Karnataka High Court
Shri. Hrishikesh Devdikar vs State Of Karnataka on 21 October, 2022
Bench: Suraj Govindaraj
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WP No. 2997 of 2021
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 21ST DAY OF OCTOBER, 2022
BEFORE
THE HON'BLE MR JUSTICE SURAJ GOVINDARAJ
®
WRIT PETITION NO. 2997 OF 2021 (GM-RES)
BETWEEN:
SHRI. HRISHIKESH DEVDIKAR
S/O BHASKAR
AGE- 41 YEARS
OCC - BUSINESS,
R/O FLAT NO.12, MAHARANA PRATHAP
HOUSING SOCIETY, N-7, CIDCO
AURANGABAD-431003
MAHARASHTRA
...PETITIONER
(BY SRI. KIRAN.B.S, ADVOCATE)
AND:
STATE OF KARNATAKA
SIT, CID OFFICE, CARLTON HOUSE
BANGALORE
REP. BY SPECIAL PUBLIC PROSECUTOR
Digitally signed by HIGH COURT COMPLEX, BANGALORE
POORNIMA
SHIVANNA ... RESPONDENT
Location: HIGH (BY SRI. ASHOK N.NAIK, SPL. PP)
COURT OF
KARNATAKA
THIS WRIT PETITION IS FILED UNDER ARTICLE 226
AND 227 OF THE CONSTITUTION OF INDIA READ WITH
SECTION 482OF CR.P.C, PRAYING TO (A) ISSUE NOTICE TO
THE RESPONDENT; (B) CALL FOR ALL RECORDS AND
PROCEEDINGS OF THE SPECIAL COURT WITH REFERENCE TO
THE ANNEXURES, AS ALSO THE RECORDS OF EMAILS
RECEIVED, PRINTED AND PROCESSED AND SUCH NECESSARY
DOCUMENTS, INCLUDING BUT NOT LIMITED TO INTERNAL
MECHANISM GUIDELINES/ORDERS/SOP'S. AND RECORDS ON
GUIDELINES/ORDERS/SOP'S AND ETC.
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WP No. 2997 of 2021
THIS WRIT PETITION COMING ON FOR PRELIMINARY HEARING
IN 'B' GROUP AND HAVING BEEN RESERVED FOR ORDERS ON
19.09.2022, THIS DAY, THE COURT PRONOUNCED THE FOLLOWING:
ORDER
1. The petitioner is before this Court seeking for the
following reliefs:
i. This Hon'ble High Court be pleased to: (a) issue
notice to the Respondent; (b) call for all records
and proceedings of the Special Court with
reference to the Annexures, as also the records
of emails received, printed and processed and
such necessary documents, including but not
limited to internal mechanism
guidelines/orders/SOP's. and records on
guidelines/orders/SOP's.
ii. This Hon'ble High Court be pleased to quash and
set aside the order by the Special Court in Spl
C.C No. 872 of 2018 dated 12-05-2020 at
Annexure-A.
iii. This Hon'ble Court be pleased to grant bail to
the Petitioner on such conditions as deemed fit.
iv. This Hon'ble Court be further pleased to
examine the records and pass necessary orders
for departmental proceedings against the
concerned judicial staff/registry officers/clerks
etc. found responsible for: (a) negligence and
dereliction of duty; and, (b) frustrating the
fundamental rights of the Petitioner.
v. This Hon'ble Court be further pleased to pass
orders and grant other reliefs as it may deem fit
under the facts and circumstances of the case
herein and in the interest of justice.
WP No. 2997 of 2021
2. The petitioner is accused No.18 in CC 872/2018
pending on the file of the Prl. City Civil and Sessions
Judge and Special Judge for Karnataka Control and
Organised Crime Act at Bengaluru.
3. FIR in Crime No.221/2017 was registered with the
Rajarajeshwari Nagar Police station, Bengaluru as
regards the murder of one Gowri Lankesh. He was
arrested on 9.01.2020 and remanded to judicial
custody on 27.01.2020. The petitioner on 4.05.2020
filed an application under subsection (2) of Section
167 of Cr.P.C. seeking for statutory/default bail.
Without passing any orders on the said application,
the Special Court remanded the petitioner to judicial
custody on 12.05.2020. It is challenging the said
order, the petitioner is before this Court.
4. Sri.Kiran.B.S, learned counsel for the petitioner
would submit that:
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4.1. Being the case of murder, a supplementary
charge sheet was required to be filed on or
before 9.04.2020 i.e. 90th date from the date
on which the petitioner was arrested i.e.,
9.01.2020. No charge sheet having been laid
within that period of time, the application which
had been filed by the petitioner by following the
Standard Operating Procedure issued by this
court vide notification dated 16.04.2020, the
petitioner's counsel having forwarded an
application under Subsection (2) of Section 167
of Cr.P.C., vide email dated 4.5.2019 post the
expiry of period of 90 days from the date of
arrest, the Special Court ought to have
enlarged the petitioner on default bail.
4.2. Instead of doing so without orders being passed
on the application under subsection (2) of
Section 167 of Cr.P.C, the requisition for
extension of period for filing charge sheet on
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12.05.2020 was considered and allowed which
was contrary to Subsection (2) of Section 167
of Cr.P.C. The extension of time by exercising
powers under clause (b) Subsection 2 of
Section 22 of Karnataka Control of Organized
Crimes Act, 2000 [hereinafter referred to as
'KCOCA'] without passing orders on the
application filed under subsection (2) of Section
167 of Cr.P.C, is nonest.
4.3. No opportunity has been provided to the
petitioner to cause reply to the request made
for extension of time by the respondent-State
and as such, the rights of the petitioner have
been violated.
4.4. The petitioner has been following up on the
matter in the Special Court, however, due to
the COVID pandemic and SOP in force, only 20
matters were taken per day resulting in the
WP No. 2997 of 2021
petitioner continuing to be in custody thereby
impinging upon his life and liberty. Therefore,
he submits that the application filed by the
petitioner on 4.05.2020 by email sent to the
email address provided under the SOP is in due
compliance with the SOP and it was for the
Court to pass necessary orders on the same. It
was also the duty of the concerned court clerk
to put up the said application before the
concerned Judge. He relies upon the decision
in Madhu Limaye, In re1, more particularly
para 10 and 12 thereof which are reproduced
hereunder for easy reference:
10. Article 22(1) embodies a rule which has
always been regarded as vital and
fundamental for safeguarding personal
liberty in all legal systems where the rule of
law prevails. For example, the 6th
amendment to the Constitution of the United
States of America contains similar provisions
and so does article 34 of the Japanese
Constitution of 1946. In England whenever
an arrest is made without a warrant, the
arrested person has a right to be informed
not only that he is being arrested but also of
AIR 1969 SC 1014
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the reasons or grounds for the arrest. The
House of Lords in Christie v. Leachinsky
[(1947) 1 All ELR 567] went into the origin
and development of this rule. In the words of
Viscount Simon if a policeman who
entertained a reasonable suspicion that X
had committed a felony were at liberty to
arrest him and march him off to a police
station without giving any explanation of why
he was doing this, the prima facie right of
personal liberty would be gravely infringed.
Viscount Simon laid down several
propositions which were not meant to be
exhaustive. For our purposes we may refer
to the first and the third:
"1. If a policeman arrests without warrant
upon reasonable suspicion of felony, or of
other crime of a sort which does not require
a warrant, he must in ordinary circumstances
inform the person arrested of the true
ground of arrest. He is not entitled to keep
the reason to himself or to give a reason
which is not the true reason. In other words,
a citizen is entitled to know on what charge
or on suspicion of what crime he is seized.
2. * * *
3. The requirement that the person arrested
should be informed of the reason why he is
seized naturally does not exist if the
circumstances are such that he must know
the general nature of the alleged offence for
which he is detained."
Lord Simonds gave an illustration of the
circumstances where the accused must know
why he is being arrested.
There is no need to explain the reasons of
arrest if the arrested man is caught red-
handed and the crime is patent to high
Heaven."
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The two requirements of clause (1) of Article
22 are meant to afford the earliest
opportunity to the arrested person to remove
any mistake, misapprehension or
misunderstanding in the minds of the
arresting authority and, also, to know exactly
what the accusation against him is so that he
can exercise the second right, namely, of
consulting a legal practitioner of his choice
and to be defended by him. Clause (2) of
Article 22 provides the next and most
material safeguard that the arrested person
must be produced before a Magistrate within
24 hours of such arrest so that an
independent authority exercising judicial
powers may without delay apply its mind to
his case. The Criminal Procedure Code
contains analogous provisions in Sections 60
and 340 but our Constitution makers were
anxious to make these safeguards an integral
part of fundamental rights. This is what Dr
B.R. Ambedkar said while moving for
insertion of Article 15-A (as numbered in the
Draft Bill of the Constitution) which
corresponded to present Article 22:
"Article 15-A merely lifts from the provisions
of the Criminal Procedure Code two of the
most fundamental principles which every
civilised country follows as principles of
international justice. It is quite true that
these two provisions contained in clause (1)
and clause (2) are already to be found in the
Criminal Procedure Code and thereby
probably it might be said that we are really
not making any very fundamental change.
But we are, as I contend, making a
fundamental change because what we are
doing by the introduction of Article 15-A is to
put a limitation upon the authority both of
Parliament as well as of the Provincial
Legislature not to abrogate these two
provisions, because they are now introduced
in our Constitution itself."
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As stated in Ram Narayan Singh v. State of
Delhi [AIR (1953) SC 277] this Court has
often reiterated that those who feel called
upon to deprive other persons of liberty in
the discharge of what they conceive to be
their duty must, strictly and scrupulously,
observe the forms and rules of law.
Whenever that is not done the petitioner
would be entitled to a writ of habeas corpus
directing his release.
12. Once it is shown that the arrests made
by the police officers were illegal, it was
necessary for the State to establish that at
the stage of remand the Magistrate directed
detention in jail custody after applying his
mind to all relevant matters. This the State
has failed to do. The remand orders are
patently routine and appear to have been
made mechanically. All that Mr Chagla has
said is that if the arrested persons wanted to
challenge their legality the High Court should
have been moved under appropriate
provisions of the Criminal Procedure Code.
But it must be remembered that Madhu
Limaye and others have, by moving this
Court under Article 32 of the Constitution,
complained of detention or confinement in
jail without compliance with the
constitutional and legal provisions. If their
detention in custody could not continue after
their arrest because of the violation of Article
22(1) of the Constitution they were entitled
to be released forthwith. The orders of
remand are not such as would cure the
constitutional infirmities. This disposes of the
third contention of Madhu Limaye.
4.5. Detention in custody violates the constitutional
guarantees and the detention ought not to have
continued beyond a period of 90 days from the
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date of arrest of the petitioner. In this regard,
he relies upon the decision of the Hon'ble Apex
Court in Jaya Sing -v- State of Jammu and
Kashmir2. Even if at all there was a right to
seek for extension of time to file a charge
sheet, the said application ought to have been
filed prior to the expiry of 90 days from the
date of arrest. In the present case, 90 days
having been expired on 4.04.2020, the
application having filed on 12.05.2020 was not
within the said timeframe and as such, that
application could not have been considered.
4.6. While hearing the application under Section 22
of the KCOCA which is in parametria to Section
43 of the Unlawful Activities Prevention Act,
Maharashtra Organized Control of Crime Act,
Narcotic Drugs and Psychotropic Substances
Act, 1985, notice ought to have been issued to
(1985)1 SCC 561
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the petitioner and an opportunity to be
provided to the petitioner-accused to have been
heard in the matter.
