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Judgment
I. David Christian, J.—This petition has been filed by the accused for bail u/s 167(2) Code of Criminal Procedure. First Petitioner was
working as Junior Assistant in Commercial Tax Office, the Second Petitioner was working as District Treasury Officer at Salem and the third
Petitioner was employed as Office Assistant in the treasury at Salem. The complaint has been laid by the District Treasury Officer on 31.05.2000
alleging that the accused have conspired together and prepared bogus bills in the name of several persons and presented for encashment by the
first Petitioner, that with the connivance and assistance of the Petitioners 2 & 3, those bills were passed and money was disbursed and that a sum
of Rs. 47 lakhs has been misappropriated by these Petitioners. The Petitioners are charged for creating false records and alleged to have
committed criminal breach of trust.
Investigation that followed revealed that these persons have committed misappropriation to the tune of about Rs. 1 Crore, on 05.06.2000 all the
three Petitioners are taken into custody by the Central Crime Branch, Salem and a case under Sections 468, 471, 409, 420 r/w. 120-B IPC has
been registered against these Petitioners. The Petitioners are in judicial custody having been remanded by the court on 05.06.2000. No final report
or charge sheet was filed by the Respondent police and therefore the Petitioners filed bail application u/s 167(2) Code of Criminal Procedure on
05.09.2000 before the Judicial Magistrate No. III, Salem, Learned Magistrate dismissed the petition even though no final report or charge sheet
was filed by the Respondent police and they have been in remand for 90 days. Therefore, the Petitioners filed bail application before the District
and Sessions Judge, Salem on 07.09.2000. No final report was filed even then but the case was adjourned by the District and Sessions Judge
periodically and finally the bail application was dismissed on 18.09.2000 on the ground that at the time of consideration of the bail application, final
report has been filed. During hearing, learned Assistant Public Prosecutor has filed a Memo on 13.09.2000 that investigation was pending till
09.09.2000 and the final report has been filed on 10.09.2000. Learned sessions Judge has held that since the accused are said to have committed
misappropriation of funds to an extent of Rs. 1 crore, the accused are not entitled for bail. Properties worth of Rs. 70 lakhs has been recovered
from the Petitioners and a cash of Rs. 20 lakhs has been recovered from the first Petitioner. Witnesses are all official witnesses. Documents have
been seized and since the witnesses are all officials, there is no likelihood of causing prejudice to the prosecution. Hence the Petitioners have filed
this application praying for bail.
The case of the prosecution is that the first accused being an Assistant of the Commercial Tax Office, Salem is said to have prepared bogus bills
in the name of fictitious persons and has presented them for encashment before the District Treasury, Salem and with the connivance and
assistance of the Petitioners 2 & 3, he is said to have encashed huge amounts on the strength of fabricated bills which he is said to have
misappropriated and all these transactions are said to have taken place as a result of conspiracy between the Petitioners 1 to 3.
It is true that the Petitioners all being Government servants are alleged to have fabricated documents, drawn huge amounts from the treasury and
misappropriated the amounts and the first Petitioner is said to have unlawfully enriched himself by buying properties and buildings and also by
spending lavishly. But, the application for bail filed by these Petitioners was on 05.09.2000 while they have been in remand from 05.06.2000. So,
on expiry of the remand period of 90 days, these Petitioners have filed bail application before the Judicial Magistrate who has remanded them and
later before the Sessions Judge only by virtue of Section 167(2) Code of Criminal Procedure. Section 167(2) Code of Criminal Procedure
provides that if no final report contemplated u/s 173 Code of Criminal Procedure is filed or if investigation is not completed and charge-sheet is
filed within a period of 60 days or 90 days depending upon the gravity of the offence and period of punishment, the accused are entitled for bail
provided they apply for the same and prepared to offer sureties for their appearance in court in future. The bail contemplated u/s 167(2) Code of
Criminal Procedure has come to be known as compulsory bail or statutory bail, which as a matter of right the accused is entitled to, if the
prosecution is not able to file the final report or the charge sheet on the expiry of the prescribed period contemplated u/s 167(2) Code of Criminal
Procedure. The accused have to prove that they have been in remand for a period of 60 days or 90 days and have been remanded by the Judicial
Magistrate after being arrested by the police and brought before the court having jurisdiction.
The import of Section 167(2) Code of Criminal Procedure came up for discussion before the Supreme Court as reported in Sanjay Dutt Vs.
