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Aslam Babalal Desai Versus State Of Maharashtra

CRL.A. 559 Of 1992 - Dated:- 15-9-1992 - A M.Ahmadi, M M.Punchhi And K Ramaswamy,JJ. ORDER A.M. Ahmadi,. 1. Special leave granted. 2. Can bail granted under the proviso to Sub-section (2) of Section 167 of the CrPC, 1973 (hereafter called 'the Code') for failure to complete the investigation within the period prescribed thereunder be cancelled on the mere presentation of the challan (charge-sheet) at any time thereafter? This is the question which we are called upon to answer in the back .....

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ng enlarged on bail That application was rejected. The appellant approached the High Court but later withdrew the application and then once again moved the Sessions Judge, Sangli for bail under the proviso to Section 167(2) of the Code on the ground that the investigation had not been completed within 90 days. The learned Sessions Judge by his order dated 11th March, 1991 directed the release of the appellant on bail. After the charge-sheet was submitted and the documents were tendered subsequen .....

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, on the ratio of this Court's decision in Rajnikant Jeevanlal Patel v. Intelligence Officer NCB, New Delhi it was open to the High Court to direct cancellation of the bail. On this line of reasoning the High Court cancelled the bail and directed the appellant to surrender to the bail. In obedience to that order the appellant has surrendered to his bail. These, in brief, are the facts which have a bearing on the question under consideration. 4. Sub-section (1) of Section 167 insofar as it is .....

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rate. Sub-section (2) of Section 167 which has bearing on the question under consideration may be extracted at this stage: 167(2) : The Magistrate to whom and accused person is forwarded under this section may, whether he has or has not jurisdiction to try the case, from time to time, authorise the detention of the accused in such custody as such Magistrate thinks fit, for 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 co .....

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ere 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 person 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 so released under the provis .....

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unnecessary, he is required to order the accused to be forwarded to a Magistrate having jurisdiction. Such Magistrate may authorise his detention beyond the period of 15 days if adequate grounds exist but no Magistrate can authorise the detention of the accused persons in custody for a total period exceeding 90 days or 60 days as the case may be depending on the nature of the crime alleged to have been committed. The proviso, therefore, fixes the outer limit within which the investigation must .....

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period of 90 days which was refused by the learned Sessions Judge since the offence allegedly committed was of a serious nature. However, unfortunately the investigating agency did not show urgency and did not complete the investigation within the maximum period allowed by the proviso to Section 167(2) and hence on the appellant making an application for release on bail, the learned Sessions Judge had no alternative but to direct that he be released on bail on his executing a bond for ₹ 5 .....

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the charge-sheet the investigating agency moved the High Court for cancellation of the bail under Section 439(2) of the Code. The High Court for reasons already stated earlier cancelled the bail and directed that the appellant be taken into custody. 5. Chapter XXXIII of the Code comprises Sections 436 to 450; of these Sections 437 and 439 have relevance so far as the question at issue is concerned. Sub-sections (1) & (2) of Section 437 insofar as relevant provide as under: 437-When bail may .....

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ment for life; (ii) Such person shall not be released if such offence is a cognizable offence and he had been previously convicted of an offence punishable with death, imprisonment for life or imprisonment for seven years or more, or he had been previously convicted on two or more occasions of a non-bailable and cognizable offence. (2) If it appears to such officer or Court at any stage of the investigation, inquiry or trial, as the case may be, that there are not reasonable grounds for believin .....

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to cause his arrest and commit him to custody, if it considers it necessary so to do. Section 439 empowers a High Court or a Court of Session to release any person accused of an offence and in custody on bail. Sub-section (2) next provides that a High Court or a Court of Session may direct that any person who has been released on bail under this Chapter be arrested and commit him to custody. It will thus be seen from the aforesaid two Sections that while power has been conferred on courts for gr .....

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it is necessary to bear in mind the scheme of the Code insofar as it relates to investigation on the criminal law having been set in motion by the filing of a First Information Report. Section 41 empowers any police officer to arrest any person without an order from the Magistrate or without a warrant in the cases catalogued at Clauses (a) to (i) of Sub-section (1) thereof. Section 57 next provides that the person arrested shall not be detained in custody by the police officer for a period long .....

