Court No. - 47
Case :- CRIMINAL REVISION No. - 2262 of 2019
Revisionist :- Nagesh Kumar Singh
Opposite Party :- State Of U.P. And Anr.
Counsel for Revisionist :- Atharva Dixit,Mr. Manish Tiwary, Senior Advocate,Syed Imran Ibrahim
Counsel for Opposite Party :- G.A.
Connected with
Case :- CRIMINAL MISC. BAIL APPLICATION No. - 11139 of 2019
Applicant :- Nagesh Kumar Singh Opposite Party :- State Of U.P. Counsel for Applicant :- Zafar Abbas
Counsel for Opposite Party :- G.A.,Amit Kumar Srivastava
Hon'ble Ali Zamin,J.
1. Heard learned counsel for the revisionist, learned counsel for the opposite party No.2 as well as learned A.G.A. for the State and perused the record.
2. This revision as well as bail application under Section 167 (2) Cr.P.C. has been filed to set aside the order dated 28.05.2019 passed by A.C.J.M.-9th, Varanasi in Case Crime No.39 of 2015, under Sections 419, 420, 467, 468, 471 I.P.C., Police Station Ramnagar, District Varanasi and to enlarge the revisionist/applicant on bail.
3. Learned counsel for the revisionist submits that on 31.01.2019 interim bail was granted to the revisionist and his bail was rejected on 22.02.2019 since then he is in jail. As per provision of Section 167(2) Cr.P.C. the statutory period of filing charge sheet completed on 23rd May, 2019. The revisionist moved bail application on 27.05.2019 with the prayer that he is ready to furnish surety/bonds and application was put up at 2:00 p.m. with a specific endorsement that police report under Section 173(2) Cr.P.C. has not been filed but the court below did not pass any order on his application. On 28.5.2019 a questionnaire was moved whether charge sheet was filed on 27.5.2019 till 2:00 p.m. answer of which has been given in "negative". He moved another questionnaire about filing of chargesheet which has been replied that charge sheet has been filed on 27.5.2019 at 4:45 p.m. Learned counsel contends that beyond a period of 90 days without filing charge sheet no accused can be detained in jail. He further submits that on 19.3.2019 investigation was transferred from Varanasi to Jaunpur which was challenged in Crl. Misc. Writ Petition No. 8740 of 2019 in which on 08.04.2019 Hon'ble High Court has categorically ordered that investigation will go on but the report may not be submitted by the Investigating Officer concerned. On 15.5.2019 Hon'ble Court quashed the investigation transfer order dated 19.3.2019 but the report under Section 173(2) Cr.P.C. prepared on 11.2.2019 was filed on 27.5.2019 at 4.45 p.m. while there was no restraint to file it within the statutory period provided u/s 167(2) of Cr.P.C. In Achpal and others Vs. State of Rajasthan Crl. Appeal No. 1218 of 2018 (arising out of Special Leave Petition (Crl. No. 6453 of 2018) decided on 24.9.2018 the Hon'ble Apex Court in paragraph 18 of the judgement has held that the provisions of the code do not empower anyone to extend the period within which the investigation must be completed nor does it admit any such eventuality. In Rakesh Kumar Paul Vs. State of Asam (2017) 15 SCC 67 the Hon'ble Supreme Court in paragraph 40 of the judgment has held that we cannot and should not be too technical and must lean in favour of personal liberty. Consequently, whether the accused makes a written application for "default bail" or an oral application for "default bail" is of no consequence. The court concerned must deal with such an application by considering the statutory requirements, namely, whether the statutory period for filing a charge-sheet or challan has expired, whether the charge-sheet or challan has been filed and whether the accused is prepared to and does furnish bail. He submits that the trial court without considering the provision of 167 (2) Cr.P.C. and observation of the Hon'ble Apex Court has passed the impugned order, hence, it is liable to set aside and revisionist is liable to be released on bail.
4. Learned counsel for the opposite party submits that in Sadhwi Pragyna Singh Thakur Vs. State of Maharashtra 2011 (75) ACC 992 the Hon'ble Apex Court in para 21 of the judgement has held that there is yet another aspect of the matter. The right under section 167 (2) of Cr.P.C. to be released on bail on default if charge-sheet is not filed within 90 days from the date of first remand is not an absolute or indefeasible right. The said right would be lost if charge-sheet is filed and would not survive after the filing of the charge-sheet. In other words, even if an application for bail is filed on the ground that charge-sheet was not filed within 90 days, but before the consideration of the same and before being released on bail, if charge- sheet is filed, the said right to be released on bail would be lost. After the filing of the charge-sheet, if the accused is to be released on bail, it can be only on merits. In the instant case on 27th May, 2019, the revisionist moved an application for bail and on the same day charge sheet was filed bail application was not considered and the accused was not released, therefore, the right to be released on the ground of not filing charge sheet within the statutory period provided was lost. He further submits that in compliance of order of the Hon'ble High Court, as mentioned above, the Investigating Officer could not submit the charge sheet upto 27.5.2019 because the order passed on 15.5.2019 was uploaded on 27.5.2019.
