High Court of Punjab and HaryanaCRM-M/41691/2015dismissed

Gurcharan Singh @ Mintu v. State Of Haryana

2016-02-11Mr. Justice Arvind Singh Sangwan16 pages

IN THE HIGH COURT OF PUNJAB AND HARYANA

AT CHANDIGARH Date of decision: 11.02.2016 Gurcharan Singh @ Mintu 1..Petitioner versus State of Haryana 11Respondent

CORAM:

Hon'ble Mr.Justice Kuldip Singh

1. Whether Reporters of Local Newspapers may be allowed to see the judgment ?

2. To be referred to the Reporters or not ?

3. Whether the judgment should be reported in the Digest? Kuldip Singh, J.

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2 % 1994(4) RCR (Criminal) 682 (HP) Satish Katoch versus State of H.P. 1997(3) RCR(Criminal) 736 (P&H) Jagdish vs. State of Haryana, 2012(1) RCR (Criminal) 302 (SC) Pragyna Singh Thakur versus State of Maharashtra ! . . 1 '* # $)'*'$ '' $)'* 6)

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(1) 66.

(2) (i) As soon as it is completed, the officer in charge of the police station shall forward to a

Magistrate empowered to take cognizance of the offence on a police report, a report in the form prescribed by the State Government, stating- (a) the names of the parties;

(b) the nature of the information;

(c) the names of the persons who appear to be acquainted with the circumstances of the case; (d) whether any offence appears to have been committed and, if so, by whom;

(e) whether the accused has been arrested;

(f) whether he has been released on his bond and, if so, whether with or without sureties;

(g) whether he has been forwarded in custody under section 170 (ii) The officer shall also communicate, in such manner as may be prescribed by the State Government, the action taken by him, to the person, if any whom the information relating to the commission of the offence was first given ! . . .

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% Ram Chander vs. State of Haryana, 1991(1) RCR (Criminal) 386, 1 7 %. < 4.

From the above factors, it is evident that the petitioners having been arrested on 12.5.1992 had completed 90 days in police custody on 13.8.1992 on which date they had been directed to be detained till 27.8.1992. This necessitated the filing of an application on behalf of the accused for their release on bail in view of the provisions of Section 167(2) Code of Criminal Procedure. Till the date neither the challan papers were put up before the Magistrate nor there was any entry of the said challan in the relevant register maintained by the Ahalmad of the Court. As a result thereof the Magistrate had released the accused on bail vide his order dated 14.8.1992. It was only on 19.8.1992 that the Ahalmed had put up the challan before the Magistrate and brought

to his notice that the prosecution had forwarded the challan to the Court on 8.8.1992. It is, thus, evident that till 19.8.1992, the challan was not put up before the Magistrate. If the information supplied by the Ahalmad to the Magistrate to the effect that the challan had been forwarded by the prosecution on 8.8.1992 is taken to be true even then it can at the best be said that the challan was filed by the prosecution with the Ahalmad. So, the question would be as to whether the filing of the challan papers by the prosecution with the Ahalmad would tantamount to the presentation of the challan before the Magistrate. In similar circumstances, this Court in

, has held that even if the challan papers were left with the Ahalmad earlier, it was of no consequence and the only possible conclusion was that the challan was presented on the date it was actually put up before the Magistrate."

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. @. % Ravi Prakash Singh @ Arvind Singh v. State of Bihar, 2015

(2) RCR(Criminal) 89 2

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1 State of M.P. v. Rustam, 1995 Supp (3) SCC 221 .

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7 @. % Uday Mohanlal Acharya v. State of Maharashtra, 2001(2) RCR (Criminal) 452, 1

State of M.P. v. Rustam (supra) 1 < 1 . < "12. In State of M.P. v. Rustam and others (supra), this Court set aside the order of the High Court where the High Court had released the accused on bail, charge5 sheet not having been filed within the period stipulated in Section 167(2) of the Code of Criminal Procedure, as by the time the High Court entertained the bail application challan had already been filed, this Court had observed that the Court is required to examine the availability of the right to compulsive bail on the date of its considering the

question of bail and not barely on the date of presentation of the petition for bail. This Court came to the conclusion "on the date when the High Court entertained the petition for bail and granted it to the accused/ respondent, undeniably the challan stood filed in Court and then the right as such was not available. 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 sub5section (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 (supra). The crucial question that arises for consideration, therefore, is what is 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?

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."

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> 18 7 @. % Union of India through C.B.I. v. Nirala Yadav @ Raja Ram Yadav @ Deepak Yadav, 2014(3) RCR(Criminal) 534, 1 Pragyna Singh Thakur versus State of Maharashtra (supra) 1 < 2,% . < "33.

Learned counsel for the appellant has commended us, with immense perseverance, the authority in Pragyna Singh Thakur (supra). In the said case a contention was raised that judgment rendered by the High Court declining to enlarge the accused on

bail was violative of the mandate of Articles 22(1) and 22(2) of the Constitution and also violative of the statutory provisions engrafted under Section 167(2) CrPC. In the said case, the accused was under detention from 10.10.2008 and ninety days expired on 9.1.2009 and the charge5sheet was filed on 20.1.2009. The accused5appellant filed an application under Section 167(2) CrPC read with Section 21(4) of Maharashtra Control of Organized Crime Act, 1999 (MOCA) and also under Section 439 CrPC. The said application was resisted by the prosecution on the ground that the charge5sheet was filed on 20.1.2009 which was the eighty5ninth day from the date of his remand order, i.e., 24.10.2008. The learned Special Judge rejected the application vide order dated 9.7.2009. The High Court being moved, dismissed the application vide order dated 12.3.