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t to the court of Magistrate and no such person shall be detained in custody beyond the said period without the authority of the Magistrate. Sections 154 and 155 enjoin on an officer-in-charge of a police station to record every information relating to a cognizable or a non-cognizable offence. Section 156 empowers an officer-in-charge of a police station to investigate any cognizable offence without a formal order of a Magistrate. Such an investigation can also be undertaken, if empowered by a M .....

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st Magistrate before the expiry of 24 hours excluding the time consumed during journey to the Magistrate's court. If the investigation cannot be completed within the said period of 24 hours, the Magistrate before whom the accused person is produced, whether he has or has not jurisdiction to try the case, can authorise his further detention in custody from time to time for a period not exceeding 15 days in the whole. If he has no jurisdiction to try the case or commit for trial and considers .....

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r life or imprisonment for a term of not less than 10 years, or 60 days where the investigation relates to any other offence, if the accused person is prepared to furnish bail. In other words if on the expiry of the aforesaid period of 90/60 days, the accused person offers to furnish bail, the Magistrate is bound to release him on bail and such released shall be deemed to be under Chapter XXXIII of the Code. As pointed out earlier Chapter XXXIII which includes Sections 437 and 439 relevant for o .....

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on 344 (Section 309 under the Code) which really did not come into play during investigation. But it was at the same time realised that in genuine and complex cases the investigation may not be completed within the short period of 15 days even if the investigating agency proceeds with the utmost sense of urgency. The Law Commission had recommended that the period be increased to 60 days but it was apprehended that while this increase would become a rule, yet the practice of doubtful legality of .....

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he outer limit within which the investigation must be completed. While conferring a right on the accused to be released on bail it stated that the release so granted shall be deemed to be one under the provisions of Chapter XXXIII of the Code. So far as Chapter XXXIII is concerned, Section 437 has since undergone an amendment w.e.f. 23rd September, 1980, vide Criminal Procedure (Amendment) Act, 1980. It is not necessary to note the background of the amendment but it is sufficient to state that o .....

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islature has conferred on the court the power to grant bail as well as to cancel the same. Similarly Sub-section (1) of Section 439 empowers the High Court as well as the Court of Session to direct any accused person to be released on bail. Sub-section (2) thereof provides that the High Court or the Court of Session may cancel bail and direct that the person released on bail under Sub-section (1) be re-arrested and re-committed to custody. Here again the circumstances under which the court will .....

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death or imprisonment for life or imprisonment for a term exceeding 10 years. 7. We may now notice the case law on the subject. In Bashir and Ors. v. State of Haryana the FIR lodged against eleven persons disclosed the commission of an offence punishable under Sections 302/149 IPC. Eight of the eleven accused persons were released on bail but the bail application of the remaining three persons were rejected on the ground that they were the authors of the fatal injuries. The High Court too declin .....

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file the challans within the prescribed time and since the challans were filed, the Court should cancel their bail. The Sessions Judge allowed the application and ordered cancellation of the bail on the ground that on the filing of the challans the court had jurisdiction to do so. The High Court dismissed the appeal. Thereupon this Court was moved by special leave on the plea that once the bail is granted under Section 167(2) of the Code it cannot be cancelled on the mere filing of a challan bu .....

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there are not sufficient grounds to believe that he had committed a non-bailable offence may be committed to custody by court which released him on bail if it is satisfied that there are sufficient grounds for so doing after inquiry is completed. As the provisions of Section 437(1), (2) and (5) are applicable to a person who has been released under Section 167(2) the mere fact that subsequent to his release a challan has been filed is not sufficient to commit him to custody. In this case the ba .....

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on 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 comm .....

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s release a challan has been filed is not sufficient to cancel his bail. In such a situation his bail can be cancelled only if considerations germane to cancellation of bail under Section 437(5) or for that matter Section 439(2) exist. That is because the release of a person under Section 167(2) is equated to his release under Chapter XXXIII of the Code. 8. In Raghubir Singh and Ors. etc. v. State of Bihar a similar question came up for consideration. In that case on the night between 29th/30th .....

