1. I have heard Sri Vijaya Prakash for the revisionists, Shri Sukhendu Pal Singh for the informant and the learned A.G.A. for the State.
2. By this revision, the revisionists have challenged the order dated 02.05.2012 passed by Chief Judicial Magistrate, Ghaziabad by which the application of the revisionists seeking for being released on bail, under the proviso to sub-section (2) of Section 167 of the Code of Criminal Procedure (hereinafter referred to as 'Code'), with reference to Case Crime No. 109 of 2012, under Sections 147 /148 /149 /34 /302 I.P.C., P.S. Sahibabad, District Ghaziabad, has been rejected.
3. The undisputed date of first remand was 01.02.2012 and the police did not submit any charge-sheet by 01.05.2012 i. e. within 90 days from the date of the first remand, accordingly, on 02.05.2012, the revisionists applied under the proviso to sub-section (2) of Section 167 of the Code for being released on bail by expressing their willingness to furnish security for bail. The learned Magistrate rejected the application on the same day holding that the charge-sheet has been filed and cognizance taken on the charge-sheet, therefore, the right to be released on bail, under the proviso to sub-section (2) of Section 167 of the Code stood extinguished.
4. Challenging the aforesaid order, the learned counsel for the revisionists, placing reliance on certain comments/notes /reports made on the margin of the order-sheet, contended that initially the report on the bail application indicated that no charge-sheet has been filed within 90 days, whereas the subsequent report indicated that charge sheet has just been submitted, which suggested that after the revisionists had availed of their right for being released on bail that the charge-sheet was submitted, on 02.05.2012, which could not defeat the right of the revisionists to be enlarged on bail in the light of the decision of the Apex Court in the case of Uday Mohanlal Acharya v. State of Maharashtra reported in (2001) 5 SCC 453. In the alternative, it was contended that the charge-sheet was incomplete and was not filed in the manner provided by Regulation 122 of the U.P. Police Regulation and, as such, it was no charge-sheet in the eye of law. The alternative submission though was made orally, but there is no challenge to the validity of the charge-sheet either in the memo of this revision or by way of an appropriate application seeking to challenge the charge-sheet. The learned counsel for the revisionists placed heavy reliance on certain observations made by the Apex Court in paragraph 13 of Uday Mohanlal Acharya's case (supra), wherein it was observed as follows:-
"...... A conspectus of the aforesaid decisions of this Court unequivocally indicates that an indefeasible right accrues to the accused on the failure of the prosecution to file the challan within the period specified under sub-section (2) of Section 167 and that right can be availed of by the accused if he is prepared to offer the bail and abide by the terms and conditions of the bail, necessarily, therefore, an order of the Court has to be passed. It is also further clear that that indefeasible right does not survive or remain enforceable on the challan being filed, if already not availed of, as has been held by the Constitution Bench in Sanjay Dutt's case (supra). The crucial question that arises for consideration, therefore, is what it the true meaning of the expression 'if already not availed of'? Does it mean that an accused files an application for bail and offers his willingness for being released on bail or does it mean that a bail order must be passed, the accused must furnish the bail and get him released on bail? In our considered opinion it would be more in consonance with the legislative mandate to hold that an accused must be held to have availed of his indefeasible right, the moment he files an application for being released on bail and offers to abide by the terms and conditions of bail. To interpret the expression 'availed of' to mean actually being released on bail after furnishing the necessary bail required would cause great injustice to the accused and would defeat the very purpose of the proviso to Section 167(2) of the Criminal Procedure Code and further would make an illegal custody to be legal, inasmuch as after the expiry of the stipulated period the Magistrate had no further jurisdiction to remand and such custody of the accused is without any valid order of remand. That apart, when accused files an application for bail indicating his right to be released as no challan had been filed within the specified period, there is no discretion left in the Magistrate and the only thing he is required to find out is whether the specified period under the statute has elapsed or not, and whether a challan has been filed or not. If the expression 'availed of' is interpreted to mean that the accused must factually be released on bail, then in a given case where the Magistrate illegally refuses to pass an order notwithstanding the maximum period stipulated in Section 167 had expired, and yet no challan had been filed then the accused could only move to the higher forum and while the matter remains pending in the higher forum for consideration, if the prosecution files a charge-sheet then also the so called right accruing to the accused because of inaction on the part of the investigating agency would get frustrated. Since the legislature have given its mandate it would be the bounded duty of the Court to enforce the same and it would not be in the interest of justice to negate the same by interpreting the expression 'if not availed of' in a manner which is capable of being abused by the prosecution................... In interpreting the expression 