IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 17TH DAY OF OCTOBER, 2017 BEFORE THE HON'BLE MRS. JUSTICE K.S.MUDAGAL CRIMINAL REVISION PETITION NO.949 OF 2017 BETWEEN :
1. SRI RAJESH NAYAK S/O SRI NARASIMHA NAYAK AGED ABOUT 39 YEARS R/AT BETHA HOUSE KAROPADY VILLAGE BANTWAL TALUK 2. SRI NARASIMHA @ NARASIMHA SHETTY S/O SRI NARAYANA SHETTY AGED ABOUT 35 YEARS R/AT LAKKAPPAKODI HOUSE MANI POST & VILLAGE BANTWAL TALUK 3. SRI PRAJWAL RAI S/O LATE SEETHARAM RAI AGED ABOUT 27 YEARS R/AT PATHAJE HOUSE BELANDURU VILLAGE BANTWAL TALUK 4. SRI PUSHPARAJ @ PUTTA S/O SRI JINNAPPA GOWDA AGED ABOUT 19 YEARS R/AT ARELTHADI HOUSE SAVANOORU VILLAGE PUTTUR TALUK 5. SRI SACHIN S/O SRI SUNDARA POOJARY AGED ABOUT 24 YEARS R/AT ARELTHADI HOUSE SAVANOORU VILLAGE PUTTUR TALUK 6. SRI ROSHAN S/O SRI HONNAPPA GOWDA AGED ABOUT 26 YEARS R/AT BAREPPADI HOUSE KUDMARU VILLAGE PUTTUR TALUK 7. SRI PUNEETH @ BONDA S/O SRI PARAMESHWARA MADIWAL AGED ABOUT 24 YEARS R/AT ARELTHADI HOUSE SAVANOORU VILLAGE PUTTUR TALUK 8. SRI VACHANA S/O LATE DUGGEPPA SHETTY AGED ABOUT 21 YEARS R/AT PALLADAKODI HOUSE MITTHANADKA, KAROPADI VILLAGE BANTWAL TALUK 9. SRI SATHEESH RAI S/O SRI SOMAPPA RAI AGED ABOUT 44 YEARS R/AT PILINGULI HOUSE KANYANA VILLAGE BANTWAL TALUK 10. SRI KESHAVA S/O SRI CHENNAIAH POOJARI AGED ABOUT 33 YEARS R/AT VEERAKAMBHA HOUSE & VILLAGE BANTWAL TALUK 11. SRI PRASHANTH @ PACCHU S/O SRI KRISHNA AGED ABOUT 25 YEARS R/AT DARKHAS HOUSE 2ND BLOCK, KRISHNAPURA SURATHKAL MANGALORE ... PETITIONERS (BY SRI ARUNA SHYAM. M, ADVOCATE) AND:
1. THE STATE BY VITLA POLICE BANTWAL TALUK, THROUGH THE STATE PUBLIC PROSECUTOR, HIGH COURT BUILDING, BENGALURU ... RESPONDENT (BY SRI SANDER J.CHOUTA, A.S.P.P.) THIS CRL.RP FILED U/S.397 R/W 401 CR.P.C BY THE PETITIONER PRAYING TO SET ASIDE THE ORDER DATED 16.8.2017 PASSED BY THE COURT OF THE PRINCIPAL DISTRICT AND SESSIONS JUDGE, MYSURU IN CRIME NO.83/2017 (SPECIAL JUDGE APPOINTED TO TRY THE CASES UNDER KARNATAKA CONTROL OF ORGANIZED CRIMES ACT, 2000 'KCOCA') THEREBY REJECTING APPLICATION FILED BY THE PETITIONERS HEREIN U/S 167(2) OF THE CODE OF CRIMINAL PROCEDURE FOR STATUTORY BAIL, AND CONSEQUENTLY ALLOW THE SAID APPLICATION AND ENLARGE PETITIONERS ON STATUTORY BAIL, WHICH IS PRODUCED HEREWITH AND MARKED AS DOCUMENT NO.1.
THIS CRL.RP. COMING ON FOR ADMISSION, THIS DAY THE COURT MADE THE FOLLOWING:-
ORDER This revision petition arises out of the order of the Prl. Dist. and Sessions Judge, Mysuru and Special Court for trial of the offences under Karnataka Control of Organized Crimes Act, 2000 (hereinafter referred to as “KCOCA” for short), dated 16.08.2017 in Crime No.83/2017. By the impugned order Spl. Court rejected the application of the petitioners under S.167 (2) Cr.P.C.
