Karnataka High Court
Sri. Comandur Parthasarathy vs State Of Karnataka on 30 June, 2022
Bench: M.Nagaprasanna
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WP No. 12843 of 2022
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 30TH DAY OF JUNE, 2022
BEFORE
THE HON'BLE MR JUSTICE M.NAGAPRASANNA
WRIT PETITION NO. 12843 OF 2022 (GM-RES)
BETWEEN:
1. SRI. COMANDUR PARTHASARATHY
AGED ABOUT 66 YEARS
S/O LATE RAJAGOPALAN
RESIDENT OF H.NO 8-2-293/82/A/648
ROAD NO.34, JUBILEE HILLS
HYDERBAD, TELANGALANA.
...PETITIONER
(BY SRI. NIKHIL K.,ADVOCATE)
AND:
1. STATE OF KARNATAKA
BY WHITEFILED CEN POLICE STATION
BENGLAURU RURAL
BENGLAURU
Digitally signed REPRESENTED BY THE PUBLIC PROSECUTOR
by PADMAVATHI
BK HIGH COURT BUILDINGS
Location: High BENGALURU 560 001.
Court of
Karnataka
...RESPONDENT
(BY SMT.K.P.YASHODHA, HCGP)
THIS WRIT PETITION IS FILED UNDER ARTICLES 226
AND 227 OF THE CONSTITUTION OF INDIA READ WITH
SECTION 482 OF CR.P.C., PRAYING TO QUASH THE ORDER
DTD 05.03.2022, PASSED BY THE HONBLE I ADDITIONAL
CHIEF JUDICIAL MAGISTRATE, BENGALURU RURAL DISTRICT,
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WP No. 12843 of 2022
BENGALURU IN CRIME NO.722 OF 2021 OF THE WHITEFIELD
CEN POLICE STATION CONTAINED IN ANNEXURE-A AND ETC.,
THIS WRIT PETITION COMING ON FOR ORDERS THIS
DAY, THE COURT MADE THE FOLLOWING:
ORDER
The petitioner, in the subject petition, seeks to quash
an order dated 05.03.2022, passed by the I Additional
Chief Judicial Magistrate, Bengaluru Rural District,
Bengaluru, in Crime No.722 of 2021 and has consequently
sought enlargement on bail in connection with the
aforesaid crime, registered under Sections 406, 420, 467
and 471 r/w. 34 of the Indian Penal Code.
2. Heard Sri Sandesh J. Chouta, learned senior
counsel appearing for the petitioner, Smt. K.P.Yashodha,
learned High Court Government Pleader for the
respondent.
3. The learned senior counsel appearing for the
petitioner submits that the issue in the case at hand
stands covered by the order of this Court rendered in
WP No. 12843 of 2022
Crl.P.No.2802/2022 disposed on 21.04.2022, on similar
set of facts interpreting the very offences that are alleged
against the petitioner.
4. Learned HCGP would not dispute the
submissions of the learned senior counsel.
5. This Court in Crl.P.No.2802/2022 disposed on
21.04.2022, has held as follows:
"xxxxxxxxxxxxx
Sub-section (2) of Section 167 gives a right to an
accused who is in custody and in whose case
investigation is not completed by way of filing a final
report by the Police to be enlarged on bail which is
known as statutory bail or default bail in criminal
parlance.
11. A three Judge Bench of the Apex Court has
considered Section 167(2) of the Cr.P.C. in extenso in
the case of BIKRAMJIT SINGH V. STATE OF PUNJAB
(2020) 10 SCC 616 (supra) wherein the Apex Court holds
as follows:
"27. The second vexed question which
arises on the facts of this case is the question of
grant of default bail. It has already been seen
that once the maximum period for investigation
of an offence is over, under the first proviso (a) to
Section 167(2), the accused shall be released on
bail, this being an indefeasible right granted by
the Code. The extent of this indefeasible right
WP No. 12843 of 2022
has been the subject-matter of a number of
judgments. A beginning may be made with the
judgment in Hitendra Vishnu Thakur v. State of
Maharashtra [Hitendra Vishnu Thakur v. State
of Maharashtra, (1994) 4 SCC 602 : 1994 SCC
(Cri) 1087] , which spoke of "default bail" under
the provisions of the Terrorist and Disruptive
Activities (Prevention) Act, 1987 (hereinafter
referred to as "TADA") read with Section 167 of
the Code as follows: (SCC pp. 625-28, paras 19-
21)
"19. Section 20(4) of TADA makes
Section 167 CrPC applicable in relation to
case involving an offence punishable under
TADA, subject to the modifications specified
therein. ...while clause (b) provided that
reference in sub-section (2) of Section 167
to "15 days", "90 days" and "60 days"
wherever they occur shall be construed as
reference to "60 days", "one year" and "one
year" respectively. This section was
amended in 1993 by Amendment Act 43 of
1993 with effect from 22-5-1993 and the
period of "one year" and "one year" in
clause (b) was reduced to "180 days" and
"180 days" respectively, by modification of
sub-section (2) of Section 167. After clause
(b) of sub-section (4) of Section 20 of TADA,
another clause (bb) was inserted which
reads:
'20. (4)(bb) in sub-section (2), after
the proviso, the following proviso shall be
inserted, namely:
WP No. 12843 of 2022
"Provided further that, if it is not
possible to complete the investigation
within the said period of one hundred and
eighty days, the Designated Court shall
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; and."'
