JITENDRA CHOUDHARY v. STATE OF BIHAR

Learned counsel for the petitioner submits that in view of the factual position appearing on record an indefeasible right had accrued to the petitioner (accused) to be released on bail in terms of the Provisions of the Act and the same cannot be defeated as the petitioner had already availed of his right. Before this court proceeds further it is considered apposite to notice relevant 3 Provisions of law as contained under Section 167(2) of the Code of Criminal Procedure. “ 2. The Magistrate to whom an accused person is forwarded under this section may, whether he has or has not jurisdiction to try the case, from time to time, authorize the detention of the accused in such custody as such Magistrate thinks fit, a term not exceeding fifteen days in the whole; and if he has no jurisdiction to try the case or commit it for trial, and considers further detention unnecessary, he may order the accused to be forwarded to a Magistrate having such jurisdiction: Provided that- (a) the Magistrate may authorize the detention of the accused person, otherwise than in the custody of the police, beyond the period of fifteen days, if he is satisfied that adequate grounds exist for doing so, but no Magistrate shall authorize the detention of the accused person in custody under this paragraph for a total period exceeding- (i) 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; (ii) sixty days, where the investigation relates to any other offence, and, on the expiry of the said period of ninety days, or sixty days, as the case may be, the accused persons 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 to released under the provisions of Chapter XXXIII for the purposes of that Chapter;] (b) no Magistrate shall authorize detention in any custody under this section unless the accused is produced before him; (c) no Magistrate of the second class, not specially empowered in this behalf by the High Court, shall authorize detention in the custody of the police. [Explanation I- For the avoidance of doubts, it is hereby declared 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 bail.] [Explanation II]- If any………………………..] Learned counsel for the petitioner referred to and relied 4 upon few Judgments of this Court. They are as follows: (i) 1999(1) PLJR 683 ~ 1999 (2) BLJ 14 Sutta Rai @ Laxman Rai Versus State of Bihar (ii) 1999(1) PLJR 689 ~ 1999 (2) BLJ 5 Babulal Yadav Versus State of Bihar (iii) PLJR 2001(2) SC 182, Uday Mohanlal Acharya versus State of Maharastra. Learned A.P.P., on the other hand, supported the order passed by the learned Magistrate. It has been contended that looking to the provisions contained under Explanation (I) to Section 167(2) the order granting bail can be effaced as before furnishing bail bond(s) the charge sheet was already submitted. The issue therefore, is whether in the particular facts of the case the petitioner is said to have availed of his indefeasible right to be released on bail and whether the same stood extinguished on receipt of charge sheet. This court from the judgment cited at the bar ( Uday Mohanlal Acharya Versus State of Maharastra) finds that somewhat identical issue was earlier considered and decided by the Apex Court notice whereof has been taken in paragraph no.7 ( at page 194 of the report). While considering its earlier judgment recorded in the case of State of Madhya Pradesh Versus Rustam and others ( 1995 Supp.(3) SCC 221) the following was observed: “…………The crucial question that arises for consideration, therefore, is what is the true meaning of the expression „if already not availed of‟? Does it 5 the moment he 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? In our considered opinion it would be more in consonance with the legislative mandate to hold that an accused must be held to have availed of his indefeasible right, 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. That apart, when accused files an application for bail indicating his right to be released as no challan had been filed within the specified period, there is no discretion left in the Magistrate and the only thing he is required to find out is whether the specified period under the statue has elapsed or not, and whether a challan has been filed or not. If the expression „availed of‟ is interpreted to mean that the accused must factually be released on bail, then in a given case where the Magistrate illegally refuses to pass an order notwithstanding maximum period stipulated in Section 167 had expired, and yet no challan had been filed then the accused could only move to the higher forum for consideration, if the prosecution files a charge-sheet then also the so called right accruing to the accused because of inaction on the part of the investigating agency would get frustrated. Since the legislature have given its mandate it would be the bounden duty of the Court to enforce the same and it would not be in the interest of justice to negate the same by interpreting the expression „ if not availed of‟ in a manner which is capable of being abused by the prosecution. Two judge Bench decision of this Court in State of M.P. vs. Rustam & ors. (supra) setting aside the order of grant of bail by the High Court on a conclusion that on the date of the order the prosecution had already submitted a police report and, therefore, the right stood extinguished, in our considered opinion, does not express the correct position in law of the expression “ if already not 6 availed of, used by the Constitution Bench in Sanjay Dutt (supra)…….” In the case of Uday Mohanlal Acharya…….(supra) dealing with the right to compulsive bail engrafted Under Section 167(2) of the Code the following submissions, inter alia, were advanced before the Hon’ble Apex Court by the learned Senior Counsel appearing on behalf of the accused/appellant. (i) The accused is prepared to furnish bail bond the same cannot be nullified by taking recourse to subterfuge and keeping the matter pending for passing of an order, allowing the prosecution to file a charge sheet. (ii) The accused had applied indefeasible right and therefore a corresponding duty on the Magistrate to release him on bail. (iii) On the date when the application was filed for his release under the Provisions of the Code and admittedly no charge sheet was filed on that point of time the Magistrate has absolutely no discretion left in him but to pass an order for his release. (iv) The subsequent filing of the charge sheet will not alter the position. (v) There is no Provision in the Criminal Procedure Code authorizing the detention of accused in custody after the expiry of the period indicated in the proviso 7 to sub section (2) of Section 167 excepting the contingency indicated in Explanation I. The Hon’ble Apex Court, having regard to the Provisions of Code and the relevant case laws on the subject held as under (at para 7, page 197 of the report):

