Hitesh Choubey And ANR. v. State Of Chhattisgarh

G^ SINttLE ttNGH IN THEHO_NSLEJHIGH_CC)URT OF CHHATTISGARH AT BILASPUR Cr.M.P. No.

£JC?f /2014 (S.B.) PETITIONERS .

(InJaill 1.

Hitesh Choubey S/o Ashok Chobey, aged about 27 years, R/o Ketar Police Station Rahela, District Palamu .A^ ..-^ '..-f^y^ (Jharkhand).

2.

Rakesh Kumar Rao S/o Late ?-.%^--""

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Bholarain rao, aged about 32 years, R/o Nayapara Rajiin, Tahsil and District - Raipur (C.G.)

VERSUS

RESPONDENT State of Chhattisgarh, through Police Station Bankimongra, District Korba (C.G.) :TITION UNDER SECTION 48$ QFTHE CODE QF CRIMINAL PROCEDURE.

Being aggrieved with order passed by learned AdditiSnal Session Judge, Katghora, District Korba (C.G.) who disinissed the criminal revision no. 56/2014 on 25.08.2014 arising out of the order passed by Judicial Magistrate First Class, Katghora, Dist-ict Kojba (C.G.) in criminal case no. 205/2014 dated 15.07.2014. Certified copy of the order dated 25.08.2014 is filed as ANNEXURE P_/l, The petitioners najned above inost respectfully beg to submit as under:-

HIGH COURT OF CHHAmSGARH : BILASPUR S.B.: HON'BLE SHRI MANINDRA MOHAN SHRIVASTAVA, J. Cr.M.P.NO.901 of 2014 PETITIONERS (In Jail) Hitesh Choubey and another

Versus

State of Chhattisgarh RESPONDENTS ^^ FOR PRONOUNCMENT Oi'QRD»RON "'' DECEMBER, 2014 Sd/- Manindra Mohan Shrivastava Judge ^3'yt®7j0l4

HIGH COURTOF CHHATTISGARH: BILASPUR Cr.M.P.NO.901 of 2014 PETITIONERS Hitesh Choubey and another (In Jailt

Versus

RESPONDENTS State of Chhattisgarh Petition under Section 482 of the Cr.P.C. of Criminal Procedure (Sinele Bench: Hon'ble Shri Manindra Mohan Shrivastava, J.) Present:- Shri Kishore Narayan, counsel for the petitioners. Shri Ashish Shukla, Government Advocate for the State. M%- il^vfeilnii'^Bt; ^ .il^, ^^- ^ (PronoimBeia on this y'day ofDS<eentl»er,2014) , • ^li^This petition under''SectiQn 482 of the CftP.i?.il;pf Crimmal Prbcedure (In short'.^"tjti!Gn;]Cr,E.iES." has been preferred by the petitioners against or)ier^HaAedpii25-08-2014 passed in Criminal Revision No.56/2014, disi:Etissing revision ofthe petitioners. 2.

Police Station BaKittl.iongrayJDistrict Korba registered crime under Crime No.76/20Waagamst the petitioners on the allegation that they have committed offence under Section 420/34 IPC and Section 4, 5 of the Prize, Chit and Money Circulation Schemes (Banning) Act, 1978 (In short "the Act"). The petitioners were arrested on 14-05-2014 and produced before the Magistrate on the same date for remand up to 16-05-2014. As according to the petitioners, charge sheet was not Sled within a period of 60 days from. the date of remand i.e.

on or before 13-07-2014, an application for grant of default bail under Section 167(2) of the Cr.P.C. was filed. That application was, however, rejected on 15-07-

,/t/ - 2014. Aggrieved by rejection of application, revision was preferred before the Sessions Judge, which too has been disniissed, giving rise to this petition.

3.

Submission of leamed counsel for the petitioners is that the petitioners were charged for commission of offence under Section 420/34 of IPC and Section 4, 5 of the Act. The investigation related to aforesaid offence only which are not offences punishable wifh death, imprisonment for life or imprisonment for a term not less than 10 years. Therefoi% ||8(}|j|faiUr^ Ag file chare sheet within a period of6Qdaysasprovided in Section'1.tf7@);d£the Cr.P.C., fhe petitioners were entitled to default bail as they fla&papplied for grant of bail under SiBCtwn^67^of the Cr.P.C. on .15-07-2014 itselfbefbre filing ofcharg©isltieet|aadwere prepared to fumish bail. 4.

