Sarvesh Kumar Rana Pno No. ... vs State Of U.P.
2021 Latest Caselaw 11313 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 

?A.F.R.
 
Court No. - 11
 
Case :- CRIMINAL REVISION No. - 741 of 2021
 
Revisionist :- Sarvesh Kumar Rana Pno No. 942480449
 
Opposite Party :- State of U.P.
 
Counsel for Revisionist :- Pal Singh Yadav,Abhishek Kumar,Anupam Verma,Prathama Singh
 
Counsel for Opposite Party :- G.A.
 

 
Hon'ble Mrs. Sangeeta Chandra,J.

(Oral)

1. Heard learned counsel for the revisionist and Sri S.P. Tiwari, learned A.G.A. for the State.

2. This Criminal Revision has been filed against the order dated 08.01.2021 passed by the learned Additional District and Sessions Judge/ Special Judge P.C. Act Court No.8, Lucknow, rejecting Criminal Misc. Application moved u/s 167 (2) of the Cr.P.C. in Case Crime No.153/2021 under Section 7/13 Prevention of Corruption Act and Section 341/504 I.P.C.: Sarvesh Kumar Rana Vs. State of U.P., Police Station Asoha District Unnao.

3. It has been submitted that the informant lodged the F.I.R. on 05.09.2021 saying that he was returning from his shop to his house and about 06:00 p.m. at the turn of Ranipur Road, the revisionist stopped the complainant and threatened him to arrest alleging that he had purchased items of gold and silver which he knew were robbed from another person and to implicate the informant in the case of dacoity. The revisionist allegedly demanded Rs.50,000/- to set the complainant free and since the informant did not have money so demanded. The informant called up his friend Gyan Shankar who brought Rs.20,000/- and after receiving the said amount, the informant was allowed to go with the admonition to bring the remaining amount next day.

4. It has been alleged that no proper investigation took place as the Investigating Officer has concluded the enquiry within two hours. It has been submitted that the revisionist has been falsely implicated as the local M.L.A. is annoyed with the revisionist. Statements of witnesses have not been recorded except for that of one Head Constable. It has also been stated that investigation has been carried out by an officer who has no jurisdiction to carry out such investigation. The Revisionist is a public servant and before any criminal case can be registered or investigated, it is necessary for the prosecution to obtain prior sanction from the competent authority. The charge sheet has been submitted before the prior sanction on 30.10.2021 and on 04.11.2021, 60 days had been completed of remand of the revisionist but no remand under Section 309 Cr.P.C. was taken by the competent authority. As such the revisionist moved an application claiming default bail under Section 167 (2) of the Cr.P.C. The application was moved on 08.11.2021 and has been rejected on the same day by the Special Judge without looking into the law as pronounced by Hon'ble Supreme Court in the case of Nanjappa Vs. State of Karnataka 2015 (14) SCC 186 and in Girish Kumar Suneja Vs. Central Bureau of Investigation 2017 (14) SCC 809.

5A. Learned counsel for the revisionist has pointed out from the order impugned that although the charge sheet was filed on 30.10.2021, cognizance of the same had not been taken because the revisionist had filed an application alleging that he was a public servant, and no prior sanction before filing of charge sheet has been taken by the Investigating Officer from the competent authority. On such an application, the public prosecutor had taken time to answer the arguments raised by the learned counsel for the revisionist and the matter was thereafter listed twice but before order could be passed on such application of the petitioner, the petitioner moved another application under Section 167 (2) A because 60 days had elapsed and the time limit for filing of charge sheet having expired, the accused had acquired an indefeasible right to be released on default bail on furnishing bail bonds in this regard.

5B. Sri S.P. Tiwari, learned A.G.A. has poined out from the order impugned that it has been passed on an application under Section 167 (2) (a) (ii) and this Court has only to see whether the charge sheet was filed in time by the Investigating Officer. The Revisionist was taken into custody on 05.09.2021 and the period of remand would have come to an end on 04.11.2021. The charge sheet was filed on 30.10.2021 and before the 60th day from the day of remand. In case, cognizance could not be taken because of application moved by the petitioner pointing out failure to take prior sanction under Section 19 of Prevention of Corruption Act, it cannot be said that investigation was not completed as per the language of Section 167.

6. The petitioner has only stated that the charge sheet has been filed but cognizance has not been taken therefore, it should be assumed that the investigation is under progress and therefore, the period of 60 days having expired the petitioner is entitled to bail.

7. Learned counsel for the petitioner has placed reliance upon Nanjappa Vs. State of Karnataka 2015 (14) SCC 186, Girish Kumar Suneja Vs. Central Bureau of Investigation 2017 (14) SCC 809, Raghubir Singh and others Vs. State of Bihar 1986 (4) SCC 481, Uday Mohanlal Acharya Vs. State of Maharashtra 2001 (5) SCC 453, Sunil Vasantrao Phulbande and another Vs. State of Maharashtra, 2002 Scc OnLine Bom 153, M. Ravindran Vs. Intelligence Officer, Directorate of Revenue Intelligence 2021 (2) SCC 485, Achpal alias Ramswaroop and another Vs. State of Rajasthan 2019 (14) SCC 549 and a judgment of a Co-ordinate Bench of this Court in a petition under Section 482 Cr.P.C. 3076 of 2019: Dr. Anil Kumar [email protected] A.K. Shukla Vs. Central Bureau of Investigation, Through, S.P., A.C.B., Lucknow; decided on 20.12.2019.

