TMI Blog2014 (6) TMI 1018X X X X Extracts X X X X X X X X Extracts X X X X ..... accused to file a rejoinder affidavit by the time the initial period provided under the statute had expired. There was no question of any contest as if the application for extension had been filed prior to the expiry of time. A Court cannot act to extinguish the right of an accused if the law so confers on him. Law has to prevail. The prosecution cannot avail such subterfuges to frustrate or destroy the legal right of the accused. Such an act is not permissible. There are no error in the order of the High Court in overturning the order refusing bail and extending the benefit to the respondent - appeal dismissed. - CRIMINAL APPEAL NO. 786 OF 2010 - - - Dated:- 30-6-2014 - Dipak Misra and N. V. Ramana, JJ. JUDGEMENT Dipak Misra, J. The present appeal, by special leave, is directed against the order dated 4.3.2008 passed by the learned Single Judge of the High Court of Judicature at Patna in Criminal Misc. No. 44042 of 2007 enlarging the respondent on bail solely on the ground that he was entitled to the benefit under the proviso appended to Section 167(2) CrPC of Criminal Procedure (for short the CrPC ). The antecedent essential facts are that the respon ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing unsuccessful in getting admitted to bail, the accused-respondent approached the High Court in Criminal Misc. No. 44042 of 2007 and the learned single Judge who dealt with the application, after referring to the decision in Hitendra Vishnu Thakur v. State of Maharahstra[(1994) 4 SCC 602] and placing reliance on the dictum in Uday Mohanlal Acharya v. State of Maharahstra[(2001) 5 SCC 453], came to hold that the right had already accrued to the respondent on 14.3.2007 when he had moved the application for grant of bail and, accordingly, admitted him to bail on certain conditions. We have heard Mr. P.K. Dey, learned counsel for the appellant and Ms. Prerna Singh, learned counsel for the respondent. Calling in question the legal acceptability of the order, it is submitted by Mr. Day that the High Court has been totally misguided by placing reliance upon the law laid down in Harindra Vishnu Thakur (supra) without apprising itself about the Constitution Bench decision in Sanjay Dutt v. State[(1994) 5 SCC 410] which makes the order unsustainable. It is urged by him that when the application for bail was filed on the ground that the charge-sheet was not filed within ninety days, a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d Court or the period of extension has also expired, the accused person would be entitled to move an application for being admitted to bail under sub- section (4) of Section 20 TADA read with Section 167 of the Code and the Designated Court shall release him on bail, if the accused seeks to be so released and furnishes the requisite bail. We are not impressed with the argument of the learned counsel for the appellant that on the expiry of the period during which investigation is required to be completed under Section 20(4) TADA read with Section 167 of the Code, the court must release the accused on bail on its own motion even without any application from an accused person on his offering to furnish bail. In our opinion an accused is required to make an application if he wishes to be released on bail on account of the default of the investigating/prosecuting agency and once such an application is made, the court should issue a notice to the public prosecutor who may either show that the prosecution has obtained the order for extension for completion of investigation from the court under clause (bb) or that the challan has been filed in the Designated Court before the expiry of th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ction (4) of Section 20 of the TADA Act indicating the nature of right of an accused to be released on bail thereunder, on the default to complete investigation within the time allowed therein; and (3) The proper construction and ambit of sub-section (8) of Section 20 of the TADA Act indicating the scope for bail thereunder. A contention was raised before the Constitution Bench that the two-Judge Bench decision in Hitendra Vishnu Thakur (supra) read in the context of final order made therein raised some ambiguity about the meaning and effect of Section 20(4)(bb) of the TADA Act. Adverting to the interpretation of the said provision and scanning the anatomy, the larger Bench observed thus: - 43. Section 20 of the TADA Act prescribes the modified application of the Code of Criminal Procedure indicated therein. The effect of sub-section (4) of Section 20 is to apply Section 167 of the Code of Criminal Procedure in relation to a case involving an offence punishable under the TADA Act subject to the modifications indicated therein. One of the modifications made [pic]in Section 167 of the Code by Section 20(4) of the TADA Act is to require the investigation in any offence under the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... court with the challan. Mr. Dey has drawn inspiration from paragraphs 48 and 49 of the said decision