2. Petitioners are accused Nos.1 to 11 in Crime No.83/2017 of Vittal/Vitla Police Station. Initially, the said complaint was registered against unknown four persons on the basis of the complaint of one A.Mohammad Anwar for the offences punishable under Ss.448, 302, 506 read with S.34 of IPC. The complainant alleged that on 20.04.2017 at 11.35 a.m., in Panchayat Office of Karopadi Village some unknown persons assaulted his brother with deadly weapons and committed his murder. During the investigation the I.O. invoked the provision of S.3 of the KCOCA and Ss. 120B, 201, 109, 212 read with S.34 of IPC and Ss. 5, 37, 39 of Money Lenders Act and Ss.3 and 4 of Exorbitant Interest Act.
3. The petitioners are arrested on 29.04.2017. On 30.04.2017 they were produced before the Magistrate and remanded to judicial custody. When the matter was pending before the Magistrate the petitioners filed application under S.167(2) of Cr.P.C. Meanwhile, on 22.07.2017, I.O. submitted a requisition to the jurisdictional Magistrate to transfer the records to Spl. Court, Mysuru on the ground that cases related to KCOCA are exclusively triable by the said Court. On such requisition the Magistrate observing that he has no jurisdiction to try the said case, transferred the case along with application to the Spl. Court.
4. The Spl. Court received the records on 07.08.2017. Again on 09.08.2017, the petitioners filed application under S.167 Cr.P.C. before the Spl. Court contending that the charge-sheet is not filed within the prescribed time and therefore they are entitled to statutory bail. On 14.08.2017, the Spl. Public Prosecutor filed objection to the said application and application under S.22(2)(b) of KCOCA along with the report of the I.O. for extension of time to file charge-sheet.
5. The Trial Court on hearing the parties, by the impugned order dismissed the application of the petitioners under S.167 Cr.P.C. on the following grounds:
(1) Between 30.04.2017 and 28.07.2017, the accused were given to the judicial custody for the purpose of investigation for some time and those days have to be excluded in computing the period of judicial custody. On such exclusion, the application stands filed within 90 days, therefore prematured.
(2) S.22(2)(b) of the KCOCA does not mandate the filing of an application by the Public Prosecutor for extension of time to file charge-sheet.
(3) On 07.08.2017 when the Court directed jail authorities to produce the accused before it, that order itself amounts to extension of detention of the accused and extension of time for filing of the charge-sheet upto 90 days.
6. Sri Aruna Shyam M., learned counsel for the revision petitioners contends that:
(i) the handing over the custody of the petitioners to the I.O. for investigation, when they were in judicial custody does not amount to police custody. Therefore that reasoning of the Trial Court is incorrect;
(ii) once the prescribed period is over there cannot be any deemed extension on remand of the accused to the judicial custody. In support of his contention, he relies upon the following Judgment;
(iii) when the report / application for extension of time under S.22(2) was filed beyond prescribed period, that vests a right in the accused to seek statutory bail.
In support of his contention, he relies upon the Judgment of the Supreme Court in UNION OF INDIA -vs- NIRALA YADAV AIR 2014 3036.
7. Sri Sandesh Chouta, learned A.S.P.P seeks to justifies the reasoning in the impugned order. He contends that since application under S.167 before the Spl. Court was filed on 09.08.2017, the Public Prosecutor had no opportunity to file application for extension of time till the case was advanced on 09.08.2017. In other words, the delay in filing the application is justifiable.
8. Having regard to the aforesaid contentions, the question that falls for consideration is “whether the Spl. Court’s Order of rejection of their application for grant of statutory bail suffers infirmity, incorrectness and impropriety under law?”
Section.167 of Cr.P.C. reads as under:
“167. Procedure when investigation cannot be completed in twenty-four hours.- (1)Whenever any person is arrested and detained in custody, and it appears that the investigation cannot be completed within the period of twenty-four hours fixed by section 57, and there are grounds for believing that the accusation or information is well-founded, the officer in charge of the police station or the police officer making the investigation, if he is not below the rank of sub-inspector, shall forthwith transmit to the nearest Judicial Magistrate a copy of the entries in the diary hereinafter prescribed relating to the case, and shall at the same time forward the accused to such Magistrate.
(2) The Magistrate to whom an accused person is forwarded under this section may, whether he has or has not jurisdiction to try the case, from time to time, authorise the detention of the accused in such custody as such Magistrate thinks fit, for a term not exceeding fifteen days in the whole; and if he has no jurisdiction to try the case or commit it for trial, and considers further detention unnecessary, he may order the accused to be forwarded to a Magistrate having such jurisdiction:
Provided that.-
(a) the Magistrate may authorise the detention of the accused person, otherwise than in the custody of the police, beyond the period of fifteen days ; if he is satisfied that adequate grounds exist for doing so, but no Magistrate shall authorise the detention of the accused person in custody under this paragraph for a total period exceeding,-
(i) ninety days, where the investigation relates to an offence punishable with death, imprisonment for life or imprisonment for a term of not less than ten years;
(ii) sixty days, where the investigation relates to any other offence, and, on the expiry of the said period of ninety days, or sixty days, as the case may be, the accused person shall be released on bail if he is prepared to and does furnish bail, and every person released on bail under this sub- section shall be deemed to be so released under the provisions of Chapter XXXIII for the purposes of that Chapter;]”
(Emphasis Supplied) 9. Since the case was registered under S.302 IPC before invoking KCOCA provision, the matter fell into the class of S.167(2) proviso clause (i). Therefore prescribed period to file the charge-sheet was 90 days. S.22 of the KCOCA makes certain modification to S.167 Cr.P.C. which reads as follows:
“22. Modified application of certain provisions of the Code.- (1) Notwithstanding anything contained in the Code or in any other law, every offence punishable under this Act, shall be deemed to be a cognizable offence within the meaning of clause (c) of section 2 of the Code and “Cognizable case” as defined in that clause shall be constructed accordingly.
