A P Abhijith vs State By Basaralu Police
2021 Latest Caselaw 2700 Kant

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  IN THE HIGH COURT OF KARNATAKA AT BENGALURU

          DATED THIS THE 8th DAY OF JULY, 2021

                         BEFORE

          THE HON'BLE MR. JUSTICE K.NATARAJAN

            CRIMINAL PETITION No.985 of 2021
BETWEEN

A.P. ABHIJITH
S/O. PUTTASWAMYGOWDA,
AGED ABOUT 26 YEARS,
ARISHINAGERE VILLAGE,
BASARALU HOBLI, MANDYA TALUK,
MANDYA DISTRICT - 571 401.
                                           ... PETITIONER
(BY SRI P. PRASANNA KUMAR, ADVOCATE
for SRI H.B. CHANDRASHEKAR, ADVOCATE)

AND

STATE BY BASARALU POLICE
REPRESENTED BY STATE PUBLIC PROSECUTOR,
HIGH COURT OF KARNATAKA,
BENGALURU - 560 001.
                                          ... RESPONDENT
(BY SRI K. NAGESHWARAPPA, HCGP)

     THIS CRIMINAL PETITION IS FILED UNDER SECTION 439
OF THE CODE OF CRIMINAL PROCEDURE, PRAYING TO
ENLARGE THE PETITIONER ON BAIL IN CRIME No.80/2020
REGISTERED BY BASARALU POLICE STATION, MANDYA RURAL
CIRCLE, MANDYA DISTRICT, FOR THE OFFENCES PUNISHABLE
UNDER SECTIONS 302, 201, 404, 416 AND 424 OF THE INDIAN
PENAL CODE AND SECTIONS 66(C) AND 66(D) OF THE
INFORMATION TECHNOLOGY ACT.

     THIS CRIMINAL PETITION HAVING BEEN HEARD AND
RESERVED FOR ORDERS ON 29.06.2021 AND COMING ON FOR
PRONOUNCEMENT, THIS DAY THE COURT PRONOUNCED THE
FOLLOWING:
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                           ORDER

This petition is filed by the petitioner-accused under

Section 439 of Cr.P.C. seeking regular bail in Crime

No.80/2020 registered by the Basaralu Police Station for

the offences punishable under Sections 302, 201, 404, 416

and 424 of the IPC and Sections 66(c) and 66(d) of the

Information Technology Act, 2000 (for short 'IT Act')

2. Heard the arguments of Sri P.Prarsanna Kumar,

learned counsel appearing for Sri H.B.Chandrashekar,

learned counsel for the petitioner and learned High Court

Government Pleader for the respondent-State.

3. The case of the prosecution is that on the complaint

of one Umashankar filed on 15.08.2020, the Police

registered the case against the unknown persons. During

the investigation, the Police arrested this petitioner on

18.08.2020, produced him before the Court on the same

day and he was remanded back to the Police on 19.8.2020

for the purpose of getting Covid-19 test done.

Subsequently, the learned Magistrate extended the time to

the Police till 20.08.2020. Accordingly, the accused was

remanded to Police custody till 20.08.2020. Later, from

20.08.2020, the remand of accused was extended till

17.11.2020. On that date, the Police filed the charge

sheet. The further case of the petitioner-accused is that

on the same day, he filed an application under Section

167(2) of Cr.P.C. for default bail. The same is reflected in

the order sheet of the learned Magistrate, but in the

afternoon, it was mentioned in the order sheet that the

Police filed the charge sheet and therefore, the right of

default bail to the accused under Section 167(2) of Cr.P.C.

is not applicable. Hence, the bail petition came to be

rejected by order dated 17.11.2020 and again the

petitioner moved the bail petition before the Sessions

Judge under Section 439 of Cr.P.C., which also came to be

rejected. Hence, the petitioner is before this Court.