4.7. The application filed under Section 22 of KCOCA
is a mechanical application without application
of mind inasmuch as the said application does
not indicate the progress of the investigation
and specific reasons as to why the detention of
the petitioner is required to be extended
beyond a period of 90 days. The application
filed as also the order passed ought to take
note of reasonable grounds, if available. If no
reasonable grounds were available, custody
could not have been extended. In this regard
relies upon the decision in Chenna Boyanna
Krishna Yadav v. State of Maharashtra3, more
particularly para 13 and 14 thereof, which are
reproduced hereunder for easy reference:
(2007) 1 SCC 242
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13. It is plain from a bare reading of the non
obstante clause in the sub-section that the
power to grant bail by the High Court or the
Court of Session is not only subject to the
limitations imposed by Section 439 of the
Code but is also subject to the limitations
placed by Section 21(4) of MCOCA. Apart from
the grant of opportunity to the Public
Prosecutor, the other twin conditions are: the
satisfaction of the court that there are
reasonable grounds for believing that the
accused is not guilty of the alleged offence
and that he is not likely to commit any
offence while on bail. The conditions are
cumulative and not alternative. The
satisfaction contemplated regarding the
accused being not guilty has to be based on
reasonable grounds. The expression
"reasonable grounds" means something more
than prima facie grounds. It contemplates
substantial probable causes for believing that
the accused is not guilty of the alleged
offence. The reasonable belief contemplated
in the provisions requires existence of such
facts and circumstances as are sufficient in
themselves to justify satisfaction that the
accused is not guilty of the alleged offence.
Thus, recording of findings under the said
provision is a sine qua non for granting bail
under MCOCA.
14. In R.B. Sharma case [(2005) 5 SCC 294 :
2005 SCC (Cri) 1057] construing the said
provision somewhat liberally, S.B. Sinha, J.
speaking for a three-Judge Bench observed
thus: (SCC pp. 318-19, paras 43-44 & 46)
"43. Section 21(4) of MCOCA does not make
any distinction between an offence which
entails punishment of life imprisonment and
an imprisonment for a year or two. It does
not provide that even in case a person
remains behind the bars for a period
exceeding three years, although his
involvement may be in terms of Section 24 of
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the Act, the court is prohibited to enlarge him
on bail. Each case, therefore, must be
considered on its own facts. The question as
to whether he is involved in the commission
of organised crime or abetment thereof must
be judged objectively. ...
44. The wording of Section 21(4), in our
opinion, does not lead to the conclusion that
the court must arrive at a positive finding that
the applicant for bail has not committed an
offence under the Act. If such a construction
is placed, the court intending to grant bail
must arrive at a finding that the applicant has
not committed such an offence. In such an
event, it will be impossible for the prosecution
to obtain a judgment of conviction of the
applicant. Such cannot be the intention of the
legislature. Section 21(4) of MCOCA, therefore,
must be construed reasonably. It must be so
construed that the court is able to maintain a
delicate balance between a judgment of
acquittal and conviction and an order granting
bail much before commencement of trial.
Similarly, the court will be required to record
a finding as to the possibility of his
committing a crime after grant of bail.
However, such an offence in future must be
an offence under the Act and not any other
offence. Since it is difficult to predict the
future conduct of an accused, the court must
necessarily consider this aspect of the matter
having regard to the antecedents of the
accused, his propensities and the nature and
manner in which he is alleged to have
committed the offence.
***
46. The duty of the court at this stage is not
to weigh the evidence meticulously but to
arrive at a finding on the basis of broad
probabilities. However, while dealing with a
special statute like MCOCA having regard to
the provisions contained in sub-section (4) of
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Section 21 of the Act, the court may have to
probe into the matter deeper so as to enable
it to arrive at a finding that the materials
collected against the accused during the
investigation may not justify a judgment of
conviction. The findings recorded by the court
while granting or refusing bail undoubtedly
would be tentative in nature, which may not
have any bearing on the merit of the case and
the trial court would, thus, be free to decide
the case on the basis of evidence adduced at
the trial, without in any manner being
prejudiced thereby."
4.8. The right to default bail/statutory bail could not
be denied on the ground that a subsequent
application by extension of time was issued. In
this regard he relies upon the decision in Sayed
Mohd. Ahmad Kazmi v. State (Govt. of NCT
of Delhi)4, more particularly para 25, 26 and
27 thereof, which are reproduced hereunder for
easy reference:
25. Having carefully considered the submissions
made on behalf of the respective parties, the
relevant provisions of law and the decision cited,
we are unable to accept the submissions
advanced on behalf of the State by the learned
Additional Solicitor General Mr Raval. There is
no denying the fact that on 17-7-2012, when CR
No. 86 of 2012 was allowed by the Additional
Sessions Judge and the custody of the appellant
(2012) 12 SCC 1
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was held to be illegal and an application under
Section 167(2) CrPC was made on behalf of the
appellant for grant of statutory bail which was
listed for hearing. Instead of hearing the
application, the Chief Metropolitan Magistrate
adjourned the same till the next day when the
Public Prosecutor filed an application for
extension of the period of custody and
investigation and on 20-7-2012 extended the
time of investigation and the custody of the
appellant for a further period of 90 days with
retrospective effect from 2-6-2012. Not only is
the retrospectivity of the order of the Chief
Metropolitan Magistrate untenable, it could not
also defeat the statutory right which had
accrued to the appellant on the expiry of 90
days from the date when the appellant was
taken into custody. Such right, as has been
commented upon by this Court in Sanjay Dutt
[(1994) 5 SCC 410 : 1994 SCC (Cri) 1433] and
the other cases cited by the learned Additional
Solicitor General, could only be distinguished
(sic extinguished) once the charge-sheet had
been filed in the case and no application has
been made prior thereto for grant of statutory
bail. It is well-established that if an accused
does not exercise his right to grant of statutory
bail before the charge-sheet is filed, he loses his
right to such benefit once such charge-sheet is
filed and can, thereafter, only apply for regular
bail.
26. The circumstances in this case, however,
are different in that the appellant had exercised
his right to statutory bail on the very same day
on which his custody was held to be illegal and
such an application was left undecided by the
Chief Metropolitan Magistrate till after the
application filed by the prosecution for extension
of time to complete investigation was taken up
and orders were passed thereupon.
27. We are unable to appreciate the procedure
adopted by the Chief Metropolitan Magistrate,
which has been endorsed by the High Court and
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we are of the view that the appellant acquired
the right for grant of statutory bail on 17-7-
2012, when his custody was held to be illegal by
the Additional Sessions Judge since his
application for statutory bail was pending at the
time when the application for extension of time
for continuing the investigation was filed by the
prosecution. In our view, the right of the
appellant to grant of statutory bail remained
unaffected by the subsequent application and
both the Chief Metropolitan Magistrate and the
High Court erred in holding otherwise.
4.9. The right of default/statutory bail cannot be
extinguished and ought to be granted if
exercised in a proper manner. In this regard,
he relies upon a decision in Union of India v.
Nirala Yadav5, more particularly para 47
which is reproduced hereunder for easy
reference:
47. Coming to the facts of the instant case,
we find that prior to the date of expiry of 90
days which is the initial period for filing the
charge-sheet, the prosecution neither had
filed the charge-sheet nor had it filed an
application for extension. Had an application
for extension been filed, then the matter
would have been totally different. After the
respondent-accused filed the application,
the prosecution submitted an application
seeking extension of time for filing of the
charge-sheet. Mr P.K. Dey, learned counsel
for the appellant would submit that the
(2014)9 SCC 457
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same is permissible in view of the decision
in Bipin Shantilal Panchal [(1996) 1 SCC
718 : 1996 SCC (Cri) 200] but on a studied
scrutiny of the same we find that the said
decision only dealt with whether extension
could be sought from time to time till the
completion of period as provided in the
statute i.e. 180 days. It did not address the
issue what could be the effect of not filing
an application for extension prior to expiry
of the period because in the factual matrix it
was not necessary to do so. In the instant
case, the day the accused filed the
application for benefit of the default
provision as engrafted under proviso to sub-
section (2) of Section 167 CrPC the Court
required the accused to file a rejoinder-
affidavit by the time the initial period
provided under the statute had expired.
There was no question of any contest as if
the application for extension had been filed
prior to the expiry of time. The adjournment
by the learned Magistrate was
misconceived. He was obliged on that day to
deal with the application filed by the
accused as required under Section 167(2)
CrPC. We have no hesitation in saying that
such procrastination frustrates the
legislative mandate. A court cannot act to
extinguish the right of an accused if the law
so confers on him. Law has to prevail. The
prosecution cannot avail such subterfuges to
frustrate or destroy the legal right of the
accused. Such an act is not permissible. If
we permit ourselves to say so, the
prosecution exhibited sheer negligence in
not filing the application within the time
which it was entitled to do so in law but
made all adroit attempts to redeem the
cause by its conduct.
4.10. By not granting default bail, the fundamental
right of the petitioner guaranteed by Article 21
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of the Constitution of India has been violated
by relying upon the decision in M. Ravindran
v. Directorate of Revenue Intelligence6,
more particularly para 17 which is reproduced
hereunder for easy reference:
II. Section 167(2) and the Fundamental
Right to Life and Personal Liberty
17. Before we proceed to expand upon the
parameters of the right to default bail under
Section 167(2) as interpreted by various
decisions of this Court, we find it pertinent to
note the observations made by this Court in
Uday Mohanlal Acharya [Uday Mohanlal
Acharya v. State of Maharashtra, (2001) 5
SCC 453 : 2001 SCC (Cri) 760] on the
fundamental right to personal liberty of the
person and the effect of deprivation of the
same as follows: (SCC p. 472, para 13)
"13. ... Personal liberty is one of the cherished
objects of the Indian Constitution and
deprivation of the same can only be in
accordance with law and in conformity with
the provisions thereof, as stipulated under
Article 21 of the Constitution. When the law
provides that the Magistrate could authorise
the detention of the accused in custody up to
a maximum period as indicated in the proviso
to sub-section (2) of Section 167, any further
detention beyond the period without filing of a
challan by the investigating agency would be
a subterfuge and would not be in accordance
with law and in conformity with the provisions
of the Criminal Procedure Code, and as such,
(2021) 2 SCC 485
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could be violative of Article 21 of the
Constitution."
17.1. Article 21 of the Constitution of India
provides that "no person shall be deprived of
his life or personal liberty except according to
procedure established by law". It has been
settled by a Constitution Bench of this Court
in Maneka Gandhi v. Union of India [Maneka
Gandhi v. Union of India, (1978) 1 SCC 248] ,
that such a procedure cannot be arbitrary,
unfair or unreasonable. The history of the
enactment of Section 167(2) CrPC and the
safeguard of "default bail" contained in the
proviso thereto is intrinsically linked to Article
21 and is nothing but a legislative exposition
of the constitutional safeguard that no person
shall be detained except in accordance with
rule of law.
17.2. Under Section 167 of the Code of
Criminal Procedure, 1898 ("the 1898 Code")
which was in force prior to the enactment of
the CrPC, the maximum period for which an
accused could be remanded to custody, either
police or judicial, was 15 days. However,
since it was often unworkable to conclude
complicated investigations within 15 days, a
practice arose wherein investigating officers
would file "preliminary charge-sheets" after
the expiry of the remand period. The State
would then request the Magistrate to
postpone commencement of the trial and
authorise further remand of the accused
under Section 344 of the 1898 Code till the
time the investigation was completed and the
final charge-sheet was filed. The Law
Commission of India in Report No. 14 on
Reforms of the Judicial Administration (Vol. II,
1948, pp. 758-760) pointed out that in many
cases the accused were languishing for
several months in custody without any final
report being filed before the courts. It was
also pointed out that there was conflict in
judicial opinion as to whether the Magistrate
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was bound to release the accused if the police
report was not filed within 15 days.
