RAM SUBHAG YADAV Vs. STATE OF BIHAR

JUDGEMENT

(1.) THIS is the second attempt on behalf of the petitioner for grant of bail in an offence punishable under Sections 364, 365, 302, 201 and 34 of the Indian Penal Code registered against five named accuseds including the petitioner. The prayer for bail on behalf of this petitioner was earlier rejected by this Court on 15.3.96 in Cr. Misc. No. 916 of 1996. This second bail application has been filed in terms of proviso to Section 167 (2) of the Code of Criminal Procedure, 1973 (hereinafter called 'the Code').

(2.) THIS case was placed for admission on 11.7.96, when a statement was made at the Bar that there is no valid remand in this case, as the petitioner has never been produced before the learned Magistrate, and, as such, the petitioner deserves to be enlarged on bail in terms of the proviso to Section 167 (2) of the Code. In support of his contention, learned counsel has relied upon a decision in the case of Chandradep Ral & am. Vs. The State of Bihar (1976 B.B.C.J. 645) wherein while interpreting the provision to Section 309 (2) of the Code, it has been held that non -production of the accused before the Magistrate after 15 days is in contravention of the provisions, as contained in proviso to Section 309 (2) of the Code and the accused is, therefore, entitled to be released on bail, provided the cognizance has not been taken and the accused has been remanded to jail custody. Accordingly, a report was called for from the learned Magistrate as to the present position 'of the case with reference to the statement made by the learned counsel for the petitioner. Pursuant thereto, the report has been received from the Chief Judicial Magistrate, which is kept at flag 'A' wherefrom It appears that the petitioner was arrested and forwarded by the police on 26.8.95 and on the same day, he was remanded by the court with a direction to produce him before the court on 8.9.95. Thereafter, it appears that only custody warrant of accused was sent by the jail authority and after mentioning .in the record, the custody warrant was returned to the Jail Superintendent with a direction to produce the petitioner in court. It is true that for several dates, the petitioner was not produced physically before the court, although the custody warrant of the accused was sent by the Jail Superintendent. Thereafter, it appears that on certain dates the petitioner was not produced before' the court, albeit custody warrants were received. Ultimately, the petitioner was physically produced before the court on 27.4.96. On 16.6.96, the petitioner was again physically produced before the court and was remanded to the jail custody with a direction to produce him on 30.7.96. The statement made by the learned counsel for the petitioner thus appears to be not correct. The instant bail application has been filed on 24.6.96 and as it appears from the report, the petitioner was physically produced on 27.4.96 and subsequently on 16.7.96. Thus, it appears that when the case was taken up for hearing, the petitioner was on valid remand. Accordingly the first contention of the learned counsel for the petitioner is rejected.

(3.) IT is then submitted by the learned counsel that the petitioner deserves to be enlarged on bail in terms of the proviso to Section 167 (2) of the Code, as charge -sheet has not been filed within the statutory period. In this case, the petitioner was arrested on 25.8.95 and thereafter remanded to the custody by various orders, as mentioned above. The charge -sheet was submitted on 23.11.95 against the petitioner and the other named accused under Sections 364, 365, 302 and 201/34 of the Indian Penal Code. From a perusal of the charge -sheet, it appears that the investigation is completed, but the post -mortem report has not been received till submission of the charge -sheet, though it is true that while submitting the charge -sheet, the Investigating Officer has mentioned that although the post -mortem report has not been received, yet the charge -sheet has been filed, so that the accused may not get the benefit of Section 167 (2) proviso of the Code. While developing his argument, learned counsel for the petitioner submitted that the charge -sheet filed by the police cannot be a 'police report' within the meaning of Section 173 (2) of the Code and, as such, the petitioner deserves to be enlarged on ball In terms of the proviso to Section 167 (2) of the Code. In support of his contention, learned counsel for the petitioner relied upon the decisions reported in the case of Rajnikant Jivanlal Patel and another v. Intelligence Officer, Narcotic. Control Bureau, New Delhi (A.I.R. 1990 S.C. 71), Aslam Babalal Desai v. State of Maharashtra (A.I.R. 1993 S.C. 1), Shankar Ram v. The State (1986 Cri.L.J. 707 (F.B.). In the case of Rajnikant Jivanlal Patel and another (supra), it has been held that if the investigating agency fails to file charge -sheet before expiry of 60 or 90 days, as the case may be, the accused in entitled to be released on bail. According to the apex Court, the release of the petitioner on bail under proviso to Section 167 (2) of the Code is an order on default of the prosecution in filing the charge -sheet within the prescribed period and, therefore, the right to be released on bail under the provise to the aforesaid section is an absolute right. Similarly, in the case of Aslam Babalal Desai (supra), their Lordships have laid down the law in paragraph 14 at page at page 11, as follows - "14. We sum up as under: - The provisions of the Code, in particular Ss. 57 and 167, manifest the legislative anxiety that once a person's liberty has been interfered with by the police arresting him without a Court's order or a warrant, the investigation must be carried out with utmost urgency and completed within the maximum period allowed by the proviso (a) to S. 167 (2) of the Code. It must be realised that the said proviso was introduced in the Code by way of enlargement of time for which the arrested accused could be kept in custody. Therefore, the prosecuting agency must realise that if it fails to show a sense of urgency in the' investigation of the case and omits or defaults to file a charge -sheet within the time prescribed, the accused would be entitled to be released on bail and the order passed to that effect under S. 167 (2) would be an order under S. 473 (1) or (2) or 439 (1) of the Code. Since S. 167 does not empower cancellation of the bail, the power to cancel the bail can only be traced to S. 437 (5) or 439 (2) of the Code. The bail can then be cancelled on considerations which are valid for cancellation of bail granted under S. 437 (1) or (2) or 439 (1) of the Code. The fact that the bail was earlier rejected or that it was secured by - the thrust of proviso (a) to S. 167 (2) of the Code then recedes in the background. Once the accused has been released on bail his liberty cannot be interfered with lightly i.e. on the ground that the prosecution has subsequently submitted the charge -sheet. Such a view would introduce a sense of complacency in the investigating agency and would destroy the very purpose of instilling a sense of urgency expected by Ss. 57 and 167 (2) of the Code. We are, therefore, of the view that once an accused is released on bail under S. 167 (2) he cannot be taken back in custody merely on the filing of a charge -sheet but there must exist special reasons for so doing besides the fact that the charge -sheet reveals the commission of a nonbailable crime. The ratio of Rajnikant's case (AI.R.1990 SC 71) to the extent it is inconsistent herewith does not, with respect, state the law correctly." There is no dispute and/or controversy so far as the law laid down in the aforesaid decisions. The law laid down in the case of Rajni Kant Jivanlal Patel (AI.R. 1990 S.C. 71) (supra) has been held to be inconsistent and does not state the law correctly, as has been held in the case of Aslam Sabalal Desai (A.I.R. 1993 S.C. 1) (supra). That apart, it has been held therein that non -filing of the charge -sheet within the prescribed period mandates the court to release the accused.