Pawan Jogi vs State of Rajasthan

Prashant Kumar Agarwal, J—The accused-petitioner has filed this second application for grant of bail under Section 439 read with Section 167(2) Cr.P.C. in respect of FIR No. 105/2015 registered at Police Station Chaksu, Jaipur Rural for the offences under Sections 376, 306 and 120-B IPC. The first application filed by the petitioner for grant of bail under Section 439 Cr.P.C. was dismissed on merit by this Court by a reasoned order dated 28.04.2015.

Brief relevant facts for the disposal of this application are that for an incident of 18.03.2015, at the instance of father of the prosecutrix, FIR No. 105/2015 came to be registered against petitioner and co-accused on 20.03.2015 at Police Station Chaksu, Jaipur Rural for offences under Sections 376, 306 and 120-B IPC. During the course of investigation petitioner was arrested on 24.03.2015 and he was produced before the concerned Magistrate for remand on 25.03.2015 and he was sent to judicial custody till 07.04.2015 and since then the petitioner is in custody.

Although, the FIR was registered for offence under Section 376 IPC also but at the time of remand it was the case of prosecution itself that the petitioner has been found involved for offence under Section 306 IPC and for offence under Section 8 of the Protection of Children from Sexual Offences Act, 2012 (hereinafter to be referred as "the Act"). In the arrest memo dated 24.03.2015 also offence under Section 306 IPC and Section 8 of the Act were mentioned. It is to be noted that during investigation on 23.03.2015, a certificate regarding the age of deceased-prosecutrix was obtained from the concerned school and as per this certificate the date of birth of the prosecutrix is 10.08.1999 i.e. on the date of commission of the offences she was below the age of 18 years, but even then offence under Section 305 IPC was not added by the investigating agency. After investigation charge-sheet was filed against the petitioner and co-accused for offence under Section 305 IPC and Section 8 of the Act on 2.6.2015. The application for grant of bail under Section 439 read with Section 167(2) Cr.P.C. came to be filed on behalf of the petitioner on 28.05.2015 with averments that the period of sixty days as prescribed under proviso to Section 167(2) Cr.P.C. has expired on 23.05.2015 and the charge-sheet has not been filed within the prescribed period and, therefore, petitioner is entitled to be released on default bail, but the same was dismissed by the learned trial Court vide order dated 05.06.2015. In these circumstances, the present application for grant of bail has been filed before this Court.

It was submitted by the learned counsel for the petitioner that although initially the FIR was registered for offence under Section 376 IPC also but immediately after commencement of investigation it was found by the investigating agency that offence under Section 376 IPC is not made out and petitioner was arrested only for offence under Section 306 IPC and Section 8 of the Act and this fact was clearly mentioned not only in the memo of arrest dated 24.3.2015 but also in order of remand dated 25.03.2015. It was further submitted that when the investigation against petitioner was undertaken for offence under Section 306 IPC only for which under proviso to Section 167(2) Cr.P.C. maximum period of sixty days is prescribed within which after investigation charge-sheet can be filed and that period admittedly expired on 23.05.2015 whereas charge-sheet was filed on 02.06.2015 i.e. after expiry of prescribed period of sixty days and application for grant of bail was filed by petitioner on 28.05.2015, petitioner was entitled to be released on compulsory bail but the learned trial Court without appreciating the well settled legal position dismissed the application filed by the petitioner. It was also submitted that whether the period of sixty days or ninety days, as prescribed under proviso to Section 167(2) Cr.P.C. is applicable would dependent upon for what offence investigation was undertaken by the investigating agency against the accused and for what offence the accused has been arrested and not upon the offence for which FIR was registered or for which offence charge-sheet has been filed. It was submitted that in the present case as investigation against petitioner was undertaken for offence under Section 306 IPC and he was arrested for the same offence for which maximum sentence of imprisonment for ten years is prescribed, the period of sixty days is applicable and charge-sheet was to be filed at the most on 23.05.2015 and when it was not done, a valuable right accrued in favour of petitioner and he was entitled to be released on bail as a right on the basis of application filed on 28.05.2015 even if it was decided on 05.06.2015 i.e. after charge-sheet was filed on 02.06.2015.

So far as grant of bail to the petitioner on the merits of the case is concerned, it was submitted by the learned counsel for the petitioner that for an offence to be made under Section 305/306 IPC, it is to be shown that some act on the part of the petitioner was directly responsible for the suicide by the prosecutrix but in the present case, no iota of evidence could be collected during investigation even prima facie showing that suicide was committed by the prosecutrix as a result of some act or omission on the part of the petitioner.

