MABIA BIBI Vs. STATE OF WEST BENGAL

JUDGEMENT

(1.) In the present application for bail several interesting questions of law have been argued by the learned members of the Bar.

(2.) Mr. Milan Kumar Mukherjee, learned Advocate for the petitioner brought to our notice the fact that the arrest of the petitioner was made on 22.2.91 and there was an older of remand till 8.3.91. Even though Mr. Mukherjee contended that the remand was not permissible in the eye of law in view of the fact that 12.4.91 was fixed as the next date, we find that the said date was only for arrival for service return as regards issue of warrant of arrest upon other accused Munja Bibi. Mr. Mukherjee further contended before us that on the expiry of 8th of March, 1991 it was an incumbent duty on the part of the learned Magistrate to have forwarded the accused to the Special Court having jurisdiction, since a remand beyond fifteen days was not permissible in law. It is indeed a fact that after the accused is forwarded to the Special Court having jurisdiction, the Special Court may exercise the same powers which a Magistrate has under section 167 of the Code of Criminal Procedure, 1973. Again it is the Special Court which may upon the submission of the police report of the facts constituting an offence under the Narcotic Drugs and Psychotropic Substances Act, 1985 or upon a complaint made by an officer either of the Central or of the State Government authorised in this behalf, take cognizance of that offence without the accused being committed to it for trial. Mr. Mukherjee drew our attention to sub-section (3) of section 36A of the Act by contending that the special powers of the High Court regarding bail under section 439 of the Code of Criminal Procedure, 1973 were not affected thereby.

(3.) Mr. Mukherjee cited before us a Supreme Court judgment in Rajnikant v. Intelligence Officer, Narcotic Control Bureau, New Delhi reported in AIR 1990 SC 71 for the proposition that an order for release on bail under proviso (a) to section 167(2) Cr.P.C. may properly be permitted as an order on default. It is a release on bail on the day of the prosecution in fling charge sheet within the prescribed period. He submitted that the right to bail under section 167(2) proviso (a) thereto is absolute and it does not depend upon the Court's discretion. If the investigating Agency fails to file charge sheet before the, expiry of 90 days or 60 days, as the case may be, the accused in custody should be released on bail and at that stage the merits of the case are not to be examined. In fact the Magistrate has no power to retain a person beyond the stipulated period of sixty days or ninety days, as the case may be, and he has to pass an order of ball and communicate the same to the accused to that the accused may in his turn furnish the requisite bail bonds. It was however, held in this case that the accused cannot claim any special right to remain on bail and if the investigation reveals at a later stage that the accused has committed a serious offence and a charge sheet is filed later on, the bail granted previously under proviso (1) to section 167(2) Cr.P.C. could still be cancelled. It was observed in Raghubir Singh v. State of Bihar reported in AIR, 1987 SC 149 that 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, the prosecution may seek to have the bail cancelled on the ground that the accused has committed a non-bailable offence, after the defect is cured by the filing of the charge sheet and that if the prosecution shows that it is necessary to arrest him and commit him to custody, the Court may cancel the previous bail order since it was not a release on bail on merits but on the basis of an order on default and the previous order enlarging the accused on bail could be rectified for such special reasons after the defect was cured.