S.Hari v. State Rep By

IN THE HIGH COURT OF JUDICATURE AT MADRAS

DATED : 06.03.2019

CORAM

THE HONOURABLE MR. JUSTICE G.K.ILANTHIRAIYAN CRL.O.P. No.5745 of 2019 S.Hari ... Petitioner Vs.

State rep. by The Inspector of Police, Economic Offences Wing-II, Vellore Crime No.7/2015 ... Respondent PRAYER: Criminal Original Petition filed under Section 482 Cr.P.C. to modify the conditions imposed in Crl.M.P.No.170/2019 dated 15.02.2019 by the learned Special Judge under TNPID Act, in pending Crime No.7/2015 on the file of the Inspector of Police, EOW-II, Vellore.

For Petitioner : Mr.D.Vijayan For Respondent : Mr.C.Raghavan Govt. Advocate (Crl. Side)

O R D E R

This Criminal Original Petition has been filed under Section 482 Cr.P.C. to modify the conditions imposed in Crl.M.P.No.170/2019 dated 15.02.2019 by the learned Special Judge under TNPID Act, in pending Crime No.7/2015 on the file of the Inspector of Police, EOW-II, Vellore.

2.The case of the prosecution is that the FIR was registered in the year 2015 and subsequently the investigation was transferred to the respondent herein. As per the counter filed before the learned District Session (TNPID) at Chennai there were 36 witnesses enquired and further 13 witnesses yet to be enquired. Except this petitioner others who are arrayed accused to be arrested and also the respondent has to find out the immovable properties of the petitioner.

3.The learned counsel appearing for the petitioner would submit that the petitioner was arrested and remanded to judicial custody on 04.12.2018 u/s.420 IPC and Section 5 of TNPID Act by the respondent police. Further he would submit that, the petitioner was detained after the statutory period of 60 days and therefore, he filed a petition for the grant of statutory bail under Section 167(2) Cr.P.C. The learned Special Judge

under TNPID Act, Chennai in Crl.M.P.No.170/2019 was pleased to grant bail to the petitioner by an order dated 15.02.2019. However, while ordering bail to the petitioner, the learned Special Judge, imposed certain conditions as follows :- "(a) The petitioner shall execute a bond for Rs.1,00,000/- with two sureties for a like sum amount to satisfaction of this Court within 15 days from the date of order.

(b) The petitioner shall not threaten witnesses or cause hindrance to the pending investigation.

(c) The sureties shall affix their photographs and left impression in the surety bond accompanied with either Aadhar Card or any other documents or any other document as proof of identity of the security concerned.

(d)The petitioner shall deposit a sum of Rs.10,00,000/- (Rupees Ten Lakh only) to the credit of DCP Thiruvannamalai Cr.No.7/2015 of EOW-II, Vellore on the file of the Court Special Judge under TNPID Act, Chennai.

(e)The petitioner shall report before the respondent police daily at 10 a.m., (f)The petitioner shall not tamper with the investigation or trial.

(g)The petitioner shall not either during investigation or trial or cause hindrance to trial.

The learned counsel for the petitioner would further submit that while the petitioner was enlarged on statutory bail under Section 167(2) Cr.P.C., no condition can be imposed and it is onerous and stringent. Therefore, he prays to modify the conditions imposed, while he was granted bail. 3.Per contra, the learned Government Advocate (Crl. Side) would submit that huge amount of money involved in this case and the petitioner cheated the defacto complainant to the tune of Rs.1,26,05,000/-. Therefore, he vehemently opposed to modify the condition imposed by the Court below.

4.Heard the learned counsel for the petitioner and the learned Government Advocate (Crl. Side) appearing for the respondent.

5.On perusal of the records, it is seen that the petitioner was arrested and remanded to judicial custody on 04.12.2018. Since the respondent did not file the charge sheet, the Court below enlarged the petitioner on statutory bail, as per the procedure contemplated under Section 167(2) Cr.P.C. While

granting bail, the learned Special Judge imposed condition that the petitioner shall deposit a sum of Rs.10 Lakh to the credit of DCB Tiruvannamalai Cr.No.7 of 2015, EOW-II, Vellore, on the file of the respondent police. It is relevant to read the Section 167(2) Cr.P.C.

(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 subsection shall be deemed to be to released under the provisions of Chapter XXXIII for the purposes of that Chapter;

(b) no Magistrate shall authorise detention in any custody under this section unless the accused is produced before him;

(c) no Magistrate of the second class, not specially empowered in this behalf by the High Court, shall authorise detention in the custody of the police"

From the above, the only condition can be imposed, while granting anticipatory bail under Section 167(2) Cr.P.C. is that the accused persons shall be released on bail if he is prepared

to and does furnish bail. Apart from that no other requirement is necessary for grant of statutory bail as per Section 167(2) Cr.P.C.

6.The learned Counsel also relied upon the order in Crl.O.P.No.18056 of 2006 dated 29.09.2000 reported in MANU/TN/0913/ 2000 in the matter of Baskar and others Vs. State and others the following paragraphs :- "14. The failure to file charge sheet or final report before the period prescribed under Section 167(2) Code of Criminal Procedure will automatically result in releasing the accused on bail subject to only two conditions that there is an application for bail from the person in custody and he must be in a position to offer adequate sureties. The bail cannot be denied to him on an other ground less on the ground that on merits the petitioners do not deserve to be released on bail.