'if not availed of' in the manner in which we have just interpreted we are conscious of the fact that accused persons in several serious cases would get themselves released on bail, but this is what the law permits, and that is what the legislature wanted and an indefeasible right to an accused flowing from any legislative provision ought not to be defeated by a Court by giving a strained interpretation of the provisions of the Act. In the aforesaid premises, we are of the considered opinion that an accused must be held to have availed of his right flowing from the legislative mandate engrafted in the proviso to sub-section (2) of Section 167 of the Code if he has filed an application after the expiry of the stipulated period alleging that no challan has been filed and he is prepared to offer the bail, that is ordered, and it is found as a fact that no challan has been filed within the period prescribed from the date of the arrest of the accused. In our view, such interpretation would subserve the purpose and the object for which the provision in question was brought on to the Statute Book. In such a case, therefore, even if the application for consideration of an order of being released on bail is posted before the Court after some length of time, or even if the Magistrate refuses the application erroneously and the accused moves the higher forum for getting formal order of being released on bail in enforcement of his indefeasible right, then filing of challan at that stage will not take away the right of the accused. Personal liberty is one of the cherished object of the Indian Constitution and deprivation of the same can be only in accordance with law and in conformity with the provisions thereof, as stipulated under Article 21 of the Constitution. When the law provides that the Magistrate could authorise the detention of the accused in custody upto a maximum period as indicated in the proviso to sub-section (2) of Section 167, any further detention beyond the period without filing of challan by the Investigating Agency would be a subterfuge and would not be in accordance with law and in conformity with the provisions of the Criminal Procedure Code, and as such, could be violative of Article 21 of the Constitution. There is no provision in the Criminal Procedure Code authorising detention of an accused in custody after the expiry of the period indicated in the proviso to subsection (2) of Section 167 excepting the contingency indicated in Explanation I, namely, if the accused does not furnish the bail. It is in this sense it can be stated that if after expiry of the period, an application for being released on bail is filed, and the accused offers to furnish the bail, and thereby avail of his indefeasible right and then an order of bail is passed on certain terms and conditions but the accused fails to furnish the bail, and at that point of time a challan is filed then possibly it can be said that the right of the accused stood extinguished. But so long as the accused files an application and indicates in the application to offer bail on being released by appropriate orders of the Court then the right of the accused on being released on bail cannot be frustrated on the oft chance of Magistrate not being available and the matter not being moved, or that the Magistrate erroneously refuses to pass an order and the matter is moved to the higher forum and a challan is filed in interregnum. This is the only way how a balance can be struck between the so called indefeasible right of the accused on failure on the part of the prosecution to file challan within the specified period and the interest of the society, at large, in lawfully preventing an accused for being released on bail on account of inaction on the part of the prosecuting agency. On the aforesaid premises, we would record our conclusions as follows:-
1. Under sub-section (2) of Section 167, a Magistrate before whom an accused is produced while the police is investigating into the offence can authorise detention of the accused in such custody as the Magistrate thinks fit for a term not exceeding 15 days in the whole.
2. Under the proviso to aforesaid sub-section (2) of Section 167, the Magistrate may authorise detention of the accused otherwise than the custody of police for a total period not exceeding 90 days where the investigation relates to offence punishable with death, imprisonment for life or imprisonment for a term of not less than 10 years, and 60 days where the investigation relates to any other offence.
3. On the expiry of the said period of 90 days or 60 days, as the case may be, an indefeasible right accrues in favour of the accused for being released on bail on account of default by the Investigating Agency in the completion of the investigation within the period prescribed and the accused is entitled to be released on bail, if he is prepared to an furnish the bail, as directed by the Magistrate.
4. When an application for bail is filed by an accused for enforcement of his indefeasible right alleged to have been accrued in his favour on account of default on the part of the Investigating Agency in completion of the investigation within the specified period, the Magistrate/Court must dispose it of forthwith, on being satisfied that in fact the accused has been in custody for the period of 90 days or 60 days, as specified and no charge-sheet has been filed by the Investigating Agency. Such prompt action on the part of the Magistrate/Court will not enable the prosecution to frustrate the object of the Act and the legislative mandate of an accused being released on bail on account of the default on the part of the Investigating Agency in completing the investigation within the period stipulated.