20. ... Sub-section (2) of Section 167
of the Code lays down that the Magistrate
to whom the accused is forwarded may
authorise his detention in such custody, as
he may think fit, for a term specified in that
section. The proviso to sub-section (2) fixes
the outer limit within which the
investigation must be completed and in
case the same is not completed within the
said prescribed period, the accused would
acquire a right to seek to be released on
bail and if he is prepared to and does
furnish bail, the Magistrate shall release
him on bail and such release shall be
deemed to be grant of bail under Chapter
XXXIII of the Code of Criminal Procedure.
...Section 167 read with Section 20(4) of
TADA, thus, strictly speaking is not a
provision for "grant of bail" but deals with
the maximum period during which a person
accused of an offence may be kept in
custody and detention to enable the
investigating agency to complete the
investigation and file the charge-sheet, if
necessary, in the court. The proviso to
Section 167(2) of the Code read with
Section 20(4)(b) of TADA, therefore, creates
WP No. 12843 of 2022
an indefeasible right in an accused person
on account of the "default" by the
investigating agency in the completion of
the investigation within the maximum
period prescribed or extended, as the case
may be, to seek an order for his release on
bail. It is for this reason that an order for
release on bail under proviso (a) of Section
167(2) of the Code read with Section 20(4)
of TADA is generally termed as an "order-
on-default" as it is granted on account of
the default of the prosecution to complete
the investigation and file the challan within
the prescribed period. As a consequence
of the amendment, an accused after
the expiry of 180 days from the date of
his arrest becomes entitled to bail
irrespective of the nature of the offence
with which he is charged where the
prosecution fails to put up challan
against him on completion of the
investigation. With the amendment of
clause (b) of sub-section (4) of Section
20 read with the proviso to sub-section
(2) of Section 167 CrPC an indefeasible
right to be enlarged on bail accrues in
favour of the accused if the police fails
to complete the investigation and put
up a challan against him in
accordance with law under Section
173 CrPC. An obligation, in such a case, is
cast upon the court, when after the expiry
of the maximum period during which an
accused could be kept in custody, to decline
the police request for further remand except
in cases governed by clause (bb) of Section
20(4). There is yet another obligation also
which is cast on the court and that is to
WP No. 12843 of 2022
inform the accused of his right of being
released on bail and enable him to make
an application in that behalf. (Hussainara
Khatoon case [Hussainara Khatoon
(4) v. State of Bihar, (1980) 1 SCC 98 :
1980 SCC (Cri) 40] ). This legal position has
been very ably stated in Aslam Babalal
Desai v. State of Maharashtra [Aslam
Babalal Desai v. State of Maharashtra,
(1992) 4 SCC 272 : 1992 SCC (Cri) 870]
where speaking for the majority, Ahmadi,
J. referred with approval to the law laid
down in Rajnikant Jivanlal v. Narcotics
Control Bureau [Rajnikant
Jivanlal v. Narcotics Control Bureau, (1989)
3 SCC 532 : 1989 SCC (Cri) 612] wherein it
was held that: (SCC p. 288, para 9)
'9. ..."13. ... The right to bail under
Section 167(2) proviso (a) thereto is
absolute. It is a legislative command and
not court's discretion. If the investigating
agency fails to file charge-sheet before the
expiry of 90/60 days, as the case may be,
the accused in custody should be released
on bail. But at that stage, merits of the case
are not to be examined. Not at all. In fact,
the Magistrate has no power to remand a
person beyond the stipulated period of
90/60 days. He must pass an order of bail
and communicate the same to the accused
to furnish the requisite bail bonds." (SCC p.
536, para 13)'
21. Thus, we find that once the
period for filing the charge-sheet has
expired and either no extension under
clause (bb) has been granted by the
WP No. 12843 of 2022
Designated Court or the period of
extension has also expired, the
accused person would be entitled to
move an application for being admitted
to bail under sub-section (4) of Section
20 TADA read with Section 167 of the
Code and the Designated
Court shall release him on bail, if the
accused seeks to be so released and
furnishes the requisite bail. We are not
impressed with the argument of the
learned counsel for the appellant that
on the expiry of the period during
which investigation is required to be
completed under Section 20(4) TADA
read with Section 167 of the Code, the
court must release the accused on
bail on its own motion even without
any application from an accused
person on his offering to furnish bail.