2010. Before this Court a question arose whether the appellant was in police custody from 10.10.2008 to 22.10.2008, for the High Court had returned a finding that the accused was arrested on 23.10.2008. This Court, on a scrutiny of the facts, held that the accused was arrested on 23.10.2008 and, accordingly, came to hold thus: 5 "49. As far as Section 167(2) of the Criminal Procedure Code is concerned this Court is of the firm opinion that no case for grant of bail has been made out under the said provision as charge5sheet was filed before the expiry of 90 days from the date of first remand. In any event, right in this regard of default bail is lost once the charge5sheet is filed.

2351052008, the appellant was produced before the Chief Judicial Magistrate, Nasik on 2451052008 and subsequent detention in custody is pursuant to the order of remand by the Court, which orders are not [pic]being challenged, apart from the fact that Article 22

(2) is not available against a court i.e. detention pursuant to an order passed by the court."

2,%

Uday Mohanlal Acharya v. State of Maharashtra (supra) . < "36. Be it noted, to say so, the learned Judges drew support from the decisions in Rustam (supra), Bipin Shantilal Panchal (supra), Dinesh Dalmia (supra) and Mustaq Ahmed Mohammed Isak (supra). Thereafter they adverted to Uday Mohanlal Acharya's case in following terms: 5 "56. In Uday Mohanlal Acharya v. State of Maharashtra a three5Judge Bench of this Court considered the meaning of the expression "if already not availed of" used by this Court in the decision rendered in Sanjay Dutt in para 48 and held that if an application for bail is filed before the charge5 sheet is filed, the accused could be said to have availed of his right under Section 167

(2) even though the court has not considered the said application and granted him bail under Section 167(2) CrPC. This is quite evident if one refers to para 13 of the reported decision as well as the conclusion of the Court at p. 747.

57. It is well settled that when an application for default bail is filed, the merits of the matter are not to be gone into. This is quite evident from the principle laid down in Union of India v. Thamisharasi[24], SCC para 10, placita c5d.

58. From the discussion made above, it is quite clear that even if an application for bail is filed on the ground that charge5sheet was not filed within 90 days, before the consideration of the same and before being released on bail if charge5sheet 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."

[Emphasis added] 37.

At this juncture, it is absolutely essential to delve into what were the precise principles stated in Uday Mohanlal Acharya's case and how the two5 Judge Bench has understood the same in Pragyna Singh Thakur (supra). We have already reproduced the paragraphs in extenso from Uday Mohanlal Acharya's case and the relevant paragraphs from Pragyna Singh Thakur (supra). Pragyna Singh Thakur (supra) has drawn support from Rustam and others case to buttress the principle it has laid down though in Uday Mohanlal Acharya's case the said decision has been held not to have stated the correct position of law and, therefore, the same could not have been placed reliance upon. The Division Bench in paragraph 56 which have been reproduced hereinabove, as referred to paragraph 13 and

the conclusions of Uday Mohanlal Acharya's case. We have already quoted from paragraph 13 and the conclusions.

38.

The opinion expressed in paragraph 54 and 58 in Pragyna Singh Thakur (supra) which we have underlined, as it seems to us, runs counter to the principles stated in Uday Mohanlal Acharya (supra) which has been followed in Hassan Ali Khan and another (supra) and Sayed Mohd. Ahmad Kazmi. The decision in Sayed Mohd. Ahmad Kazmi's case has been rendered by a three5 Judge Bench. We may hasten to state, though in Pragyna Singh Thakur's case the learned Judges have referred to Uday Mohanlal Acharya's case but as stated the principle that even if an application for bail is filed on the ground that the charge5sheet was not filed within 90 days, but before the consideration of the same and before being released on bail, if charge5 sheet is filed the said right to be enlarged on bail is lost.

This opinion is contrary to the earlier larger Bench decisions and also runs counter to the subsequent three5 Judge Bench decision in Mustaq Ahmed Mohammed Isak's case. We are disposed to think so, as the two5 Judge Bench has used the words "before consideration of the same and before being released on bail", the said principle specifically strikes a discordant note with the proposition stated in the decisions rendered by the larger Benches."

1 , 1 .1 1 Chaganti Satyanarayana and others v. State of A.P., 1987 (1) RCR (Criminal) 401

@.,%< "34. To arrive at the said conclusion, reliance was also placed on Chaganti Satyanarayana (supra), CBI v.

Anupan J. Kulkarni 1992(2) RCR (Criminal) 147: (1992) 3 SCC 141, State v. Mohd. Ashraft Bhat (1996) 1 SCC 432, State of Maharashtra v. Bharati Chandmal Varma 2002(1) RCR (Criminal) 99: (2002) 2 SCC 121 and Rustam (supra)."

% Ravinder Singh v. State of Punjab, 2005(2) RCR (Criminal) 340, 1 % 1

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@. % Central Bureau of Investigation, Special Investigation Cell51, New Delhi v. Anupam J. Kulkarni, 1992(2) RCR (Criminal) 147 ! . . 6)

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1.% D 1 < "File taken up on an application moved by counsel for the accused Gurcharan Singh for grant of bail to the accused under Section 167(2) Cr.P.C. Let report of the Ahlmad be called."

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11.02.2016 (Kuldip Singh) gk Judge