TULSI RAM Vs. STATE OF M.P.

JUDGEMENT

(1.) THE applicant is a barber who was married to deceased Droupadi Bai, aged about 19 years and also one Kaja Bai. Both the wives of the applicant used to quarrel. It appears that Droupadi Bai committed suicide by burning herself after closing the door. The applicant was arrested by the police station, Pali in Crime No. 146/88 for having committed the offence punishable under Section 302/201, I. P. C Shri Datt rightly abandoned his arguments on merits and concentrated before this Court on the mandatory provisions contained in Section 167(2), Cr. Pro. Code. His main grievance is that the applicant was admittedly arrested on 19 -11 -88, and was produced before the Court of Magistrate for remand on 20 -11 -88. He contends that the charge -sheet was not filed within a period of 90 days. The order of the Sessions Judge was perused. The facts, which emerge, are that the Police filed the charge -sheet in the Court of Magistrate on 17 -2 -89. It is also apparent from the order that the charge -sheet on 17 -2 1989 was not signed by the presiding officer. Going back behind the date, it is further apparent from the order of the Sessions Judge, that on 14 -2 -1989, A.C.J.M., Pali had directed the police to file the charge -sheet on or before 20 -2 -1989. If the charge -sheet were to be filed on the date given by the Magistrate, it could have been filed after a lapse of 90 days. In his lengthy order, the learned Third Additional Sessions Judge, Bilaspur has observed that keeping in view the principles laid down in the State of Maharashtra v. Ramdas Shriniwas Naik : A. I. R. 1982, S. C. 1249, it should be presumed that the proceedings written by a Court of law should be regarded to be true. There is no dispute with this proposition. But the provisions contained in Section 167(2), Cr. Pro. Code are mandatory. That is why whenever the charge -sheet is filed, the order sheet should be signed by Magistrate and not merely it should be written by the clerk of the Court. The provisions contained in Section 167(2), Cr. Pro. Code are very sensitive. They go to the root of some of the fundamental rights guaranteed to a citizen who may subsequently become an accused and maybe arrested by the police for committing some crime. The none observance of the mandatory provisions contained in Section 167(2), Cr. Pro. Code are likely to create prejudice to the accused when he has got certain guaranteed fundamental rights It is well known that prejudice is the spider of mind, it is a womb of injustice. When the order sheet has not been signed by the presiding Magistrate, then that order is not an order according to law. Such an order can be disregarded.

(2.) THE presiding magistrates, who are entrusted with the job of granting judicial remand, have to apply their mind also while granting remand and have to keep in their mind the calculation of the period within which the charge -sheet is to be filed by the police If the Magistrate is negligent and if the order passed by him is not signed by him, it should be presumed that there was no such order which may be called an order according to law. While exercising the powers under Section 167, Cr. Pro. Code, the presiding Magistrate should not Act in a clerical manner, but in a judicial manner and he should apply his mind whenever such orders are passed. Pre -trial liberty, which is granted according to law has to be guarded Consequently, to conclude, it appears from the order of the Sessions Judge that the charge -sheet was filed against the applicant by the police after a lapse of 90 days and he, therefore, acquired a valuable right to be released on bail. It is, therefore, directed that if the applicant files a solvent surety of Rs. 8000 (Eight thousand) with a personal bond in the like sum to the satisfaction of C.J.M., Bilaspur, then the applicant be released on bail for his appearance before that Court or any other Court where he is directed to appear.

(3.) CC be supplied on payment of necessary charges.