5. If the accused is unable to furnish bail, as directed by the Magistrate, then the conjoint reading of Explanation I and proviso to sub-section 2 of Section 167, the continued custody of the accused even beyond the specified period in paragraph (a) will not be unauthorised, and therefore, if during that period the investigation is complete and chargesheet is filed then the so-called indefeasible right of the accused would stand extinguished.
6. The expression 'if not already availed of' used by this Court in Sanjay Dutt's case (supra) must be understood to mean when the accused files an application and is prepared to offer bail on being directed. In other words, on expiry of the period specified in paragraph (a) of proviso to sub-section (2) of Section 167 if the accused files an application for bail and offers also to furnish the bail, on being directed, then it has to be held that the accused has availed of his indefeasible right even though the Court has not considered the said application and has not indicated the terms and conditions of bail, and the accused has not furnished the same.
With the aforesaid interpretation of the expression 'availed of' if charge-sheet is filed subsequent to the availing of the indefeasible right by the accused then that right would not stand frustrated or extinguished, necessarily therefore, if an accused entitled to be released on bail by application of the proviso to sub-section (2) of Section 167, makes the application before the Magistrate, but the Magistrate erroneously refuses the same and rejects the application and then accused moves the higher forum and while the matter remains pending before the higher forum for consideration a charge-sheet is field, the so-called indefeasible right of the accused would not stand extinguished thereby, and on the other hand, the accused has to be released on bail. Such an accused, who thus is entitled to be released on bail in enforcement of his indefeasible right will, however, have to be produced before the Magistrate on a charge-sheet being filed in accordance with Section 209 and the Magistrate must deal with him in the matter of remand to custody subject to the provisions of the Code relating to bail and subject to the provisions of cancellation of bail, already granted in accordance with law laid down by this Court in the case of Mohd. Iqbal vs. State of Maharashtra (supra)."
5. Relying on the aforesaid observations made by the apex court, and on conclusion Nos. 4 and 6, in particular, the learned counsel for the revisionists contended that since the revisionists had applied for bail and by that time no charge-sheet was filed, and the revisionists had also offered to furnish bail bonds, they had availed of their right under the proviso to sub-section (2) of Section 167 of the Code, therefore, their right had become indefeasible and, even if the charge-sheet was submitted later in the day, the revisionists were entitled to be given statutory benefit and be enlarged on bail.
6. Per contra, the learned A.G.A as also the learned counsel for the informant submitted that it has not come on the record that at what time the charge-sheet or the bail application was filed. It has been contended that as per the Conclusion No. 4 in the case of Uday Mohanlal Acharya's case (supra), when an application for bail is filed by an accused for enforcement of his right provided under the proviso to sub section (2) of Section 167 of the Code, the Magistrate / Court must dispose it of forthwith, on being satisfied that in fact the accused has been in custody for the period of 90 days or 60 days, as specified and no charge-sheet has been filed by the Investigating Agency. It has been contended that in the instant case, the learned Magistrate on the application apparently called for report and was satisfied that the charge-sheet had already been filed, accordingly, it rejected the application for bail. It has been contended that the satisfaction of the learned Magistrate was based on the appreciation of the reports placed before him and, as such, satisfaction is not amenable to scrutiny by the revisional Court. It was contended that the comments/ notes made on the order-sheet that the charge-sheet has just been filed cannot be taken as a basis to assume that the charge-sheet was filed after the filing of the bail application. Moreover, since the time of presentation of the bail application and the time of filing of the charge-sheet was not entered on record, therefore, in such as situation, the satisfaction of the learned Magistrate cannot be said to be against the record so as to justify interference with the order.
7. Learned A.G.A. as also the learned counsel for the informant placed reliance on a decision of this court in the case of Chandra Pal v. State of U.P. : [2011 (72) ACC 767] as well as in the case of Sukhai and another v. State of U.P. : [2011 (75) ACC 134], wherein it was held that if the charge-sheet was filed on the same day when the bail application was presented then, in such a situation, the right to be released on bail under the proviso to sub-section (2) of Section 167 of the Code stands extinguished. Relying on the decision of this court in the case of Chandra Pal v. State of U.P.(supra), it was contended that in that case also there were two reports, one with regard to filing of the charge-sheet and the other with regard to non-filing of the charge-sheet, but as it was proved that on the same day charge sheet was filed, the court took the view that the applicant was not entitled to the benefit of the proviso to sub-section (2) of Section 167 of the Code.