17.3. Hence the Law Commission in Report
No. 14 recommended the need for an
appropriate provision specifically providing for
continued remand after the expiry of 15 days,
in a manner that "while meeting the needs of
a full and proper investigation in cases of
serious crime, will still safeguard the liberty of
the person of the individual". Further, that the
legislature should prescribe a maximum time
period beyond which no accused could be
detained without filing of the police report
before the Magistrate. It was pointed out that
in England, even a person accused of grave
offences such as treason could not be
indefinitely detained in prison till
commencement of the trial.
was reiterated by the Law Commission in
Report No. 41 on The Code of Criminal
Procedure, 1898 (Vol. I, 1969, pp. 76-77).
The Law Commission re-emphasised the need
to guard against the misuse of Section 344 of
the 1898 Code by filing "preliminary reports"
for remanding the accused beyond the
statutory period prescribed under Section
167. It was pointed out that this could lead to
serious abuse wherein "the arrested person
can in this manner be kept in custody
indefinitely while the investigation can go on
in a leisurely manner". Hence the Commission
recommended fixing of a maximum time-limit
of 60 days for remand. The Commission
considered the reservation expressed earlier
in Report No. 37 that such an extension may
result in the 60-day period becoming a matter
of routine. However, faith was expressed that
proper supervision by the superior courts
would help circumvent the same.
were taken note of and incorporated by the
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Central Government while drafting the Code
of Criminal Procedure Bill in 1970. Ultimately,
the 1898 Code was replaced by the present
CrPC. The Statement of Objects and Reasons
of the CrPC provides that the Government
took the following important considerations
into account while evaluating the
recommendations of the Law Commission:
"3. The recommendations of the Commission
were examined carefully by the Government,
keeping in view, among others, the following
basic considerations:
(i) an accused person should get a fair trial in
accordance with the accepted principles of
natural justice;
(ii) every effort should be made to avoid
delay in investigation and trial which is
harmful not only to the individuals involved
but also to society; and
(iii) the procedure should not be complicated
and should, to the utmost extent possible,
ensure fair deal to the poorer sections of the
community."
17.6. It was in this backdrop that Section
167(2) was enacted within the present day
CrPC, providing for time-limits on the period
of remand of the accused, proportionate to
the seriousness of the offence committed,
failing which the accused acquires the
indefeasible right to bail. As is evident from
the recommendations of the Law Commission
mentioned supra, the intent of the legislature
was to balance the need for sufficient time-
limits to complete the investigation with the
need to protect the civil liberties of the
accused. Section 167(2) provides for a clear
mandate that the investigative agency must
collect the required evidence within the
prescribed time period, failing which the
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accused can no longer be detained. This
ensures that the investigating officers are
compelled to act swiftly and efficiently without
misusing the prospect of further remand. This
also ensures that the court takes cognizance
of the case without any undue delay from the
date of giving information of the offence, so
that society at large does not lose faith and
develop cynicism towards the criminal justice
system.
17.7. Therefore, as mentioned supra, Section
167(2) is integrally linked to the constitutional
commitment under Article 21 promising
protection of life and personal liberty against
unlawful and arbitrary detention, and must be
interpreted in a manner which serves this
purpose. In this regard we find it useful to
refer to the decision of the three-Judge Bench
of this Court in Rakesh Kumar Paul v. State of
Assam [Rakesh Kumar Paul v. State of
Assam, (2017) 15 SCC 67 : (2018) 1 SCC
(Cri) 401] , which laid down certain seminal
principles as to the interpretation of Section
167(2) CrPC though the questions of law
involved were somewhat different from the
present case. The questions before the three-
Judge Bench in Rakesh Kumar Paul [Rakesh
Kumar Paul v. State of Assam, (2017) 15 SCC
67 : (2018) 1 SCC (Cri) 401] were whether,
firstly, the 90-day remand extension under
Section 167(2)(a)(i) would be applicable in
respect of offences where the maximum
period of imprisonment was 10 years, though
the minimum period was less than 10 years.
Secondly, whether the application for bail filed
by the accused could be construed as an
application for default bail, even though the
expiry of the statutory period under Section
167(2) had not been specifically pleaded as a
ground for bail. The majority opinion held that
the 90-day limit is only available in respect of
offences where a minimum ten year'
imprisonment period is stipulated, and that
the oral arguments for default bail made by
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the counsel for the accused before the High
Court would suffice in lieu of a written
application. This was based on the reasoning
that the court should not be too technical in
matters of personal liberty. Madan B. Lokur,
J. in his majority opinion, pertinently
observed as follows: (SCC pp. 95-96 & 99,
paras 29, 32 & 41)
"29. Notwithstanding this, the basic legislative
intent of completing investigations within
twenty-four hours and also within an
otherwise time-bound period remains
unchanged, even though that period has been
extended over the years. This is an indication
that in addition to giving adequate time to
complete investigations, the legislature has
also and always put a premium on personal
liberty and has always felt that it would be
unfair to an accused to remain in custody for
a prolonged or indefinite period. It is for this
reason and also to hold the investigating
agency accountable that time-limits have
been laid down by the legislature. ...
***
32. ... Such views and opinions over a
prolonged period have prompted the
legislature for more than a century to ensure
expeditious conclusion of investigations so
that an accused person is not unnecessarily
deprived of his or her personal liberty by
remaining in prolonged custody for an offence
that he or she might not even have
committed. In our opinion, the entire debate
before us must also be looked at from the
point of view of expeditious conclusion of
investigations and from the angle of personal
liberty and not from a purely dictionary or
textual perspective as canvassed by the
learned counsel for the State.
***
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WP No. 2997 of 2021
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."
(emphasis supplied)
Therefore, the courts cannot adopt a rigid or
formalistic approach whilst considering any
issue that touches upon the rights contained
in Article 21.
17.8. We may also refer with benefit to the
recent judgment of this Court in S. Kasi v.
State [S. Kasi v. State, (2021) 12 SCC 1 :
2020 SCC OnLine SC 529] , wherein it was
observed that the indefeasible right to default
bail under Section 167(2) is an integral part
of the right to personal liberty under Article
21, and the said right to bail cannot be
suspended even during a pandemic situation
as is prevailing currently. It was emphasised
that the right of the accused to be set at
liberty takes precedence over the right of the
State to carry on the investigation and submit
a charge-sheet.
17.9. Additionally, it is well-settled that in
case of any ambiguity in the construction of a
penal statute, the courts must favour the
interpretation which leans towards protecting
the rights of the accused, given the
ubiquitous power disparity between the
individual accused and the State machinery.
This is applicable not only in the case of
substantive penal statutes but also in the
case of procedures providing for the
curtailment of the liberty of the accused.
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WP No. 2997 of 2021
17.10. With respect to the CrPC particularly,
the Statement of Objects and Reasons
(supra) is an important aid of construction.
Section 167(2) has to be interpreted keeping
in mind the threefold objectives expressed by
the legislature, namely, ensuring a fair trial,
expeditious investigation and trial, and setting
down a rationalised procedure that protects
the interests of indigent sections of society.
These objects are nothing but subsets of the
overarching fundamental right guaranteed
under Article 21.
17.11. Hence, it is from the perspective of
upholding the fundamental right to life and
personal liberty under Article 21 that we shall
clarify and reconcile the various judicial
interpretations of Section 167(2) for the
purpose of resolving the dilemma that has
arisen in the present case.
4.11. The application filed for extension of time is
bereft of merits and mechanical and the Public
Prosecutor ought to have applied his mind and
made out clear and categorical reasons for
extension of time for investigation, that not
having been made out, even the orders passed
by the Special Court extending time is bad in
law. In this regard reliance is placed on the
decision in Manubhai Ratilal Patel v. State
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WP No. 2997 of 2021
of Gujarat7, more particularly para 24 which is
reproduced hereunder for easy reference:
24. The act of directing remand of an accused
is fundamentally a judicial function. The
Magistrate does not act in executive capacity
while ordering the detention of an accused.
While exercising this judicial act, it is
obligatory on the part of the Magistrate to
satisfy himself whether the materials placed
before him justify such a remand or, to put it
differently, whether there exist reasonable
grounds to commit the accused to custody and
extend his remand. The purpose of remand as
postulated under Section 167 is that
investigation cannot be completed within 24
hours. It enables the Magistrate to see that
the remand is really necessary. This requires
the investigating agency to send the case diary
along with the remand report so that the
Magistrate can appreciate the factual scenario
and apply his mind whether there is a warrant
for police remand or justification for judicial
remand or there is no need for any remand at
all. It is obligatory on the part of the
Magistrate to apply his mind and not to pass
an order of remand automatically or in a
mechanical manner.
4.12. He also relies on the decision in Hitendra
Vishnu Thakur v. State of Maharashtra8,
more particularly para 23 thereof, which is
reproduced hereunder for easy reference:
AIR 2013 SC 313
(1994) 4 SCC 602
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WP No. 2997 of 2021
23. We may at this stage, also on a plain
reading of clause (bb) of sub-section (4)
of Section 20, point out that the
Legislature has provided for seeking
extension of time for completion of
investigation on a report of the public
prosecutor. The Legislature did not
purposely leave it to an investigating
officer to make an application for seeking
extension of time from the court. This
provision is in tune with the legislative
intent to have the investigations
completed expeditiously and not to allow
an accused to be kept in continued
detention during unnecessary prolonged
investigation at the whims of the police.
The Legislature expects that the
investigation must be completed with
utmost promptitude but where it becomes
necessary to seek some more time for
completion of the investigation, the
investigating agency must submit itself to
the scrutiny of the public prosecutor in
the first instance and satisfy him about
the progress of the investigation and
furnish reasons for seeking further
custody of an accused. A public
prosecutor is an important officer of the
State Government and is appointed by
the State under the Code of Criminal
Procedure. He is not a part of the
investigating agency. He is an
independent statutory authority. The
public prosecutor is expected to
independently apply his mind to the
request of the investigating agency before
submitting a report to the court for
extension of time with a view to enable
the investigating agency to complete the
investigation. He is not merely a post
office or a forwarding agency. A public
prosecutor may or may not agree with
the reasons given by the investigating
officer for seeking extension of time and
may find that the investigation had not
progressed in the proper manner or that
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there has been unnecessary, deliberate or
avoidable delay in completing the
investigation. In that event, he may not
submit any report to the court under
clause (bb) to seek extension of time.
Thus, for seeking extension of time under
clause (bb), the public prosecutor after an
independent application of his mind to the
request of the investigating agency is
required to make a report to the
Designated Court indicating therein the
progress of the investigation and
disclosing justification for keeping the
accused in further custody to enable the
investigating agency to complete the
investigation. The public prosecutor may
attach the request of the investigating
officer along with his request or
application and report, but his report, as
envisaged under clause (bb), must
disclose on the face of it that he has
applied his mind and was satisfied with
the progress of the investigation and
considered grant of further time to
complete the investigation necessary. The
use of the expression "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" as
occurring in clause (bb) in sub-section (2)
of Section 167 as amended by Section
20(4) are important and indicative of the
legislative intent not to keep an accused
in custody unreasonably and to grant
extension only on the report of the public
prosecutor. The report of the public
prosecutor, therefore, is not merely a
formality but a very vital report, because
the consequence of its acceptance affects
the liberty of an accused and it must,
therefore, strictly comply with the
requirements as contained in clause (bb).