8. In Nanjappa Vs. State of Karnataka 2015 (14) SCC 186, it has been held by Hon'ble Supreme Court that the language of Section 19 (1) of the Prevention of Corruption Act leaves no manner of doubt that the same is couched in mandatory terms and no courts can take cognizance of any offence punishable under Section 7/10/11/13 and 15 against a public servant except with the previous sanction of the competent authority enumerated under Section 19(1) (a) to (c). The language of Section 19 operates in an absolute bar to any court taking cognizance of any offence punishable under the aforesaid sections without previous sanction of the competent authority.

9. In Girish Kumar Suneja Vs. Central Bureau of Investigation (supra), the learned counsel for the petitioner has pointed out that the Supreme Court has considered the scope of judicial interference under Section 397 of the Cr.P.c. as compared to Section 482 Cr.P.C.

10. In Raghubir Singh and others Vs. State of Bihar (supra), the learned counsel for the petitioner has argued that the delay in investigation and trial had been considered by the Supreme Court as violation of fundamental right to life and liberty guaranteed under Article 21. Learned counsel for the petitioner has argued that in Raghubir Singh (supra), the Supreme Court has also considered the effect of new proviso added by way of an amendment of Section 167 (2) of the Cr.P.C. and has held that effect of new proviso is to entitle the accused person to be released on bail if the Investigating Agency fails to complete investigation within 60 days.

11. This Court has carefully perused the judgment rendered in Raghubir Singh (supra) and finds that there is no observation in the said judgment that till such time that cognizance is taken on the charge sheet by the learned trial court, it shall be considered that the offence is still under investigation and therefore, the accused shall be entitled to the benefit of proviso to Section 167 (2)(a).

12. In Uday MohanLal Acharya (supra), the Supreme Court has considered the object of adding proviso to Section 167 (2) and right of the accused to be released on bail when the investigation is not completed within the time specified period. The court held that in order to avail such right, the accused is only required to file an application before the Magistrate seeking release on bail alleging that no challan has been filed within the period prescribed and he is prepared to offer bail on being directed by the Magistrate. The Magistrate has to dispose of such application forthwith and the Magistrate has to record his satisfaction that the accused had been in custody for the specified period and that no charge sheet has been filed and that the accused is prepared to furnish bail. The Magistrate is also obliged to grant bail even if after filing of the application by the accused, a charge sheet has been filed.

13. In Sunil Vasantrao Phulbande and another Vs. State of Maharashtra, 2002 Scc OnLine Bom 153, the Bombay High Court was considering a situation where a charge sheet was filed for the offence under the N.D.P.S. Act without being accompanied by the chemical analyzer report. Such a charge sheet was held to be incomplete and it could be said to be a charge sheet contemplated under Section 173 (5), so as to enable the Magistrate to take cognizance of the offence. Applicants were in police custody for more than 90 days and were held entitled to be released on bail for non-compliance of provision of Section 167(2) where said incomplete charge sheet had been filed. Such a case is inapplicable to the case of the petitioner herein as it had arisen out of the N.D.P.S. Act and it is also not the petitioner's claim that an incomplete charge sheet has been filed.

14. In M. Ravindran Vs. Intelligece Officer, Dte. of Revenue Intelligence 2021 (2) SCC 485, the Supreme Court has considered the situation when accused's right to default bail becomes indefeasible. Once the right to default bail becomes indefeasible by filing application when the right accrued, it continues, irrespective of pendency of bail application, or subsequent filing of charge sheet, additional complaint or Public Prosecutor's report seeking extension of time. The Supreme Court has also held that where the accused fails to apply for default bail when the right accrued to him and subsequently a charge sheet, additional complaint is filed or a report seeking extension of time is granted by Magistrate, right to default bail would be extinguished.

15. In Achpal alias Ramswaroop and another Vs. State of Rajasthan, again the Supreme Court was considering the right of the accused of default bail and has observed that when a charge sheet is returned by a Magistrate for technical fault, it shall be deemed that no charge sheet is on record and on the expiry of the 90th day the accused shall be entitled to default bail, though they can be later on re-arrested at any time for cogent reasons.

In the case of Achpal alias Ramswaroop and another (supra) the charge sheet in terms of Section 173 came to be filed within 90 days, but the papers were returned to the Investigating Officer because of an order passed by the High Court. The Court observed that on completion of 90th day as prescribed under Section 167 of the Cr.P.C., there were no papers of investigation before the Magistrate concerned. Such is not the case of the petitioner.

16. The judgement of Co-ordinate Bench in Dr. Anil Kumar Shukla @ A.K. Shukla Vs. Central Bureau of Investigation Lucknow, relates to prior sanction and not to Section 167 (2) A and is therefore distinguishable on facts.

17. This Court therefore, finds no good ground to show interference in the order impugned dated 08.11.2021.

18. This Criminal Revision is accordingly dismissed as misconceived.

Order Date :- 12.11.2021

Rahul