1. Under sub-section (2) of Section 167, a Magistrate before whom an accused produced while the police is investigating into the offence can authorize detention of the accused in such custody as the Magistrate thinks fit for a term not exceeding 15 days in the whole.

2. Under the proviso to aforesaid sub-section (2) of Section 167, the Magistrate may authorize detention of the accused otherwise than 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.

3. 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 the period prescribed and the accused is entitled to be released on bail, if he is prepared to and furnish Magistrate. the bail, as directed by investigation within

4. When an 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 it of 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 Magistrate/Court will not prosecution to frustrate the object of the Act the part of enable 8 and the legislative mandate of an 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.

5. If the accused is unable to furnish bail, as directed by the Magistrate, then the conjoint reading of Explanation I and proviso to sub- section 2 of Section 167, the continued custody of the accused even beyond the specified period in paragraph (a) will not be unauthorized, and therefore, if during that period the investigation is complete and the so-called charge-sheet indefeasible right of the accused would stand extinguished.

6. The expression „ if not already availed of‟ used by this Court in Sanjay Dutt‟s case ( supra) 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 paragraph ( a) of 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.” Here is a case where the petitioner did avail of his right to be released on bail by filing an application seeking release from jail custody by permitting him to furnish bail bonds which was considered and allowed by the learned Magistrate after verifying from the office about the filing or non-filing of the charge sheet in the case. The court, having found that no charge sheet was filed by time the petitioner filed and pressed application for his release, passed an order directing his release on furnishing bail bond. If the aforesaid interpretation assigned to expression “ if 9 not availed of” is employed the answer would be that the petitioner was entitled to be released on bail in terms of the order passed on 01.06.2009 passed by the Learned Magistrate as admittedly no charge sheet was filed and received in the Court. Learned counsel submits that in the attending circumstances, the learned Magistrate was, in fact, not legally vested with a right to refuse bail when the same was filed and moved. It is, thus contended that the subsequent order passed on the same day at

12.45 P.M. is an order in breach of the Provisions of the Code. Having reflected over the rival submissions advanced on behalf of the parties and on consideration of the entire materials placed on the record, this court, is of the considered view that the petitioner had availed of his rights of compulsory bail as provided under the Code when there was admittedly no final form/charge sheet was filed. In fact, on verification, it was found that no charge sheet was submitted when the bail was pressed and accordingly learned Magistrate passed an order for his release on furnishing bail bonds. Subsequently, filing of charge sheet ( later in time), in my view, having regard to the proposition of law enumerated by the Hon’ble Supreme Court and taken note hereinabove, would not frustrate his rights to be released on bail in compliance of the earlier order passed on the same day when he had availed of his right and the learned Magistrate passed an order for his release. This view, in my view, will support and strengthen the purpose of the relevant provisions 10 of the Code. In the circumstances, the present application is allowed for the reasons stated above. The following part of the order dated 01.06.2009 is quashed and set aside. Later on (12.45 P.M.) - No bail bond has been filed on behalf of the petitioner and according to report of G.R. Clerk chargesheet has been submitted in this case so the privilege of bail granted to Jitendra Choudhary is extinguished.” Consequently, the learned Chief Judicial Magistrate Begusarai is directed to accept the bail bonds furnished by the petitioner in terms of the earlier order passed on 01.06.2009. The application is disposed of accordingly. Sym/ (Kishore K. Mandal, J.)