On the other hand, leafriedjState counsel opposed the prayer made in the petition iBy sulanlitfiag that the petitioners'are not entitled to grant of bail because tKe investigating agency had later on,' also registered offence under Section 467, 468 of IPC. In such cases, the petitioners would not be entitled to be released on default bail, upon expiry of 60 days because in such cases, the Magistrate is einpowered to authorize detention up to 90 days. 5.

The order passed by the Court below goes to show fhat the petitioners were arrested on 14-05-2014 and on that date itself, they were produced before the Magistrate for taking remand. This is clear from order sheet dated 14-05-2014. The Magistrate granted remand till 5 P.M. of 16-05-2014.

6.

As is reflected from the records, the petitioners moved an application for grant of default bail on 15-07-2014. The order sheets which have been placed on record would show that till 15-07-2014, offence under Section 467, 468 was not registered against the petitioners. The petitioners have also placed on record the order sheet dated 16-05-2014, by which, further remand up to 29-05-2014 was granted. In this order also, remand was sought for investigation into alleged commission of offence under Section 420/34 IPC and Sectipn,4@E @£th%Act and there is no reference in the order that.tlae'police soughf'°i%Bi|Hjga ,,;in connection with investigation fbr the offences under 467, 468i;'0bIPC. In the aforesaid factual prenuse| it lias§t(ybe seen whether fK^etitioners were entitled to defauB;?ibaitl;o:Bia.ccount of non-submission of charge sheet within the stipitlialed period, by giving fhe benefit of provisions under Section; I!6'7;(2) bEIhe Cr.P.C. 7.

Section 167 of the:L@i-,S.@S35tays down the procedure when investigation cannot be completed in 24 hours, it cast duty upon the police officer to produce any person arrested and detained in custody before the nearest Magistrate, if investigation cannot be completed within a period of 24 hours as fixed by Section 57 of the Cr.P.C. In sub section

(2) of Section 167 of the Cr.P.C., the Magistrate to whom an accused person is forwarded under this section raay, whether he has or has not jurisdiction to try the case, from time to time, authorize the detention of Che accused in such custody as such Magistrate thinks Et, for a term not exceeding fifteen days in the whole; and if he has no jurisdiction to try fhe

case or commit it for trial, and considers further detention unnecessary, he raay order the accused to be forwarded to a Magistrate having such jurisdiction. Proviso to sub section (2), however, puts rider on the maxirauni period of detention. The provision being relevant is reproduced hereinbelow:- 167.

"Procedure when investigation cannot be conipleted 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 twentyfour hours fixed by Section 57, and there are grounds for believing that theiacgcusatiQng OE||B|E)FrB,at.ion is well-founded, the ofBcer^in ;charge of the police staltoiajilor |Be police officer making the mvestigation, if he is not below tte'i^jaik; of subinspector, shall forthwifl-i'tra.nsmit to the nearesi£y|ljudicial Magistrate a copy^^Qfyttie; eatneB; in the diary hereinafter prescribed relating toytfi.e'icase,|and shall at the saine time forward the accused tQrsi..te}-l!;Ma,gistrate.

(2) The Magistrate;sto; whom an accused person is forwarded under this sectioa IIISE^, whether he has or has not jurisdiction to try tbe case,KfroiEt .tiime to time, authorize the detention of the accused m'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 cominit it for Y.

Provided that- (a) the Magistrate may authorize 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 authorize the detention of the accused person in custody under this paragraph for a total period exceeding,-

(z) 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;

(n') sixty days, where the investigation relates to any other offence, and, on the expiry of the said period of ninety days, or susty days, as the case raay 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;] (b) nOi^MagisfraCSllsl'ialWslgialgOrize,, detendon of the aecHSed in custody of the pSBc®Uffl<Ber this section unless the accused is produced beforeittnM?ip person for the first tinie^and sybsequently every"tiEtte;'tillthe accused rGmain&,inf;ffle,GUstody ofthe police,»fi>utthe Magistrate rfla;y.|£sxten,(t.further detention in judicial custody om.^rsductKni of the accused either in person or tha'oa-tgH^the medium of electronic video linkage;] ;r3':"s.;'^.:;,Y.-=!'i^., (cf no Magistra.te' af^tlie;;ljsecond class, not specially empowered in tHis""behalf by the High Court, shall authorize detention in the custody of the police. x?oc 2-A 3.

4.

5.

6.

XXX XXX XXX XXX 8.