State through C.B.I., Bombay, . It was a case of prisoner having been sent up for remand under TADA. As per Section 20(4)(b) of TADA, the
provision u/s 167(2) Code of Criminal Procedure regarding bail was made applicable with only a slight modification as provided under TADA with
regard to period of remand. While u/s 167(2) Code of Criminal Procedure the accused who have been remanded by the Judicial Magistrate for
the alleged commission of offence and is in judicial custody for 60 days or 90 days and if the investigation is not completed and final report is not
filed, he is entitled to bail. While so as per Section 20(4)(bb) of TADA Act, Section 167(2) Code of Criminal Procedure was made applicable
and the period of detention is stated to be 180 days and the further extension of the period on the side of the prosecution also is provided for.
The Supreme Court referred to earlier ruling made in Hitendra Vishnu Thakur and Others Vs. State of Maharashtra and Others, wherein it has
been held as follows:
The designated court would have no jurisdiction to deny to an accused his indefeasible right to be released on bail on account of default of the
prosecution to file the challan within the prescribed time if an accused seeks and he is prepared to furnish bail bond as directed by the court.
Explaining the indefeasible right referred to in Thakur''s case, the Supreme Court proceeded to held as follows:
The ""indefeasible right"" accruing to the accused in such a situation is enforceable only prior to 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 tiling 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, there is no question of as enforcement
thereafter since it is extinguished the moment the challan is filed because 167 Code of Criminal Procedure ceases to apply.
Even while summing up the conclusions arrived at in Sanjay Dutt''s case, so far as 167(2) is concerned the Supreme Court has observed as
follows:
The ""Indefeasible right"" of the accused to be released on bail in accordance with Section 167(2) of 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 is a right which ensures to, and is
enforceable by the accused only from the time of default till the filling 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, 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 filling 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.
So, even in a case governed by TADA Act, the Supreme Court has held as early as 1994 that a person in judicial custody for more than the
prescribed period and the prosecution agency failing to submit the final report or challan or charge sheet within that period, the person in custody is
entitled to bail as a matter of right and the Petitioners need not further establish that they are entitled to bail on any other ground.
In State Through CBI v. Mohd. Ashrafi Bhat and Anr. 1996 (1) CCR 61 (SC) the Supreme Court again held that 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 in 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.
In Dr. Bipin Shantilal Panchal v. State of Gujarat 1996 (1) Supreme (Criminal) 83 , The Supreme Court again considered the import of Section
37 of the N.D.P.S. Act and 167(2) of Code of Criminal Procedure. In the case the Appellant was arrested on 8.11.1993. The petition for bail on
merit was dismissed by the District Sessions Judge on 4.2.1994 and the High Court all rejected the bail application. The contention raised was that
since the statutory period prescribed by proviso (2) to Sub-section (2) of 167 of Code of Criminal Procedure during which the Appellant could
have been kept in custody, pending investigation, had expired, the Appellant could have been released on bail and at that stage there is no question
of application of Section 37 of N.D.P.S. Act. While holding that Section 37 of N.D.P.S. Act does not exclude the application of the provision to
Sub-section (2) of Section 167 of the Code, even in respect of persons who are accused for offenses under N.D.P.S. Act, if was pointed out that
the charge sheet has been filed on 23.5.1994 and the Appellant was then in custody on the basis of orders of remand passed under the other
provisions of the Code. Therefore, it was held that if an accused person fails to exercise the right to be released on bail for the failure of the
prosecution to file the charge sheet within the maximum time allowed by law, he cannot contend that he had an indefeasible right to exercise it at
any time notwithstanding the fact that in the meantime charge sheet is filed. But on the other hand if he exercises the right within the time allowed by
law and is released on bail under such circumstances, he cannot be rearrested on the mere filing of the charge sheet, as pointed out in Aslam
Babalal Desai Vs. State of Maharashtra,
That was also a case where the accused in custody has not chosen to exercise his right to come out on bail by pressing into service Section
167(2) of the Code of Criminal Procedure. That was also a case where the charge-sheet was filed beyond the time prescribed u/s 167(2) Code of
Criminal Procedure. But the accused only chose to apply for bail not before the charge-sheet was filed, but after charge-sheet has been filed. So in
these rulings the Supreme Court has made it very clear that the right to come out on bail on expiry of the period of detention as provided for in
Section 167(2) Code of Criminal Procedure, should be taken advantage of by the accused on expiry of the period and before filing of the charge
sheet and not after filing of the charge sheet. In other words, if no charge sheet is filed within the prescribed period in 167(2) Code of Criminal
Procedure and if charge-sheet is ultimately filed with a delay after the period prescribed in that Section has expired, no accused in custody can ask
for release on the ground that charge-sheet has been filed after the prescribed period is over. So, the mere delay in filing the final report will not
entitle an accused in custody to ask for bail on the ground that charge-sheet has not been filed within the prescribed period. If a bail application is
filed in such a case of delayed charge sheet by the accused in custody, the application can be decided only on the merits and not on the ground that
charge-sheet has been filed after expiry of the prescribed period. All these rulings have made it very clear the right to seek bail by recourse to
Section 167(2) Code of Criminal Procedure has to be exercised by the accused in custody from the period of expiry and before the charge-sheet
is filed.