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tified the IPS officer and on search of their baggage a substantial cash was found with one of the occupants. A number of documents and other articles were also seized which established the identity of the fleeing IPS officer. On the basis of the information derived from the seizure of various documents, cash, etc., an FIR was registered for offences under Sections 121A, 123, 124A, 153A, 165A, 505 and 120B IPC and Section 5(3) of the Prevention of Corruption Act. However, before the submission o .....

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were in force. Subsequently the surety of all the five persons appeared in court and prayed to be discharged, whereupon the learned Magistrate passed an order discharging him and issued formal warrants of arrest under Section 444(2) of the Code. At this stage the detention order against the IPS officer came to be quashed. Subsequently the charge-sheet was filed in the court of the learned Magistrate by the police. The bail application of four of the accused was rejected and the High Court confir .....

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gistrate directing them to be released on bail under Section 167(2) had come to an end by the passage of time particularly after cognizance of the case was taken. Dealing with this contention this Court examined the scope of Section 167 read with Sections 437 and 439 of the Code and the ratio of the decision in Bashir's case and proceeded to observe as under: The order for release on bail may however be cancelled under Section 437(5) or Section 439(2). Generally the grounds for cancellation .....

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nable 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. Proceeding further while dealing with the facts on hand this Court observed: 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 l .....

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s, the long lapse of time since the original order for bail was made, the consequent change in circumstances and situation, and the directions that we have now given for the expeditious disposal of the case, we do not think that we will be justified in exercising our discretion to interfere under Article 136 of the Constitution in these matters at this stage. It will thus be seen that this Court came to the conclusion that once an order for release on bail is made under the proviso to Section 16 .....

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the final order which the court made was in the backdrop of the special facts and circumstances of the case. 9. In Rajinikant's case (supra), Shetty, J. sitting singly during vacation was concerned with a case in which the accused persons were arrested on 23rd March, 1988 by the officers of the Narcotic Control Bureau at Bombay. They were produced before the Additional Chief Metropolitan Magistrate, New Delhi and were remanded to judicial custody till 12th April, 1988. The remand order was .....

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Magistrate by his order dated 29th July, 1988 enlarged them on bail. The prosecution sought cancellation of the bail but the learned Magistrate did not accede to that request whereupon the High Court of Delhi was moved under Section 439(2) read with Section 482 of the Code. In that application the nature of offence committed, the part played by the accused, the gravity of the offence, etc., were set out. It was also mentioned that two of the accused persons had earlier absconded and as such the .....

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r for release on bail under proviso (a) to Section 167(2) may appropriately be termed as an order-on-default. Indeed, it is a release on bail on the default of the prosecution in filing charge-sheet within the prescribed period. The right to bail under Section 167(2) proviso (a) thereto is absolute. It is a legislative command and not court's discretion. If the investigating agency fails to file charge-sheet before the expiry of 90/60 days, as the case may be, the accused in custody should b .....

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er proviso (a) to Section 167(2) could be cancelled. 10. On this line of reasoning the learned Judge upheld the order of the High Court and refused to interfere. It may here be mentioned that this Court's decision in Bashir's case was not placed before the learned Judge. 11. On a conjoint reading of Sections 57 and 167 of the Code it is clear that the legislative object was to ensure speedy investigation after a person has been taken in custody. It expects that the investigation should b .....

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mum time allowed to the investigating agency was 15 days under Sub-section (2) of Section 167 failing which the accused could be enlarged on bail. From experience this was found to be insufficient particularly in complex cases and hence the proviso was added to enable the Magistrate to detain the accused in custody for a period exceeding 15 days but not exceeding the outer limit fixed under the proviso (a) to that sub-section. We may here mention that the period prescribed by the proviso has bee .....

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correlating the release on bail under Sub-section (2) of Section 167 with Chapter XXXIII, i.e. Sections 437 and 439 of the Code, was to treat the order as one passed under the latter provisions. Once the order of release is by fiction of law an order passed under Sections 437(1) or (2) or 439(1) it follows as a natural consequence that the said order can be cancelled under Sub-section (5) of Section 437 or Sub-section (2) of Section 439 on considerations relevant for cancellation of an order the .....