In our opinion an accused is required
to make an application if he wishes to
be released on bail on account of the
"default" of the
investigating/prosecuting agency and
once such an application is made, the
court should issue a notice to the
Public Prosecutor who may either show
that the prosecution has obtained the
order for extension for completion of
investigation from the court under
clause (bb) or that the challan has been
filed in the Designated Court before the
expiry of the prescribed period or even
that the prescribed period has actually
not expired and thus resist the grant
of bail on the alleged ground of
"default". The issuance of notice would
WP No. 12843 of 2022
avoid the possibility of an accused
obtaining an order of bail under the
"default" clause by either deliberately
or inadvertently concealing certain
facts and would avoid multiplicity of
proceedings. It would, therefore, serve
the ends of justice if both sides are
heard on a petition for grant of bail on
account of the prosecution's "default".
... No other condition like the gravity of
the case, seriousness of the offence or
character of the offender, etc. can
weigh with the court at that stage to
refuse the grant of bail to an accused
under sub-section (4) of Section 20
TADA on account of the "default" of
the prosecution."
(emphasis in original)
37. On the facts of the present case,
the High Court was wholly incorrect in
stating that once the challan was presented
by the prosecution on 25-3-2019 as an
application was filed by the appellant on
26-3-2019, the appellant is not entitled to
default bail. First and foremost, the High
Court has got the dates all wrong. The
application that was made for default bail
was made on or before 25-2-2019 and not
26-3-2019. The charge-sheet was filed on
26-3-2019 and not 25-3-2019. The fact that
this application was wrongly dismissed on
25-2-2019 would make no difference and
ought to have been corrected in revision.
The sole ground for dismissing the
application was that the time of 90 days
had already been extended by the learned
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WP No. 12843 of 2022
Sub-Divisional Judicial Magistrate, Ajnala
by his order dated 13-2-2019. This order
was correctly set aside by the Special Court
by its judgment dated 25-3-2019, holding
that under the UAPA read with the NIA Act,
the Special Court alone had jurisdiction to
extend time to 180 days under the first
proviso in Section 43-D(2)(b). The fact that
the appellant filed yet another application
for default bail on 8-4-2019, would not
mean that this application would wipe out
the effect of the earlier application that had
been wrongly decided. We must not forget
that we are dealing with the personal
liberty of an accused under a statute which
imposes drastic punishments. The right to
default bail, as has been correctly held
by the judgments of this Court, are not
mere statutory rights under the first
proviso to Section 167(2) of the Code,
but is part of the procedure
established by law under Article 21 of
the Constitution of India, which is,
therefore, a fundamental right granted
to an accused person to be released on
bail once the conditions of the first
proviso to Section 167(2) are fulfilled."
(Emphasis supplied)
Again, a three Judge Bench of the Apex Court
considers Section 167(2) in the case of M.RAVINDRAN
v. DIRECTORATE OF REVENUE INTELLIGENCE (2021)
2 SCC 485 (supra) and holds as follows:
"20.1. The observations made in Hitendra
Vishnu Thakur [Hitendra Vishnu Thakur v. State
of Maharashtra, (1994) 4 SCC 602 : 1994 SCC
(Cri) 1087] and Sanjay Dutt [Sanjay
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WP No. 12843 of 2022
Dutt v. State, (1994) 5 SCC 410 : 1994 SCC (Cri)
1433] to the effect that the application for default
bail and any application for extension of time
made by the Public Prosecutor must be
considered together are, in our opinion, only
applicable in situations where the Public
Prosecutor files a report seeking extension of
time prior to the filing of the application for
default bail by the accused. In such a situation,
notwithstanding the fact that the period for
completion of investigation has expired, both
applications would have to be considered
together. However, where the accused has
already applied for default bail, the Prosecutor
cannot defeat the enforcement of his indefeasible
right by subsequently filing a final report,
additional complaint or report seeking extension
of time.
20.2. It must also be added and it is
well settled that issuance of notice to the
State on the application for default bail
filed under the proviso to Section 167(2) is
only so that the Public Prosecutor can
satisfy the court that the prosecution has
already obtained an order of extension of
time from the court; or that the challan has
been filed in the designated court before the
expiry of the prescribed period; or that the
prescribed period has actually not expired.
The prosecution can accordingly urge the
court to refuse granting bail on the alleged
ground of default. Such issuance of notice
would avoid the possibility of the accused
obtaining default bail by deliberate or
inadvertent suppression of certain facts
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WP No. 12843 of 2022
and also guard against multiplicity of
proceedings.
20.3. However, Public Prosecutors
cannot be permitted to misuse the limited
notice issued to them by the court on bail
applications filed under Section 167(2) by
dragging on proceedings and filing
subsequent applications/reports for the
purpose of "buying extra time" and
facilitating filling up of lacunae in the
investigation by the investigating agency.