So far as the present case is concerned, the admitted facts are that the accused has been remanded to judicial custody on 5.6.2000. No
charge sheet or final report has been filed by the prosecution till 5.9.2000 and even thereafter. The application for bail by the accused u/s 167(2)
Code of Criminal Procedure was filed on 5.9.2000 and it came up for hearing also on 5.9.2000. An order has been passed by the Judicial
Magistrate III, Salem in Crl. M.P. Nos. 4614, 4615, 4616 of 2000 and the order has also been passed on the same day i.e., 5.9.2000. But
strangely the bail application was dismissed and the learned Magistrate has adopted a strange reasoning stating that the ruling of the Supreme
Court with regard to statutory bail provided u/s 167 Code of Criminal Procedure ""need not be applied in rare of rarest cases"" and the learned
Magistrate has also stated that he was not inclined to give the benefit of Section 167(2) Code of Criminal Procedure because public money is
alleged to have been withdrawn illegally. So, the bail application filed before the learned Judicial Magistrate after expiry of the prescribed period of
90 days and before charge sheet was dismissed. Learned Assistant Public Prosecutor did not dispute the fact that charge sheet has not been so far
filed and the prescribed period has expired.
Aggrieved at the order of the learned Magistrate, the Petitioners preferred Cr.M.P. No. 4949 of 2000 before the District and Sessions Judge,
Salem on 13.9.2000, the application for bail pressing into service Section 167(2) Code of Criminal Procedure. There is an endorsement in the said
application to the effect that the said application was received in open court on 13.9.2000, but omitted to be taken on 13.9.2000. This
endorsement is made on 18.9.2000 and the application was taken up on that date and by an order passed on the same day the Sessions Judge.
Salem also dismissed the application stating that once the charge sheet has been filed. Section 167(2) Code of Criminal Procedure does not
survive. Learned Sessions Judge has again quoted the ruling of the Supreme Court made in Sanjay Dutt''s case to deny the bail stating that charge
sheet has been filed by the prosecution. The ruling of the Supreme Court made in Sanjay Dutt''s case and the conclusions arrived at by the court
have been quoted by me in the previous paragraphs. As already stated the Supreme Court has never stated in that ruling that the right for bail in a
case of person in judicial custody for more than the prescribed period after expiry of the prescribed period can be denied to the accused, if he files
the application on the expiry of period and before the charge sheet is laid. The rulings of the Supreme Court are only to the effect that if the
accused in custody has failed to press into service Section 167(2) Code of Criminal Procedure after expiry of the period and before the charge
sheet is laid, he cannot later come and ask for ball because the subsequent remand or detention in judicial custody is not u/s 167(2) but it is
governed by other provisions of the Code of Criminal Procedure. Holding that charge sheet has been filed on 10.9.2000 as per the memo filed by
the prosecution, the learned Sessions Judge has dismissed the bail application relying upon the rulings of the above referred Supreme Court cases.
A copy of the memo filed by the prosecution is also annexed to the typed set of papers wherein the Public Prosecutor of Salem has stated that
charge sheet in the above case in Cr. No. 17 of 2000 has been filed before the Judicial Magistrate No. III, Salem u/s 120(B), 477(A), 409, 408,
468 & 471 IPC against these Petitioners on 10.9.2000 and these Petitioners have filed the bail application even on 9.9.2000. The public
prosecutor has also added in ink in the said application that still the investigation is pending.