In support of his submissions, learned counsel for the petitioner relied upon the cases of Gangula Mohan Reddy Vs. State of Andhra Pradesh, AIR 2010 SC 327 : (2010) CLT 876 : (2010) CriLJ 2110 : (2010) 1 JT 17 : (2010) 1 SCALE 1 : (2010) 1 SCC 750 : (2010) 1 SCR 7 : (2010) 1 UJ 142 : (2011) AIRSCW 1435 : (2010) AIRSCW 6188 : (2011) AIRSCW 12 : (2010) AIRSCW 337 : (2010) 7 Supreme 1003 : (2010) 7 Supreme 681 : (2009) 8 Supreme 550 , State of Maharashtra Vs. Bharati Chandmal Varma @ Ayesha Khan, AIR 2002 SC 285 : (2002) CriLJ 575 : (2002) 1 Crimes 218 : (2001) 10 JT 219 : (2001) 8 SCALE 367 : (2002) 2 SCC 121 : (2002) 1 UJ 233 : (2001) AIRSCW 5003 : (2001) 8 Supreme 577 , Bhikkan v. State of Rajasthan reported in RCC 2005 (3) 1443 and Mahaveer Prasad Sharma Vs. State of Rajasthan and Others, (2003) 3 WLC 252 : (2003) 3 WLN 25 .

On the other hand, learned Public Prosecutor submitted that although in the arrest memo dated 24.03.2015, it was mentioned that petitioner has been arrested for offence under Section 306 IPC and in the remand order dated 25.03.2015 also the same offence has been mentioned to have been committed by the petitioner but as after investigation charge-sheet has been filed under Section 305 IPC for which sentence of death or imprisonment for life is prescribed, as per proviso to Section 167(2) Cr.P.C. period of ninety days and not sixty days is applicable and when charge-sheet has been filed on 02.06.2015 well before the expiry of ninety days from the date of remand of the petitioner, petitioner is not entitled to be released on compulsory bail. It was further submitted that during the course of investigation as per school certificate, age of the deceased-prosecutrix was found to be below 18 years and, therefore, offence committed by petitioner was under Section 305 IPC and, therefore, period of remand applicable is required to be calculated in the light of the offence actually committed by the petitioner and not on the basis of offence mentioned in the arrest memo or remand order. It was submitted that undue advantage cannot be granted to the petitioner merely by the reason that in the arrest memo or remand order it was mentioned that the offence committed by petitioner is under Section 306 IPC. It also was submitted that it is due to lapses on the part of the investigating officer that offence under Section 306 IPC was mentioned, whereas on the basis of age of the prosecutrix it was clear that the offence is under Section 305 IPC. So far as grant of bail to the petitioner on merits is concerned, it was submitted that as per allegations made in the FIR and the evidence collected during investigation, it is clear that the prosecutrix committed suicide as a direct result of the act on the part of the petitioner. It was further submitted that after dismissal of the first application on merit there is no substantial change in the facts and circumstances of the case.

I have considered the submissions made on behalf of the respective parties and the material made available for my perusal including the evidence collected during investigation which has been placed on record by way of copy of the charge-sheet as well as the relevant legal provisions and the case law.

According to proviso to Section 167(2) Cr.P.C. no Magistrate shall authorize the detention of the accused-person in custody for a total period not exceeding 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 and where the investigation relates to any other offence for a total period not exceeding sixty days.

As per this provision maximum period for which an accused can be kept in custody will depend upon the offence for which the investigation is being undertaken by the investigating agency. In the present case, although FIR was registered for offence under Section 376 IPC also for which sentence of imprisonment for life is also prescribed, but as per remand order dated 25.03.2015 and memo of arrest dated 24.3.2015 petitioner was arrested for offence under Section 306 IPC on the finding that offence under Section 376 IPC has not been disclosed to have been committed by the petitioner, but at the same time it is also clear that before petitioner was arrested a certificate was obtained by the investigating officer on 23.03.2015 regarding the age of prosecutrix and according this certificate the prosecutrix was below the age of 18 years at the time of commission of offence, the actual offence committed by the petitioner was under Section 305 IPC but the investigating officer without appreciating this fact in a proper manner arrested the petitioner for offence under Section 306 IPC and at the time of remand also it was submitted that offence under Section 306 IPC has been found against the petitioner.

In the facts and circumstances of the case, I am of the considered view that undue advantage cannot be given to the petitioner merely by reason of lapses on the part of the investigating officer as even on 24.03.2015 and 25.03.2015, actual offence allegedly committed by the petitioner was under Section 305 IPC and not under Section 306 IPC. It must be held that investigation undertaken by the investigating agency was for offence under Section 305 IPC and not for offence under Section 306 IPC and in this view of the matter as per proviso to Section 167(2) Cr.P.C. period of ninety days and not sixty days is applicable and, therefore, petitioner is not entitled to be released on bail as a right merely on the ground that charge-sheet has been filed after period of sixty days.

So far as benefit of bail to the petitioner on merits is concerned, his first application was dismissed by this Court on merits by a reasoned order after considering each and every aspect of the matter including the gravity of the offence and the role attributed to him and thereafter, I found no substantial change in the facts and circumstances of the case so as to grant him benefit of bail. Merely because after is investigation charges-sheet has been filed it cannot be said that there is substantial change in the facts and circumstances of the case.

Consequently, the second bail application filed by the petitioner under Section 439 Cr.P.C. is, hereby, dismissed.