STATE OF RAJASTHAN Vs. BHANWARU KHAN

JUDGEMENT

(1.) BY his order dated 4-6-1974, the Chief Judicial Magistrate, Bikaner, released Bhanwaru Khan, Mohammad, Alfu, Ganni and Bhanwaru son of Rahaman, non-petitioners on bail upon each of them furnishing a personal bond in the amount of Rs. 10,000/-, together with two sureties for Rs. 5000/-, each. Aggrieved by the order of the Chief Judicial Magistrate, the State of Rajasthan moved the Sessions Judge, Bikaner, for cancellation of bail granted to the non-petitioners. The learned Sessions Judge, Bikaner, rejected the application for cancellation of bail by his order dated 17-9-1974. Hence, the State has come up to this Court by way of an application under Sub-section (2) of Section 439 of the new Criminal Procedure Code for a direction that the non-petitioners, who have been released op bail, be arrested and committed to custody.

(2.) I have carefully gone through the record and heard the arguments advanced by Shri G. A. Khan for the State of Rajasthan and Mr. V. S. Dave, learned Counsel for the non-petitioners. It has been strenuously urged before me on behalf of the State that when the offence alleged to have been committed by the accused persons is a grave one like murder or an organised riot and there are reasonable grounds for believing that the accused persons have been guilty of an offence punishable with death or imprisonment for life, the Court ought not to have generally granted bail merely on the ground that the investigation could not be completed within a period of 60 days and that on the expiry of the said period of 60 days the accused person or persons became entitled to be released on bail under proviso (a) appended to Sub-section (2) of Section 167, Criminal Procedure Code 1973. It was further urged that the provisions contained in proviso (a) to Sub-section (2) of Section 167, Cr. P. C. are not of a mandatory nature and are controlled by other provisions of the Code contained in Sections 309 (2), 437 and 439 thereof, Mr. V. S. Dave appearing on behalf of the non-petitioners, on the other hand, contended that in the present case there has been unnecessary delay on the part of the investigating agency in completing the investigation and in submitting a report under Sub-section (2) of Section 173, Cr. P, C. to the Magistrate empowered to take cognizance of the offence on a police report, with the result that the non-petitioners were detained in custody for a total period exceeding 60 days and that on the expiry of the said period of 60 days the non-petitioners were rightly enlarged on bail by the Chief Judicial Magistrate as they were prepared to furnish bail bonds and in fact did furnish the same. According to Mr. V. S. Dave, the non-petitioners shall be deemed to have been released under the provisions of Chapter XXXIII of the Code which contains provisions as to bail and bonds and that their bail cannot be cancelled merely on the ground that they are involved in serious offences,

(3.) I have given my anxious consideration to the rival contentions. The short question that arises for determination is whether the provisions contained in proviso (a) to Sub-section (2) of Section 167 of the Criminal Procedure Code, 1973, are mandatory in the sense that nonobservance thereof renders the detention of the accused illegal after a total period of 60 days from the date of his arrest. To decide this question, it is necessary to consider the actual words used in this proviso and to find out the real intention of the Legislature, The proviso (a) to Sub-section (2) of Section 167, has been newly inserted in the Code of Criminal Procedure, 1973, in the following words: