TMI Blog1986 (9) TMI 408X X X X Extracts X X X X X X X X Extracts X X X X ..... ered the police party a large amount as bribe if they were allowed to cross the Indo-Nepal Border. As a result of the search, a number of documents and other articles were seized. From the person of Simranjit Singh Mann were seized, a copy of a letter dated June 2, 1984 from Simranjit Singh Mann to the Chief Secretary, Punjab, a copy of the letter of resignation dated June 18, 1984 of Simranjit Singh Mann, the Passport of Simranjit Singh Mann, two photographs of Jarnail Singh Bhindrawala, a letter from Simranjit Singh Mann to Birbal Nath, a letter addressed to one Arun Kumar Agarwal asking him to help the bearer in all possible ways and Raghubir Singh. Kamikar Singh was the person who had made the offer of bribe. A First Information Report was then registered at the Jogbani Police Station for references under secs. 121-A, 124-A, 123, 153-A, 505 and 120-B of the Indian Penal Code and s. 5(iii) of the Prevention of Corruption Act. Investigation started. On December 11, 1985 a charge-sheet was submitted before the Judicial Magistrate First Class Araria against the five accused persons for offences under secs. 121-A, 123, 124-A, 153-A, 165-A, 505 and 120-B of Indian Penal Code. Befo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... jit Singh Mann was also directed to be released under the proviso to sec. 167(2) on his application on October 28, 1985. The same condition was imposed that the sureties should be from Araria. He furnished necessary sureties on October 29, 1985, but could not be released as he was under detention under the National Security Act. While so Gauri Shankar Jha who was a surety for all the five accused filed a petition and personally appeared in court praying that he may be discharged from suretyship as he did not want to continue to be a surety of the accused persons. On December 5, 1985 the learned Magistrate made an order discharging the surety and issuing formal warrants of arrest under s. 444(2) of the Code of Criminal Procedure. It was at that stage that the order of detention against Simranjit Singh Mann was quashed by the High Court of Punjab and Haryana on December 9, 1985. The charge-sheet in the court of the Judicial Magistrate First Class Araria was filed on December 14, 1985. The learned Magistrate took cognizance of the case under sections 121A, 123, 124A, 153A, 165A and 120-B Indian Penal Code on December 18, 1985. On the same day he also made an order that Simranjit Si ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion of the accused on the ground that the accused persons were merely trying to delay the disposal of the commitment proceedings. The advocate for the accused persons appears to have made a submission that the case was triable by the Court of Special Judge and therefore it should be transferred to him. The learned Magistrate held that cognizance had already been taken of the case by his court and the order taking cognizance could not be recalled. The question whether the case should be transferred to the court of Special Judge could be considered at the stage when the question whether there was a prima facie case was to be considered. The learned Magistrate then fixed January 18, 1986 as the date for furnishing copies of documents to the accused persons. On January 16, 1986 the learned Magistrate rejected an application by the accused other than Simranjit Singh for acceptance of cash deposit or in the alternative sureties from outside Araria town. The learned Magistrate held that he had no power to review his earlier order. They then moved to the High Court for Bail but that application was also rejected. On January 18, 1986, the learned Magistrate purported to transfer the reco ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n written by Simranjit Singh Mann to the President of India and others and investigation into these offences could not possibly take very long as all that was necessary was to examine the recipients of the letters. Yet the chargesheet was filed only in December, 1985 and even thereafter various tactics were adopted by the prosecution to prevent the trial of the case. According to Shri Jethmalani, the prosecution being fully aware that there was no merit in the allegations was merely trying to prolong the case as long as possible to harass the accused and to keep them in prison. He submitted that there was no material whatever to substantiate the offences of waging war etc. and that the proceedings deserved to be quashed on that ground also. He argued that if the offences of waging war etc. rested on the letters written by Simranjit Singh Mann to the President of India and the Chief Secretary, as indeed they were, then the prosecution could have been launched as soon as the letters were received. There was no need to launch the prosecution now and link it with the offence of bribery where the letters had been published in the daily press long ago. It was also submitted the proceedin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... by the wilfulness or the negligence of the prosecuting agency? Was any part of the delay caused by the tactics of the defence? Was the delay due to causes beyond the control of the prosecuting and defending agencies? Did the accused have the ability and the opportunity to assert his right to a speedy trial? Was there a likelihood of the accused being prejudiced in