VI. Other relevant precedents
pertaining to the right under Section 167(2)
21. We are fortified in our aforementioned
conclusions by the three-Judge Bench decision of
this Court in Mohd. Iqbal Madar Sheikh v. State
of Maharashtra [Mohd. Iqbal Madar
Sheikh v. State of Maharashtra, (1996) 1 SCC
722 : 1996 SCC (Cri) 202] . In that case, though
the charge-sheet was submitted after expiry of
the statutory period under Section 20(4)(bb) of
the TADA Act, it was admitted that no prior
application for bail had been filed by the
appellants. Hence the Court held, relying
upon Sanjay Dutt [Sanjay Dutt v. State, (1994) 5
SCC 410 : 1994 SCC (Cri) 1433] , that the right
to bail could not be exercised once the charge-
sheet has been submitted and cognizance has
been taken. However, at the same time, the
three-Judge Bench also expressed with
consternation that courts cannot engage in
practices such as keeping the applications for
bail pending till the time charge-sheets are
submitted, so that the statutory right which has
accrued to the accused is defeated. If the court
deliberately does not decide the bail application
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WP No. 12843 of 2022
but adjourns the case by granting time to the
prosecution, it would be in violation of the
legislative mandate. It may be pertinent to note
that the three-Judge Bench in Mohd. Iqbal
Madar Sheikh [Mohd. Iqbal Madar
Sheikh v. State of Maharashtra, (1996) 1 SCC
722 : 1996 SCC (Cri) 202] had also been part of
the Constitution Bench in Sanjay Dutt [Sanjay
Dutt v. State, (1994) 5 SCC 410 : 1994 SCC (Cri)
1433] .
Conclusion
24. In the present case, admittedly the
appellant-accused had exercised his option to
obtain bail by filing the application at 10.30 a.m.
on the 181st day of his arrest i.e. immediately
after the court opened, on 1-2-2019. It is not in
dispute that the Public Prosecutor had not filed
any application seeking extension of time to
investigate into the crime prior to 31-1-2019 or
prior to 10.30 a.m. on 1-2-2019. The Public
Prosecutor participated in the arguments on the
bail application till 4.25 p.m. on the day it was
filed. It was only thereafter that the additional
complaint came to be lodged against the
appellant. Therefore, applying the
aforementioned principles, the appellant-accused
was deemed to have availed of his indefeasible
right to bail, the moment he filed an application
for being released on bail and offered to abide
by the terms and conditions of the bail order i.e.
at 10.30 a.m. on 1-2-2019. He was entitled to be
released on bail notwithstanding the subsequent
filing of an additional complaint.
24.1. It is clear that in the case on
hand, the State/the investigating agency
has, in order to defeat the indefeasible
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WP No. 12843 of 2022
right of the accused to be released on bail,
filed an additional complaint before the
court concerned subsequent to the
conclusion of the arguments of the
appellant on the bail application. If such a
practice is allowed, the right under Section
167(2) would be rendered nugatory as the
investigating officers could drag their heels
till the time the accused exercises his right
and conveniently file an additional
complaint including the name of the
accused as soon as the application for bail
is taken up for disposal. Such complaint
may be on flimsy grounds or motivated
merely to keep the accused detained in
custody, though we refrain from
commenting on the merits of the additional
complaint in the present case. Irrespective
of the seriousness of the offence and the
reliability of the evidence available, filing
additional complaints merely to circumvent
the application for default bail is, in our
view, an improper strategy. Hence, in our
considered opinion, the High Court was not
justified in setting aside the judgment and
order of the trial court releasing the
accused on default bail.
25.1. Once the accused files an
application for bail under the proviso to
Section 167(2) he is deemed to have
"availed of" or enforced his right to be
released on default bail, accruing after
expiry of the stipulated time-limit for
investigation. Thus, if the accused applies
for bail under Section 167(2) CrPC read
with Section 36-A(4), NDPS Act upon expiry
of 180 days or the extended period, as the
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WP No. 12843 of 2022
case may be, the court must release him on
bail forthwith without any unnecessary
delay after getting necessary information
from the Public Prosecutor, as mentioned
supra. Such prompt action will restrict the
prosecution from frustrating the legislative
mandate to release the accused on bail in
case of default by the investigating agency.
25.2. The right to be released on
default bail continues to remain
enforceable if the accused has applied for
such bail, notwithstanding pendency of the
bail application; or subsequent filing of the
charge-sheet or a report seeking extension
of time by the prosecution before the court;
or filing of the charge-sheet during the
interregnum when challenge to the rejection
of the bail application is pending before a
higher court.