which we think should be reproduced: - 48. We have no doubt that the common stance before us of the nature of indefeasible right of the accused to be released on bail by virtue of Section 20(4)(bb) is based on a correct reading of the principle indicated in that decision. The indefeasible right accruing to the accused in such a situation is enforceable only prior to the filing of the challan and it does not survive or remain enforceable on the challan being filed, if already not availed of. Once the challan has been filed, the question of grant of bail has to be considered and decided only with reference to the merits of the case under the provisions relating to grant of bail to an accused after the filing of the challan. The custody of the accused after the challan has been filed is not governed by Section 167 but different provisions of the Code of Criminal Procedure. If that right had accrued to the accused but it remained unenforced till the filing of the challan, then there is no question of its enforcement thereafter since it is extinguished the moment challan is filed be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on Bench of this Court in Hitendra Vishnu Thakur. The requirement of such notice to the accused before granting the extension for completing the investigation is not a written notice to the accused giving reasons therein. Production of the accused at that time in the court informing him that the question of extension of the period for completing the investigation is being considered, is alone sufficient for the purpose. (2)(b) The indefeasible right of the accused to be released on bail in accordance with Section 20(4)(bb) of the TADA Act read with Section 167(2) of the Code of Criminal Procedure in default of completion of the investigation and filing of the challan within the time allowed, as held in Hitendra Vishnu Thakur is a right which ensures to, and is enforceable by the accused only from the time of default till the filing of the challan and it does not survive or remain enforceable on the challan being filed. If the accused applies for bail under this provision on expiry of the period of 180 days or the extended period, as the case may be, then he has to be released on bail forthwith. The accused, so released on bail may be arrested and committed to custody according ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... bail. After so stating the Court proceeded to state that when the High Court entertained the petition for bail and granted it to the respondents therein, undeniably the challan stood filed in the court and, therefore, the indefeasible right for getting bail was not available. In Mohammed Iqbal Madar Sheikh and others v. State of Maharshtra[(1996) 1 SCC 722], while interpreting the proviso (a) to sub-section (2) of Section 167 CrPC in the context of TADA, the three-Judge Bench opined thus: - It need not be pointed out or impressed that in view of a series of judgments of this Court, this right cannot be defeated by any court, if the accused concerned is prepared and does furnish bail bonds to the satisfaction of the court concerned. Any accused released on bail under proviso (a) to Section 167(2) of the Code read with Section 20(4)(b) or Section 20(4)(bb), because of the default on the part of the investigating agency to conclude the investigation, within the period prescribed, in view of proviso (a) to Section 167(2) itself, shall be deemed to have been so released under the provisions of Chapter XXXIII of the Code. It cannot be held that an accused charged of any offen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... p the applications for bail pending for some days so that in the meantime, charge-sheets are submitted. Any such act on the part of any court cannot be approved. If an accused charged with any kind of offence becomes entitled to be released on bail under proviso (a) to Section 167(2), that statutory right should not be defeated by keeping the applications pending till the charge-sheets are submitted so that the right which had accrued is extinguished and defeated. [Emphasis supplied] In Uday Mohanlal Acharya (supra) the majority, after referring to the Constitution Bench decision in Sanjay Dutt s case, posed the question about the true meaning of the expression of the following lines:- the indefeasible right accruing to the accused in such a situation is enforceable only prior to the filing of the challan and it does not survive or remain enforceable on the challan being filed, if already not availed or Answering the said question the court observed thus:- Does it 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 b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... if already not availed of , used by the Constitution Bench in Sanjay Dutt. [Emphasis supplied] After so stating the court referred to Makhan Singh Tarsikka v. State of Punjab[AIR 1952 SC 27], Ram Narayan Singh (supra) and A.K. Gopalan (supra) and proceeded to state as follows:- In interpreting the expression if not availed of in the manner in which we have just interpreted we are conscious of the fact that accused