his defence? Irrespective of any likelihood of prejudice in the conduct of his defence, was the very length of the delay sufficiently prejudicial to the accused? Some of these factors have been identified in Barker v. Wingo (supra). A host of other questions may arise which we may not be able to readily visualise just now. The question whether the right to a speedy trial which forms part of the fundamental right to life and liberty guaranteed by Art. 21 has been infringed is ultimately a question of fairness in the administration of criminal justice even as 'acting fairly' is of the essence of the principles of natural justice (In re H.K. 1967(1) All ER 226) and a 'fair and reasonable procedure' is what is contemplated by the expression 'procedure established by law' in Art. 21(Maneka Gandhi). W ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e various other statements made in the letter. It is possible that the effect of some of those statements on the minds and actions of the susceptible could be disastrous. Simranjit Singh Mann, as a highly educated person and as a highly placed officer, was bound to emerge, on his dismissal from service, as a hero and martyr in the eyes of a certain section of the people. His statements would be accepted by them as gospel truths and pronouncements of the oracle on the basis of which they should act. If the letter remained addressed to the President and not publicised, it would cause little or no harm. But the letter though addressed to the president was clearly meant to be what is called an 'open letter', to be given wide publicity. Indeed its full text had been published in the daily press and the accused themselves had such a copy in their possession when they were stopped and searched. We do not know whether any of the accused' was responsible for the publicity and whether it was in pursuance of the conspiracy. It may be that Simranjit Singh Mann meant no harm and that the contents of the letter were no more than the vehement outpourings of a bitter, and distressed bu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aordinary law and order situation obtaining in various parts of the country necessitating the placing of a great additional burden on the police. We are satisfied that such delay as there was in the investigation of this case was not wanton and that it was the outcome of the nature of the case and the general situation prevailing in the country. We may also note in passing that the accused in the present case do not belong to the category of persons who are not well able to take care of themselves. They are persons who are capable of asserting their rights whenever and wherever necessary and who did in fact asserts their rights as and when necessary, as is evident from the number of petitions filed before the Magistrate, and the special judge, from time to time. We do not suggest that the ability of the accused to assert their rights should penalise them and still the voice of protest against the delay. But, as pointed out by Powell, J. in Barker v. Wingo (supra) and by Lord Templeman in Bell v. DPP of Jamaica, (supra) one of the factors to be considered in determining whether an accused person has been deprived of his right is the responsibility of the accused for asserting his ri ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 34 on the one hand and the offences under secs. 121 and 121A etc. on the other are questions which are awaiting the decision of the High Court of Patna and we leave those questions to be decided by the High Court. Another question which was raised before us was that the Special Judge, Purnea was chosen by the Executive Government to try the present case. The submission was that it was destructive of the very principle of Rule of law and Equality before the Law if the Prosecutor is to be permitted to have the Judge of his choice to try the case. Nothing as drastic as that suggested by Mr. Jethmalani has happened. All that has in fact happened is that a Special Judge's court was created for Purnea Division under sec. 6 of the Criminal Law Amendment Act and Shri Bindeshwari Prasad Verma, Additional District Judge, West Champaran, who was under orders of transfer as Additional District Judge, Bhagalpur was designated as the Special Judge. The case, Jogbani P.S. No. 110/84, was mentioned within brackets as that was apparently the only case awaiting trial in Purnea Division under the Criminal Law Amendment Act. A Special Judge's court was created for Purnea Division as it was ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... apitulate that the five accused persons were directed to be released on bail under the proviso(a) to s. 167(2) for the default of the prosecution in not completing the investigation within 60 days. It may be remembered that there was no provision corresponding to the proviso to sec. 167(2) in the old Code of Criminal Procedure. The proviso was introduced for the first time in the new Code of 1973. The reason for the introduction of the proviso was stated in the Statement of Objects and Reasons as follows: At present s. 167 enables the Magistrate to authorise detention of an accused in custody for a term not exceeding 15 days on the whole. There is a complaint that this provision is honoured more in the breach than in the observance and that the police investigation takes a much longer period in practice. The practice of doubtful legality has grown