25.3. However, where the accused fails to
apply for default bail when the right accrues to
him, and subsequently a charge-sheet,
additional complaint or a report seeking
extension of time is preferred before the
Magistrate, the right to default bail would be
extinguished. The Magistrate would be at liberty
to take cognizance of the case or grant further
time for completion of the investigation, as the
case may be, though the accused may still be
released on bail under other provisions of the
CrPC.
26. Hence the impugned judgment
[Directorate of Revenue Intelligence v. M.
Ravindran, 2019 SCC OnLine Mad 33543] of the
High Court stands set aside and the trial court
judgment stands confirmed. However, we
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WP No. 12843 of 2022
additionally direct that apart from furnishing the
sureties as directed by the trial court, the
appellant-accused should also surrender his
passport, undertake to report to the respondent
Directorate when required for purposes of
investigation, and also undertake not to leave
Chennai city limits without the leave of the trial
court. This should alleviate any concerns about
the appellant absconding from the jurisdiction of
the court."
(Emphasis supplied)
The Apex Court, in the aforesaid cases, while
delineating the right of the accused under Section
167(2) holds that it is an indefeasible right of the
accused to be enlarged on bail the moment the
statutory period begins to operate, except in statutes
where such provision for extension is available.
12. On the bedrock of the consideration of three
Judge Benches decision of the Apex Court in the
aforesaid cases, the case at hand is required to be
considered. It is not in dispute that the petitioner was
brought to Bangalore on 20-10-2021 when the body
warrant against the petitioner was executed and was
remanded to police custody on 21-10-2021 by the
following order:
"Accused No.2 by name Comandur
Parthasarathy S/o C.R.Rajagopalan, aged 66
years, R/o No.Hyderabad, accused No.5 by
name Rajiv Ranjan Singh S/o Upendra Narayan
Singh, 52 years, R/o Hyderabad and accused
No.9 by name G.Krishnahari S/o G.Mallaiah, 63
years, R/o Hyderabad are produced before me
in the open Court to-day at 4.40 p.m, by ACP -
H.N.Dharmendra, OCW, CCB, Bengaluru under
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escort memo in execution of body warrant under
transit warrant.
On enquiry accused No. 2, 3 and 9 have
not complained any ill-treatment by the police.
Informed about the legal assistance and
accused No.2, 5 and 9 submitted that they have
engaged the Advocate.
Sri MD, Advocate filed vakalath for
accused 2, 5 and 9 with permission to take their
signature and taken on record.
IO filed police custody application for
accused No. 2, 5 and 9 along with transit
warrant, letter dated 20.10.2021, letter of
Superintendent, Central Prison, Hyderabad
dated 20-10-2021, copy of escort memo, request
letter for medical and Covid-19 test cum medical
report, Covid-19 test negative reports, CD No.18
to 20 and prays for police custody for 14 days.
Heard Sr.APP and Sri MD, Advocate for
accused Nos. 2, 5 and 9.
IO sought for police custody of accused 2,
5 and 9 for 14 days. Hence, looking at facts and
circumstances of case and contents of police
custody requisition I satisfied that, the said
accused 2, 5 and 9 are to be given to the police
custody for the purpose of investigation and
collection of evidence. Sri MD, Adv., submitted
that IO be directed to provide all facilities
including medical facility as accused are aged
persons and submitted that 14 days custody of
said accused are not required. In the present
case IO, sought for 14 days police custody.
Hence, looking at facts, circumstances and
grounds stated in the police custody remand
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WP No. 12843 of 2022
application I deem fit to give police custody of
said accused 2, 5 and 9 for period of 13 days.
Hence, I proceed to pass the following:
ORDER
The ACP - H.N.Dharmendra, OCW,
CCB, Bengaluru is permitted to take the
accused No.2, 5 and 9 into police custody
for a period of 13 days i.e., from 21-10-
2021 to 2.11.2021 and ACP is directed to
and 9 and produce OP slip without fail and
IO shall directed to produce accused No.2,
5 and 9 on 2.11.2021 before 2.00 p.m.
1. IO is directed to provide food and
medical treatment and not to ill-treat accused. ''
2. IO is hereby directed not to offer any
as mentioned under Section 24 of Evidence Act.
3. The IO is hereby directed to give
opportunity to accused No.2, 5 and 9 if they
want to consult their advocate during the
enquiry.
Issue intimation to the Hon'ble Chief
Metropolitan Magistrate, Bangalore City.
For production of accused 2, 5 and 9 call
on 2.11.2021.
Accused No.3 is not produced from JC.
Office is directed to issue intimation to jail
authority to produce A3 on 2-11-2021.
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For objections to bail application Sr.APP
prays time. Call on 25-10-2021."