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is likelihood of his fleeing to another country, (vi) attempts to make himself scarce by going underground or becoming unavailable to the investigating agency, (vii) attempts to place himself beyond the reach of his surety, etc. These grounds are illustrative and not exhaustive. It must also be remembered that rejection of bail stands on one footing but cancellation of bail is a harsh order because it interferes with the liberty of the individual and hence it must not be lightly resorted to. 12. .....

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ke back in custody an accused who has been enlarged on bail has to be exercised with care and circumspection. That does not mean that the power though extraordinary in character must not be exercised even if the ends of justice so demand. 13. In Bhagirathsinha S/o Mahipat Singh Judeja v. State of Gujarat this Court observed that very cogent and overwhelming circumstances are necessary for an order seeking cancellation of the bail. Even where a prima facie case is established the approach of the .....

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lative history. As pointed out earlier the legislative history of Section 167 shows that by proviso (a) the detention period was enhanced to a maximum of 90 days from 15 days earlier allowed. When the Legislature made it obligatory that the accused shall be released on bail if the charge-sheet is not filed within the outer limit provided by proviso (a), it manifested concern for individual liberty notwithstanding the gravity of the allegation against the accused. It would not be permissible to i .....

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d to safeguard individual liberty and to protect the interest of administration of justice so as to prevent its failure. In the present case the High Court cancelled the bail solely on the ground that the bail was granted on technical grounds and the investigation revealed that there was eye-witness account disclosing the commission of a serious offence of murder. In its view the ratio of Rajnikant Jeevanlal Patel's case applies to the case with full vigour. We find it difficult to agree. 14 .....

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for which the arrested accused could be kept in custody. Therefore, the prosecuting agency must realise that if it fails to show a sense of urgency in the investigation of the case and omits or defaults to file a charge sheet within the time prescribed, the accused would be entitled to be released on bail and the order passed to that effect under Section 167(2) would be an order under Sections 437(1) or (2) or 439(1) of the Code. Since Section 167 does not empower cancellation of the bail, the .....

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that the prosecution has subsequently submitted a charge-sheet. Such a view would introduce a sense of complacency in the investigating agency and would destroy the very purpose of instilling a sense of urgency expected by Sections 57 and 167(2) of the Code. We are, therefore, of the view that once an accused is released on bail under Section 167(2) he cannot be taken back in custody merely on the filing of a charge-sheet but there must exist special reasons for so doing besides the fact that th .....

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investigation can be on pain of the accused being released on bail. The prosecution cannot be allowed to trifle with individual liberty if it does not take its task seriously and does not complete it within the time allowed by law. It would also result in avoidable difficulty to the accused if the latter is asked to secure a surety and a few days later be placed behind the bars at the sweet will of the prosecution on production of a charge-sheet. We are, therefore, of the view that unless there .....

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e. The matter is remitted to the High Court for reconsideration and disposal on merits in the light of the legal position hereinabove stated. M.M. Punchhi, J. 17. I have read with admiration the neat analysis and exposition of law in the judgment prepared by my learned brother Ahmadi, J. but respectfully, though regretfully, I have opted to differ. 18. The question, as it appears to me, which requires determination in this appeal rather is (in contrast to the one posed by brother Ahmadi, J.) whe .....

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he Code too, so far relevant to the facts of the instant case figuring in the said judgment would also bear no reproduction. It is to the case law developed by this Court that I venture to give an explanation which differs with the views thereon expressed by my learned brother Ahmadi, J. 20. A three-member Bench of this Court in State (Delhi Administration) v. Sanjay Gandhi made the following elemental distinction in defining the nature of exercise while cancelling bail: Rejection of bail when b .....

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1. The view of this Court ever since has been that when a decision of bail already made on merit, after due deliberation, is required to be reviewed on prayer for cancellation of bail, it would require the exercise to be undertaken with the necessary care and circumspection. Sanjay Gandhi's case arose in the backdrop of Section 439(2) of the Code whereunder the High Court or Court of Session can direct that any person who has been released on bail under Chapter XXXIII be arrested and committ .....