The request of an investigating officer for
extension of time is no substitute for the
report of the public prosecutor. Where
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WP No. 2997 of 2021
either no report as is envisaged by clause
(bb) is filed or the report filed by the
public prosecutor is not accepted by the
Designated Court, since the grant of
extension of time under clause (bb) is
neither a formality nor automatic, the
necessary corollary would be that an
accused would be entitled to seek bail and
the court 'shall' release him on bail if he
furnishes bail as required by the
Designated Court. It is not merely the
question of form in which the request for
extension under clause (bb) is made but
one of substance. The contents of the
report to be submitted by the public
prosecutor, after proper application of his
mind, are designed to assist the
Designated Court to independently decide
whether or not extension should be
granted in a given case. Keeping in view
the consequences of the grant of
extension i.e. keeping an accused in
further custody, the Designated Court
must be satisfied for the justification,
from the report of the public prosecutor,
to grant extension of time to complete the
investigation. Where the Designated
Court declines to grant such an extension,
the right to be released on bail on
account of the 'default' of the prosecution
becomes indefeasible and cannot be
defeated by reasons other than those
contemplated by sub-section (4) of
Section 20 as discussed in the earlier part
of this judgment. We are unable to agree
with Mr Madhava Reddy or the Additional
Solicitor General Mr Tulsi that even if the
public prosecutor 'presents' the request of
the investigating officer to the court or
'forwards' the request of the investigating
officer to the court, it should be construed
to be the report of the public prosecutor.
There is no scope for such a construction
when we are dealing with the liberty of a
citizen. The courts are expected to
zealously safeguard his liberty. Clause
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WP No. 2997 of 2021
(bb) has to be read and interpreted on its
plain language without addition or
substitution of any expression in it. We
have already dealt with the importance of
the report of the public prosecutor and
emphasised that he is neither a 'post
office' of the investigating agency nor its
'forwarding agency' but is charged with a
statutory duty. He must apply his mind to
the facts and circumstances of the case
and his report must disclose on the face
of it that he had applied his mind to the
twin conditions contained in clause (bb) of
sub-section (4) of Section 20. Since the
law requires him to submit the report as
envisaged by the section, he must act in
the manner as provided by the section
and in no other manner. A Designated
Court which overlooks and ignores the
requirements of a valid report fails in the
performance of one of its essential duties
and renders its order under clause (bb)
vulnerable. Whether the public prosecutor
labels his report as a report or as an
application for extension, would not be of
much consequence so long as it
demonstrates on the face of it that he has
applied his mind and is satisfied with the
progress of the investigation and the
genuineness of the reasons for grant of
extension to keep an accused in further
custody as envisaged by clause (bb)
(supra). Even the mere reproduction of
the application or request of the
investigating officer by the public
prosecutor in his report, without
demonstration of the application of his
mind and recording his own satisfaction,
would not render his report as the one
envisaged by clause (bb) and it would not
be a proper report to seek extension of
time. In the absence of an appropriate
report the Designated Court would have
no jurisdiction to deny to an accused his
indefeasible right to be released on bail
on account of the default of the
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WP No. 2997 of 2021
prosecution to file the challan within the
prescribed time if an accused seeks and is
prepared to furnish the bail bonds as
directed by the court. Moreover, no
extension can be granted to keep an
accused in custody beyond the prescribed
period except to enable the investigation
to be completed and as already stated
before any extension is granted under
clause (bb), the accused must be put on
notice and permitted to have his say so
as to be able to object to the grant of
extension.
4.13. Investigation would be complete only if
sufficient material is collected by the
Investigating officer, based on which
cognizance can be taken. In the present case,
the investigation is yet to be completed and a
supplementary charge sheet is yet to be laid
insofar as petitioner/accused No.18 is
concerned and as such, 90 days period has
expired from the date of arrest of the
petitioner, the petitioner is entitled for
default/statutory bail. In this regard, he relies
upon the decision of the Hon'ble Telangana
High Court in Parthasarathy vs. Director of
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WP No. 2997 of 2021
Enforcement9, more particularly para 22
thereof, which is reproduced hereunder for easy
reference:
22. From the above decisions, it is clear that a
charge sheet can be filed only after the
completion of investigation. Investigation is
said to be completed if sufficient material is
collected by the Investigating Officer based on
which cognizance can be taken under Section
167 of the Cr.P.C. It was contended by the
Respondent that the complaint dated
19.03.2022 is a charge sheet and only further
investigation is being carried out which is
permissible under Section 44(1) (d) (ii). The
said contention cannot be accepted.
4.14. The test to be applied is not as regard whether
a charge sheet is filed but the investigation is
completed or not. In the present case, neither
is the investigation complete nor a charge sheet
is laid, as such the application for
statutory/default bail ought to have been
considered. In this Court, he relies upon the
decision of Hon'ble Andhra Pradesh High Court
in Akul Ravi Teja v. State of Andhra
Crl. P. Nos. 3386, 4217, 4137 of 2022
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WP No. 2997 of 2021
Pradesh10, more particularly para 17 which is
reproduced hereunder for easy reference:
17. However, as regards the second ground on
which the said petition was dismissed by the
learned Magistrate is concerned, this Court is of
the view that the said finding is legally
unsustainable. Admittedly, the charge-sheet
that was filed in the present crime is not a final
charge-sheet. It is undoubtedly a preliminary
charge-sheet. The investigation officer, himself
has clearly stated in unequivocal terms in the
charge-sheet that was filed by him that it is a
preliminary charge-sheet. It is stated by him in
the charge-sheet that it is not possible for him
to specify the overt acts of each and every
accused till the statements of 22 crucial
witnesses, who are in Central Prison,
Rajahmundry, as remand prisoners in other
Crime No. 452 of 2020, under Section 161
Cr.P.C. are recorded, and also till the
statements of 8 more crucial witnesses who are
also the accused in other Crime No. 452 of
2020, who are absconding, are recorded under
Section 161 Cr.P.C. It is further stated by him
in the charge-sheet that the unknown person,
who recorded the rioting in his video and
flashed it to media, has to be traced and his
video instrument has to be collected and as
such, he has filed the preliminary charge-sheet.
The aforesaid relevant portion in the charge-
sheet is extracted hereunder for better
appreciation and reads thus:
"It cannot be possible to specify the overt-acts
of each and every accused, till the recording of
161 Cr.P.C. statements of 22 crucial witnesses,
who are in Central Prison, Rajahmundry as
remand prisoners in Cr. No. 452/2020; and
also recording of 161 Cr.P.C. statements of 8
2020 SCC Online AP 1464
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WP No. 2997 of 2021
more crucial witnesses who are absconding for
their involvement in Cr. No. 452/2020.
The unknown person who video graphed the
Rioting (Gang War) and flashed it to media, has
to be traced and his video instrument has to
collected.
A-20, A-23, A-24 and A-27 are still absconding
from date of commission o;f offence. They are
to be apprehended.
Hence Preliminary Charge Sheet."
4.15. Further investigation contemplated under
subsection (8) of Section 173 of Cr.P.C., is a
stage after submission of a charge sheet under
Subsection (2) of Section 173. If the initial
charge sheet has not been submitted, the
question of further investigation would not
arise. In this regard he relies upon the decision
in Sharadchandra Vinayak Dongre v. State of
Maharashtra11, more particularly paras 22 to 27
which is reproduced hereunder for easy
reference:
(1991) Maharashtra L.J. 656
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WP No. 2997 of 2021
22. Shri Gangakhedkar, learned A.P.P. on
behalf of the State, except for contending
that the cognizance was properly taken,
was not able to reply to the aforesaid
contentions. On the contrary, on a query
made by me as to whether the
investigation was at least now complete,
the answer was in the negative.
23. Reference here may usefully be made
to a decision of the Supreme Court in
Abhinandan Jha v. Dinesh Mitra, AIR 1968
SC 117, which points out that the
investigation under the Code takes in
several aspects and stages ending
ultimately with the formation of an opinion
by the police as to whether, as from the
material covered and collected, a case is
made out to place the accused before the
Magistrate for trial and the submission of
either a charge-sheet or a final report is
dependent on the nature of the opinion so
formed. The formation of the said opinion
by the police is the final step in the
investigation evidenced by the "police
report" contemplated under section 173(2)
of the Code.
24. In my view, a plain reading of section
173 of the Code shows that every
investigation must be completed without
unnecessary delay and as soon as it is
completed, the Officer-in-charge of the
Police Station shall forward a report to the
Magistrate in the form prescribed.
Therefore, there is no question of sending
up of a "police report" within the meaning
of section 173, sub-section (2) of Criminal
Procedure Code until the investigation is
completed. Any report sent before the
investigation is completed will not be a
police report within the meaning of sub-
section (2) of section 173 of the Criminal
Procedure Code read with section 2(r) of
the Code and there is no question of the
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WP No. 2997 of 2021
Magistrate taking cognizance of the offence
within the meaning of section 190(1)(b) of
the Code on the basis of an incomplete
charge-sheet. In the present case,
admittedly an incomplete charge-sheet has
been filed and it is specifically stated
therein that the investigation is not yet
completed. The application, Exhibit 2,
clearly further recites that the investigation
is not completed and this fact is even
admitted before me as stated in the reply
affidavit filed by the Investigating Officer
opposing the present Application.
Consequently, the incomplete charge-
sheets cannot be treated as a "police
report" at all as contemplated under section
173(2) of the Code to entitle the Magistrate
to take cognizance of the offences. The
learned Counsel for the applicants is right
in contending that the definition of "police
report" as given in the Code cannot be
enlarged under the guise of interpretation
and it is contended that when the meaning
of a statutory provision is plain and clear,
the Court should not be impelled by factors
like practical difficulties and inconvenience.
The learned Counsel appears to be further
right when he canvassed that the
expression "incomplete charge-sheet" does
not occur anywhere in the Code and that
forwarding of a "police report" after the
completion of the investigation is the
requirement of sub-section (2) of section
173 of the Code. Any report or statement
of facts in the form of an "incomplete
charge-sheet" does not become "police
report" by merely giving a particular
nomenclature.
25. The learned Counsel for the State
contended that the new provision added in
sub-section (8) of section 173 of the Code
can be resorted to by the Investigating
Officer for collecting further evidence.
According to him, it tends to indicate that
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WP No. 2997 of 2021
the investigation is not shut but remains in
suspended animation till the police report is
sent to the Magistrate. As has already been
pointed out, a police report as defined in
section 2(r) of the Code can only be filed
"as soon as the investigation is completed".
If it is not complete; no such report can be
filed. When no report is forwarded as
required by the Code, the Magistrate
cannot take cognizance. Thus, unless all
these steps are crossed, sub-section (8)
cannot be pressed in aid for collecting
further evidence which really can be called
in aid if further evidence is discovered after
the filing of the charge-sheet or the police
report on the completion of the
investigation.
26. As stated earlier, sub-section (2) of
section 173 of the Code also speaks of
taking cognizance of the offence by a
Magistrate on a police report. Thus, without
the police report as defined in section 2(r)
of the Code, the Magistrate is not
empowered and is incapacitated to take
cognizance and unless cognizance has been
taken, sub-section (8) cannot be set in
motion.