5. In the impugned order learned A.C.J.M.-9th has held that the bail application under Section 167 (2) Cr.P.C. has been filed on 27.05.2019, thereafter, on the same day charge-sheet has been filed by the Investigating Officer and cognizance has been taken by the court. He has also held that the Investigating Officer has not filed charge- sheet in compliance of the order of Hon'ble High Court dated 08.04.2019 passed in Writ Petition No.8740 of 2019, because the Court had restrained to file the charge-sheet. Learned Magistrate considering that charge sheet has been filed by the Investigating Officer on 27.05.2017, cognizance has been taken and the rulings which has been filed by the applicant-accused, facts are completely distinct, has rejected the bail application moved under Section 167 (2) Cr.P.C.
6. In the case of Rakesh Kumar Pal (supra) referred by revisionist, Hon'ble Apex Court in para 44 of the judgement has held that it would equally be the duty and responsibility of a court on coming to know that the accused person before it is entitled to "default bail", to at least apprise him or her of the indefeasible right and in para 45, it has been held that on 11.01.2017 when the High Court dismissed the application for bail filed by the petitioner, he had an indefeasible right to the grant of "default bail" since the statutory period of 60 days for filing a charge sheet had expired, no charge- sheet or challan had been filed against him (it was filed only on 24.01.2017) and the petitioner had orally applied for "default bail". Under these circumstances, the only course open to the High Court on 11.01.2017 was to enquire from the petitioner whether he was prepared to furnish bail and if so then to grant him "default bail" on reasonable conditions. Unfortunately, this was completely overlooked by the High Court.
7. In the above referred case, it has been also held by the Hon'ble Apex Court that on 20.12.2016 before expiry of 60 days, petitioner applied for bail before Special Judge which was rejected. Subsequently on or about 11.01.2017 after expiry of 60 days of detention but before expiry of 90 days of detention the petitioner applied for regular bail under Section 439 Cr.P.C. before the High Court but that application was rejected on 11.01.2017. Although, petitioner had not applied for “default bail”, he did contend before the High Court that he was entitled to "default bail" since no charge sheet has been filed against him within 60 days of the arrest during investigation. This submission was considered by the High but rejected. It was submitted before the Hon'ble Apex Court that as of today, a charge sheet having been filed against the petitioner, he is not entitled to "default bail" but must apply for regular bail, the "default bail" chapter being now closed. The Hon'ble Apex Court held that we cannot agree for the simple reason that we are concerned with the interregnum between 04.01.2017 and 24.01.2017 when no charge sheet had been filed, during which period he had availed of his indefeasible right of "default bail". It would have been another matter altogether if the petitioner had not applied for "default bail" for whatever reason during this interregnum. There could be a situation (however rare) where an accused is not prepared to be bailed out perhaps for his personal security since he or she might be facing some threat outside the correction home or for any other reason. But then in such an event, the accused voluntarily gives up the indefeasible right for default bail and having forfeited that right the accused cannot, after the charge sheet or challan has been filed, claim a resuscitation of the indefeasible right. But that is not the case insofar as the petitioner is concerned, since he did not give up his indefeasible right for "default bail" during the interregnum between 04.01.2017 and 24.01.2017 as is evident from the decisin of the High Court rendered on 11.01.2017. On the contrary, he had availed of his right to "default bail" which could not have been defeated on 11.01.2017 and which we are today compelled to acknowledge and enforce.
8. In the instant case, it is not disputed that the statutory period provided under Section 167 (2) Cr.P.C. expired on 23.05.2019 and application under Section 167 (2) Cr.P.C. For “default bail” was filed on 27.05.2019. As observed by the Hon'ble Apex Court in para 44 of the referred judgment Rakesh Kumar (supa) after expiry of the statutory period i.e. 23.05.2019, the learned A.C.J.M.-9th, Varanasi should have apprised to the revisionist for entitlement of his indefeasible right of “default bail” but he did not do so. Application for “default bail” was filed on 27.05.2019, thereafter, charge sheet was also filed on the same day and cognizance was taken. Considering the opinion of Hon'ble Apex Court expressed in para 44 of the judgement Rakesh Kumar Paul Vs. State of Asam (Supra) regarding duty to apprise the indefeasible right and responsibility of Court, para 45, the only course open to the High Court on 11.01.2017 was to enquire from the petitioner whether he was prepared to furnish the bail and in Sadhwi Pragyna Singh Thakur (supra) that if charge sheet is not filed within statutory period the right under Section 167 (2) is not an absolute or indefeasible right and even if an application for bail is filed on the ground that charge sheet was not filed within 90 days but before the consideration of same and before being released on bail charge sheet is filed the right to be released on bail would be lost, in my opinion the learned Magistrate has not committed any illegality in passing the impugned order, hence, no interference is required in the impugned order.
9. In view of the above, the revision as well as bail application has no force and are liable to be dismissed. Accordingly, the revision as well as bail application are dismissed.
Order Date :- 20.6.2019 Jitendra