Kiran @ Uma Maheswaran vs The State Rep. By
2023 Latest Caselaw 4980 Mad

                                                                 1

                                  BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT

                                                    DATED: 28/04/2023

                                                            CORAM:

                                        THE HON'BLE MR JUSTICE G.ILANGOVAN

                                              Crl.OP(MD)No.8314 of 2023

                     Kiran @ Uma Maheswaran                             : Petitioner/Petitioner


                                                             Vs.

                     The State rep. by
                     The Inspector of Police,
                     Town West Police Station,
                     Thanjavur,
                     (Crime No.841 of 2022)                             : Respondent/Complainant


                                    Prayer:- Criminal Original Petition is filed under
                     section 482 of the Criminal Procedure Code, to call for
                     the          records   and    set    aside      the   order    passed   by    the
                     Judicial          Magistrate        No.1,       Thanjavur     in   Surety    Memo
                     D.No.4276         of   2023    in    Crl.M.P       No.2237    of   2022,    dated
                     29/11/2022.


                                      For Petitioner             : Mr.K.Sivabalan

                                      For Respondent          : Mr.B.Nambiselvan
                                                             Additional Public Prosecutor




https://www.mhc.tn.gov.in/judis
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                                                            O R D E R

This criminal original petition has been filed

seeking to set aside the order passed by the Judicial

Magistrate No.1, Thanjavur, in Surety Memo D.No.4276 of

2023 in Cr.M.P No.222961 of 2022, dated 10/02/2023.

2.The facts in brief:-

The petitioner is arrayed as A2 in Crime No.841 of

2022 for the offence alleged to have been committed by

him along with the co-accused for the offences punishable

under section 364 IPC @ 364 and 302 IPC. He was arrested

and remanded to custody. Since final report was not filed

within the time stipulated, he moved application under

section 167(2) of the Criminal Procedure Code, for

granting statutory bail.

3.That was allowed by the trial court, by order,

dated 29/09/2022. In the meantime, the respondent filed

final report, on 22/12/2022. Finding that statutory bail

cannot be refused to the petitioner, since the period

expired, he was granted bail with certain conditions,

which reads as follows:-

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(a)The petitioner/Accused shall execute a bond for a sum of Rs.10,000/- (Rupees Ten thousand only) with two sureties each for a like sum to the satisfaction of this court;

(b)The petitioner shall appear and to sign before this court daily at 5.00 p.m for 15 days without fail from the date of his release;

(c)The Petitioner/Accused shall not tamper any evidence, he shall not make any undue influence upon the witnesses, he shall co-operate with the process of investigation and he shall not indulge in similar or any offences in future.

But he could not arrange sureties immediately. Later

after arrangement of the sureties, he filed the above

said surety application, on 22/12/2022. The right of the

petitioner to execute the bond was questioned by the

trial court as well as by the prosecution. On that

account, the trial court heard both sides. After going

through the earlier orders and the order of the co-

ordinate bench of this court in Spurgeon Samuel Vs.

Inspector of Police, Nagercoil and another; and the

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Division Bench order in Crl.OP(MD)No.7736 of 2021, dated

23/12/2021, was of the view that the statutory bail that

was granted to the petitioner got extinguished because of

his failure to furnish surety. By relying upon the above

said order, again, the above said surety application was

returned, by order, dated 03/01/2023.

4.Challenging the above said order, this petition

has been filed.

5.Heard both sides.

6.When a similar petition was moved before this

court in Crl.OP(MD)No.4432 of 2023, the following

observation has been made on 21/03/2023, while allowing

the petition:-

"5.The history of evaluation of right to

default bail under section 167(2) of the Criminal

Procedure Code has been extensively stated in the

judgment reported in M.Ravindran Vs. Intelligence

Officer, Directorate of Revenue Intelligence

[(2021)2 SCC 485]. I am not going to extract the

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relevant portion in this order, since the

question involved here is different.

6.Now we are dealing with the extinguishment

of right.

7.When a right is created, inherently in it

are, restrictions, regulations and

extinguishments, how the law developed on the

point of extinguishment of right is also covered

in M.Ravindran's case.