persons in several serious cases would get themselves released on bail, but that is what the law permits, and that is what the legislature wanted and an indefeasible right to an accused flowing from any legislative provision ought not to be defeated by a court by giving a strained interpretation of the provisions of the Act. In the aforesaid premises, we are of the considered opinion that an accused must be held to have availed of his right flowing from the legislative mandate engrafted in the proviso to sub- section (2) of Section 167 of the Code if he has filed an application after the expiry of the stipulated period alleging that no challan has been filed and he is prepared to offer the bail that is ordered, and it is found as a fact that no challan has been f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion on the part of the Magistrate/court will not enable the prosecution to frustrate the object of the Act 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 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. [pic]6. The expression if not already availed of used by this Court in Sanjay Dutt case3 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... case is adjourned by the court granting time to the prosecution not adverting to the application filed on behalf of the accused, it would be a violation of the legislative mandate. The principle stated in Uday Mohanlal Acharya (supra) is a binding precedent on us. Mr. Dey, learned counsel appearing for the appellant, made a feeble endeavour that it is a two-Judge Bench decision and it runs contrary to the principle stated in Sanjay Dutt s case and hence, it should be treated as per incuriam. Both the facets of the submission are absolutely fallacious. It is a judgment rendered by a three-Judge Bench and not by a two-Judge Bench simply because there is a dissenting opinion. Secondly, the judgment has not been rendered in ignorance of a binding precedent but, on the contrary, it has directly dealt with the decision in Sanjay Dutt (supra), appreciated, understood and analysed the principles stated therein and culled out the conclusions and, therefore, by no stretch of imagination it can be held to be per incuriam. Even if a two-Judge Bench or a three-Judge Bench disagrees with the view expressed in Uday Mohanlal Acharya (supra), it has to be referred to a larger Bench. As we notice, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ons advanced at the Bar, this Court held thus:- 17. It was then contended on behalf of the appellant that the appellant having acquired an indefeasible right to be released on bail on the expiry of 90 days from the date of his arrest, the Special Judge was not justified in rejecting the application for grant of bail which was filed on 14-7- 2003. By then the charge-sheet had not been submitted by the police and, hence, there was no reason to continue the detention of the appellant. 18. This submission overlooks the fact that by an order dated 11-7-2003 the Court had granted extension of time to the investigating agency to complete the investigation. Thus on 14-7-2003 when an application was filed for grant of bail under Section 167(2) of the Code of Criminal Procedure, [pic]there was already an order extending the time for completion of the investigation, and consequently the Court was empowered to remand the accused to judicial or police custody during the said extended period. The purpose of citing the aforesaid decision is that an application for grant of extension was filed prior to the expiry of ninety days and the same was granted and, therefore, the indefeasible righ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... thereupon was illegal and invalid and by reason thereof, the valuable right of the appellant to be released on bail had been taken away; and (ii) even if the charge-sheet was legal, the right of the appellant under sub-section (2) of Section 167 CrPC continued to remain available in the facts and circumstances of the case. Noting the contentions, the Court adverted to the power conferred under the statute under Section 173 CrPC and, eventually, opined as follows: - 24. Concededly, the investigating agency is required to complete investigation within a reasonable time. The ideal period therefor would be 24 hours, but, in some cases, it may not be practically possible to do so. Parliament, therefore, thought it fit that remand of the accused can be sought for in the event investigation is not completed within 60 or 90 days, as the case may be. But, if the same is not done within the stipulated period, the same would not be detrimental to the accused and, thus, he, on the expiry thereof would be entitled to apply for bail, subject to fulfilling the conditions prescribed therefor. 