The statutory scheme of Section 167 for grant of default bail came up for consideration before the Supreme Court in the case of Uday Mohanlal Acharya vs. State of Maharashtra1, wherein it was held by fhe Supreme Court as under:- "Section 167 is in fact supplementary to Section 57, ' (2001) 5 SCC 453

in consonance with the principle that the accused is entitled to demand that justice is not delayed. The object of requiring the accused to be produced before a Magistrate is to enable the Magistrate to see that remand is necessary and also to enable the accused to make a representation which he may wish to make. The power under Section 167 is given to detain a person in custody while the police goes on with the investigation and before the Magistrate starts the enquiry. Section 167, therefore, authorizes the Magistrate to permit detention of an accused in custody and prescribes the maximum period for wfaich such defisrittfe^leould? ibe ordered. Under subsection (2) of'Secstion 167, a Maigi^|ca|g befbre whom an accused is produced while the police is iM.ilesttggting into the offence, can authorize detention of the aiGgfsed in such custody as theflV[agisfrate;;thinks fit for a feem hot exceeding 15 days on titiiewiiole.

Haying prescritDedjSie.Effaximum period what would be the consequences tliereaffcer has been indicated in the proviso to sub-section.(%) of Se<ition 167. On the expiry of the said period of 90 days o£"60 days, as the case may be, an indefeasible righfe^aec|ues 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 and does fumish the bail as directed by the Magistrate. The proviso is unambiguous and clear and stipulates fhat the accused shall be released on bail if he is prepared to and does fumish the bail which has been termed by judicial pronouncement to be 'compulsive bail" and such bail would be deemed to be a bail under Chapter 33. The proviso to sub-section (2) of Section 167 is a beneficial provision for curing the mischief of

•i indefinitely prolonging the investigation and thereby affecting the liberty of a citizen."

The words "if he is prepared to and does furnish bail" have also been interpreted by the Apex Court in Uday Mohanlal Acharya (supra) as under:- If, however, the accused is iinable to fumish the bail as directed by the Magistrate, then on a conjoint reading of Explanation I and the proviso to sub-section

(2) of Section 167, the Gontinued custody of the accused even beyond the specified period in para (a) will not be unauthorized, and therefore, if during that period the investigation,j.gisg;'lE:cga^KB|angJ|tiea5,charge-sheet is filed then ^|lB:e'isd|paKetf ihaefeasible T^Bjj^Mheiaccused would stariHsextinguished.

'"#SP./F.S The indeleasible'^nght ,of the accused81Sjges. not survive or remaiiiienfoEcaeaBIg.on the Charge sheetf'being filed, if already not,]aifaSe<S\^S, as has been held by the Constitution BencK|opg:MesSupreme Court in Sanjay Dutt's ccise, 1994 S@G|j|CHS;)ja433 (Sanjay Dutt v. State). The expression "if nat/SSxea^'.ayaSsd oP used in Sanjay Dutt case must be undGBSt;£ib^to?^m,eanwhen the accused files an application andgsSSWysfiSred to offer bail on being directed.

In other words, on expiry of the period specified in para (a) of the proviso to sub-section (2) of Section 167 if the accused files an application for bail, alleging that no Charge sheet has been filed and he is prepared to offer the bail that is ordered, and it is found as a fact that rio Charge sheet has been filed within the period prescribed from the date of the arrest of the accused, then it has to be held that the accused has availed of his indefeasible right even fhough fhe court has not considered the said application and has not indicated the terms and conditions of bail and the accused has not fumished the same.

y the expression "availed of, if the 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 the accused moves the higher forum and while the matter remains pending before the higher forum for consideration, a charge sheet is filed, fhe so-called indefeasible .rigsht BoB3?tMg ^fiuised would not stand y extingLiisfi.eM'jH 'feByarid"6h ll'(e'Eo(Be|||land, the accused hasB-lfeBe released on bail.

s"s f.f s, 9.sJ»The afbresaid expositiQ:n !s|1?lsiw entitles fhe aeqLised to be released on bail under p(osis@;|o isub-section (2) of Section 167 of the Cr.P.C., if the charge jslieeti is not filed wifhin a period of 60 days or 90 days, as the,@ase;:mEayi^l3e, depending upon the nature of offence.

10..