(2) Section 167 of the Code shall apply in relation to a case involving an offence punishable under this Act subject to the modification that, in sub-section (2),-
(a) The references to “fifteen days” and “Sixty days” wherever they occur, shall be constructed as references to “Thirty days” and “ninety days” respectively;
(b) After the proviso, the following proviso shall be inserted namely:-
“Provided further that if it is not possible to complete the investigation within the said period of ninety days, the Special Court shall extend the said period up to one hundred and eighty days on the report of the Public Prosecutor indicating the progress of the investigation and the specific reasons for the detention of the accused beyond the said period of ninety days.”
(Emphasis supplied) 10. S.22 of KCOCA has the overriding effect on S.167 Cr.P.C. Therefore the period of 60 days prescribed under S.167(2) Cr.P.C. has to be read as 90 days. In this case, that 90 days has to be computed from the date the accused were produced before the Magistrate and were remanded to judicial custody. Petitioners were produced before the Magistrate on 30.04.2017. Therefore 90 days’ period expired on 28.07.2017. The petitioners filed their application under S.167 Cr.P.C. on the very same day. The Magistrate did not consider that application on the ground that he has no jurisdiction since KCOCA provision was invoked and transferred the case to the Spl. Court on the same day. The Spl. Court received the records on 07.08.2017. It seems, to be on the safer side the petitioners filed another application under S.167 Cr.P.C. on 09.08.2017. The Public Prosecutor filed his report and reply under S.22(2) of KCOCA on 14.08.2017 indisputedly after the expiry of the period of 90 days from 30.04.2017.
Regarding exclusion of period during which the Court haned over custody of the petitioners to the I.O. for investigation:
11. The Spl. Court states that in computing the period of 90 days, the period during which the accused were in the custody of I.O. for the purpose of investigation by virtue of the order of the Court has to be excluded.
12. Once the accused are produced before the Court and they are remanded to the custody, they are under the custody of the Court itself. When the I.O. files the application seeking the custody of the accused on the ground that they are required for any further investigation, the Court if not satisfied, has even power to reject such application. Further, the I.O. has to produce the accused from his custody in such cases within the time stipulated by the Court. That itself goes to show that though the I.O. is a de-facto custodian of the accused, the Court is de-jure custodian.
Therefore such reasoning of the Spl. Court in rejecting the application lacks merit.
Reg. Justification for the Public Prosecutor in filing the report and application under S.22(2) beyond the period of 90 days:
13. The Trial Court says that the matter came up on its Board for the first time on 09.08.2017 on the application of the petitioners, therefore the Public Prosecutor had no opportunity to file application for extension till 09.08.2017. When statute prescribes certain act to be done within certain time, the ignorance of facts or the law is no excuse to condone such delay. Moreover, when the respondent – police registered the case and I.O. continued the investigation, he should have been diligent and approached the Public Prosecutor for the purpose of filing necessary report / application.
14. Whether such report has to be filed within 90 days or not is another point for consideration. There is no such provision in the Cr.P.C., KCOCA or any other statute providing for condonation of delay. Therefore such justification for filing the application belatedly is not condonable. Thus even that ground for rejection is not sustainable.
Reg. deemed extension of time to file the charge-sheet:
15. The Spl. Court states that when it passed order on 07.08.2017 directing the Superintendent of Prison,Mangaluru to produce accused before it on 16.08.2017, that itself has to be taken as extension of period of 90 days for detention of the accused for the purpose of filing the final report. When the Spl. Court passed order on 07.08.2017 the question “whether the time to file charge-sheet and the detention of the accused beyond 90 days has to be extended or not” was not at all there for consideration before the Court. The proviso to S.22 (2) which the Trial Court relies itself indicates that such question falls for consideration of the Court only on the Public Prosecutor filing his report of indicating the progress of the investigation. Otherwise a right vests in the accused to seek the statutory bail. That cannot be kept in abeyance till the Public Prosecutor filing his report. There cannot be any automatic or deemed extension of detention of the accused beyond 90 days nor the report filed belatedly relates back to the 90th day. Therefore the Spl. Court has misguided itself in holding that in passing an order to produce the accused before it on 16.08.2017 amounts to deemed extension under Section 22 (2) KCOCA. Hence that reason also is unsustainable.