27. The question thus emerges naturally is,
whether the Magistrate can take
cognizance on the admittedly "incomplete
charge-sheet" forwarded by the police. The
answer stubbornly and admittedly must be
in the negative, because the investigation
is yet incomplete and the "police report"
yet remains to be filed. Thus, the filing of
the incomplete charge-sheet cannot
circumvent the provisions of sub-section
(2) of section 173 of the Code and
incomplete report or an incomplete charge-
sheet with whatsoever expression it may be
called does not meet the obligatory
requirements of law. If the view as
contended by the State is accepted, the
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WP No. 2997 of 2021
provisions of section 167(2) or to say
section 468 of the Criminal Procedure Code
can always be circumvented by the
prosecution and the apparent legislative
intents under those provisions would not
only be not effectuated but undoubtedly
stultified.
4.16. The power of remand under Subsection (2) of
309 of Cr.P.C, could only be exercised after the
investigation is completed. In this case, the
investigation not being completed, there is no
possibility of exercising powers under
subsection (2) of Section 302 and 309. In this
regard he relies upon the decision in Mithabhai
Pashabhai Patel v. State of Gujarat12, more
particularly paras 15, 16 and 17 which are
reproduced hereunder for easy reference:
15. The investigating agency and/or a
court exercise their jurisdiction conferred
on them only in terms of the provisions of
the Code. The courts subordinate to the
High Court even do not have any inherent
power under Section 482 of the Code of
Criminal Procedure or otherwise. The pre-
cognizance jurisdiction to remand vested
in the subordinate courts, therefore, must
be exercised within the four corners of the
Code.
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WP No. 2997 of 2021
16. The power to remand, indisputably, is
vested in a Magistrate in terms of sub-
section (2) of Section 167 of the Code
which reads as under:
"167. Procedure when investigation cannot
be completed in twenty-four hours.--
(1)***
(2) The Magistrate to whom an accused
person is forwarded under this section
may, whether he has or has not
jurisdiction to try the case, from time to
time, authorise the detention of the
accused in such custody as such
Magistrate thinks fit, for a term not
exceeding fifteen days in the whole; and if
he has no jurisdiction to try the case or
commit it for trial, and considers further
detention unnecessary, he may order the
accused to be forwarded to a Magistrate
having such jurisdiction:
Provided that--
(a) the Magistrate may authorise the
detention of the accused person, otherwise
than in the custody of the police, beyond
the period of fifteen days, if he is satisfied
that adequate grounds exist for doing so,
but no Magistrate shall authorise the
detention of the accused person in custody
under this paragraph for a total period
exceeding,--
(i) ninety days, where the investigation
relates to an offence punishable with
death, imprisonment for life or
imprisonment for a term of not less than
ten years;
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WP No. 2997 of 2021
(ii) sixty days, where the investigation
relates to any other offence,
and, on the expiry of the said period of
ninety days, or sixty days, as the case
may be, the accused person shall be
released on bail if he is prepared to and
does furnish bail, and every person
released on bail under this sub-section
shall be deemed to be so released under
the provisions of Chapter XXXIII for the
purposes of that Chapter;
(b) no Magistrate shall authorise detention
in any custody under this section unless
the accused is produced before him;
(c) no Magistrate of the Second Class, not
specially empowered in this behalf by the
High Court, shall authorise detention in the
custody of the police.
Explanation I.--For the avoidance of
doubts, it is hereby declared that,
notwithstanding the expiry of the period
specified in Paragraph (a), the accused
shall be detained in custody so long as he
does not furnish bail.
Explanation II.--If any question arises
whether an accused person was produced
before the Magistrate as required under
Paragraph (b), the production of the
accused person may be proved by his
signature on the order authorising
detention."
17. The power of remand in terms of the
aforementioned provision is to be
exercised when investigation is not
complete. Once the charge-sheet is filed
and cognizance of the offence is taken, the
court cannot exercise its power under sub-
section (2) of Section 167 of the Code. Its
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WP No. 2997 of 2021
power of remand can then be exercised in
terms of sub-section (2) of Section 309
which reads as under:
"309. Power to postpone or adjourn
proceedings.--
(1)***
(2) If the court, after taking cognizance of
an offence, or commencement of trial,
finds it necessary or advisable to postpone
the commencement of, or adjourn, any
inquiry or trial, it may, from time to time,
for reasons to be recorded, postpone or
adjourn the same on such terms as it
thinks fit, for such time as it considers
reasonable, and may by a warrant remand
the accused if in custody:
Provided that no Magistrate shall remand
an accused person to custody under this
section for a term exceeding fifteen days
at a time:
Provided further that when witnesses are
in attendance, no adjournment or
postponement shall be granted, without
examining them, except for special
reasons to be recorded in writing:
Provided also that no adjournment shall be
granted for the purpose only of enabling
the accused person to show cause against
the sentence proposed to be imposed on
him.
Explanation 1.--If sufficient evidence has
been obtained to raise a suspicion that the
accused may have committed an offence,
and it appears likely that further evidence
may be obtained by a remand, this is a
reasonable cause for a remand.
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WP No. 2997 of 2021
Explanation 2.--The terms on which an
adjournment or postponement may be
granted include, in appropriate cases, the
payment of costs by the prosecution or the
accused."
4.17. The right under subsection (2) of Section 167
having arisen prior to the application filed for
an extension of time, the provisions of
subsection (8) of Section 173 and subsection
(2) of Section 309 of Cr.P.C. would not come in
the way of grant of default/statutory bail. The
petitioner also not having been produced before
the Special Court on the day of alleged remand
viz., 12.05.2020, there is a violation of
provision (b) to Subsection (2) of Section 167
of Cr.P.C. rendering the remand order bad in
law. The Magistrate should not have taken
cognizance of a preliminary charge sheet is his
submission by relying upon the decision in Tula
Ram v. Kishore Singh13, more particularly para
(1977)4 SCC 459
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15 which is reproduced hereunder for easy
reference:
15. In these circumstances we are satisfied
that the action taken by the Magistrate was
fully supportable in law and he did not
commit any error in recording the statement
of the complainant and the witnesses and
thereafter issuing process against the
appellants. The High Court has discussed the
points involved thread-bare and has also
cited a number of decisions and we entirely
agree with the view taken by the High Court.
Thus on a careful consideration of the facts
and circumstances of the case the following
legal propositions emerge:
"1. That a Magistrate can order investigation
under Section 156(3) only at the pre-
cognizance stage, that is to say, before
taking cognizance under Sections 190, 200
and 204 and where a Magistrate decides to
take cognizance under the provisions of
Chapter 14 he is not entitled in law to order
any investigation under Section 156(3)
though in cases not falling within the proviso
to Section 202 he can order an investigation
by the police which would be in the nature of
an enquiry as contemplated by Section 202
of the Code.
2. Where a Magistrate chooses to take
cognizance he can adopt any of the following
alternatives:
(a) He can peruse the complaint and if
satisfied that there are sufficient grounds for
proceeding he can straightaway issue
process to the accused but before he does so
he must comply with the requirements of
Section 200 and record the evidence of the
complainant or his witnesses.
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(b) The Magistrate can postpone the issue of
process and direct an enquiry by himself.
(c) The Magistrate can postpone the issue of
process and direct an enquiry by any other
person or an investigation by the police.
3. In case the Magistrate after considering
the statement of the complainant and the
witnesses or as a result of the investigation
and the enquiry ordered is not satisfied that
there are sufficient grounds for proceeding
he can dismiss the complaint.
4. Where a Magistrate orders investigation
by the police before taking cognizance under
Section 156(3) of the Code and receives the
report thereupon he can act on the report
and discharge the accused or straightaway
issue process against the accused or apply
his mind to the complaint filed before him
and take action under Section 190 as
described above."
4.18. The cognizance which has been taken and the
order of committal which has been passed by
the Magistrate is without due application of
mind since the same has been done on the
incomplete police report which establishes the
mechanical application of mind without any
basis. In this regard he relies upon the decision
in Dilawar Singh v. State of Delhi14, more
(2007)12 SCC 641
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particularly para 18 which is reproduced
hereunder for easy reference:
18. "6. Section 156 falling within Chapter
XII, deals with powers of police officers to
investigate cognizable offences.
Investigation envisaged in Section 202
contained in Chapter XV is different from
the investigation contemplated under
Section 156 of the Code.
7. Chapter XII of the Code contains
provisions relating to 'information to the
police and their powers to investigate',
whereas Chapter XV, which contains
Section 202, deals with provisions relating
to the steps which a Magistrate has to
adopt while and after taking cognizance of
any offence on a complaint. Provisions of
the above two chapters deal with two
different facets altogether, though there
could be a common factor i.e. complaint
filed by a person. Section 156, falling within
Chapter XII deals with powers of the police
officers to investigate cognizable offences.
True, Section 202, which falls under
Chapter XV, also refers to the power of a
Magistrate to 'direct an investigation by a
police officer'. But the investigation
envisaged in Section 202 is different from
the investigation contemplated in Section
156 of the Code.
8. The various steps to be adopted for
investigation under Section 156 of the Code
have been elaborated in Chapter XII of the
Code. Such investigation would start with
making the entry in a book to be kept by
the officer in charge of a police station, of
the substance of the information relating to
the commission of a cognizable offence.
The investigation started thereafter can end
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up only with the report filed by the police
as indicated in Section 173 of the Code.
The investigation contemplated in that
chapter can be commenced by the police
even without the order of a Magistrate. But
that does not mean that when a Magistrate
orders an investigation under Section
156(3) it would be a different kind of
investigation. Such investigation must also
end up only with the report contemplated
in Section 173 of the Code. But the
significant point to be noticed is, when a
Magistrate orders investigation under
Chapter XII he does so before he takes
cognizance of the offence.
9. But a Magistrate need not order any
such investigation if he proposes to take
cognizance of the offence. Once he takes
cognizance of the offence he has to follow
the procedure envisaged in Chapter XV of
the Code. A reading of Section 202(1) of
the Code makes the position clear that the
investigation referred to therein is of a
limited nature. The Magistrate can direct
such an investigation to be made either by
a police officer or by any other person.
Such investigation is only for helping the
Magistrate to decide whether or not there is
sufficient ground for him to proceed
further. This can be discerned from the
culminating words in Section 202(1) i.e.
'or direct an investigation to be made by a
police officer or by such other person as he
thinks fit, for the purpose of deciding
whether or not there is sufficient ground for
proceeding'.
10. This is because he has already taken
cognizance of the offence disclosed in the
complaint, and the domain of the case
would thereafter vest with him.
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11. The clear position therefore is that any
Judicial Magistrate, before taking
cognizance of the offence, can order
investigation under Section 156(3) of the
Code. If he does so, he is not to examine
the complainant on oath because he was
not taking cognizance of any offence
therein. For the purpose of enabling the
police to start investigation it is open to the
Magistrate to direct the police to register an
FIR. There is nothing illegal in doing so.
After all registration of an FIR involves only
the process of entering the substance of
the information relating to the commission
of the cognizable offence in a book kept by
the officer in charge of the police station as
indicated in Section 154 of the Code. Even
if a Magistrate does not say in so many
words while directing investigation under
Section 156(3) of the Code that an FIR
should be registered, it is the duty of the
officer in charge of the police station to
register the FIR regarding the cognizable
offence disclosed by the complainant
because that police officer could take
further steps contemplated in Chapter XII
of the Code only thereafter.