As to whether the period of 60 days or 90 days would commence from the date of arrest or from the date of remand, the issue is no longer res integra, in view of the authoritative pronouncement of the Supreme Court in the case of Chaganti Satyanarayana and others vs. State of Andhra Pradesh2, wherein the Supreme Court held as under:- "The words used in proviso(a) to Section 167(2) are "no Magistrate shall authorize the detention of the accused person in custody", "under this paragraph", AIR 1986 SC 2130

"for a total period exceeding i.e. 90 days/60 days". Detention can be authorized by the Magistrate only from the time the order of remand is passed. The earlier period when the accused is in the custody of a public officer in exercise of his powers under Section 57 cannot constitute detention pursuant an authorization issued by the Magistrate. It, therefore, stands to reason that the total period of 90 days or 60 days can begin to run only from the date of order of remand".

In a later decision in the case of Sadhwi Pragyna Singh Thakur v. Sta3tesegpUlfl/|arasftt|g|3|Etibe,.afcresaid legal position has beeiwffieiaffia'by fhe Supreme Cour(F(&.aj|WigJ:he date of Erst reraaitWi";and not the date of arrest which is relevsaat date for cotMting the period of'idgteAtionat 11.

Now reverting to tliglpBCtsMfthe present case, it is expUcitly clear fhat Brst remand oryttfliKas'i'E'assed on 14-05-2014 relating to investigation for corarmlssioffiof offince under Section 420/34 IPC and ^ection 4 85 5 of theiBstSWoUSiof these offences are punishable with death, imprisonment for life or imprisonment for a term of not less than ten years. Therefore, per force, the provision contained in proviso (a) (ii) of Section 167 of Cr.P.C., the period, within which, the charge sheet has to be filed would be sbcty days. The period of 60 days expired on 13-07-2014. In the remand application filed by the investigating agency on 14-07-2014, further remand up to 15-07-2014 was sought and granted by fhe Court in connection with Crime No.76 of 2014 for commission of offence under Section (2011) 14 (ADDL.) S.C.R. 617

420/34 IPC and Sections 4, 5 ofthe Act. It would thus be clear that till 13-07-2014, neither charge sheet was filed nor offence under Section 467, 468 IPC was registered by the investigating agency. The period of 60 days expired on 13-07-2014. The petitioners availed the right to grant of bail on the default of investigating agency to file charge sheet within a period of 60 days by raoving an application under Section 167(2) of the Cr.P.C.. Therefore, in these circumstances, the petitioners were entitled to grant of bail by defaxdt. Subsequent regist|^tij3H. of',,qfience under Section 467, 468 of IPC, aftg;p*'gxj|ujl%!F''60''(:laysafter''l;^]|||-2Q,iL4, would not take away3|Mje1|afht of accused to get default bail provi|le3; fae is prepared t®;,,fipnishbail to the satiaEa.eticffiS|@f^the Magistrate. Tlae^^edtioners having availed right uridleE7SSeciti0n 167(2), as laid down by the Supreme Court in the cgsefsfiUdfty Mohanlal Acharya (supra), the Magistrate committeit|al2iff;?grror of law in rejecting the application.

iw!^^^^^y 12.'

Learned State counsel strenuously urged to submit that the Supreme Court in the case of Sctdhwi Pragyna Singh Thakur (supra) has held that once charge sheet is filed, the appUcant cannot seek to set at liberty on the ground of non-coinpliance of Section 167(2) of the Cr.P.C. and bail can be granted upon consideration ofmerits ofthe case.

That was a case where an application for grant of bail under Section 167(2) of the Cr.P.C. was filed subsequent to filing of charge sheet. The Supreme Court, on the facts also, found that

charge sheet was filed before expiry of90 days from the date offirst remand.In this context, it was held fhat right, if any; to get default bail is lost, once charge sheet is filed. Thus, in a case where the charge sheet has not been ffled within a period of 60/90 days, as the case may be, and fUed later on and the accused, till filing of charge sheet, does not avail right to be released under Seetion 167(2) ofthe Cr.P.C., in that case, as authoritatively pronounced by the Supreme Court in the case of Uday Mohanlal Acharya (supra), right would be last..!.ig, g, y a ^, 13.

The gieitiiBpi|,®s or(:ling]y'alIo%®dS,|ga.gi'irgjiUgnedorder dated 25-Q8;;i%iy|?f!passed in revision petition is set asi9^;;|Fhe petitioners affi .ientitled to bail una:p||i'Sigefioa'],/3.67(2) of the Cr.BICsSSlon such terms and conditions as iasi||®e^m?posedby the leamed trial Court, before which, the trial is jaendangiQpon submission of charge sheet. Sd/- Manindra Mohan Shrivastava Judge Tumane