Therefore, liberty of the petitioner was curtailed
by the Court when the body warrant was executed
and he was remanded to police custody. Later, on 2-
11-2021, the petitioner was remanded to judicial
custody. In terms of Section 167(2) of the Cr.P.C.
investigation is to be completed within 60/90 days. An
application is filed by the petitioner on the 95th day on
25-01-2022 seeking enlargement on bail or statutory
bail in terms of Section 167(2) of the Cr.P.C. This is
rejected by an order dated 29-01-2022 on the ground
that the petitioner was remanded to judicial custody
only on 2.11.2021 and the right of the petitioner had
not yet ripened in terms of Section 167(2) for grant of
bail, as body warrant period under Sections 267 and
270 of the Cr.P.C. cannot be counted as period spent
by the petitioner being in judicial custody. The reason
rendered by the Court reads as follows:
"5. Point No.1: Sri VB, Advocate for
accused No.2, 5 and 9 contended and argued
that, accused No.2, 5 and 9 were produced
before this Court on 21-10-2021. Investigating
Officer had taken them in his custody from 21-
10-2021 to 2-11-2021. Hence, the said accused
arrested on 21-10-2021 and continued in the
custody of the court till this day. Hence, accused
are in custody for 94 days. Hence, the
Investigating Officer failed to complete the
investigation and file final report within the
statutory period of 90 days from the date of their
arrest/detention as contemplated under Section
and 9 are ready and willing to abide any of the
conditions of the court on grant of bail. In
support of arguments relied on Chaganti
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Satyanarayana and others v. State of Andhra
Pradesh, (1986) 3 SCC 141 and Central Bureau
of Investigation, New Delhi v. Anupama
J.Kulkarni, (1992) 3 SCC 141 and sought to
release them on bail.
6. Sr.APP filed objections to the said
application contending that if accused 2, 5
and 9 are released on bail they may not
appear in the Court. Still investigation is
not completed. Hence, at this stage if they
are released on bail they may not cooperate
in the investigation. The said offences are
non-bailable in nature. Hence, the
Investigating Officer produced accused
No.2, 5 and 9 in the present case under
body warrant. Hence, accused are not
entitled for statutory bail and sought to
reject the application.
7. The present case is registered for the
offences punishable under Sections 107, 424,
427, 418, 421, 403, 406, 409, 411, 413, 414,
420, 468, 120(A), 378, 405, 410, 415, 425, 463,
464, 117 read with Section 34 of the Indian
Penal Code (hereinafter4 referred as IPC).
8. The investigating Officer filed
requisition through Sr.APP for issuance of body
warrant against accused No.2, 5 and 9 who are
in custody in WCO Team 12, Central Crime
Station, DD Hyderabad PS Crime No.142/2021
to produce in the present case. Accordingly after
hearing the prosecution this Court issued body
warrant against accused No.2, 5 and 9 to
produce in this case.
9. The Investigating Officer in execution of
body warrant produced the accused No.2, 5 and
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9 in this case from Chanchalaguda Central
Prison, Hyderabad on 21.10.2021. The
Investigating Officer had taken accused No.2, 5
and 9 in his custody i.e., police custody for a
period of 13 days i.e., 21-10-2021 to 2-11-2021.
After completion of interrogation Investigating
Officer produced accused No.2, 5 and 9 on 2-11-
2021 and now accused No.2, 5 and 9 are under
body warrant in the present case.
10. Here, in the present case the accused
No.2, 5 and 9 are not produced under Section
167 of Cr.P.C. but Investigating Officer produced
the said accused in this case in execution of
body warrant under Section 267 of Cr.P.C.
Hence, the accused No.2, 5 and 9 are not in
"custody" or "detention" as used under Section
167 of Cr.P.C. in the present case. Hence, under
such circumstance the application filed under
Section 167(2) of Cr.P.C. is not maintainable.
Hence, the accused No.2, 5 and 9 are under
body warrant in the present case under Sections
267 and 270 of Cr.P.C. I went through Chaganti
Satyanarayana and others v. State of Andhra
Pradesh, (1986) 3 SCC 141 and Central Bureau
of Investigation, New Delhi v. Anupama
J.Kulkarni, (1992) 3 SCC 141 and ratio laid
down in the said cases is not applicable to
the present facts of the case because the
accused No.2, 5 and 9 are not in the
custody or detention as stated under
Section 167 of Cr.P.C. But they are under
body warrant under Sections 267 and 270
of Cr.P.C. It is also important to note that
right to claim statutory bail arises after
completion of 60/90 days from the date of
remand. Hence, in the present case the
accused No.2, 5 and 9 are under body
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warrant in this case from2-11-2021.
Hence, even otherwise the period of 90 days
is not completed. Hence, in view of above
stated facts, circumstances and reasons I
answer point No.1 in negative.
11. Point No.2: For the foregoing reasons, I
pass the following:
ORDER
The statutory bail application filed by the
accused No.2, 5 and 9 under Section 167(2) of Code of
Criminal Procedure is hereby rejected."
