JUDU ALIAS DASWARAN Vs. STATE OF TAMIL NADU

JUDGEMENT

(1.) 1.ARUNACHALAM, J. THE petitioner is A-2 in S. C. No. 117 of1989 pending trial on the file of the Additional Sessions Judge, Vellore. He along with seven others are said to have committed offences under sections 3o2and 397 LP. C. Bail is pleaded on the ground that the detention of the petitioner is violative of the provisions of section 167 (2) of the Criminal Procedure Code read with article 21 of the Constitution of India.

(2.) BAIL being sought in this petition on a legal ground, the factual details of occurrence need not have to be traversed. The relevant dates, which may have a significance in deciding this issue have to be stated. The petitioner was arrested on 10.8. 1988 in respect of an occurrence said to have taken place on 27.7. 1988. The charge sheet was filed on 27.4. 1989, though dated 13.4. 1989, nearly 8-1/2 months after the arrest of the petitioner. In between, by an order of detention dated 11-9-1988, the petitioner was incarcerated under the National Security Act. Even though the period of preventive detention was over on 10.9. 1989, the petitioner is still in jail, in view of his involvement in the very same crime.

(3.) THIS view of mine is supported by the observations of the Supreme Court in Raghubir Singh v. State of Bihar. In that case the Supreme Court was considering the order for release on bail made under proviso to section 167 (2) of the Criminal Procedure Code in conjunction with Sections 309, 344,437 (5) and 439 (2) of the Code in the background of article 21 of the Constitution of India. The Supreme Court observed that the order for release on bail made under proviso to section 167 (2), Cr. P. C. cannot be defeated even if the charge-sheet were to be filed beyond 60/90 days, as the case may be for bail can be cancelled in such cases only under section 437 (5) or section 439 (2), Cr. P. C. The Supreme Court further negatived the argument of the State Counsel that the order for release on bail stood extinguished on the remand of the accused to custody. It was held that there was no substance whatever in that submission, since section 309 (2) merely enabled the Court to remand the accused if in custody. It did not empower the Court to remand the accused, if he was on bail. . It did not enable the Court to cancel bail, as it were, which could be done under sections 437 (5) and 439 (2 ). When as accused person was granted bail, whether, under the proviso, to section 167 (2) or under the provisions of Chapter 32, the only way the bail may be cancelled is to proceed under section 437 (5) or section 439 (2), Cr. P. C. At this stage, the learned additional Public Prosecutor submitted that in the case decided by the Supreme Court, in pursuance of the order for bail, the accused had produced sureties and that was not the case here. In that case, though sureties had been produced, which had not been accepted the accused therein were under preventive detention, as in this case. The Supreme Court observed as follows: An order for release on bail made under the proviso to section 167 (2) is not defected by lapse of time, the filing of the charge- sheet or by remand to custody under section 309 (2 ). The order for release on bail may however be cancelled under section 437 (5) or section 439 (2 ). Generally the grounds for cancellation of bail, broadly, are interference or attempt to interfere with the due course of administration of justice, or evasion or attempt to evade the course of justice, or abuse of the liberty granted to him. The due administration of justice may be interfered with by intimidating or suborning witnesses, by interfering with investigation, by creating or causing disappearance of evidence, etc. The course of justice may be evaded or attempted to be evaded by leaving the country or going underground or otherwise placing himself beyond the reach of the sureties. He may abuse the liberty gramed to him by indulging in similar or other unlawful acts. Where bail has been granted under the proviso to section 167 (2) for the default of the prosecution in not completing the investigation in sixty days, after the defect is cured by the filing of a charge- sheet, the prosecution may seek to have the bail cancelled on the ground that there are reasonable grounds to believe that the accused has committed a non-bailable offence and that it is necessary to arrest him and commit him to custody. In the last mentioned case, one would expect very strong grounds indeed. The Supreme Court also held that there was no time limit for execution of bond after order of release is made. In view of the authoritative enunciation of law by the Supreme Court, the bail order, which is deemed to have been made under the proviso to section 167 (2) cannot be defeated by lapse of time and the only way to annul it would be by seeking cancellation of bail, if circumstances of the case. so warranted. In Bashir and others v. State of Haryana. dealing with the power of cancellation of bail, the Supreme Court held that the power of the Court to cancel bail if it considered necessary was preserved in cases where a person had been released on bail under section 437 (1) or (2) and these provisions were applicable to a person who had been released under section 167 (2 ). A Division Bench of the Delhi High Court in Noor Mohd v. State , and a Full Bench of the Gujarat High Court in Babubhai Parshoitamdas v. State of Gujarat , held that the right of the accused to be released on bail after 90 days was absolute and was subject only to section 437 (5), Cr. P. C. Mere subsequent filing of the chargesheet was not sufficient. These decisions taken along with the observations of the Supreme Court, will show that the power of the Magistrate to remand the accused to jail custody came to an end with the expiry of 90/60 days from the date when the accused was first produced before the Magistrate after his arrest. Once the period of 90/ 60 days expired, on the command of the Legislature, if a charge sheet were not to be filed, the accused is entitled to be released on bail. The power of remand under section 309 (2), Cr. P. C. after first taking cognizance of the offence will have to be read in the light of the right of entitlement of the accused to be released on bail under section 167 (2) (a), Cr. P. C. Two decisions of this Court brought to my notice by the learned Additional Public Prosecutor need consideration. . Maheswaran, J. in Kumarakuppan, in Re: 8, held, following the decision of the Gujarat High Court in Umed Singh Vakmatji Jadeja v. State of Gujarat and the view expressed by the Andhra Pradesh High Court in Nathala Vinod Prabhu v. State of Andhra Pradesh that after a charge sheet was filed pending an application under section 167, Cr. P. C. the investigation had come to an end and so also the power of the Magistrate to grant bail under the provisions of section 167 (2 ). Maheswaran, J, did not agree with the view of the Delhi High Court referred to above in Noor Mohd. T s case (supra ). Though the learned Judge had relied upon the observations of the Supreme Court in Bashir's case (supra) dealing with cancellation of bail, in the present context of the Supreme Courts decisions referred to by me, the order of release on bail, made under the proviso cannot be defeated by lapse of time. The subsequent filing of the charge sheet or remand to the custody under section 309 (2), Cr. P. C. in the changed context of the law available on the subject as on date, the decision of Maheswaran, 1. , will no longer be applicable. The said decision of the Gujarat High Court relied on by the learned judge has been overruled by the Full Bench of the Gujarat High Court in Babubhais (supra) case. The decision of a Division Bench of this court reported in W. P. No. 1638 of 1980 Nagalingam v. State dated 21-4-1980, holding that even if there had been an illegality when the Magistrate first continued the remand, the same got cured by subsequent remand orders under section 309 (2), Cr. P. C. cannot hold good in view of the decision of the Supreme Court in Raghubir Singh v. State of Bihar (supra ).