This petition has been filed with the prayer that the impugned orders dated 9.5.2011 and 6.7.2011 passed by Judicial Magistrate-I, Raebareli and Sessions Judge, Raebareli may be quashed.
The facts in short are that the petitioners were charged under Section 363, 366 and 504 IPC and they remained in jail since 17.2.2011. The petitioners moved an application for bail claiming benefit of Section 167 (2) (a) (ii) Cr.P.C. It was stated by the petitioners that no charge sheet has been filed within a period of 60 days, therefore, the petitioners are entitled to be released on bail. The said application was considered by the learned Magistrate and the learned Magistrate proceeded to reject the application assuming that the charge sheet could be filed within 90 days, as such, bail could not be granted. The petitioners filed revision before the Sessions Judge and the Sessions Judge after considering the case laws cited by the petitioners proceeded to reject the revision by recording a finding to the effect that the date on which the application was moved i.e. 9.5.2011, on the same day charge sheet was filed, therefore, the petitioners cannot be given the benefit as claimed by them in the judgment rendered in the case of Uday Mohanlal Acharya Vs. State of Maharashtra, (2001) 5 SCC 453. Learned Sessions Judge considered the aforesaid case law and came to the conclusion that dictum of law laid down in Sanjay Dutt v. State through CBI, (1994) 5 SCC 410, bail cannot be granted to the petitioners. The petitioners feeling aggrieved with the aforesaid orders have come up to this Court by way of this petition challenging the validity of the two orders passed by the trial court and the revisional court.
Submission of learned counsel for the petitioners is that Section 167 (2) (a) (ii) Cr.P.C contemplates that if the charge sheet is not filed within 60 days in respect of the offences in which sentence can be awarded up to 10 years, then the bail was to be granted to the petitioners. It is also submitted that if the petitioners have claimed the benefit of Section 167 (2) Cr.P.C. and the order is not passed by the Magistrate or by the revisional court releasing the petitioners on bail, then their right was not stand forfeited and they shall be entitled to be released on bail as and when the case is heard and decided on merit by the higher court. It has also been submitted that the trial court has wrongly interpreted the provisions of Section 167 (2) Cr.P.C. and thereby recorded a finding that the sentence of 10 years can be awarded, therefore, the benefit cannot be claimed on the assertion that the charge sheet had not been filed within 60 days. Learned counsel for the petitioners has placed reliance upon the case of Uday Mohanlal Acharya (supra) and Rajeev Chaudhary Vs. State (NCT) of Delhi, (2001) SCC (Cri) 819.
Learned AGA, on the other hand, has submitted that the benefit of proviso to Section 167 (2) (a) Cr.P.C. will be available to the petitioners as and when an application is made claiming right to be released on bail and the learned Magistrate can thereafter release the accused after laying down the condition in the bail order and the conditions laid down in the bail order are fulfilled only then the petitioners can claim the benefit. It is also submitted that if the bail is granted and the accused does not fulfil the conditions enumerated in the bail order, then he cannot claim benefit of being released for want of charge sheet within the stipulated time. He does not dispute the proposition of law that in respect of the offences where conviction can be awarded up to 10 years' imprisonment, then charge sheet has to be filed within a period of 60 days and in respect of the offences in which the sentence can be awarded above 10 years' imprisonment, then charge sheet has to be filed within 90 days. Learned AGA has also submitted that in the present case, no right was claimed for being released on bail by moving an application. The application was moved on 9.5.2011 and on the said date, the charge sheet was also filed, therefore, the petitioners cannot claim the benefit of Section 167 (2) Cr.P.C for being released on bail.
I have heard learned counsel for the parties and perused the record.
The proposition of law put forward by the learned counsel for the petitioners that the charge sheet is to be filed within 60 days in respect of the offences where sentence can be awarded up to 10 years and in respect of the offences where sentence can be awarded above 10 years, charge sheet is to be filed within 90 days. In support of this proposition of law, learned counsel for the petitioners has placed reliance upon the case of Rajeev Chaudhary (supra) wherein in para-6, the Apex Court has held as under:-
From the relevant part of the aforesaid sections, it is apparent that pending investigation relating to an offence punishable with imprisonment for a term "not less than 10 years", the Magistrate is empowered to authorise the detention of the accused in custody for not more than 90 days. For rest of the offences, the period prescribed is 60 days. Hence in cases where offence is punishable with imprisonment for 10 years or more, the accused could be detained up to a period of 90 days. In this context, the expression "not less than" would mean imprisonment should be 10 years or more and would cover only those offences for which punishment could be imprisonment for a clear period of 10 years or more. Under Section 386 punishment provided is imprisonment of either description for a term which may extend to 10 years and also fine. That means, imprisonment can be for a clear period of 10 years or less. Hence, it could not be said that minimum sentence would be 10 years or more. Further, in context also if we consider clause (i) of proviso (a) to Section 167(2), it would be applicable in case where investigation relates to an offence punishable (1) with death; (2) imprisonment for life; and (3) imprisonment for a term of not less than ten years. It would not cover the offence for which punishment could be imprisonment for less than 10 years. Under Section 386 IPC, imprisonment can vary from minimum to maximum of 10 years and it cannot be said that imprisonment prescribed is not less than 10 years."