(Emphasis added)
By rendering the aforesaid reasons, the learned
Magistrate rejects the default bail application filed by
accused No.2, 5 and 9. Paragraph 6 of the said order
notices objections filed by the prosecution. The Court
notices that investigation is not completed. Hence, at
that stage if the petitioner is released on bail, he
would not cooperate with the proceedings. In effect,
the learned Magistrate holds that 13 days in police
custody on a body warrant will not come to the aid for
calculation of 90 days period and the petitioner and
others were under judicial custody only from 2-11-
2021.
13. Therefore, the issue that is required to
be considered now is, when the clock would begin to
tick in terms of Section 167(2) of the Cr.P.C.
notwithstanding the accused being on body-warrant.
This issue also need not detain this Court for long or
delve deep into the matter as Co-ordinate Benches of
this Court have clearly held that even when the
accused is secured on body warrant, the liberty of the
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WP No. 12843 of 2022
said accused is lost and that period would come to the
aid of the accused for seeking default or statutory bail
under Section 167(2) of the Cr.P.C. A Co-ordinate
Bench of this Court in the case of VIJAY KUMAR
(supra) has held as follows:
"10. As is evident from the impugned
order itself, the filing of application for bail under
Section 167(2) of the Code of Criminal Procedure
is prior to the filing of the charge sheet. It is also
not in dispute that the body warrant came to be
issued, as the petitioners have been in judicial
custody in connection with some other case, viz.
Crime No. 163 of 2008. The Magistrate
dismissed the bail application for two reasons--
(a) the petitioners are not arrested in this case
of 2008); (b) the offences alleged are of heinous
nature.
12. In the instant case, the period
prescribed for filing of charge sheet commences
on the date of receipt of the body warrant order
by the jail authorities (19th May, 2008 in the
instant case). The catena of decisions, to which I
have made a reference hereinabove, clearly lay
down the position that an order for release on
bail under proviso (a) to Section 167(2) of the
Code of Criminal Procedure is virtually an order
passed on the default committed by the
prosecution. Notwithstanding the accused facing
the allegation of the commission of heinous or
grave offence, he is entitled to be released on
bail."
(Emphasis supplied)
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WP No. 12843 of 2022
In a later judgment, another Co-ordinate Bench
in JAYABALU v. STATE OF KARNATAKA1 (supra) has
held as follows:
"The petitioners are accused in Crime
No. 354/2010. These accused were arrested
in another case and they were in custody,
However, the police took the body warrant
on 11.8.2011. Petitioners filed an
application for enlarging on bail on
15.10.2011 under Section 167(2) of Cr.P.C.
The charge sheet should have been filed
within sixty days but, even till the disposal
of the bail petition, no charge sheet has
been filed. As such, learned counsel for the
petitioners submits that, on the default
clause, the petitioners are entitled for bail.
He also relied on the judgment of this Court
reported in 2009 (1) KCCR 257 in the case
of 'VIJAY KUMAR @ KAVLA v. STATE BY
ANEKAL POLICE' and in similar
circumstance, this Court has granted bail
in Crl.P. No. 48/2012.
2. Having regard to the same, I find that the
petitioners could be enlarged on bail.
(Emphasis supplied)
Later, a Division Bench of this Court in the case
of CENTRAL BUREAU OF INVESTIGATION v. KENCHE
MAHESH KUMAR2 (supra) was answering the very
issue. The issue before the Court reads as follows:
"Whether the computation of 90 days,
as contemplated under Section 167 of the
2012 SCC OnLine Kar.4269
ILR 2015 KAR 4054
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WP No. 12843 of 2022
Cr.P.C., would commence from the date the
body warrant is served on the Jail
authorities or whether it should be taken
as commencing from the date on which the
accused is produced before the Court?
The Division Bench answers the said issue after
considering plethora of judgments of the Apex Court
and Section 167(2) of the Cr.P.C. as follows:
"12. In the matter on hand, undisputedly
the Presiding Officer of the Court below
authorized detention of the respondent for the
first time on 2.9.2013 in R.C. No. 13(A)/2012
and not earlier thereto. On the very date, the
custody of the respondent was handed over to
the petitioner -- CBI for investigation.
Consequendy, the respondent was in custody of
the petitioner from 2.9.2013 in RC No.
13(A)/2012 and not earlier thereto. It is not in
dispute that the petitioner has filed the charge
sheet in RC No. 13(A)/2012 on 30.11.2013. It is
also not disputed by Sri Hashmath Pasha
that in case if the starting point of 90 days
(in the matter on hand) is reckoned from
2.9.2013, then the charge sheet is filed
within 90 days. The legal position as
mentioned supra as well as our
aforementioned discussion leads us to the
only conclusion that the period of 90 days
contemplated under Section 167(2) of Cr.