12. The above position was highlighted in
Suresh Chand Jain v. State of M.P. [(2001)
2 SCC 628 : 2001 SCC (Cri) 377]
13. In Gopal Das Sindhi v. State of Assam
[AIR 1961 SC 986 : (1961) 2 Cri LJ 39] it
was observed as follows : (AIR pp. 988-89,
para 7)
'7. When the complaint was received by Mr
Thomas on 3-8-1957, his order, which we
have already quoted, clearly indicates that
he did not take cognizance of the offences
mentioned in the complaint but had sent
the complaint under Section 156(3) of the
Code to the officer in charge of Police
Station Gauhati for investigation. Section
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156(3) states "any Magistrate empowered
under Section 190 may order such
investigation as abovementioned". Mr
Thomas was certainly a Magistrate
empowered to take cognizance under
Section 190 and he was empowered to take
cognizance of an offence upon receiving a
complaint. He, however, decided not to
take cognizance but to send the complaint
to the police for investigation as Sections
147, 342 and 448 were cognizable
offences. It was, however, urged that once
a complaint was filed the Magistrate was
bound to take cognizance and proceed
under Chapter XVI of the Code. It is clear,
however, that Chapter XVI would come into
play only if the Magistrate had taken
cognizance of an offence on the complaint
filed before him, because Section 200
states that a Magistrate taking cognizance
of an offence on complaint shall at once
examine the complainant and the witnesses
present, if any, upon oath and the
substance of the examination shall be
reduced to writing and shall be signed by
the complainant and the witnesses and also
by the Magistrate. If the Magistrate had not
taken cognizance of the offence on the
complaint filed before him, he was not
obliged to examine the complainant on
oath and the witnesses present at the time
of the filing of the complaint. We cannot
read the provisions of Section 190 to mean
that once a complaint is filed, a Magistrate
is bound to take cognizance if the facts
stated in the complaint disclose the
commission of any offence. We are unable
to construe the word "may" in Section 190
to mean "must". The reason is obvious. A
complaint disclosing cognizable offences
may well justify a Magistrate in sending the
complaint, under Section 156(3) to the
police for investigation. There is no reason
why the time of the Magistrate should be
wasted when primarily the duty to
investigate in cases involving cognizable
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offences is with the police. On the other
hand, there may be occasions when the
Magistrate may exercise his discretion and
take cognizance of a cognizable offence. If
he does so then he would have to proceed
in the manner provided by Chapter XVI of
the Code. Numerous cases were cited
before us in support of the submissions
made on behalf of the appellants. Certain
submissions were also made as to what is
meant by "taking cognizance". It is
unnecessary to refer to the cases cited. The
following observations of Mr Justice Das
Gupta in Supdt. and Remembrancer of
Legal Affairs v. Abani Kumar Banerjee [AIR
1950 Cal 437] (AIR p. 438, para 7)
"[w]hat is 'taking cognizance' has not been
defined in the Criminal Procedure Code,
and I have no desire now to attempt to
define it. It seems to me clear, however,
that before it can be said that any
Magistrate has taken cognizance of any
offence under Section 190(1)(a) CrPC, he
must not only have applied his mind to the
contents of the petition, but he must have
done so for the purpose of proceeding in a
particular way as indicated in the
subsequent provisions of this Chapter, --
proceeding under Section 200, and
thereafter sending it for inquiry and report
under Section 202. When the Magistrate
applies his mind not for the purpose of
proceeding under the subsequent sections
of this Chapter, but for taking action of
some other kind e.g. ordering investigation
under Section 156(3), or issuing a search
warrant for the purpose of the
investigation, he cannot be said to have
taken cognizance of the offence"
were approved by this Court in R.R. Chari
v. State of U.P. [AIR 1951 SC 207 : 1951
SCR 312 : (1951) 52 Cri LJ 775] It would
be clear from the observations of Mr Justice
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Das Gupta that when a Magistrate applies
his mind not for the purpose of proceeding
under the various sections of Chapter XVI
but for taking action of some other kind
e.g. ordering investigation under Section
156(3) or issuing a search warrant for the
purpose of investigation, he cannot be said
to have taken cognizance of any offence.
The observations of Mr Justice Das Gupta
above referred to were also approved by
this Court in Narayandas Bhagwandas
Madhavdas v. State of W.B. [AIR 1959 SC
1118 : 1959 Cri LJ 1368] It will be clear,
therefore, that in the present case neither
the Additional District Magistrate nor Mr
Thomas applied his mind to the complaint
filed on 3-8-1957, with a view to taking
cognizance of an offence. The Additional
District Magistrate passed on the complaint
to Mr Thomas to deal with it. Mr Thomas
seeing that cognizable offences were
mentioned in the complaint did not apply
his mind to it with a view to taking
cognizance of any offence; on the contrary
in his opinion it was a matter to be
investigated by the police under Section
156(3) of the Code. The action of Mr
Thomas comes within the observations of
Mr Justice Das Gupta. In these
circumstances, we do not think that the
first contention on behalf of the appellants
has any substance.'
14. In Narayandas Bhagwandas Madhavdas
v. State of W.B. [AIR 1959 SC 1118 : 1959
Cri LJ 1368] it was observed as under :
(SCR pp. 102-06)
'On 19-9-1952, the appellant appeared
before the Additional District Magistrate
who recorded the following order:
"He is to give bail of Rs 50,000 with ten
sureties of Rs 5000 each. Seen police
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report. Time allowed till 19-11-1952, for
completing investigation."
On 19-11-1952, on perusal of the police
report the Magistrate allowed further time
for investigation until 2-1-1953, and on
that date time was further extended to 2-2-
1953. In the meantime, on 27-1-1953,
Inspector Mitra had been authorised under
Section 23(3)(b) of the Foreign Exchange
Regulation Act to file a complaint.
Accordingly, a complaint was filed on 2-2-
1953. The Additional District Magistrate
thereon recorded the following order:
"Seen the complaint filed today against the
accused Narayandas Bhagwandas
Madhavdas under Section 8(2) of the
Foreign Exchange Regulation Act read with
Section 23-B thereof read with Section 19
of the Sea Customs Act and Notification No.
FERA 105/51 dated 27-2-1951, as
amended, issued by Reserve Bank of India
under Section 8(2) of the Foreign Exchange
Regulation Act. Seen the letter of authority.
To Shri M.N. Sinha, SDM (Sadar),
Magistrate, First Class (spl. empowered) for
favour of disposal according to law.
Accused to appear before him."
Accordingly, on the same date Mr Sinha
then recorded the following order:
"Accused present. Petition filed for
reduction of bail. Considering all facts, bail
granted for Rs 25,000 with 5 sureties.
To 26-3-1952 and 27-3-1952 for evidence."
It is clear from these orders that on 19-9-
1952, the Additional District Magistrate had
not taken cognizance of the offence
because he had allowed the police time till
19-11-1952, for completing the
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investigation. By his subsequent orders
time for investigation was further extended
until 2-2-1953. On that date the complaint
was filed and the order of the Additional
District Magistrate clearly indicated that he
took cognizance of the offence and sent the
case for trial to Mr Sinha. It would also
appear from the order of Mr Sinha that if
the Additional District Magistrate did not
take cognizance, he certainly did because
he considered whether the bail should be
reduced and fixed the 26th and 27th of
March, for evidence. It was, however,
argued that when Mitra applied for a search
warrant on 16-9-1952, the Additional
District Magistrate had recorded an order
thereon, "Permitted. Issue search warrant."
It was on this date that the Additional
District Magistrate took cognizance of the
offence. We cannot agree with this
submission because the petition of
Inspector Mitra clearly states that "as this
is non-cognizable offence, I pray that you
will kindly permit me to investigate the
case under Section 155 CrPC". That is to
say, that the Additional District Magistrate
was not being asked to take cognizance of
the offence. He was merely requested to
grant permission to the police officer to
investigate a non-cognizable offence. The
petition requesting the Additional District
Magistrate to issue a warrant of arrest and
his order directing the issue of such a
warrant cannot also be regarded as orders
which indicate that the Additional District
Magistrate thereby took cognizance of the
offence. It was clearly stated in the petition
that for the purposes of investigation his
presence was necessary. The step taken by
Inspector Mitra was merely a step in the
investigation of the case. He had not
himself the power to make an arrest having
regard to the provisions of Section 155(3)
of the Code of Criminal Procedure. In order
to facilitate his investigation it was
necessary for him to arrest the appellant
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and that he could not do without a warrant
of arrest from the Additional District
Magistrate. As already stated, the order of
the Additional District Magistrate of 19-9-
1952, makes it quite clear that he was still
regarding the matter as one under
investigation. It could not be said with any
good reason that the Additional District
Magistrate had either on September 16, or
at any subsequent date up to 2-2-1953,
applied his mind to the case with a view to
issuing a process against the appellant. The
appellant had appeared before the
Magistrate on 2-2-1953, and the question
of issuing summons to him did not arise.
The Additional District Magistrate, however,
must be regarded as having taken
cognizance on this date because he sent
the case to Mr Sinha for trial. There was no
legal bar to the Additional District
Magistrate taking cognizance of the offence
on 2-2-1953, as on that date Inspector
Mitra's complaint was one which he was
authorised to make by Reserve Bank under
Section 23(3)(b) of the Foreign Exchange
Regulation Act. It is thus clear to us that on
a proper reading of the various orders
made by the Additional District Magistrate
no cognizance of the offence was taken
until 2-2-1953. The argument that he took
cognizance of the offence on 16-9-1952, is
without foundation. The orders passed by
the Additional District Magistrate on 16-9-
1952, 19-9-1952, 19-11-1952, and 2-1-
1953, were orders passed while the
investigation by the police into a non-
cognizable offence was in progress. If at
the end of the investigation no complaint
had been filed against the appellant the
police could have under the provisions of
Section 169 of the Code released him on
his executing a bond with or without
sureties to appear if and when so required
before the Additional District Magistrate
empowered to take cognizance of the
offence on a police report and to try the
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accused or commit him for trial. The
Magistrate would not be required to pass
any further orders in the matter. If, on the
other hand, after completing the
investigation a complaint was filed, as in
this case, it would be the duty of the
Additional District Magistrate then to
enquire whether the complaint had been
filed with the requisite authority of Reserve
Bank as required by Section 23(3)(b) of the
Foreign Exchange Regulation Act. It is only
at this stage that the Additional District
Magistrate would be called upon to make
up his mind whether he would take
cognizance of the offence. If the complaint
was filed with the authority of Reserve
Bank, as aforesaid, there would be no legal
bar to the Magistrate taking cognizance. On
the other hand, if there was no proper
authorisation to file the complaint as
required by Section 23 the Magistrate
concerned would be prohibited from taking
cognizance. In the present case, as the
requisite authority had been granted by
Reserve Bank on 27-1-1953, to file a
complaint, the complaint filed on February
2, was one which complied with the
provisions of Section 23 of the Foreign
Exchange Regulation Act and the Additional
District Magistrate could take cognizance of
the offence which, indeed, he did on that
date. The following observation (at AIR p.
438, para 7) by Das Gupta, J., in Supdt.
and Remembrancer of Legal Affairs v.
Abani Kumar Banerjee [AIR 1950 Cal 437]
was approved by this Court in R.R. Chari v.
State of U.P. [AIR 1951 SC 207 : 1951 SCR
312 : (1951) 52 Cri LJ 775] :
"7. ... What is 'taking cognizance' has not
been defined in the Criminal Procedure
Code, and I have no desire now to attempt
to define it. It seems to me clear, however,
that before it can be said that any
Magistrate has taken cognizance of any
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offence under Section 190(1)(a) CrPC, he
must not only have applied his mind to the
contents of the petition, but he must have
done so for the purpose of proceeding in a
particular way as indicated in the
subsequent provisions of this Chapter, --
proceeding under Section 200, and
thereafter sending it for inquiry and report
under Section 202. When the Magistrate
applies his mind not for the purpose of
proceeding under the subsequent sections
of this Chapter, but for taking action of
some other kind e.g. ordering investigation
under Section 156(3), or issuing a search
warrant for the purpose of the
investigation, he cannot be said to have
taken cognizance of the offence."