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ase has to be made out so as to secure cancellation of bail. Hence the apparent distinction in the approach of the Court while granting bail and cancelling bail. This field is covered entirely by judge-made law. 22. The Code designedly classifies offences bailable as well as non-bailable. Whereas bail is the rule in the case of bailable offences, in non-bailable offences it is left to the discretion of the Court. Designedly, serving a purpose, is the power of arrest and detention as an integral .....

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of State power permitting arrest and detention of an individual to ensure amongst others, domestic tranquillity and security of public and State. Hence the see-saw for and against bail witnessed in courts. The tests to be applied by courts in granting bail is by reference to many considerations, such as the nature of the accusation, the evidence in support thereof, the severity of punishment on conviction which would entail; the character, behaviour, means and standing of the accused etc. etc. B .....

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judicial exercise within judicially set out parameters. A bail order-on-default is, as goes the coined expression, a specie apart which involves no such deliberation and so cannot, in my understanding, be equated with bail orders passed on merit by a Court, other than a High Court or a Court of Session, under Sub-sections (1) & (2) of Section 437 or such a bail order passed by the High Court or Court of Session under Sub-section (1) of Section 439 of the Criminal Procedure Code. Such a Compu .....

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ssumes the content and character of bail orders on merit, of the-kind conceived of in Sub-sections (1) and (2) of Section 437 or Sub-section (1) of Section 439 of the Code. The deeming requirement of Section 167(2) puts the release on bail of such person as if under the provisions of Chapter XXXIII but only for the purposes of that Chapter. In other words, it means that by this fiction the provision is to be read as a part of Chapter XXXIII so that it invites the purposes of that Chapter such as .....

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t I have expressed above is available in a decision of a two-member Bench of this Court in Bashir and Ors. v. State of Haryana . The Bench observed at page 589 as follows: ...As under Section 167(2) a person who has been released on the ground that he had been in custody for a period of over sixty days is deemed to be released under the provisions of Chapter XXXIII, his release should be considered as one under Section 437(1) or (2). Section 437(5) empowers the court to direct that the person so .....

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ng 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 .....

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e-mentioned ground for cancellation, a ground singularly sufficient and special to an order-on-default, the court may also arrest and commit to custody such person on other grounds judicially noted and others relevant; such as tampering of evidence etc. The later hinted grounds are those grounds which normally weigh with a court while cancelling a merited bail under Section 437(5) when the bail in strict sensu has been granted on merit under Sub-sections (1) & (2) of Section 437. But a deeme .....

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case crops up only if it is understood that it takes a bail order under Section 167(2), as if an order on merit under Sub-sections (1) & (2) of Section 437. But if the fiction, as it appears to me, extends to the extent of the bail order being treated as if passed under Chapter XXXIII and that too under Sub-sections (1) and (2) of Section 437 read with the provisions of Section 167(2) as part and parcel of that chapter so that the bail order remains an order passed on default and not on meri .....

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7. The existence of such special ground for cancellation of bail, over and above the well known grounds for cancellation of bail, granted under Section 167(2) of the Code was re-affirmed and repeated in a decision of this Court by a two-member Bench in Raghubir Singh and Ors. etc. v. State of Bihar by stating as follows: Where bail has been granted under the proviso to Section 167(2) for the default of the prosecution is not completing the investigation in sixty days, after the defect is cured b .....

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the accused has to face at the trial. 29. Reghubir Singh's case was followed by a decision of a Vacation Judge of this Court in Rajnikant Jivanlal and Anr. v. Intelligence Officer, Narcotic Control Bureau, New Delhi . It was observed at page 536 as follows: An order for release on bail under proviso (a) to Section 167(2) may appropriately be termed as an order-on-default. Indeed, it is a release on bail on the default of the prosecution in filing charge-sheet within the prescribed period. T .....

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mmunicate the same to the accused to furnish the requisite bail bonds. 30. The accused cannot, therefore, claim any special right to remain on bail. If the investigation reveals that the accused has committed a serious offence and charge-sheet is filed, the bail granted under proviso (a) to Section 167(2) could be cancelled. (emphasis supplied) 31. On the analysis of the case law above discussed I have rather come to the conclusion that a compulsive bail order made by a Court under Section 167(2 .....