4. Learned counsel for the petitioner seriously

contended that the accused was produced before the

Magistrate on 18.08.2020 and he was in custody from

19.08.2020. If the period is calculated till 17.11.2020, it

comes to 91 days. Prior to filing of the charge sheet, the

accused filed an application under Section 167(2) of

Cr.P.C. and the charge sheet came to be filed only in the

afternoon i.e. subsequent to the filing of the application by

the accused and thereby the accused gets the indefeasible

right for getting default bail under Section 167(2) of

Cr.P.C. In support of the case, learned counsel for the

petitioner relied upon the judgments of the Hon'ble

Supreme Court in the case of Gautam Navlakha vs.

National Investigation Agency reported in 2021 SCC

OnLine SC 382 and S. Kasi vs. State through the

Inspector of Police Samaynallur Police Station

reported in 2020 SCC OnLine SC 529.

5. Per contra, learned High Court Government Pleader

seriously objected the bail petition and contended that the

Trial Court as well as the Sessions Court has rightly taken

into account the date on which the accused was produced

before the Court. The accused was given to the Police

custody on 19.08.2020 and 20.08.2020. The date on

which the accused was given to the Police custody cannot

be counted for the purpose of detention in calculating 90

days and therefore, the charge sheet is within 90 days.

Hence, prayed for rejecting the bail petition.

6. Upon hearing the arguments and on perusal of the

record especially, the order sheet of the learned Magistrate

reveals that the accused was produced before the

Magistrate in the Home Office on 18.08.2020 at 10.30

p.m. in the night. The learned Magistrate remanded the

accused back to the Police on 19.08.2020. On

19.08.2020, the accused was produced through Video

Conferencing and he was remanded to judicial custody till

02.09.2020. Thereafter, from time-to-time till 17.11.2020

and on 17.11.2020, it is mentioned in the order sheet that

the application of the accused under Section 167(2) of

Cr.P.C. came to be filed and the matter was heard and

posted for orders. Again on the same day, the order sheet

reveals that the Mandya Rural Police filed the charge sheet

along with documents and cognizance was taken as well

the order under Section 167(2) of Cr.P.C. was passed

dismissing the application. Hence, the only point that

arises for consideration is as follows:

" Whether the calculation made by the Trial Court and the Sessions Court as 90 days is correct or as contended by the petitioner, the accused is entitled for bail?"

7. Learned counsel for the petitioner relied upon the

judgment of the Hon'ble Supreme Court in the case of

Gautam Navlakha (supra), on paragraph 75, which is as

follows;

" Therefore, while ordinarily, the Magistrate is the original Court which would exercise power to remand under Section 167, the exercise of power by the superior Courts which would result in custody being ordered ordinarily (police or judicial custody) by the superior Courts which includes the High Court, would indeed be the custody for the purpose of calculating the period within which the charge sheet must be filed, failing with the accused acquires the statutory right to default bail. We

have also noticed the observations of this Court in AIR 1962 SC 1506 (supra). In such circumstances broken periods of custody can be counted whether custody is suffered by the order of the Magistrate or superior courts, if investigation remains incomplete after the custody, whether continuous or broken periods pieced together reaches the requisite period; default bail becomes the right of the detained person."

Further, he relied upon paragraph 26 of the judgment in

the case of S. Kasi (supra), which is as follows:

" We, thus, are of the view that neither this Court in its order dated 23.03.2020 can be held to have eclipsed the time prescribed under Section 167(2) of Cr.P.C. nor the restrictions which have been imposed during the lockdown announced by the Government shall operate as any restriction on the rights of an accused as protected by Section 167(2) regarding his indefeasible right to get a default bail on non-submission of charge sheet within the time prescribed. The learned Single Judge committed serious error in reading such

restriction in the order of this Court dated 23.03.2020."

8. In view of the principles laid down by the Hon'ble

Supreme Court, there is no second thought in respect of

the guidelines in respect of right of the accused for getting

bail in view of non-filing of the charge sheet within 90 days

and the accused gets the right of bail on the 91st day.