It is, however, argued that in Chari case
[AIR 1951 SC 207 : 1951 SCR 312 : (1951)
52 Cri LJ 775] this Court was dealing with a
matter which came under the Prevention of
Corruption Act. It seems to us, however,
that that makes no difference. It is the
principle which was enunciated by Das
Gupta, J., which was approved. As to when
cognizance is taken of an offence will
depend upon the facts and circumstances
of each case and it is impossible to attempt
to define what is meant by taking
cognizance. Issuing of a search warrant for
the purpose of an investigation or of a
warrant of arrest for that purpose cannot
by themselves be regarded as acts by
which cognizance was taken of an offence.
Obviously, it is only when a Magistrate
applies his mind for the purpose of
proceeding under Section 200 and
subsequent sections of Chapter XVI of the
Code of Criminal Procedure or under
Section 204 of Chapter XVII of the Code
that it can be positively stated that he had
applied his mind and therefore had taken
cognizance.' "
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These aspects were highlighted in Mohd.
Yousuf v. Afaq Jahan [(2006) 1 SCC 627 :
(2006) 1 SCC (Cri) 460] , SCC pp. 630-36,
paras 6-14.
4.19. He also relies on the decision in Rattiram v.
State of M.P.,15 more particularly para 2 and 8
which is reproduced hereunder for easy
reference:
2. At this juncture, it is requisite to clarify
that the real conflict or discord is manifest
in Moly v. State of Kerala [(2004) 4 SCC
584 : 2004 SCC (Cri) 1348 : AIR 2004 SC
1890] and Vidyadharan v. State of Kerala
[(2004) 1 SCC 215 : 2004 SCC (Cri) 260]
on one hand wherein it has been held that
the conviction by the Special Court is not
sustainable if it has suo motu entertained
and taken cognizance of the complaint
directly without the case being committed
to it and, therefore, there should be retrial
or total setting aside of the conviction, as
the case may be, and the other in State of
M.P. v. Bhooraji [(2001) 7 SCC 679 : 2001
SCC (Cri) 1373 : AIR 2001 SC 3372]
wherein, taking aid of Section 465(1) of the
Code, it has been opined that when a trial
has been conducted by the court of
competent jurisdiction and a conviction has
been recorded on proper appreciation of
evidence, the same cannot be erased or
effaced merely on the ground that there
had been no committal proceeding and
cognizance was taken by the Special Court
inasmuch as the same does not give rise to
failure of justice.
(2012) 4 SCC 516
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8. Section 193 of the Code reads as
follows:
"193.Cognizance of offences by Courts
of Session.--Except as otherwise
expressly provided by this Code or by any
other law for the time being in force, no
Court of Session shall take cognizance of
any offence as a court of original
jurisdiction unless the case has been
committed to it by a Magistrate under this
Code."
On a plain reading of the aforesaid
provision, it is clear as noonday that no
Court of Session can take cognizance of
any offence as a court of original
jurisdiction except as otherwise expressly
provided by the Code or any other law for
the time being in force.
4.20. He submits that there is nothing to show the
guilt of the accused No.18 in the present case
and as such, the order of remand ought not to
have been passed.
5. Per contra, Sri. Ashok N.Naik, learned Special Public
Prosecutor submits that:
5.1. The FIR in Crime No.221/2017 had been
registered by the Rajarajeshwari Nagar Police
station on 5.09.2017 for offences under Section
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302 of IPC and Section 25 of the Arms Act
against unknown persons.
5.2. Upon investigation a charge sheet had been laid
on 29.05.2018 implicating two accused.
Thereafter, a further charge sheet was laid on
23.11.2018 implicating certain others including
the petitioner, who was arraigned as accused
No.18. However, accused No.18 was
absconding and not traceable. There have
been several additional charge sheets which
have been laid from time to time. In the
charge sheet which had been laid on
23.11.2018, offences under Section 302, 120B,
114, 118, 109, 201, 203, 204 and 35 of IPC
have been invoked along with Section 25(1),
25(1)(b) and 27(1) of the Indian Arms Act,
1959, as also Section 3(1)(1), 3(2), 3(3) and
3(4) of the KCOCA.
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5.3. Permission had been sought for to submit the
charge sheet insofar as accused No.18 after he
was traced. A further charge sheet was
submitted on 25.06.2020 against accused
No.18. Once in the charge sheet the provisions
of KCOCA were invoked, the period for the
investigation came to be extended to a period
of 180 days by referring to Section 22 (2) (a)
and proviso thereof since charge sheet has
been laid insofar as accused No.18 on
25.06.2020, the arrest having been made on
9.01.2020, a charge sheet having been laid
within the said extended period, there is no
question of statutory/default bail.
5.4. Be that as it may, he submits that the first
charge sheet against the petitioner/accused
No.18 was submitted on 23.11.2018 itself, even
prior to the arrest of the petitioner, the charge
sheet which has been submitted subsequently
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was upon further investigation being a
additional charge sheet or supplementary
charge sheet. Therefore, the question of
invoking either subsection (2) of Section 167 as
regards the default bail does not arise at all.
5.5. It is only when there is no charge sheet
submitted at the time of arrest of the accused,
that the provision under subsection (2) of
Section 167 of Cr.P.C. would be applicable. The
petitioner absconding from the year 2018,
when the charge sheet was laid on 23.11.2018
and having not cooperated with the
investigation, the petitioner is not entitled for
any relief under subsection (2) of Section 167
of Cr.P.C.
5.6. He relies on the decision passed in Amol Kale
and others vs. State of Karnataka16, more
Criminal Appeal No.573/2019 DD 7.09.2022
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particularly para 14, 15 and 16 thereof, which
are reproduced hereunder for easy reference:
14. The reading of the above provisions
show that the Special Court has the power
to extend the period of90 days upto 180
days on the request of the Public
Prosecutor. Therefore, the only question in
the case was, whether the chargesheet in
the case on hand was filed within those 180
days.
15. Though several judgments are relied
on by both side relating to Section 167(2)
Cr.P.C., the ratio in the said judgments is
that, if the chargesheet is not filed within
90 days as contemplated under Section
167(2) of Cr.P.C., the accused is entitled to
statutory bail. By virtue of operation of
Section 22 of KCOCA, the said time gets
extended upto 180 days.
16. As rightly pointed out by learned
Special Public Prosecutor, the other
contentions that the accused were not
heard on the application under Section 22
for extension, the chargesheet copies were
not furnished to them, etc., were the
interlocutory orders. They were not
appealable under Section 12 of the Act.
Moreover, the appellants did not challenge
those orders, therefore, they attained
finality. Therefore, now it is not open to the
appellants to question them in this
proceeding.
5.7. On the above grounds, he submits that the
above petition is required to be rejected.
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6. Heard Sri. KrianB.S, learned counsel for the
petitioner and Sri.Ashok N.Naik, Special Public
Prosecutor for the respondent. Perused papers.
7. The points that would arise for determination are:
1. Whether an accused would be entitled to the
benefit under Subsection (2) of Section 167
of Cr.P.C, in the event of charge sheet having
already been filed before his arrest?
2. Whether the filing of an
additional/supplementary charge sheet
would give rise to a right for
default/statutory bail under Subsection (2)
of Section 167 of Cr.P.C?
3. Whether the second remand could be made
during COVID period without physical
production of an accused?
4. Whether the order of remand passed without
passing order on application under
Subsection (2) of Section 167 of Cr.P.C. is
bad in law?
5. Could a absconder claim benefit of
Subsection(2) of Section 167 of Cr.P.C?
6. What order?
8. I answer the above points as under:
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9. ANSWER TO POINT NO.1: Whether an accused
would be entitled to the benefit under
Subsection (2) of Section 167 of Cr.P.C, in the
event of charge sheet having already been filed
before his arrest?
9.1. Subsection (1) and (2) of Section 167 of Cr.P.C.
reads thus:
167. Procedure when investigation cannot be
completed in twenty four hours.
(1) Whenever any person is arrested and detained in
custody and it appears that the investigation cannot
be completed within the period of twenty- four hours
fixed by section 57, and there are grounds for
believing that the accusation or information is well-
founded, the officer in charge of the police station or
the police officer making the investigation, if he is
not below the rank of sub- inspector, shall forthwith
transmit to the nearest Judicial Magistrate a copy of
the entries in the diary hereinafter prescribed
relating to the case, and shall at the same time
forward the accused to such Magistrate.
(2) The Magistrate to whom an accused person is
forwarded under this section may, whether he has or
has not jurisdiction to try the case, from time to
time, authorise the detention of the accused in such
custody as such Magistrate thinks fit, for a term not
exceeding fifteen days in the whole; and if he has no
jurisdiction to try the case or commit it for trial, and
considers further detention unnecessary, he may
order the accused to be forwarded to a Magistrate
having such jurisdiction: Provided that-
(a) the Magistrate may authorise the detention of the
accused person, otherwise than in the custody of the
police, beyond the period of fifteen days; if he is
satisfied that adequate grounds exist for doing so,
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but no Magistrate shall authorise the detention of the
accused person in custody under this paragraph for a
total period exceeding,-
(i) ninety days, where the investigation relates to an
offence punishable with death, imprisonment for life
or imprisonment for a term of not less than ten
years;
(ii) sixty days, where the investigation relates to any
other offence, and, on the expiry of the said period of
ninety days, or sixty days, as the case may be, the
accused person shall be released on bail if he is
prepared to and does furnish bail, and every person
released on bail under this sub- section shall be
deemed to be so released under the provisions of
Chapter XXXIII for the purposes of that Chapter;]
(b) no Magistrate shall authorise detention in any
custody under this section unless the accused is
produced before him;
(c) no Magistrate of the second class, not specially
empowered in this behalf by the High Court, shall
authorise detention in the custody of the police.1
Explanation I.- For the avoidance of doubts, it is
hereby declared that, notwithstanding the expiry of
the period specified in paragraph (a), the accused
shall be detained in custody so long as he does not
furnish bail;].
Explanation II.- If any question arises whether an
accused person was produced before the Magistrate
as required under paragraph (b), the production of
the accused person may be proved by his signature
on the order authorising detention.]
(2A) Notwithstanding anything contained in sub-
section (1) or sub- section (2), the officer in charge
of the police station or the police officer making the
investigation, if he is not below the rank of a sub-
inspector, may, where a Judicial Magistrate is not
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available, transmit to the nearest Executive
Magistrate, on whom the powers of a Judicial
Magistrate or Metropolitan Magistrate have been
conferred, a copy of the entry in the diary hereinafter
prescribed relating to the case, and shall, at the
same time, forward the accused to such Executive
Magistrate, and thereupon such Executive
Magistrate, may, for reasons to be recorded in
writing, authorise the detention of the accused
person in such custody as he may think fit for a term
not exceeding seven days in the aggregate; and, on
the expiry of the period of detention so authorised,
the accused person shall be released on bail except
where an order for further detention of the accused
person has been made by a Magistrate competent to
make such order; and, where an order for such
further detention is made, the period during which
the accused person was detained in custody under
the orders made by an Executive Magistrate under
this sub- section.
9.2. In terms of proviso (a) to Subsection (2) of
Section 167 of Cr.P.C, no Magistrate can
authorise the detention of the accused person
who is in custody beyond a period of 90 days
where the investigation relates to offence
punishable with death, imprisonment for life not
less than 10 years in other cases 60 days.