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ould not figure at the time to the grant of compulsive bail. The goal of the court in any event is to strike a judicial balance depending on the exigencies of the situation keeping in view amongst others the claims of personal liberty and the larger interests of the State. It cannot be overlooked that a bail order under Section 167(2) of the Code could even be managed through a convenient investigating officer, however henious be the crime. The Court would have to grant bail under the mandate of .....

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case in such a situation. 32. The High Court in the instant case when approached for cancellation of bail applied its mind on the merits of the case and had relied in Rajnikant Jeevan Lal's case (supra). In my view the High Court rightly relied on this decision when Raghubir Singh's case (supra) was the basis thereof. These two cases have summed up and have drawn the demarcation between bail orders granted on merit and bail granted under the compulsion and thrust of Section 167(2) of th .....

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crime as an active participant could lead the High Court to entertain the view that the appellant has committed a non-bailable offence which may invite capital punishment or imprisonment for life and that there were sufficient grounds to arrest him and commit him into custody. And on coming to that view. The strong ground for cancellation of bail was made out. The view of the High Court thus seems to me right. For the aforesaid reasons this appeal must fail and is accordingly dismissed. K. Ramas .....

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al is whether the liberty had by the accused by statutory operation of the proviso to Section 167(2) of the CrPC, 1973, for short 'the Code' ipso facto is co-terminus with the filing of the charge-sheet (challan) under Section 173 of the Code. 35. The laying of the information under Section 154 either orally or in writing of the commission of a cognizable offence sets the Criminal Law in motion and the investigating officer under Section 156 acquires power to investigate into those offen .....

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ascertainment of the facts and circumstances of the case; and (c) discovery and arrest of the suspected offender. Section 41 empowers, him without an order from a Magistrate and without a warrant, to arrest any person concerning the said cognizable offence or when entertained reasonable suspicion, a reasonable complaint or on having credible information, in the circumstances enumerated thereunder. Section 57(61 of the old Code) entitles the investigation officer to detain the arrested person in .....

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ary for the journey from the place of the arrest to the Court of the Magistrate and no such person shall be detained in custody beyond the said period without the authority of a Magistrate. Clause (3)(b) lifts the rigour when the person is arrested under the provision of the Code or preventive detention law providing for preventive detention. In other words the precious personal liberty would be deprived only according to law. The intendment of Section 57 appears to be that investigation needs c .....

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e Magistrate whether he has or has not jurisdiction to try the case, if he thinks fit to extend the detention of the accused from time to time and authorise the detention of the accused in the custody. So, however, it shall not exceeding 15 days as a whole. If he has no jurisdiction to try the case or committing it for trail and considers further detention unnecessary, he may order the accused to be forwarded to a Magistrate having such jurisdiction. The proviso thereto further enjoins that the .....

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60 days, where the investigation relates to any other offence. On his satisfying that the period of 90 or 60 days, as the case may be, has been expired the accused shall be released on bail if he is prepared to and does furnish the bail. Every person, so released on bail, shall be deemed to be released under the provisions of Chapter XXXIII for the purposes of that Chapter. Under Clause (b) of Sub-section (2) of Section 167 production of the accused before the Magistrate is mandatory before aut .....

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tinue in an appropriate case, the investigation and also obtain detention (police custody or judicial custody) to a maximum of 90/60 days based on the nature of offences. On its failure to complete the investigation and filing the charge-sheet under Section 173, the law mandates the Magistrate to have the accused relased, if he is prepared to and does furnish the bail. The expression "the accused person shall be released on bail" indicates the legislative mandatory duty of the Magistra .....

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police and if further detention within the outer limit is necessary, the reason for such detention in writing shall be laid before the Magistrate concerned and the detention is not a matter of course. Whenever the further detention was asked for and is necessary, the Magistrate shall be satisfied from the report of the investigation in the diary, which is the source. The power of remand during investigation was an integral part of process which is meant to be exercised to aid collection of evid .....

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iminary charge-sheet and moved the court for remand under Section 309(344 of old code), which he is not entitled to apply to such remand during investigation. The power for completion of the investigation with police or judicial custody of the accused after 15 days was thus extended up to 90/60 days, as the case may be under Clauses (i) and (ii) of the Clause (a) of the provision to Sub-section (2) of Section 167. This was meant to expedite investigation and to inculcate the sense of its urgency .....

