SHAM SINGH Vs. STATE OF HIMACHAL PRADESH

JUDGEMENT

(1.) This is an application by the Petitioner Sham'Singh for bail, who has been indicted for an offence under Sec. 302 read with Sec. 201 of the Indian Penal Code. It is submitted by the learned Counsel, that the accused was arrested on 4th April, 1974, and, as disclosed by the record, the challan has been put up before the Magistrate on 20th June, 1974, after expiry of 60 days. It was stated, that an incident of assault took place between the accused and his brother, and as a result to that incident some injuries were inflicted and the brother of the accused died. According to the learned Counsel, the only evidence which is stated to exist against the accused is the recovery of a weapon alleged to be used during occurrence. But this weapon of attack is not stained with human blood. Apart from that evidence, some extra -judicial confession has been recorded. The circumstances pointed out by the learned Counsel are rather unnatural for the recording of such a confession. Repeated attempts were made by this Court to procure the Police record which is stated to be in the possession of either the Magistrate or the Sessions Judge. However, such a record is not forthcoming. Apart from this, that the Courts below should have taken care to make available the record at the very first instance, this would decidedly be a factor in favour of the accused. There can be no reason not to accept the assertions made by the learned Counsel on his behalf. It appears, therefore, that with this incriminating evidence against him, the case was rather a proper one for granting bail.

(2.) Apart from this, another interesting feature arises which pertains to Sec. 167, Sub -section (2), proviso (A) of the new Code of Criminal Procedure. The learned Advocate General referred to Sec. 309 of the said Code in this connection and attempted to draw a distinction between the two Sections. According to him, Sec. 167 only prohibited custody of the accused in what he called "Police custody" beyond the period of 60 days, meaning thereby that the accused could be detained otherwise than in custody of the Police even beyond the period of 60 days. The learned Advocate -General seems to forget, that the stage of Sec. 309 has arrived only after 20th June, 1974, when the challan was put up before the Magistrate. It was thereafter for the Magistrate to decide as to whether he was in a position to conduct the proceedings in the case from day -to -day or if a remand order was required to be made by him for custody of the accused. In that contingency it would perhaps be a custody under the orders of the Magistrate and would not be a police custody. Therefore, we are not concerned with Sec. 309, as Shri Inder Singh, Advocate, argued that the period of 60 days expired even before the challan was put up before the Magistrate. Thus we are concerned only with Sec. 167, and proviso (A) of Sub -section (2) clearly lays down that the period of 60 days cannot be exceeded to, the custody being with Police or otherwise. In fact, if the Magistrate intended to detain the accused for investigation for a period exceeding 15 days, it was for him to decide as to whether he had to remain in police custody or otherwise as the Magistrate thought fit to order in the case. Therefore, in my opinion Sec. 167 not only talks of police custody but also of custody otherwise than with the Police, but only for the purpose of completing the investigation. In the instant case it is undoubted that the accused was detained within the meaning of Sec. 167 for a period of more than 60 days. According to Shri Inder Singh, Advocate, a right accrued to the accused for bail and although he was not prepared to the extent of saying that it was a vested right in favour of the accused to be exercised at any subsequent stage, nevertheless he argued that it was the duty of the learned Sessions Judge to have diverted his attention to proviso (A) of Sub -section (2) of Sec. 167 and he should have ordinarily granted the bail. The language of proviso (A), of Sub -section (2) is rather pre -emptory and a bail had to be granted. The order of the learned Sessions Judge does not disclose that he at all considered proviso (A) of Sub -section (2), and Shri Inder Singh wants to avail of that provision at this stage before the High Court.

(3.) It may not be necessary for me to decide at this stage as to whether a vested right accrued in favour of the accused which he could avail of at any subsequent stage. The learned Advocate -General argued that a prima facie case has been found against the accused and he is already standing trial before the appropriate Court. In the instant case, as evident, the bail application was moved before the learned Sessions Judge on 14th June, 1974, and the period of 60 days expired a few days before that. As such it is not a case where the accused had refused to ask for the relief, rather he is deemed to have pressed for that relief, no sooner the period of 60 days expired. He had taken a definite plea in his bail application that he is detained for more than 60 days and the investigation was not being completed. Therefore, by no stretch of argument it can be said that the accused has waived that right provided for him under the proviso (A) of Sub -section (2) of Sec. 167. It was rather the duty of the learned Sessions Judge to have availed himself of that provision contained in the proviso (A) of Sub -section (2) which he never did. At any rate that is a strong circumstance now in favour of the accused and in my opinion this Court while exercising the power of granting bail will have due regard to that provision and a contingency which existed in favour of the accused even on the date he applied for bail before the learned Sessions Judge.