UMASHANKER Vs. STATE OF MADHYA PRADESH

JUDGEMENT

(1.) This revision is directed against the order dated 19th December, 1981 of the Judicial Magistrate First Class, Jabalpur, by which he dismissed the applicants application for bail.

(2.) This revision first came up for hearing before a learned Single Judges (Seth, J.) who by his order dated 11th February, 1982 referred it to a Division Bench.

(3.) The facts briefly stated arc that the applicants Umashanker, Ramchandra and Raju alias Rajendra were arrested by the police of Lordganj Police Station, Jabalpur, on 18th September, 1981 for offences under sections 364, 365 and 302 of the Penal Code which were registered against them in the said Police Station. They were produced from time to time before the Judicial Magistrate First Class, Jabalpur, and were remanded to December 1981 which was to expire on 22 December 1981. An application for bail under proviso (a) to section 167(2) of the Criminal Procedure Code, 1973, was made on behalf of the applications by their counsel on 19th December, 1981 at 11.00 a.m. It was stated in the application that the applicants were in continuous custody for more than 90 days. It was also stated that no charge-sheet till then had been filed and that the applicants were prepared to furnish bail to the satisfaction of the Court for release on bail. It appears that no order was passed on this application. A challan against the applicants was filed by the Lordganj Police in the Court on the same date i.e. on 19th December, 1981 at 1.45 p.m. The Magistrate on receipt of the challan directed the prosecution to produce the seized property in the case within 3 days. He also noted that the accused persons were already on remand till 22nd December, 1981 and ordered that the case be put up on that date. The bail application was taken up after his order was passed and it was dismissed on the ground that the remand under section 167(2) stood altered to one under section 309 and, therefore, the proviso to section 167(2) was not applicable and the applicants could not be released on bail. It ill this order which is challenged by the applicants in this revision. 3. The proviso to section 167(2) was enacted as a drastic remedy for enquiring investigations to be completed quickly. The Joint Committee in this connection observed: There is a persistent complaint that investigations are not being completed quickly by the Police and that in many cases accused persons are kept in detention for a very long period causing hardship and misery to such under trial prisoners and their families. Although some provisions are already there in the existing Code requiring investigations to be completed quickly, they have not had the desired effect. The Committee feels that a drastic remedy is called for in this behalf. The proviso as originally enacted with this purpose authorised the detention of the accused person in custody under section 167 for a maximum period of 60 days and it clearly said that on the expiry of the said period of 60 days, 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 section shall be deemed to be so released under the provisions of Chapter XXXIII for the purposes of that Chapter. This proviso first came up for construction before the Supreme Court in Natwar Parma v. State of Orissa. It was held in that case that if the investigation was not completed within 60 days, even in serious offences, there was no discretion left with the Court and it was obligatory to release the accused on bail. It was also held that this release was deemed to be one under Chapter XXXIII, and the accused could be arrested and committed to custody only under section 437(5) of the Code of Criminal Procedure. It was also observed that it was clear that after the taking of the cognizance the power of remand was to be exercised under section 309 of the Code which did not prescribe any maximum period for that purpose. The Court was somewhat critical of the right conferred on the accused by the proviso to section 167(2) to be released on bail if the investigation was not completed within 60 days even in serious and ghastly types of crimes and called it a paradise for the criminals under the command of the legislature. The proviso was amended after this ruling by the Amending Act of 1978 to empower the Magistrate to authorise detention pending investigation for an aggregate period of 90 days in cases where the investigation relates to offences punishable with death, imprisonment for life or imprisonment for a term of not less than ten years or more; and up to 60 days in other cases. The right of the accused to be released on bail, if the investigation is not completed within this period, is still retained. In the words of the proviso, on the expiry of the said period of 90 days or 60 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. An explanation has also been added by the Amending Act which declares that, nothwithstanding the expiry of 90 days or 60 days, the accused shall be detained in custody so long as he does not furnish bail. It is noteworthy that in spite of the criticism by the Supreme Court that the proviso was a paradise for the criminals under the command of the legislature, the amendment made in 1978 did not take away the right of the accused to be released on bail and the only substantial change made was to authorise the detention in custody of the accused pending investigation in serious offences up to maximum period of 90 days instead of 60 days. The proviso again came up for interpretation before the Supreme Court in Hussainara Khatoon v. State of Bihar. It is laid down in this case that when an under trial prisoner is produced before a Magistrate and he has been in detention for 90 days or 60 days, as the case may be, the Magistrate must before making an order of further remand to judicial custody point out to the under trial prisoner, that he is entitled to be released on bail. It was also observed that the State Government must also provide at its own cost a lawyer to the under trial prisoner with a view to enable him to apply for bail in exercise of his right under proviso (a) to section 167(2).