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scussion in that behalf as well. 39. In Natabar Parida and Ors. v. State of Orissa [1975] Crl. L.J. 1212 a two judge Bench, at the earliest considered, the scope of the proviso and held thus: The command of the Legislature in proviso (a) is that the accused person has got to be released on bail if he is prepared to and does furnish bail and cannot be kept in detention beyond the period of 60 days even if the investigation may still be proceeding. In serious offences of criminal conspiracy-murder .....

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be so released under the provisions of Chapter XXXIII and for the purposes of that Chapter. That may empower 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 Section 437 occurring in Chapter XXXIII. It is also clear that after the taking of the cognizance the power of remand is to be exercised under Section 309 of the New Code. But if it is not p .....

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ddy, J. in Central Bureau of Investigation v. Anupam J. Kulkarni and it was stated in the context of construing whether the accused would be kept in the police or judicial custody after the expiry of 15 days under Sub-section (2) of Section 167 thus : "Now coming to the object and scope of Section 167, it is well settled that it is supplementary to Section 57, It is clear from Section 57 that the investigation should be completed in the first instance within 24 hours, if not the arrested pe .....

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ngroo. Investigation was not completed within 90 days. As a result the accused (though bail was refused on merit earlier) released on bail by operation of the proviso to Section 167(2) of the Code. On filing the charge-sheet (challan), the Magistrate cancelled the bail and committed the accused to the Sessions Court. Cancellation of bail was questioned. Ultimately in the appeal this Court held that: A person accused of a non-bailable offence may be released by a court but he shall not be so rele .....

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but there are sufficient grounds for further inquiry into his guilt, pending such inquiry, the accused shall be released on bail. Sub-section (5) to Section 437 is important. It provides that any court which has released a person on bail under Sub-section (2), may, if it considers it necessary so to do, direct that such person be arrested and commit him to custody. xxx xxx xxx The fact that before an order was passed under Section 167(2), the bail petitions of the accused were dismissed on meri .....

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in this : An order for release on bail made under the proviso to Section 167(2) is not defeated by lapse of time, the filing to the charge-sheet or by remand to custody under Section 309(2). The order for release on bail may however be cancelled under Section 437(5) or Section 439(2). Generally the grounds for cancellation of bail, broadly, are, interference or attempt to interfere with the due course of administration of justice, or evasion or attempt to evade the course of justice, or abuse o .....

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under the proviso to Section 167(2) for the default of the prosecution in not completing the investigation in not completing the investigation in 60 days, after the defect is cured by the filing of a charge-sheet, 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 stro .....

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the investigating officer in completing the investigation and laying the charge-sheet within the prescribed period of 90/60 days and not on merits. The fiction of law under the proviso applying the provisions in Chapter XXXIII is to serve the purpose of law, namely not only the release of the accused on taking the requisite bond and conditions to be incorporated therein as envisaged in the said Chapter, but also the power of the court to cancel the bail and to take the accused into detention for .....

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the court to cancel the bail, if circumstances warrant to take the accused into custody. At the earliest this Court in Natabar Parida's case also took note of the fact that even under Section 167(2) proviso, it might not be possible to complete the investigation into grave crimes within the outer limit of the time set out in the proviso. In the light of the statutory animation to have the accused released from detention on expiry of 90/60 days if the accused shall be prepared to and does fur .....

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ion. Liberty of the individual and security and order in the society or public order are delicate and yet paramount considerations. Undue emphasis on either would impede harmony and hampers public good as well as distrub social weal and peace. To keep the weal balanced, must be the prime duty of the Judiciary. The purpose of the proviso to Section 167(2) read with Chapter XXXIII of the Code is to impress upon the need for expeditious completion of the investigation by the police officer within t .....

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heet (challan) is not by itself relevant to have the bail cancelled on committing the accused for trial or taking cognizance of the offence. As emphasised by this Court in Bashir's and Raghubir's cases, on curing the defect by filing the charge-sheet (challan) if the prosecution seeks 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 and commit him into the custody .....

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