PC will commence running only from
2.9.2013 i.e., the date on which the
respondent was produced before the
Special Judge and was handed over to the
custody of the petitioner for investigation
and not from any anterior date.
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WP No. 12843 of 2022
"Accordingly, the point raised in this
Criminal Petition is answered as under:
"The computation of 90 days as
contemplated under Section 167 of Cr.P.C.,
would commence from the date on which
the detention of the accused is authorized
in such custody as the Magistrate/Sessions
Judge deems fit and not from the date, on
which the body warrant was served on the
Jail authorities."
(Emphasis supplied)
The Division Bench rejects the contention that
the moment requisition for body warrant was served
by the Jail Authorities the clock begins to tick, but
holds that under Section 167 of the Cr.P.C., the period
would commence, the date on which the detention of
the accused is authorized to be in the custody, as the
Magistrate would deem fit.
14. In the light of the aforesaid findings in
the judgments of this Court concerning body warrant,
the body warrant against the petitioner was executed
on 20-10-2021 and the petitioner was produced before
the learned Magistrate on 21-10-2021. Therefore, the
clock begins to tick from 21-10-2021 as he was taken
into custody and remanded to police custody in terms
of the said order. Judicial custody though comes about
on 2.11.2021, the petitioner was by then in police
custody and his liberty had been curtailed as he was
in the custody of the police on body warrant.
15. The learned High Court Government
Pleader contends that the charge sheet is filed against
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WP No. 12843 of 2022
the petitioner. This is plainly contrary to the facts, as
the police filed the charge sheet only against accused
Nos.3 and 12 as could be seen from the order sheet
appended to the petition. This fact is undisputed. The
contention of the learned High Court Government
Pleader is that once the charge sheet is filed against
any of the accused the other accused also would not
be entitled to claim a right under Section 167(2) of the
Cr.P.C. This, on the face of it, is unacceptable, as it is
fundamentally flawed. It is the case of the prosecution
itself that the matter was pending investigation by the
police against the petitioner/accused No.2. Even this
day, it is the case of the High Court Government
Pleader, that the case against the petitioner is still
under investigation and on a plain mathematical
calculation the petitioner is now in custody for close to
180 days, twice the period of a right under Section
167(2) of the Cr.P.C.
16. The judgments relied on by the learned High
Court Government Pleader in the case of NARENDRA
KUMAR AMIN (supra) and RAHUL MODI (supra) would
render no assistance to the contention advanced, as
there can be no qualm about the principles laid down
therein, as one charge sheet is filed even with some
curable defects it would not enure to the benefit of the
accused to seek bail under Section 167(2) of the
Cr.P.C. Those judgments rendered by the Apex Court
are inapplicable to the facts of the case at hand, as it
is not in dispute that even as on date Crime No.82 of
2021 is pending investigation.
17. In the teeth of the provision under Section
167(2) of the Cr.P.C.; the interpretation of the Apex
Court on Section 167(2) of the Cr.P.C. holding it to be
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WP No. 12843 of 2022
an indefeasible right of the accused; orders passed by
the Co-ordinate Benches of this Court concerning body
warrant; the question being answered by the Division
Bench as to when the clock begins to tick in favour of
the accused in terms of Section 167 of the Cr.P.C., the
trajectory of all these would lead to an unmistakable
conclusion that the petitioner, in the case at hand,
would become entitled to enlargement on statutory bail
in terms of Section 167(2) of the Cr.P.C., as admittedly,
even after close to 180 days the case against the
petitioner is pending investigation."
In the light of the reasons rendered in
Crl.P.No.2802/2022, as afore-extracted, the present
petition also deserves to be allowed.
6. For the aforesaid reasons, the following:
ORDER
i. The Writ Petition is allowed.
ii. The order dated 05.03.2022, passed by the I
Additional Chief Judicial Magistrate, Bengaluru
Rural District, Bengaluru, in Crime No.722 of
2021, stands quashed.
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WP No. 12843 of 2022
iii. The petitioner is ordered to be released on
statutory bail under Section 167(2) of the
Cr.P.C. in connection with Crime No.722 of
2021 on executing personal bond for a sum of
rupees one lakh with one surety of the like
amount to the satisfaction of the trial Court and
subject to the conditions that the petitioner:
(a) shall not take undue advantage of the
liberty or misuse the liberty;
(b) shall not act in a manner injurious to the
interest of the prosecution;
(c) shall surrender passport, if any, before the
trial Court within a week;
(f) shall furnish present address of residence
to the Investigating Officer and also to the
Court at the time of execution of the bond
and shall not change the address without
prior permission of the Court;
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WP No. 12843 of 2022
(g) shall not tamper with the evidence or
attempt to influence or contact
complainant's witnesses or any other
person connected with the case in any
manner.
Sd/-
JUDGE
NVJ