8.The law developed in this way,

in Hitendra Vishnu Thakur Vs. State of

Maharashtra [(1994)4 SCC 602]. The issue arose in

this way, the scope of section 20(4)(bb) of the

Terrorist and Disruptive Activities (Prevention)

Act, 1987 r/w 161(2) Cr.P.C came up for

consideration. The court was of the view that the

accused must make an application and the court

must release the accused on bail, if the time

limit expired for filing the final report without

going into the merits of the case, of course, by

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giving notice to the Public Prosecutor. Even

remand can be refused or declined. It was also

noted that it is obligatory on the part of the

accused to file application. But later necessity

of filing a formal application was diluted, which

we are not concerned here.

9.The prosecution was not satisfied with the

above said proposition laid. So again issue arose

and the decision in Hitendra Vishnu Thakur Vs.

State of Maharashtra [(1994)4 SCC 602] was

challenged before the Constitution Bench of the

Hon'ble Supreme Court in Sanjay Dutt Vs. State

[(1994)5 SCC 410] on the same year itself. The

question was, whether the above said right is

available to the accused, even after filing of

the final report, of course, after the expiry of

the limitation period. The Constitution Bench

settled the issue, in this way,

“48…The indefeasible right accruing to the accused in such a situation is enforceable only prior to the filing of the challan and it does not survive or remain enforceable on the challan being filed, if already not availed of. Once the

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challan has been filed, the question of grant of bail has to be considered and decided only with reference to the merits of the case under the provisions relating to grant of bail to an accused after the filing of the challan. The custody of the accused after the challan has been filed is not governed by Section 167 but different provisions of the Code of Criminal Procedure. If that right had accrued to the accused but it remained unenforced till the filing of the challan, then there is no question of its enforcement thereafter since it is extinguished the moment challan is filed because Section 167 CrPC ceases to apply…”

10.Again, the issue did not settle. Again

issue arose to the interpretation of the phrase

'if not already availed of', that was clarified

in the Three Judges Bench in Uday Mohanlal

Acharya Vs. State of Maharashtra [(2001)5 SCC

453].

11.The answer was like this:-

“if not already availed of' used by this

Court in Sanjay Dutt (1994)5 SCC 410 must be

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understood to mean “when the accused files an

application and is prepared to offer bail on

being directed.”

12.It was answered that the right will not

extinguish, even though such application was not

considered, has not indicated the terms and

conditions of bail, the accused yet to furnish

the bail. Meaning of this, is very clear. Mere

filing of the petition is enough to enforce the

right to get the default bail. Pendency, date of

order and the date of furnishing of the bail

bails are not relevant factors. But however, a

minority view has also been made in the above

said Uday Mohanlal Acharya's case to the effect

that the right can be exercised only on

furnishing the bail bonds. The order of right can

be enforced only before passing of the order and

producing the bail bonds. But however, only

majority view will survive, which was also a

matter for consideration in the above said

M.Ravindran's case, the danger in adopting the

view.

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13.The issue before the Hon'be Supreme Court

in M.Ravindran's case arose in this way; the

accused in that case, on the expiry of the

statutory of 180 days, filed bail application on

01/02/2019 at about 10.30 am. Arguments were

heard and at about 4.25 pm, on the same day,

challan was filed by the prosecution. The court

was requested to dismiss the application. But the

trial court allowed the bail application as it

happened in this matter also.

14.It was taken on appeal by the

prosecution. This High Court set aside the order

of the trial court on the ground that since

additional complaint was filed on 01/02/2019 and

the application was not disposed till the

presentation of the challen, the right

automatically extinguished. It was taken to the

Hon'ble Supreme Court. The argument of the

Government is that the date of disposal of the

bail application is the deciding factor to see

whether the right extinguished or not. This

argument was answered by the Hon'ble Supreme

Court in this way,

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“18.7.The arguments of the State that the expression “availed of' would only mean actual release after furnishing the necessary bail would cause grave injustice to the accused and would defeat the very purpose of the proviso to Section 167(2)Cr.P.C. If the arguments of Mr.Lekhi are accepted, there will be many instances where the Public Prosecutor might prolong the hearing of the application for bail so as to facilitate the State to file an additional complaint or investigation report before the Court during the interregnum. In some cases, the Court may also delay the process for one reason or the other. In such an event, the indefeasible right of the accused to get the order of bail in his favour would be defeated. This could not have been the intention of the legislature. If such a practice is permitted, the same would amount to deeming illegal custody as legal. After the expiry of the stipulated period, the Court has no further jurisdiction to remand the accused to custody. The prosecution would not be allowed to take advantage of its own default of not filing the investigation report/complaint against the appellant within the stipulated period.”