8. The learned counsel for the informant had also drawn the attention of the court to the decision of the Apex Court in the case of Sadhwi Pragyna Singh Thakur v. State of Maharashtra : [2011 (75) ACC 992]. In paragraph 23 of the judgment, the Apex Court after noticing the various decisions observed as follows:-
"23. From the discussion made above, it is quite clear that even if an application for bail is filed on the ground that charge sheet was not filed within 90 days, 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, can be only on merits. So far as merits are concerned the learned counsel for the appellant has not addressed this Court at all and in fact bail is not claimed on merits in the present appeal at all."
9. Relying on the aforesaid observation of the Apex Court, the learned counsel for the informant submitted that even if it is accepted that the charge sheet was filed after filing of the bail application, though on the same day, since no orders were passed on the bail application of the revisionists and in the meantime the charge-sheet was filed, the revisionists could only seek for bail on merits and their right to obtain bail under the proviso to sub-section (2) of Section 167 of the Code stood extinguished.
10. The learned counsel for the revisionists in reply to the observations of the Apex Court made in paragraph 23 of Sadhwi Pragyna Singh Thakur's case (supra), submitted that it cannot be taken as a binding precedent as it is contrary to the view expressed by a larger Bench of the apex court in the case of Uday Mohanlal Acharya (supra), where in conclusion Nos. 4 and 6 the apex court had clearly pointed out that after the right is availed of then it becomes indefeasible irrespective of whether any orders have been passed on the application or not.
11. Having considered the rival submissions of the learned counsel for the parties, the fact that is undisputed is that the charge-sheet was laid after 90 days and on the same day when the application seeking bail, under the proviso to sub-section (2) of Section 167 of the Code, was presented. During the proceedings before this court, by order dated 13.09.2012 the Chief Judicial Magistrate, Ghaziabad was directed to appear in person. Pursuant to the order dated 13.9.2012, the Chief Judicial Magistrate, Ghaziabad appeared in person on 01.10.2012. He made a statement before the Court that there was no record to disclose as to at what time the charge-sheet was received in the court and as to what time the bail application was filed. He submitted that from the record it does appear that the charge-sheet as well as the bail application were both filed on the same day. The record is, therefore, silent as to whether the charge-sheet had been laid prior to the filing of the bail application or not.
12. The learned counsel for the revisionists laid much stress on the comments/ notes made in the margin of the order-sheet, containing the order dated 02.05.2012, wherein certain remarks were made purportedly by the APO, as well as the concerned clerk, indicating that the initial impression was that the charge-sheet had not been filed, but the subsequent report indicated that the charge-sheet was filed and cognizance was taken. Relying on the discrepancy in the remarks, the learned counsel for the revisionists submitted that the charge-sheet was hurriedly filed after the bail application was presented, just to defeat the right of the revisionists.
13. Since there is no reliable or concrete material on record to show that the charge-sheet was filed after filing of the bail application, the remarks that were made by the concerned clerks or the APO could only be taken as material for the Magistrate concerned to draw satisfaction with regards to the filing or non filing of the charge sheet. As the learned Magistrate had taken these contradictory remarks into consideration and formed an opinion, on the same day itself, that the charge-sheet was filed and that cognizance was taken, the satisfaction of the learned Magistrate in this regard is not open to scrutiny by the revisional court. In the case of State through C.B.I. v. Mohd. Ashraft Bhat and Another : (1996) 1 SCC 432, the Apex Court was confronted with a similar sort of a situation. In that case, the apex court found that while the claim for bail was being examined the police report stood filed. Relying on the decision of the Constitution Bench in the case of Sanjay Dutt v. State through CBI : (1994) 5 SCC 410, the Apex court held that the right to seek for bail stood extinguished consequent to the filing of the charge-sheet. The judgment of the apex court in the State through C.B.I. v. Mohd. Ashraft Bhat and Another (supra) was noticed by the larger Bench in the case of Uday Mohanlal Acharya (supra) as would be evident from reading of paragraph No.9 of the report, wherein it was observed, as follows:-
"9. In State through CBI vs. Mohd. Ashraft Bhat : (1996) 1 SCC 432, the Presiding Officer of the Designated Court granted bail to the accused on a finding that the prosecution had failed to submit the police report within the period prescribed. This Court set aside the order on a conclusion that on the date the Designated Court granted bail to the respondent/accused, the prosecution had already submitted the Police Report and, therefore, as held by the Constitution Bench in Sanjay Dutt (supra) the right of the accused stood extinguished."