So far the argument of the learned counsel for the petitioners that since charge sheet has not been filed within 60 days, therefore, the petitioners are entitled to be released on bail has to be considered in the context of law propounded by the Constitution Bench of the Apex Court in the case of Sanjay Dutt (supra) wherein the Apex Court has considered the effect of individual right accruing in favour of the accused. As and when such right is exercisable; when such right will mature; whether the said right will come to an end after filing of the challan if the benefit is not claimed. The Apex Court answered the question as follows:-
"The indefeasible right accruing to the accused in such a situation is enforceable only prior to the filing of the challan and it does not survive or remain enforceable on the challan being filed, if already not availed of. Once the challan has been filed, the question of grant of bail has to be considered and decided only with reference to the merits of the case under the provisions relating to grant of bail to an accused after the filing of the challan. The custody of the accused after the challan has been filed is not governed by Section 167 but different provisions of the Code of Criminal Procedure. If that right had accrued to the accused but it remained unenforced till the filing of the challan, then there is no question of its enforcement thereafter since it is extinguished the moment challan is filed because Section 167 Cr.P.C. ceases to apply. The Division Bench also indicated that if there be such an application of the accused for release on bail and also a prayer for extension of time to complete the investigation according to the proviso in Section 20 (4)(bb), both of them should be considered together. It is obvious that no bail can be given even in such a case unless the prayer for extension of the period is rejected. In short, the grant of bail in such a situation is also subject to refusal of the prayer for extension of time, if such a prayer is made. If the accused applies for bail under this provision on expiry of the period of 180 days or the extended period, as the case may be, then he has to be released on bail forthwith. The accused, so released on bail may be arrested and committed to custody according to the provisions of the Code of Criminal Procedure. It is settled by Constitution Bench decisions that a petition seeking the writ of habeas corpus on the ground of absence of a valid order of remand or detention of the accused, has to be dismissed, if on the date of return of the rule, the custody or detention is on the basis of a valid order. (See Naranjan Singh Nathawan v. State of Punjab, AIR 1952 SC 106; Ram Narayan Singh v. State of Delhi, AIR 1953 SC 277 and A.K. Gopalan v. Govt. of India, AIR 1966 SC 816)."
The Court then answered in para 53 as under: (SCC p.444) "(2) (a) Section 20 (4) (bb) of the TADA Act only requires production of the accused before the court in accordance with Section 167(1) of the Code of Criminal Procedure and this is how the requirement of notice to the accused before granting extension beyond the prescribed period of 180 days in accordance with the further proviso to clause (bb) of sub-section (4) of Section 20 of the TADA Act has to be understood in the Judgment of the Division Bench of this Court in Hitendra Vishnu Thakur v. State of Maharashtra, (1994) 4 SCC 602. The requirement of such notice to the accused before granting the extension for completing the investigation is not a written notice to the accused giving reasons therein. Production of the accused at that time in the court informing him that the question of extension of the period for completing the investigation is being considered, is alone sufficient for the purpose.
(2)(b) The 'indefeasible right' of the accused to be released on bail in accordance with Section 20(4)(bb) of the TADA Act read with Section 167(2) of the Code of Criminal Procedure in default of completion of the investigation and filing of the challan within the time allowed, as held in Hitendra Vishnu Thakur v. State of Maharashtra, (1994) 4 SCC 602 is a right which ensures to, and is enforceable by the accused only from the time of default till the filing of the challan and it does not survive or remain enforceable on the challan being filed. If the accused applies for bail under this provision on expiry of the period of 180 days or the extended period, as the case may be, then he has to be released on bail forthwith. The accused, so released on bail may be arrested and committed to custody according to-the provisions of the Code of Criminal Procedure. The right of the accused to be released on bail after filing of the challan, notwithstanding the default in filing it within the time allowed, is governed from the time of filing of the challan only by the provisions relating to the grant of bail applicable at that stage."
The Apex Court thereafter relying upon the judgment rendered in the case of Sanjay Dutt (supra) ruled that individual right accrued in favour of the accused has to be claimed by him and if it is not claimed, then the benefit cannot be given but once it is claimed, the benefit has to be given at once. It has also been laid down that the right to be released on bail will come to an end if the benefit has not been availed and in the meantime challan has been filed.
The only distinction has been drawn that if the charge sheet is filed subsequently to availing individual right, then the said right would not stand frustrated or extinguished.
In the case in hand, the petitioners have claimed the benefit for being released on bail on 9.5.2011 and it is to be noted that on the same day, the charge sheet was filed. It is evident from the record that after expiry of 60 days, no application was moved neither any individual right was claimed by the accused for being released on bail prior to 9.5.2011. Since the accused failed to assert their right as contemplated in proviso to Section 167 (2) (a) Cr.P.C, the right of the accused to be released on bail accrued on 9.5.2011, when they made an application and claimed the benefit of the said provision but on the very same date, the charge sheet has been filed, therefore, right of the accused came to an end. The learned Magistrate as well as the learned Sessions Judge has committed no illegality in rejecting the application moved for releasing the petitioners on bail and in dismissing the revision.
The petition, therefore, has no force. It is accordingly dismissed.
September 8th, 2011 RBS/-