AI Structured Summary
Not yet generated for this judgment
Judgment
H.N. Nagamohan Das
Petitioners are accused Nos. 1 to 4 in Crime No. 64/2012 for the offences punishable under Sections 302 & 201 IPC. The date of offence is 06.02.2012 and on the same day the police registered the case against the petitioner. On 1.9.03.2012, the petitioners were arrested and remanded to judicial custody. Within the statutory period of 90 days the respondent police have not filed the charge sheet. On 93rd day i.e., on 19.06.2012, the petitioners filed an application u/s 167(2) Cr. P.C. to enlarge them on bail. Thereafter on 95th day i.e., on 21.06.2012, the respondent police filed the charge sheet. The jurisdictional Magistrate by following the law laid down by the Apex Court in Pragyna Singh Thakur Vs. State of Maharashtra case reported in AIR SCW 5551 passed the impugned order rejecting the application filed by the petitioners. Therefore, the petitioners are before this Court.
Heard arguments on both the side and perused the entire petition papers.
The Supreme Court in Uday Mohanlal Acharya Vs. State of Maharashtra, considered the scope of Section 167(2) of the Criminal Procedure and held as under:
Under sub-section (2) of Section 167, a Magistrate before whom an accused is produced while the police is investigating into the offence can authorise detention of the accused in such custody as the Magistrate thinks fit for a term not exceeding 15 days on the whole.
Under the proviso to the aforesaid sub-section (2) of Section 167, the Magistrate may authorise detention of the accused otherwise than in the custody of police for a total period not exceeding 90 days where the investigation relates to offence punishable with death, imprisonment for life or imprisonment for a term of not less than 10 years, and 60 days where the investigation relates to any other offence.
On the expiry of the said period of 90 days or 60 days, as the case may be, an indefeasible right accrues in favour of the accused for being released on bail on account of default by the investigating agency in the completion of the investigation within the period prescribed and the accused is entitled to be released on bail, if he is prepared to and furnishes the bail as directed by the Magistrate.
When and application for bail is filed by an accused for enforcement of his indefeasible right alleged to have been accrued in his favour on account of default on the part of the investigating agency in completion of the investigation within the specified period, the Magistrate/court must dispose of it forthwith, on being satisfied that in fact the accused has been in custody for the period of 90 days or 60 days, as specified and no charge-sheet has been filed by the '' investigating agency. Such prompt action on the part of the Magistrate/court will not enable the prosecution to frustrate the object of the Act and the legislative mandate of art accused being released on bail on account of the default on the part of the investigating agency in completing the investigation within the period stipulated.
If the accused is unable to furnish the bail as directed by the Magistrate, then on a conjoint reading of Explanation I and the proviso to sub-section (2) of Section 167, the continued custody of the accused even beyond the specified period in para (a) will not be unauthorised, and therefore, if during that period the investigation is complete and the charge-sheet is filed then the so-called indefeasible right of the accused would stand extinguished.
The expression "if not already availed of used by this Court in Sanjay Dutt case must be understood to mean when the accused files an application and is prepared to offer bail on being directed. In other words, on expiry of the period specified in para (a) of the proviso to sub-section (2) of Section 167 if the accused files an application for bail and offers also to furnish the bail on being directed, then it has to be held that the accused has availed of his indefeasible right even though the court has not considered the said application and has not indicated the terms and conditions of bail, and the accused has not furnished the same.
The judgment of the Supreme Court in Pragyna Singh Thakur''s case is by two judges. On the other hand in Uday Mohanlal Acharya''s case, it is by a full Bench of three Judges. Therefore, the judgment of the full bench prevails over the judgment of the Division Bench. The jurisdictional Magistrate while passing the impugned order committed an error in not considering the judgment of the Supreme Court in Uday Mohanlal Acharya''s case. For the reasons stated above the following order is passed:
ORDER
i. The petition is hereby allowed.
ii. Impugned order dated 23.06.2012 passed by the jurisdictional Magistrate in Crime No. 64/2012 is hereby set aside.
iii. The petitioners are enlarged on bail on the following conditions:-
a) The petitioners shall execute a personal bond for a sum of Rs. 50,000/- (Rupees Fifty Thousand only) each with two local solvent sureties for the like sum to the satisfaction of the jurisdictional Magistrate.
b) On all hearing dates, the petitioners shall appear before the trial Court.
c) The petitioners shall not in any manner tamper with the prosecution witnesses.
Violation of any one of the conditions above will result in cancellation of bail order. Ordered accordingly.