14. In the case of Uday Mohanlal Acharya (supra), the apex court while laying down guidelines, in conclusion No. 4, in particular, took the view that when an application for bail is filed by an accused for enforcement of his right alleged to have been accrued in his favour on account of default on the part of the Investigating Agency in completion of the investigation within the specified period, the Magistrate / Court must dispose it of forthwith, on being satisfied that in fact the accused has been in custody for the period of 90 days or 60 days, as specified, and no charge-sheet has been filed by the Investigating Agency. From above, it is clear that before disposing of the bail application, under the above provision, the Magistrate has to be satisfied on two counts: (a) with regard to the period of the custody of the applicant; and (b) whether any charge-sheet has been filed by the Investigating Agency.
15. In the instant case, the Magistrate applied its mind to the record available before it and on the day of presentation of the bail application, upon examining the parameters required for grant of such bail, found that the charge-sheet had already been filed and cognizance had been taken, therefore, it rejected the application as not maintainable. In the given circumstances, the satisfaction of the learned Magistrate that charge sheet had already been filed and, therefore, the relief under the proviso to sub section (2) of Section 167 of the Code cannot be granted, is a view permissible in law and is not vitiated in any manner, particularly, in the light of the judgment of the apex court in the case of State through C.B.I. v. Mohd. Ashraft Bhat and Another (supra), which was noticed by the larger Bench in the case of Uday Mohanlal Acharya (supra).
16. The contention on behalf of the revisionists, by relying on certain comments made on the margin of the order sheet or the bail application as the case may be, that the charge sheet was filed after the revisionists had availed of their right, cannot be accepted inasmuch as those comments/ remarks are made only to enable the Magistrate concerned to draw his satisfaction. It is for the Magistrate to be satisfied on the basis of such material. Once the Magistrate takes notice of the remarks/ comments and records his satisfaction, on the day of presentation of the bail application itself, that the charge sheet has been filed, the revisional court cannot scrutinize the merit of such satisfaction. Accordingly, I do not find any illegality in the order impugned.
17. The learned counsel for the revisionists, in the alternative, contended that the charge-sheet submitted was incomplete inasmuch as it does not disclose any other eye witness than the informant even though the presence of other witnesses was also shown in the first information report. It was submitted that the charge-sheet was submitted through a Constable, and not an officer authorized as provided by Regulation 122 of the U.P. Police Regulation, therefore, the said charge-sheet is liable to be ignored and, as such, its filing cannot defeat the right of the revisionists to obtain bail under the proviso to sub-section (2) to Section 167 of the Code.
18. To test the aforesaid submission of the learned counsel for the revisionists, I have carefully read the counter-affidavit dated 03.09.2012 filed by Devi Ram Gautam, the Investigating Officer, on behalf of the State. A perusal of the counter-affidavit indicates that the investigation was completed as well as the charge-sheet prepared by 31.03.2012. Thereafter by the order of the Senior Superintendent of Police, Ghaziabad, the Investigating Officer was transferred on 02.04.2012. It appears that the Constable Pairokar, Jarman Singh, had directly submitted the charge-sheet in court on 02.05.2012 and the court also took cognizance on the said charge-sheet. From the affidavit so filed, it cannot be said that the charge-sheet was incomplete. Even otherwise, there is no challenge to the charge-sheet either in the revision or by way of any collateral proceedings. As regards the direct filing of the charge-sheet, through a Constable, it may be an irregularity, but it would certainly not vitiate the charge-sheet and the order taking cognizance thereon.
19. The learned counsel for the revisionists placed reliance on a decision of this court in the case of Dharmendra Tripathi v. State of U.P.: 1997-JIC-0-127, wherein this court had quashed the charge-sheet which was hurriedly filed just to avoid the benefit of the proviso to sub-section (2) of Section 167 of the Code to the accused. Since in the instant case, there is no challenge to the charge-sheet, as was in the case of Dharmendra Tripathi (supra), the charge-sheet cannot be ignored, particularly, in view of the statement of the Investigating Officer made on affidavit.
20. For the reasons aforesaid, I do not find any illegality, impropriety or jurisdictional error in the order passed by the court below. The revision is, accordingly, dismissed. This shall be without prejudice to the right of the revisionists to seek for bail on merits.
Order Date :- 05.11.2012 Sunil Kr Tiwari