Reg. requirement of application under S.22(2) of KCOCA:
16. Trial Court says that S.22(2) does not contemplate filing of an application by the Public Prosecutor. It is nobody’s case that an application under that provision is required. Therefore the said observation was unwarranted. The question was whether the report of the Public Prosecutor is required to be filed before the expiry of 90 days and if the report is filed after 90 days operates retrospectively to enable the Court to extend the time?
17. The Supreme Court in UNION OF INDIA Vs. NIRALA YADAV (AIR 2014 SC 3036) regarding the issue whether the application is required to be filed on or before the day prescribed, has held as follows:
“ 41. Coming to the facts of the instant case, we find that prior to the date of expiry of 90 days which is the initial period for filing the charge-sheet, the prosecution neither had filed the charge-sheet nor had it filed an application for extension. Had an application for extension been filed, then the matter would have been totally different. After the accused respondent filed the application, the prosecution submitted an application seeking extension of time for filing of the charge-sheet. Mr.
P.K. Dey, learned counsel for the appellant would submit that the same is permissible in view of the decision in Bipin Shantilal Panchal (supra) but on a studied scrutiny of the same we find the said decision only dealt with whether extension could be sought from time to time till the completion of period as provided in the Statute i.e., 180 days. It did not address the issue what could be the effect of not filing an application for extension prior to expiry of the period because in the factual matrix it was not necessary to do so. In the instant case, the day the accused filed the application for benefit of the default provision as engrafted under proviso to sub- Section (2) of Section 167 CrPC the Court required the accused to file a rejoinder affidavit by the time the initial period provided under the statute had expired. There was no question of any contest as if the application for extension had been filed prior to the expiry of time. The adjournment by the learned Magistrate was misconceived. He was obliged on that day to deal with the application filed by the accused as required under Section 167(2) CrPC. We have no hesitation in saying that such procrastination frustrates the legislative mandate. A Court cannot act to extinguish the right of an accused if the law so confers on him. Law has to prevail. The prosecution cannot avail such subterfuges to frustrate or destroy the legal right of the accused. Such an act is not permissible. If we permit ourselves to say so, the prosecution exhibited sheer negligence in not filing the application within the time which it was entitled to do so in law but made all adroit attempts to redeem the cause by its conduct.”
18. The perusal of the aforesaid Judgment shows that the subsequent filing of the report by the Public Prosecutor does not defeat the right of the accused to seek bail i.e., default bail and enable the Court to extend the time. On failure to file such report, the accused gets right. Therefore the reasoning that the subsequent filing of the report relates back to the prescribed time and enables the Court to extend the time is unsustainable.
Reg. S.22(5) of the KCOCA:
19. The further question is on consideration of the above aspects whether all the petitioners are entitled to statutory bail?. S.22(2) of KCOCA states that to extend time the Court has to take into consideration the report of the Public Prosecutor and specific reasons for continuation of the accused beyond the said period of 90 days. S.22(5) of KCOCA reads as follows:
“ Notwithstanding anything contained in the Code, the accused shall not be granted bail if it is noticed by the Court that he was on bail in an offence under this Act or under any other Act on the date of the offence in question.”
20. In this context, in this case we are concerned with accused Nos. 1, 2 and 9 who are petitioner Nos. 1, 2 and 9. The Public Prosecutor’s report indicates that accused Nos.1, 2, 9 12, 14 and 17 were involved in other criminal cases and they were on bail when the crime in this case took place. Therefore S.22(5) bars them from seeking the benefit of S.167(2) Cr.P.C.
For the aforesaid reasons, the petition is allowed in part. The impugned order dated 16.08.2017 is maintained in respect of petitioner Nos.1, 2 and 9. The impugned order is hereby set aside only in respect of petitioner Nos. 3 to 8, 10 and 11. The application of accused Nos. 3 to 8, 10 and 11 under S.167(2) Cr.P.C. is hereby allowed. They are granted bail in Crime No.83/2017 of Vittal/ Vitla Police Station subject to the following conditions:
(i) They shall execute personal bond in a sum of Rs.1,00,000/- and furnish one surety in the likesum to the satisfaction of the Trial Court;
(ii) They shall appear before the I.O. and the Court as and when required for the purpose of investigation / Trial;
(iii) They shall not tamper eye witnesses by threat, inducement or otherwise;
(iv) Except for the purpose of investigation, they shall not leave the jurisdiction of the Special Court without the prior permission of the Court;
(v) They shall not hamper the investigation or trial.
Sd/- JUDGE sac*