9.3. The above provision is normally referred to as
statutory bail or default bail i.e. to say in the
event of the investigation not being complete
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within a period of 90 days or 60 days as
referred to above, there is a right which accrues
to the accused to seek for bail which cannot be
refused by the court. Of course if such a right
is not exercised and application not filed, there
is no obligation on part of the court to enlarge
such person on bail.
9.4. This is an aspect of much debate inasmuch as it
could be contended that whether an application
is filed or not, the accused ought to be enlarged
on bail and the duty cast on the court to direct
such enlargement on bail if investigation is not
completed within time period stipulated.
9.5. In the present case, we are dealing with
proceedings initiated under KCOCA. In terms of
proviso to Subsection (2) of Section 22, the
said period of 90 days can be extended up to
180 days by the said court on a report of the
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Public Prosecutor indicating the progress of the
investigation and specific reasons for detention
of the accused beyond a period of 90 days.
Subsection (1) and (2) of Section 22 of KCOCA
is reproduced hereunder for easy reference:
22. Modified application of certain provisions
of the Code. -
(1) Notwithstanding anything contained in the Code
or in any other law, every offence punishable under
this Act, shall be deemed to be a cognizable offence
within the meaning of clause (c) of section 2 of the
Code and "Cognizable case" as defined in that
clause shall be constructed accordingly.
(2) Section 167 of the Code shall apply in relation
to a case involving an offence punishable under this
Act subject to the modifications that, in sub-section
(2), -
(a) The references to "fifteen days" and "Sixty
days" wherever they occur, shall be constructed as
references to "Thirty days" and "ninety days"
respectively;
(b) After the proviso, the following proviso shall be
inserted namely:-
"Provided further that if it is not possible to
complete the investigation within the said period of
ninety days, the Special Court shall extend the said
period up to one hundred and eighty days 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 ninety days."
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9.6. Thus, an accused in crimes other than under
KCOCA could seek for statutory/default bail in
terms of proviso (2) to Subsection (2) of
Section 167 of Cr.P.C, if investigation is not
completed within the prescribed period of 60 or
90 days as contained therein.
9.7. Insofar as offences under KCOCA are
concerned, even in such circumstances the
accused could seek for statutory/default bail if
the investigation is not completed within the
prescribed period under Subsection (2) of
Section 167 of Cr.P.C., but however, the Public
Prosecutor could make an application seeking
for extension of time to complete the
investigation and give the reasons for
requirement of the accused to be in custody. If
the same is accepted and the court were to
extend the period of investigation subject to a
maximum of 180 days, then the benefit under
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Subsection (2) of Section 167 of Cr.P.C. can
only be claimed subject to time period fixed by
the Special Court in orders passed on such
application.
9.8. Madhu Limaye1 case dealing with protection of
personal liberty would not be attracted in the
present case since the investigation has been
completed insofar as the petitioner is
concerned.
9.9. The decision in Chenna Boyanna Krishna
Yadav's3 case relating to the matters to be
considered while granting or refusing bail would not
be applicable in view of my finding above that the
investigation has been completed and charge sheet
has been laid. In the event of separate application
for regular bail is filed, the same would be
considered by the Special Court in accordance with
law.
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9.10. In the decision in Sayed Mohd. Ahmed
Kazmi's4 case relating to the time period
whether the application for statutory/default
bail was filed would not apply to the present
case since investigation has been completed
and charge sheet has been laid.
9.11. The decision in Nirala Yadav's5 case, being to
a similar effect, the same would not apply to
the present fact situation.
9.12. The decision in M.Ravindran's6 case, dealing
with the applicability and consideration of
Subsection (2) of Section 167 were all in
relation to a situation where charge sheet has
not been laid and investigation was not
completed and the Hon'ble Apex Court had
categorically held that Article 21 would be
violated if investigation is not completed in a
timebound manner with the accused continuing
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to be in custody. For the very same reason as
stated above, this decision has no application to
the present facts.
9.13. The decision in Manubhai Ratilal Patel's7
case relating to remand, the decision in
Hitendra Vishnu Takur's8 case relating to
extension of time for completion of
investigation would also not be applicable since
the investigation has already completed. For
the very same reasons the decision in Akul
Ravi Teja's10 case and Sharadchandra
Vinayak Dongre's11 case would not be
applicable since the charge sheet insofar as the
petitioner was already laid and further
investigation would be carried out once the
remaining absconding accused are traced.
9.14. The decision in Mithabhai Pashabhai
Patel's12 case relating to applicability of
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Subsection (2) of Section 167 and the
consideration thereof is a matter of law. The
decision in Tula Ram's13 case is relating to
postponement of issuance of summons and the
enquiry to be held under Section 202 which is
not applicable to the present case. The
decision in Gulavar Singh's case relatable to
the aspect of taking cognizance is again not
applicable for the reasons that investigation has
been completed.
9.15. In view of the above I answer point No.1
by holding that an accused would not be
entitled to the benefit under Subsection
(2) of Section 167 of Cr.P.C, in the event of
charge sheet having already been filed
before his arrest.
10. ANSWER TO POINT NO.2: Whether the filing of
an additional/supplementary charge sheet
would give rise to a right for default/statutory
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bail under Subsection (2) of Section 167 of
Cr.P.C?
10.1. In the event of a person to be detained in
custody and investigation not being capable of
completing within 24 hours as fixed under
section 57 of Cr.P.C, the Officer in-charge of
the police station shall produce the accused
before the nearest Judicial Magistrate. The
Judicial Magistrate could authorise the
detention of the accused in such custody for a
term not exceeding 15 days in a whole. The
above detention is required beyond period of 15
days, the Magistrate is to be satisfied that
adequate grounds exist for extending the time
which can be extended to a total period of 90
days for offences punishable with death,
imprisonment for life or imprisonment of a term
not less than 10 years or 60 days where
investigation relates to any other offence with
lesser punishment.
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10.2. The filing of a charge sheet denotes the
completion of the investigation and whether
that particular accused is charged with having
committed any offence or not. There are other
situations where investigation being ongoing as
regards certain other accused on account of
their non availability, a charge sheet is filed as
regards the available accused and permission is
sought to carry out further investigation and file
additional charge sheet in the event of the said
absconding accused being found. In such a
situation, an additional or supplementary
charge sheet would be filed.
10.3. The above facts give rise to two distinct
situations. Firstly, where when a charge sheet
has been laid, the concerned accused is
implicated in the said charge sheet, secondly,
where the concerned accused is not implicated
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in the charge sheet and further investigation is
ongoing.
10.4. In the first situation when the concerned
accused is implicated in the charge sheet, the
investigation has come to an end on the
existing material and the concerned accused
has been charged of the offences contained in
the charge sheet, though in the event of further
investigation being carried on as regards other
accused, as regards the accused against whom
a charge sheet has already been laid,
supplementary charge sheet/s could be laid.
Thus, once a charge sheet is filed within the
time period prescribed under Subsection (2) of
Section 167 of Cr.P.C, or as may be extended
in terms of proviso to Subsection (2) of Section
22 of KCOCA, the concerned accused would not
be entitled to default/statutory bail.
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10.5. In the second case, where a charge sheet has
not been laid against the concerned accused,
but investigation is going on, in such event the
rigour of Subsection (2) of Section 167 of
Cr.P.C, would apply, insofar as offences other
than that covered under KCOCA, as regards
offences under KCOCA it would be governed by
any order passed under the proviso to
Subsection (2) of Section 22 of KCOCA. The
investigation not being completed within the
period mentioned under Subsection (2) of
Section 167 of Cr.P.C., then concerned accused
could seek for default/statutory bail. If the
accused has been tried for offences under
KCOCA, it is only after the expiry of the period,
if any extended by the Special Court under
proviso of Subsection (2) of Section 22 of
KCOCA that the right to seek for
statutory/default bail would arise.
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11. ANSWER TO POINT NO.3: Whether the second
remand could be made during COVID period
without physical production of an accused?
11.1. The COVID period or the SOP applicable during
that period is not relevant in the present case
for the reason that the petitioner in this case
was not remanded for the second time but was
in judicial custody subsequent to the filing of
the charge sheet. In such a situation, the
accused only had an option to seek for and
obtain regular bail. Once a charge sheet has
been filed, there is no question of remand as
envisaged under Subsection (2) of Section 167
of Cr.P.C. or proviso to subsection (2) of
Section 167 of Cr.P.C. or the proviso to
subsection (2) of Section 22 of KCOCA.
11.2. It is only in the event of the investigation not
being completed, the question of second
remand or third remand, etc, would arise where
the aforesaid provisions would apply.
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12. ANSWER TO POINT NO.4: Whether the order of
remand passed without passing order on
application under Subsection (2) of Section 167
of Cr.P.C. is bad in law?
12.1. Learned counsel for the petitioner contended
that an order of remand has been passed
insofar as the petitioner is concerned without
considering the application under Subsection
(2) of Section 167 of Cr.P.C.
12.2. In the present case, a charge sheet having
already been laid and the petitioner being
implicated in the offence, the question of
statutory/default bail not being applicable is
considered and answered hereinabove. Hence,
the question of the application for
default/statutory bail considered prior to
remand would also not arise the investigation
having been completed.
12.3. This point raised by the learned counsel for the
petitioner would only arise in the event of
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investigation not being completed and the
period expiring which is not so in the present
case.
13. ANSWER TO POINT NO.5: Could a absconder
claim benefit of Sub section(2) of Section 167
of Cr.P.C?
13.1. The contention of Sri.Ashok N. Naik, the Special
Public Prosecutor that the petitioner in this case
having absconded and thereafter being arrested
on a non bailable warrant cannot claim the
benefit of Subsection (2) of Section 167 of
Cr.P.C.
13.2. A reading of Subsection (2) of Section 167 of
Cr.P.C does not make any distinction between
an absconder or a person arrested at initial
stage itself. Section 167 of Cr.P.C. deals with
a situation where a person has been arrested,
investigation not being completed within 24
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hours, accused is required to be remanded to
custody.
13.3. Section 167 of Cr.P.C, would come into play
only upon arrest and not at a time when person
is absconding i.e. to say it is only when the
petitioner was arrested that the benefit and/or
entitlement under Section 167 accrued to the
accused and as per the time period fixed
therein at least 24 hours, 15 days, 60 days or
90 days as the case may be, certain rights
would accrue to the accused to seek for
statutory/default bail.
13.4. In my considered opinion as dealt with
hereinabove, the fact of the accused
absconding or delaying the investigation during
the period of he being absconding would not be
relevant for consideration of application
Subsection (2) of Section 167 of Cr.P.C.
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13.5. It is after the accused is arrested and available
in custody, the investigation is required to be
completed in a time bound manner as
contained in Subsection (2) of Section 167 of
Cr.P.C.
14. ANSWER TO POINT NO.6: What order?
14.1. In view of the answer to various points which
have been raised for consideration, I am of the
considered opinion that in the present case,
charge sheet having been laid against the
petitioner even prior to the arrest of the
petitioner, the petitioner having been
arraigned as an accused and charged with
certain offences punishable under 302, 120(B),
114, 118, 109, 201, 203, 204, 35 IPC & 25 (1),
25(1B), 27(1) of Indian Arms Act and Section
3(1)(i), 3(2), 3(3), 3(4) of KCOCA, I am of the
considered opinion that the benefit under
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Subsection (2) of Section 167 of Cr.P.C. would
not arise.
14.2. Hence, I pass the following:
ORDER
The petition stands dismissed.
Sd/-
JUDGE
ln
