Abdul Hakim and Others vs The State of West Bengal

G.R. Bhattacharjee, J.—The petitioners (9 in number) are fn custody in connection with the Hura Police Station case No. 103/98 dated 11th November, 1998 which was started u/s 395 1PC. It may be mentioned here that Hura Police Station is within the District of Purulia and the occurrence reportedly took place within that Jurisdiction. The learned Sessions Judge, Purulia by his order dated 9.2.99 while granting ball to the petitioners (accused persons) u/s 439 Cr.PC directed that each of the nine accused-petitioners might furnish cash security of Rs.15,000/- only in lieu of bond to the satisfaction of the learned SDJM concerned on condition that they would meet the I.O once a fortnight and the security money would stand forfeited to the State of West Bengal if the accused flouted the order in any manner. Thereafter the present petition was filed by the nine petitioners/accused persons for relaxation and/or modification of and/or setting aside the condition of ball granted by the learned Sessions Judge by his order dated the 9lh February, 1999. It is also prayed by the petitioners to release them on furnishing security bond of a reasonable amount Instead of furnishing cash security of Rs. 15,000/- in lieu of bond and also to withdraw the condition to meet the I.O once a fortnight and/or to reduce the amount of bond. It is mentioned in the petition that one of the petitioners is an unemployed youth who purchased a truck with the assistance of finance at high interest upon hire purchase agreement and he has defaulted in paying the instalments and the other petitioners are day-labourers earning Ra. 50 per day. From the address given in the petition it would appear that the petitioners are all residents of a different place in the district of Nadia and they do not belong to Purulia District. During the hearing before us it is submitted that in the meantime the learned Sessions Judge, Purulia has by his order dated J8.3.99 modified his earlier order of ball passed on 9.2.99 and directed that they may now find ball of Rs. 10,000/- each with two surities of Rs. 5,000/- each to the satisfaction of the learned SDJM concerned and one of the two surities must be local surity and that they shall go an meeting the I.O once a fortnight. It is also submitted that thereafter on 19.3.99 again the learned Sessions Judge, Purulia made further modification of his earlier order and directed that they may furnish cash security of Rs. 5,000/- each in lieu of local surity as ordered earlier and that the other terms and conditions as imposed by order dated 18.3.99 would remain unchanged. So, the present order of the learned Sessions Judge is that the petitioners may find ball of Rs. 10,000/- each with two surities of Rs. 5,000/- each one of whom shall be local surity, but option has been also given to the petitioners to furnish cash security of Rs. 5,000/- in lieu of local surity of Rs. 5,000/-. It is submitted that in view of the last order of the learned Sessions Judge dated 19.3.99 one of the petitioners, namely, the petitioner No. 3, Islam Seikh @ Tyakal Seikh has already been released on bail and therefore the prayer for his ball in the present petition is not pressed. Since one of the petitioners could furnish bail in terms of the last order of the learned Sessions Judge there is no reason to suppose that the other petitioners will not be able to furnish such ball as directed by the Sessions Judge. However we make some modification and direct that the petitioner Nos.- 1, 2 and 4 to 9 may now be released on bail of Rs. 4,000/- each with two surities of like amount each one of whom shall be local surity to the satisfaction of the learned SDJM concerned or the said petitioners may find ball of Rs. 4,000/- each by furnishing one surity of like amount each and a further cash security of Rs. 4,000/- each in lieu of local surily, on condition that they shall stay within the District of Purulia at an address to be notified to the I.O and meet the I.O once a week.