Now it turns out and it is not disputed by the learned Government Advocate (Criminal Side) that the accused has filed application for bail
before the learned Magistrate on 5.9.2000, that period of 90 days has expired even by 3.9.2000, that when the bail application came up on
5.9.2000 there was no mention about the charge sheet being filed before him and that when the bail application was dismissed on 5.9.2000 the
charge sheet was not filed before the learned Judicial Magistrate. It is even stated by the learned Counsel appearing for the Petitioners and not
refuted by the learned Government Advocate that the final report or charge sheet filed before the Magistrate on 13.9.2000 has been returned for
some defects. So, the fact remains that the Petitioners have filed bail application seeking bail u/s 167(2) Code of Criminal Procedure after expiry of
the prescribed period and when no charge sheet has been filed. Therefore, the courts below ought to have released the accused on bail and they
cannot take umbrage or refuse bail on the ground that it is a rare of rarest case or on merits the Petitioners do not deserve bail in view of the
gravity of the offence or in view of the huge public money involved in the case.
The failure to file charge sheet or final report before the period prescribed u/s 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 am other ground much 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
expiry of the prescribed period in 167(2) Code of Criminal Procedure. Neither the Legislature nor the Apex Court in any of the rulings have stated
that any exemption can be made in such a case where application is filed in accordance with Section 167(2). So once the bail application is filed
after expiry of the prescribed period and before challan is filed, the court has no business to look into the gravity of the crime committed to justify
the judicial custody beyond the prescribed period u/s 167(2) Code of Criminal Procedure.
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 has held that
no charge sheet can be laid after expiry of the 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 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 u/s 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.
Such a possibility on the part of the courts below was brought to the attention of the Supreme Court in Mohammed Iqbal Madar Sheikh and
Ors. v. The State of Maharashtra 1996 (1) Supreme (Criminal) 77. That was also a case where the prisoners in custody prayed for bail pressing
into service Section 167(2) Code of Criminal Procedure. But, they have filed application after prosecution has filed the final report even though it
was only after expiry of the prescribed period. The Supreme Court has observed in its last paragraph in the said judgment which is as follows:
During hearing of the appeal, it was pointed out by the counsel appearing on behalf of the Appellants that some courts in order to defeat the right
of the accused to be released on bail under provision (a) to Section 167(2) after expiry of the statutory period for completion of the investigation,
keep the applications for bail pending for some days so that in the meantime, charge sheets are submitted. Any such act on the part of any court
cannot be approved. If an accused charged with any kind of offence becomes entitled to be released on bail under provision (a) to Section 167(2)
that statutory right should not be defeated by keeping the applications pending till the charge-sheets are submitted, so that the right which had
accrued is extinguished and defeated.
In fact the apprehension expressed by the counsel appearing for the Appellants in the above case has been proved to be correct and justified
by the acts of the learned Magistrate and the Sessions Judge who have dismissed the bail application preferred by these accused praying for
statutory or compulsory bail u/s 167(2) Code of Criminal Procedure when the bail application came before the learned Magistrate there was no
charge sheet and the prescribed period u/s 167(2) Code of Criminal Procedure i.e., 90 days has expired and no charge sheet has been filed. The
charge sheet claims to have been subsequently filed into the court of jurisdictional Magistrate on 10.9.2000 by the prosecution in a Memo dated
13.9.2000. But now it transpires that no proper final report or charge sheet has been filed into the court or taken on file. Even when the matter
came up before the Sessions Judge on 18.9.2000, the charge sheet has not been taken on file. Learned Counsel appearing for the Petitioners on
instructions informs me that even today no proper charge sheet or final report has been filed and taken on file. Under such circumstances, the
learned Magistrate and the Sessions Judge were not correct in rejecting the bail application.
Bail application has been first rejected by the learned Magistrate and then by the learned Sessions Judge even though the prosecution has failed
to submit the final report or charge sheet. The irrefutable fact is when the Petitioners, who are in the judicial custody, have filed bail application
before the learned Judicial Magistrate, the prescribed period has expired and no charge sheet has been received in court. Therefore, the Petitioners
are entitled to bail and the bail application cannot be kept pending giving opportunity to the prosecution to file a defective charge sheet and then
taking return of it. but at the same time stating that since charge sheet has been filed, the Petitioners cannot have recourse to Section 167(2) Code
of Criminal Procedure for all these reasons, without going into the merits, which the court is not called upon to do, the Petitioners are entitled to
bail u/s 167(2) Code of Criminal Procedure.
In the result, the Petitioners are ordered to be released on bail on each of them executing a bond for a sum of Rs. 10,000/- (Rupees ten
thousand only) with two sureties for a like sum each to the satisfaction of Judicial Magistrate No. III, Salem.