Looking to the case on hand, the accused was produced on

18.08.2020 at 10.30 p.m. in the night and he was

remanded back to Police custody till 19.08.2020 for getting

Covid-19 test done. As per Section 57 of Cr.P.C., the

Police are permitted to keep the accused in their custody

for 24 hours for the purpose of investigation. If the

investigation is not completed within 24 hours, they shall

produce him before the Magistrate having either

jurisdiction to try or seek extension of remand. The Trial

Court remanded the accused to the Police custody till

19.08.2020 and even one more day for submitting the

Covid-19 Test Report. If it is calculated from 19.08.2020,

it comes to 90th day on 17.11.2020 and it is calculated as,

the date on which the accused was produced shall be

excluded and the last day should be included in view of the

judgment of the Hon'ble Supreme Court. In the case of

Ravi Prakash Singh alias Arvind Singh vs. State of

Bihar reported in (2015) 8 SCC 340 at paragraph 12 of

the judgment, the Hon'ble Supreme Court has held as

under;

"12. In State of M.P. v. Rustam and others, this Court has laid down the law that while computing period of ninety days, the day on which the accused was remanded to the judicial custody should be excluded, and the day on which challan is filed in the court, should be included. That being so, in our opinion, in the present case, date 5.7.2013 is to be excluded and, as such, the charge sheet was filed on ninetieth day, i.e., 3.10.2013. Therefore, there is no infringement of Section 167(2) of the Code."

9. In view of the principle laid down by the Hon'ble

Supreme Court in the case of Ravi Prakash Singh

(supra), if the date of production of the accused to

judicial custody shall have to be calculated for the purpose

of detention, in this case, the accused was remanded to

judicial custody only on 19.08.2020 and the period is

calculated as under:

      August           -        12 days

      September -               30 days

      October          -        31 days

      November -                17 days

             Total -            90 days.

The charge sheet is filed on 17.11.2020. Therefore, the

charge sheet is within 90 days and the accused will not get

the right of default bail on the 90th day, but he will get the

right of bail on the 91st day if the charge sheet is not filed.

Even otherwise, by excluding 18.08.2020, if the period is

calculated from 19.08.2020, it comes to 91st day.

17.11.2020 falls on the 91st day and as per the

endorsement made by the Magistrate in the charge sheet,

the charge sheet came to be filed at 10.00 a.m. on

17.11.2020 and the learned Magistrate directe d the office

to check and put-up the same by 3.00 p.m. Even if it is

considered on the 91st day, the application filed by the

accused is at 11.00 a.m., but prior to that, the Police have

already filed the charge sheet which is available in the

order sheet and the Magistrate has made an endorsement

regarding the receipt of charge sheet. Learned counsel

appearing for the petitioner is also not disputing the

endorsement made by the Magistrate on the charge sheet.

He argued that the charge sheet is required to be filed

during the Court hours as per Chapter-2 of the Criminal

Rules of Practice. But that contention cannot be

acceptable. Learned Magistrate can receive the charge

sheet even at 10.00 a.m. as the office hours starts much

prior to commencement of Court as the Court sitting hours

starts at 11.00 a.m. When the learned counsel for the

accused has not disputed the endorsement in respect of

the charge sheet filed at 10.00 a.m., it amounts to filing of

the charge sheet prior to filing of the application by the

accused under Section 167(2) of Cr.P.C. Merely it was not

mentioned in the order sheet which was written in the

open the Court after 11.00 a.m., even without knowledge

of receiving the charge sheet by the Magistrate in the

office at 10.00 a.m., it cannot be said that the accused got

the right of default bail. It is a clear case that prior to

filing of the application by the learned counsel for the

accused, the Investigating Officer has filed the charge

sheet in the office at 10.00 a.m. Therefore, the accused

will not get the right of default bail under Section 167(2) of

Cr.P.C.

10. In view of the above, learned counsel for the

petitioner has not made out a case for granting default bail

under Section 167(2) of Cr.P.C. Learned counsel for the

petitioner has not argued on the merits of the case except

on the sole ground of default bail. Hence, the criminal

petition is dismissed.

Sd/-

JUDGE

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