It has been contended on behalf of the petitioners that since they are in custody in connection with the present case for more than 90 days and no charge-sheet has yet been submitted they are entitled to statutory bail under the proviso (a) to sub-section (2) of section 167 Cr.PC it is submitted that inspite of the fact that the statutory period of 90 days has already elapsed and no charge-sheet has been submitted, the learned SDJM, Purulia has not offered statutory ball to them under the said proviso (a) to sub-section (2) section 167 Cr.PC and that being so the continued detention of the petitioners is Illegal. It is true that section 167(2), proviso (a) requires an accused to be released on ball if the Investigation is not completed within the statutory period mentioned therein. But that does not necessarily mean that the continued detention on remand beyond the said statutory period becomes Illegal if the petitioners are not offered ball or are not released on bail on the expiry of the said period. Explanation--I to subsection (2) of section 167 says that notwithstanding the expiry of the period specified in paragraph (a), the accused shall be detained in custody so long as he does not furnish ball. The proviso (a) to sub-section (2) of section 167 also makes it clear that every person released on ball under the said subsection shall be deemed to be so released under the provisions of the Chapter xxxiii for the purposes of that chapter. Chapter xxxiii of the Cr.PC contains provisions as to bail and bond covering sections 436 to 450. It may also be noticed that the language used in the proviso to the said subsection (2) of section 167 is that on the expiry of the statutory period ''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 released under the provisions of chapter xxxiii for the purposes of that chapter*. It does not say that the ball order Itself will have to be passed by the Magistrate. There may also very well be a case where during the pendency of a ball application u/s 439 before the Sessions Judge or the High Court the statutory period of 90 days or 60 days, as the case may be, expires before the completion of the investigation and in such case the court of the Sessions Judge or the High Court, as the case may.be, while dealing with the pending bail application will have to pass order granting statutory bail to the accused irrespective of the question whether ball should be granted if considered on merit, once it is brought to the notice of such court that the statutory period has expired during the pendency of the ball application while the Investigation is not yet completed. In other words, the emphasis of the provisions of section 167(2) is not on the authority who is to pass the order of ball, but on the right of the accused to be released on bail on the expiry of the statutory period. Therefore it is immaterial as to who passes the order of the bail, namely, whether the Magistrate or any superior court like the Sessions Judge or the High Court. By sequence of logic tt is also Immaterial whether the order of ball has been passed on consideration of merit or on consideration of the expiry of the statutory period, as much as it is Immaterial as to who passed the order. What is rather material in this context is whether the accused on the expiry of the statutory period enjoys an offer of ball. Consequently, if there is already a pre-existing order of any competent court, namely, of the Magistrate u/s 437 or of the Sessions Judge or High Court u/s 439 on the date of expiry of the statutory period there is no question of passing any further order by the Magistrate on the expiry of the statutory period granting what is called ''statutory ball'' to the accused in custody. It is needless to say that section 167(2) is not to be treated as a procedural ritual in the matter of grant of ball so much so that even when there is a pre-existing order of ball which could not be yet availed of by the accused for his own reason, the Magistrate will have to again pass an order granting statutory ball u/s 167(2) on the expiry of the statutory period inspite of the existence of such a preexisting order of bail of a competent court. There may be a case where an offence being a bailable one the Magistrate on the very date of his production before him u/s 167 has passed an order of bail in favour of the accused u/s 436 but the accused has failed to avail of that order and continues to remain in custody even after the expiry of the statutory period. Also there may be a case where the Magistrate before whom the accused has been produced u/s 167 in connection with a non-bailable offence grants ball to him u/s 437 Cr.PC on merit even before the expiry of the statutory period but the accused falls to avail of the benefit of such order for his own reason and therefore continues to remain under detention. In such a situation it will be only an idle and redundant formality to require that a fresh order of bail will have to be passed by the Magistrate on the expiry of the statutory period although the earlier unavailed order of ball still remains open to be availed of by the accused at any time according to his convenience. Similarly, if there is already a pre-existing order of bail of a superior court, like the sessions Judge, High Court, or the Supreme Court in favour of the accused there is no question of further passing a bail order by the Magistrate on the expiry of the statutory period u/s 167(2), firstly because the Megistrate with propriety cannot possibly pass an order with different terms and conditions modifying the terms and conditions. If any Imposed in the bail order passed by the superior court and secondly because a mere reiteration of the same order of the superior court with the same terms and conditions as passed by the Superior Court will be only a meaningless exercise.

The learned Advocate for the petitioner refers to the decision of the Supreme Court in Hussainara Khatoon and Others Vs. Home Secretary, State of Bihar, Patna, and submits that the Supreme Court in paragraph 3 of the said decision inter alia observed that when an undertrial prisoner is produced before a Magistrate and he has been in detention for 90 days or 60 days, as the case may be, the Magistrate must, before making an order of further remand to judicial custody, point out to the undertrial prisoner that he is entitled to be released on bail. It is however to be noticed that in making such observation the Supreme Court was dealing with a situation where no ball order in favour of the accused was at all in existence or passed. Where a ball order has already been passed either u/s 437 or u/s 439 such order is already in the knowledge of the accused as the order must have been passed by the court on being moved by the accused.

That apart, even in a case where there is no pre-existing ball order in favour of the accused, the fact that the Magistrate did not suo motu pass any order of ball u/s 167(2) of the Cr.PC on the expiry of the statutory period will not by itself give a right to the petitioner to be discharged from the case and released without bail or bond. The only right which accrues in favour of an accused on the expiry of the statutory period u/s 167(2) Cr.PC is the right to be released on bail in the same manner as he would have been entitled to in a bailable case. Of course while imposing terms and conditions of bail u/s 167(2) the court has to be circumspect in respect of all the relevant aspects of the matter including the gravity of the offence, the material collected so far, the likelihood of abscondence, etc. In the said decision in Hussainara Khatoon v. State of Bihar (supra) also the Supreme Court observed in paragraph 3 Inter alia that the State Government must also provide at its own cost a lawyer to the undertrial prisoner with a view to enable him to apply for ball in exercise of his right under proviso (a) to sub-section (2) of section 167. It is also therefore evident from the said decision of the Supreme Court that even if no order for ball is passed suo motu by the Magistrate on the expiry of the statutory period u/s 167(2) that does not give a higher right to the accused to claim discharge or release without bail or bond. The only right which accrues in favour of the accused on the expiry of the statutory period is the right to be released on bail and if the Magistrate suo motu does not pass any order of bail on the expiry of the statutory period, the petitioner is entitled to apply for such bail and obtain an order of ball and not release without bail. As we have seen, in the present case there is already a pre-existing order of bail in favour of the accused persons and therefore there is no question of passing further order of bail by the Magistrate on the expiry of the statutory period u/s 167(2) Cr.PC We decide the point accordingly and observe that in view of the pre-existing order of bail passed by a Superior Court there is no question of passing further order of bail u/s 167(2) Cr.PC However we have modified the terms and conditions of bail having regard to the facts and circumstances obtaining in the case and the concerned petitioners may avail of the same. The matter stands disposed of accordingly.

Matter disposed of