen back on the provisions of Section 27-A of the Act. The question is, whether the provisions of Section 27-A of the Act can be applied to a case, where the remand is under Section 8/20 of the Act. It is well settled that the court that is seized of a police report is not restricted in its vision, as to the offences made out against an accused to what the Investigating Agency moots as the offences, under which an accused is liable. It is for the court to determine on the basis of available material, what offences are made out, of which the court should take cognizance. The provisions of Section 27-A of the Act read:

"27 A. Punishment for financing illicit traffic and harbouring offenders.-Whoever indulges in financing, directly or indirectly, any of the activities specified in sub-clauses (i) to (v) of clause (viiia) of section 2 or harbours any person engaged in any of the aforementioned activities, shall be punishable with rigorous imprisonment for a term which shall not be less than ten years but which may extend to twenty years and shall also be liable to fine which shall not be less than one lakh rupees but which may extend to two lakh rupees:

Provided that the court may, for reasons to be recorded in the judgment, impose a fine exceeding two lakh rupees."

16. This Court while going through the provisions of Section 2(viii-a)(iii) was a bit perplexed to find a provision, numbered as Section 2(viii-a), that did not at all fit into the scheme of Section 27-A. The Trial Judge also, has referred to the provisions of Section 2(viii-a)(iii), that are entirely at variance with those provisions, to be found in the statute. The Court was partially relieved to find, through a foot note, that by Act no.16 of 2014, the provisions of Section 2 of the Act have been amended, where clause (viii-a) of Section 2 has been relettered as clause (viii-b). There is no corresponding amendment to the provisions, mentioned in Section 27-A. This creates not much of a problem - not even a crease to be ironed out - since Act no.16 of 2014, just amends the provisions of Section 2(viii-a) by relettering them as 2(viii-b). The reference to the provisions of Section 2(viii-a) in Section 27-A of the Act, a fortiori bear reference to the provisions of Section 2(viii-b) and its sub-clauses (i) to (v); for the purpose of the present case, sub-clause (iii) alone.

17. The provisions of Section 2(viii-b) (iii) read:

"Section 2. Definitions. - In this Act, unless the context otherwise requires, -

(i) x x x

(ii) x x x

(iii) x x x

(iv) x x x

(v) x x x

(vi) x x x

(vii) x x x

(viiia) x x x

(viiib) "illicit traffic", in relation to narcotic drugs and psychotropic substances, means-

(i) x x x

(ii) x x x

(iii) engaging in the production, manufacture, possession, sale, purchase, transportation,warehousing, concealment, use or consumption, import inter-State, export inter-State, import into India, export from India or transhipment, of narcotic drugs or psychotropic substances;

(iv) x x x

(v) x x x"

(emphasis by court)

18. Decidedly the act of the revisionist, of which he stands charged, falls into more than one of the categories envisaged under Section 2(viiib), where he was apprehended in possession of a narcotic drug, Ganja, that he was transporting for sale, so far as the charge goes. It is well settled that a Court even at the stage of remand under Section 167 Cr.P.C. is not bound by the police report as regards the offence(s) under which an accused is to be remanded. The Magistrate can look into the contents of the police report, and, remand the accused, under a custody warrant to jail, mentioning offences that appear to be involved, going by the material available. The aforesaid issue arose before this Court in Harihar Chaitanya vs. State of U.P., 1990 CriLJ 2082, in the context of remand of an accused under Section 307 IPC through a custody warrant to jail pending investigation, where the police had registered the crime under Section 336 and 506 IPC. The order of remand under Section 307 IPC was challenged through a petition under Section 482 Cr.P.C., where repelling the challenge, this Court held:

"5. In this legal background let us consider the nature of the impugned order passed by the Magistrate, obviously under Section 167 of the Code which provides for the procedure to be adopted by the police, if investigation cannot be completed in twenty-four hours. The police produces the accused in custody and also relevant papers before the Magistrate and prayed for the detention of the accused in judicial or police custody. The Magistrate looks into the material placed before him and is expected to apply his mind before passing an order at that stage. Thus although the matter is at initial stage of the investigation, the Magistrate while passing order under Section 167 of the Code, performs judicial functions.

6. Now, if the Magistrate decides to remand the accused to judicial custody, a warrant is prepared and signed by him requiring the Superintendent Jail to detain that person in jail for a period to be clearly specified therein. Undoubtedly, the person is detained for committing some offence punishable under some statute. The Magistrate has, therefore, to mention in his order the relevant section which stands attracted. He is, in my opinion, within his rights to go through the contents of the report of the occurrence and form an opinion in regard to the section under which the accused is to be detained in jail and he is legally empowered to direct the preparation of the warrant accordingly. The Magistrate is not bound by the opinion of the Investigating Officer in regard to the applicability of the section under which the alleged offence falls. True, while doing so, a Magistrate has not to make a sort of salvaging operation for arriving at a conclusion as to which section of the statute stands attracted but he can undoubtedly, prima facie, look into the contents of the first information report and disagree with the opinion formed by the police about the penal provision which covers the case. The matter can be elucidated by examples:

(i) The contents of a report, prima facie, make out a case of simple theft but the Investigating Officer writes, the offence, falls under Section 395 of the Indian Penal Code.

(ii) The recitals of report and the medical report do not disclose the user of any dangerous weapon for causing grievous hurt, yet the police registers it as a crime under Section 326 of the Indian Penal Code. Such examples can be multiplied. The Magistrate is, in my opinion, well within his rights to differ from the police and can direct for the detention of the accused under relevant section of the Statute. The instant case falls in this category and it is idle to contend that the orders of this nature cause interference with the investigation."

19. The act of the revisionist being one that in the teeth of Section 2(viii-b)(iii), the same would constitute an offence punishable prima facie under Section 27-A of the Act, and, it is on that basis, though without saying so explicitly, that the learned Trial Judge has proceeded to reach his conclusions. Else, there was no occasion to refer to the provisions of Section 2(viii-a) of the Act [incorrectly referred to on basis of the pre-re-numbered provisions as Section 2(viii-a)] mentioned in the judgment impugned. The Trial Judge has proceeded on the basis, amongst others, that as an offence under Section 27-A of the Act is disclosed, the modified calendar enlarging time to 180 days, in place of 90 days provided by Section 167 Cr.P.C., comes into play by virtue of Section 36-A(4) of the Act. This being the period of time applicable and available to the Investigating Agency to file a charge sheet, no default bail can be claimed by the revisionist under the provisions of Section 167(2) of the Act.

20. Certain other issues were raised and argued by the learned counsel to assail the order impugned passed by the Trial Court but those are not necessary to be addressed and decided since on an answer to the question that is virtually in hand, and, only to be formally said, this revision can be disposed of.

21. From what has been said above, the answer to the question framed is in the negative.

22. The result is that there is no merit in this revision which is accordingly dismissed.

Order Date :- 12.10.2018

Anoop