STATE OF KARNATAKA Vs. RAVINDRANATHAN NAIR

JUDGEMENT

(1.) This criminal petition under S.439(2) CrlPC is directed against the order of the II Addl Sessions Judge, Bangalore, granting bail to the respondent.

(2.) Since the petition raises a somewhat intricate but interesting point of law, it was argued at some length. In order to appreciate the arguments advanced by the State Public Prosecutor, a summary of the facts may be given at the outset to elaborate the law point involved. The respondent-accused in this case was charged for committing a murder under S.302 IPC. The date of the offence was 5-2-1971 and the accused was arrested on 3-10-1975. No sooner the offence was committed, investigation started and obviously that was done sometime in 1971. After the arrest of the accused, it seems the investigation was completed and a charge sheet was filed in the Court on 29-1-1976. The accused applied for bail before the Magistrate, but since the case was committed for trial to the Sessions Judge, the said petition was not decided. Subsequently, the accused applied for bail before the learned Sessions Judge. One of the contentions on behalf of the accused related to proviso (a) of S.167(2) of the new Code, wherein it is stated that if the accused person was in custody for a total period of 60 days he shall be released on bail on the expiry of that period, if he was prepared to and did furnish bail. The learned Sessions Judge considered that plea and having accepted it granted bail to the respondent. Against that order of granting bail the State has tiled the present petition.

(3.) The learned State Public Prosecutor essentially relied on the decision Natabar Parida v. State of Orissa AIR. 1975 SC. 1465.. In that case it was observed by their Lordships that during the pendency of the investigation, which started before the coming into force of the new Code, the accused could not press into service proviso (a) to S.167(2) and claim to be released on bail as a matter of right. But, in order to appreciate the observations made by their Lordships, the facts which arose in that case would have to be considered. As evident from the judgment, the accused who applied for bail in that case was arrested on 14-3-1974, that is to say, on a date prior to the coming into force of the new Code. The argument advanced before their Lordships was that on the interpretation of the language used in S.428 of the new Code, as per decision by Bhagwati, J, who delivered the judgment in B. P. Andre v. Superintendent, Central Jail AIR. 1975 SC, 164. it could be held that to get the benefit of bail under S.167(1) of the new Code, it was immaterial that the arrest of the accused had taken place while the old Code was in force. In B. P. Andre (supra) (2) the question before the Supreme Court was, as to whether S.428 was retrospective and the conviction made and sentence awarded while the old Code was in force, could be dealt with for the benefit of set-off under the said section. It was held by the Supreme Court that S.428 applied, because the language used in the section covered the conviction made and sentence awarded even at the time when the old Code was in force. It was stated that similarly it should be held for the proviso (a) to Sec.167 (2) that the accused would get the benefit of being released on bail after 60 days even though he was arrested prior to the date of coming into force of the new Code. This argument was repelled by their Lordships in Natabar Parida's case (l) (supra) and it was observed :