The provision 167(2) Code of Criminal Procedure has been introduced in the code with a view to avoid unnecessary detention of persons or the accused in prison under judicial custody. Legislature in its wisdom has thought that the prosecution must be compelled to come out with a final report or charge sheet with expiry of 60 days or 90 days depending upon the gravity of the offence and intended period on punishment and in case the prosecution takes more time than that the legislature wanted to mitigate, the rigor of the remand by making release on bail compulsorily after the expiry of the said period.

The rulings made by the Supreme Court has further clarified this position by stating that a person in judicial custody must exercise the option of coming out of bail by making an application on expiry of the period before laying of charge sheet and he cannot come leisurely to the Court after the charge sheet has been filed even though the charge sheet is filed after expirty of the prescribed period in 167(2) Code of Criminal Procedure. Neither the Legislature nor the Apex Court in any of the ruling have stated that any exemption can be made in such a case where application is filed in accordance with Section 167(2).

the gravity of the crime committed to justify the judicial custody beyond the prescribed period under Section 167(2) Code of Criminal Procedure.

15. It is not as if the difficulty of prosecution agency in certain cases to file final report within the period because of the voluminous evidence or records or difficulty in gathering evidence in case of complicated matters has been overlooked. Neither the Act nor the Apex Court had held that no charge sheet can be laid after expiry of prescribed period. In fact the Supreme Court has pointed out in those rulings that even if the accused has been released on bail by having recourse to 167(2) and the charge sheet is subsequently laid after expiry of the prescribed period the prosecution can ask for cancellation of bail on merits and this cancellation also cannot be automatically given to the prosecution if a petition for that is filed after filing the charge sheet.

The Court is not expected to oblige the prosecution by keeping an application filed under Section 167(2) Code of Criminal Procedure Pending which has been filed after expiry of the period and giving opportunity to the prosecution to file charge sheet in the meantime and thereafter disposing the application holding that charge sheet has been already filed even though after expiry of the period."

Further he relied upon the judgment reported in 2006(2) MWN (Cr.) 414 in the matter of K.S.J.Kumar Vs. State rep by the Inspector of Police, in which this Court held as follows :- "9. A perusal of hte impugned order clearly shows that the learned Magistrate mainly proceeded with the case on merits of the case while dismissing the petitioner filed by th petitioner mainly invoking the provision under Section 167(2) Cr.P.C. The learned Magistrate is not at all discussed the right of the petitioner accrued due to the non filing of the charge sheet within 90 days as stipulated. As a matter of fact, the learned counsel for the petitioner also placed reliance on a decision of this Court in Nagarajan, etc. & others V. State of Tamil Nadu, 2002 (2) L.W. (Crl.) 545 wherein

this Court has held that filing of a defective charge sheet and returning the same of rectify the defect amounts to non-filing of charge-sheet and will not defeat the right of the accused to be released on bail after expiry of 90 days.

10. In the decision cited supra, this Court has taken into consideration of the decision rendered by the Honourable Supreme Court in respect of the right of the accused under Section 167(2) Cr.P.C., elaborately. In spite of the above said reliance placed before the learned Magistrate, the learned Magistrate simply brushed aside the same with a single line that the petitioner is not entitled for the benefit of the decision rendered by this Court as cited supra. It is very unfortunate that the learned Magistrate has not even considered the submission regarding the non-filing of the charge sheet within the time stipulated and without giving any finding regarding such submission, proceeded mainly on the basis of the merits of the case.

11. The submission of the learned Government Advocate (Criminal side) makes its crystal clear that the investigation agency has filed the charge sheet only on 19.09.2006. Earlier submission of the learned Government Advocate (Criminal Side) that the draft charge sheet was filed on 10.07.2006 and the same was returned for corrections, would not amount to filing of a charge sheet as it is rightly held by this Court in the decision cited supra and filing a defective charge sheet and returning the same to rectify the defect amounts to non-filing of charge sheet.

12. It is also relevant to be noted that the petitioner is incarcerated from 18.04.2006 and now the investigation is over and the charge sheet has been filed in the case. As already stated that in view of the non-filing of the charge sheet within the time stip', the petitioner is having indefeasible right till the charge sheet is filed. This right also exercised by the petitioner within the stipulated time as the

petitioner filed a petition for bail on 24.08.2006 after the expiry of 90 days.

13. Therefore, this Court has no hesitation to release the petitioner on statutory bail under Section 167(2) Cr.P.C.

on condition to reside at Madurai and to report before the learned Judicial Magistrate No.I, Madurai once in fifteen days till the date of committal of the case."

7.In the case on hand, admittedly, the charge sheet has not been filed by the respondent police. Therefore the petitioner is entitled to be released on statutory bail under Section 167(2) Cr.P.C. When it being so, the right to be released under Section 167(2) Cr.P.C. is an indefeasible right and such a right cannot be extinguished by imposition of onerous conditions. 8.In view of the above, the condition imposed by the learned Special Judge under TNPID Act in Crl.M.P.No.170/2019 on 15.02.2019, that the petitioner shall deposit a sum of Rs.10 Lakhs to the credit of Crime No.7 of 2015, is set aside and accordingly, this petition is allowed. The other conditions shall remain intact.

Sd/- Assistant Registrar //True Copy// Sub Assistant Registrar kas To 1.The Inspector of Police, Economic Offences Wing-II, Vellore Crime No.7/2015 2.The Special Judge under TNPID Act, Chennai 600 104.

3.The Public Prosecutor, High Court, Madras.

+1cc to Mr.D.Vijayan, Advocate, S.R.No.23392 CRL.O.P. No. 5745 of 2019 GJII(CO) rrs 14/03/2019