whereby the police file a preliminary or incomplete chargesheet and move the court for a remand under s. 344 which is not intended to apply to the stage of investigation. While in some cases, the delay in the investigation may be due to the fault of the police, it cannot be denied that there may be genuine cases where it may not be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... der for release on bail in their favour because of their inability to furnish bail straight away. Orders for release on bail are effective until an order is made under s. 437(5) or s. 439(2). These two provisions enable the Magistrate who has released an accused on bail or the court of Session or the High Court to direct the arrest of the person released on bail and to commit him to custody. The two provisions deal with what is known in ordinary parlance as cancellation of bail. Since release on bail under the proviso to s. 167(2) is deemed to be release on bail under the provisions of Chapter XXXIII, an order for release under the proviso to s. 167(2) is also subject to the provisions of s. 437(5) and 439(2) and may be extinguished by an order under either of these provisions. It may happen that a person who has been accepted as a surety may later desire not to continue as a surety. Section 444 enables such a person, at any time, to apply to a Magistrate to discharge a bond either wholly or so far as it relates to the surety. On such an application being made, the Magistrate is required to issue a warrant of arrest directing the person released on bail to be brought before him. On ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... no descretion to the court and to make it obligatory for it to release the accused on bail. Of course, it has been provided in proviso (a) that the accused released on bail under s. 167 will be deemed to be so released under the provisions of Chapter XXXIII and for the purposes of that Chapter. That may empower the court releasing him on bail, if it considers necessary so to do to direct that such person be arrested and committed to custody as provided in sub- section (5) of s. 437 occuring in Chapter XXXIII. It is also clear that after the taking of the cognizance the power of remand is to be exercised under s. 309 of the New Code. But if it is not possible to complete, the investigation within a period of 60 days then even in serious and ghastly types of crimes the accused will be entitled to be released on bail. Such a law may be a paradise for the criminals, but surely it would not be so, as sometimes it is supposed to be because of the courts. It would be so under the command of the Legislature. In Bashir v. State of Haryana, [1977] (4) SCC 410, the question arose whether a person who has been released under the proviso to s. 167(2) could later be committed to custody me ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... appellants were ordered to be arrested and committed to custody on the ground that subsequently a chargesheet had been filed and that before the appellants were directed to be released under Section 167(2) their bail petitions were dismissed on merits by the Session Court and the High Court. The fact that before an order was passed under Section 167(2) the bail petitions of the accused were dismissed on merits is not relevant for the purpose of taking action under Section 437(5). Neither is it a valid ground that subsequent to release of the appellants a challan was filed by the police. The Court before directing the arrest of the accused and committing them to custody should consider it necessary to do so under Section 437(5). This may be done by the Court coming to the conclusion that after the challan had been filed there are sufficient grounds that the accused had committed a non-bailable offence and that it is necessary that he should be arrested and committed to custody. It may also order arrest and committal to custody on other grounds such as tampering of the evidence or that his being at large is not in the interests of justice. But it is necessary that the Court should p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... beyond the reach of the sureties. He may abuse the liberty granted to him by indulging in similar or other unlawful acts. Where bail has been granted under the proviso to s. 167(2) for the default of the prosecution in not completing the investigation in sixty days, after the defect is cured by the filing of a chargesheet, the prosecution may seek to have the bail cancelled on the ground that there are reasonable grounds to believe that the accused has committed a non-bailable offence and that it is necessary to arrest him and commit him to custody. In the last mentioned case, one would expect very strong grounds indeed. In the present case, the High Court and following the High Court, the Special Judge have held that the order for release on bail came to an end with the passage of time on the filing of the chargesheet. That we have explained is not a correct view. The question now is what is the appropriate order to make? The order for release on bail was not an order on merits but was what one may call an order-on- default, an order that could be rectified for special reasons after the defect was cured. The order was made long ago but for one reason or the other, the accused f ..... X X X X Extracts X X X X X X X X Extracts X X X X
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