15.The above said point was answered by

concluding that right will not extinguish because

of the pendency of the bail application or bail

or delay in furnishing the bail bonds.

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16.The secondary question, which was

answered by the Hon'ble Supreme Court in the

above said M.Ravindran's case is, the real

meaning of the explanation to proviso to 167(2)

Cr.P.C., which is not relevant for

reconsideration here.

17.Para 19.1 is relevant for extraction:-

“19.1.However, the expression ‘the accused does furnish bail’ in Section 167(2) and Explanation I thereto cannot be interpreted to mean that if the accused, in spite of being ready and willing, could not furnish bail on account of the pendency of the bail application before the Magistrate, or because the challenge to the rejection of his bail application was pending before a higher forum, his continued detention in custody is authorized. If such an interpretation is accepted, the application of the Proviso to Section 167(2) would be narrowly confined only to those cases where the Magistrate is able to instantaneously decide the bail application as soon as it is preferred before the Court, which may sometimes not be logistically possible given the pendency of the docket across courts or for other reasons. Moreover, the application for bail

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has to be decided only after notice to the public prosecutor. Such a strict interpretation of the Proviso would defeat the rights of the accused. Hence his right to be released on bail cannot be defeated merely because the prosecution files the charge sheet prior to furnishing of bail and fulfil the conditions of bail of furnishing bonds, etc., so long as he furnishes the bail within the time stipulated by the Court.”

consequently the argument of the Government was

rejected. So this fixes the entire issue, now

under the discussion in this matter.

18.So the right will extinguish, if the

accused fails to furnish the bail bond within the

time stipulated or when there is violation of the

conditions imposed. Here arises the difficulty.

As mentioned above, the trial court has not

imposed any condition to furnish the bail bonds.

It was kept pending for furnishing bail bonds. In

the meantime, revision was preferred by the

accused, it was withdrawn, later first surety

application was presented, it was returned. Again

another surety application was filed and that was

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also returned by making the above said

observation, based upon the judgement of the

coordinate bench of this court in Spurgeon

Samuel's case as well as the order of the

Division Bench Judge in Kannan @ Senthil @ Kumar

@ Minnal's case.

19.But whether any time limit was imposed by

the trial court is not clear on record, so far as

the Spurgeon Samuel's case is concerned. More-

over before furnishing of the surety bond, the

bail was cancelled on the basis of the order

passed in Crl.MP No.531 of 2022. More-over, no

occasion has arisen in the above said matter as

to whether the right will extinguish on failure

to furnish the bail bond immediately or within a

reasonable time, since no time limit imposed.

Similarly, in Kannan @ Senthil @ Kumar @ Minnal's

case, the right was exercised to execute the bond

after four years from the date of the order. In

the meantime, crime was altered and much water

has flown. But in the above said order, no time

limit was imposed by the trial court, that was

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sought to be taken advantage by the accused and

contended before the Division Bench that he can

exercise the right at any time at his Will and

Wish. But that was not accepted by the Division

Bench of this court.

20.When the Hon'ble Supreme Court is of the

considered view that right will extinguish on

failure to comply the condition in furnishing the

bail bond within the time stipulated. No occasion

has arisen before the Hon'ble Supreme Court as to

what will be the result if no time limit is

imposed by the trial courts.

21.No doubt that if no time limit is

prescribed by the court, it means that it must be

performed either immediately or within a

reasonable time. What is the reasonable time

cannot be defined and it depends upon the facts

and circumstances as well as the position of the

accused.

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7.Let the petitioner re-present the above said

surety memo before the concerned court. The concerned

court may give opportunity to the petitioner to put forth

his reason for the delay. If the court satisfies with

regard to the reason for the delay, it may permit to

execute the surety bond.

8.With the above said, this criminal original

petition stands allowed. The Registry is directed to

return the impugned order passed by the trial court along

with the other related documents to the learned counsel

appearing for the petitioner, after retaining the Xerox

copy of the same.

28.04.2023 Index:Yes/No Internet:Yes/No

er

https://www.mhc.tn.gov.in/judis

To,

1.The Judicial Magistrate No.1, Thanjavur.

2.The Inspector of Police, Town West Police Station, Thanjavur.

3.The Additional Public Prosecutor, Madurai Bench of Madras High Court, Madurai.

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G.ILANGOVAN, J er

Crl.OP(MD)No.8314 of 2023

28/04/2023

https://www.mhc.tn.gov.in/judis

https://www.mhc.tn.gov.in/judis