25. Such a right of bail although is a valuable right but the same is a conditional one; the condit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ceases. Such a right does not revive only because a further investigation remains pending within the meaning of sub- section (8) of Section 173 of the Code. As the aforesaid decision has been assiduously relied upon by Mr. Dey to pyramid his submission of statutory interpretation, the right of the accused and concept of remand, we have dealt with the same in detail. The ultimate conclusion, as we perceive, is that once a charge-sheet is filed the benefit of proviso appended to sub-section (2) of Section 167 CrPC ceases and it does not revive solely because the further investigation remains pending. In the said case the Court declined to interfere as the benefit was denied to the accused as the charge-sheet was filed and cognizance had been taken on which basis a non-bailable warrant of arrest was issued. Thus, the said decision does not render any assistance to the learned counsel for the appellant. In Union of India v. Hassan Ali Khan and another [(2011) 10 SCC 235], a two-Judge Bench, while adverting to the submission of the learned counsel for the Union of India pertaining to the three-Judge Bench decision in Uday Mohanlal Acharya (supra), has understood the said decision in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pplication was dismissed by the learned Magistrate. Thereafter, the matter was referred by the learned Chief Metropolitan Magistrate to the learned District and Sessions Judge, who directed that judicial custody of the accused-appellant be extended. The aforesaid order of the learned Sessions Judge was assailed before the High Court under Section 482 CrPC and the High Court stayed the operation of the order passed by the learned Additional Sessions Judge dated 28.6.2012 and, therefore, the application for grant of statutory bail could not be taken up by the learned Additional Sessions Judge till the High Court vacated the order of stay on 13.7.2012. As has been stated earlier, the accused moved an application for grant of bail under Section 167(4) and the same was listed for consideration on 17.7.2012. In the meantime, revision petition came before the learned Additional and Sessions Judge, who allowed the application and opined that the custody of the accused was illegal. In view of the order passed by the learned Additional Sessions Judge declaring the custody of the accused to be illegal, on the same day an application under Section 167(2) CrPC was filed before the learned Chief ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Chief Metropolitan Magistrate untenable, it could not also defeat the statutory right which had accrued to the appellant on the expiry of 90 days from the date when the appellant was taken into custody. Such right, as has been commented upon by this Court in Sanjay Dutt and the other cases cited by the learned Additional Solicitor General, could only be distinguished (sic extinguished) once the charge-sheet had been filed in the case and no application has been made prior thereto for grant of statutory bail. It is well-established that if an accused does not exercise his right to grant of statutory bail before the charge-sheet is filed, he loses his right to such benefit once such charge-sheet is filed and can, thereafter, only apply for regular bail. Thereafter, the Court opined thus: - 26. The circumstances in this case, however, are different in that the appellant had exercised his right to statutory bail on the very same day on which his custody was held to be illegal and such an application was left undecided by the Chief Metropolitan Magistrate till after the application filed by the prosecution for extension of time to complete investigation was taken up and orders were ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... challenged, apart from the fact that Article 22(2) is not available against a court i.e. detention pursuant to an order passed by the court. xxx xxx xxx 51. Though this Court has come to the conclusion that the appellant has not been able to establish that she was arrested on 10-10-2008, even if it is assumed for the sake of argument that the appellant was arrested on 10-10- 2008 as claimed by her and not on 23-10-2008 as stated by the prosecution, she is not entitled to grant of default bail because this Court finds that the charge-sheet was filed within 90 days from the date of first order of remand. In other words, the relevant date of counting 90 days for filing the charge-sheet is the date of first order of the remand and not the date of arrest. This proposition has been clearly stated in Chaganti Satyanarayana v. State of A.P.[ (1986) 3 SCC 141] To arrive at the said conclusion, reliance was also placed on Chaganti Satyanarayana (supra), CBI v. Anupan J. Kulkarni [(1992) 3 SCC 141], State v. Mohd. Ashraft Bhat [(1996) 1 SCC 432], State of Maharashtra v. Bharati Chandmal Varma[(2002) 2 SCC 121] and Rustam (supra). After so stating, the Court addressed to the entitle ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... et is filed, the said right to be released on bail, can be only on merits. So far as merits are concerned the learned counsel for the appellant has not addressed this Court at all and in fact bail is not claimed on merits in the present appeal at all. [Emphasis added] At this juncture, it is absolutely essential to delve into what were the precise principles stated in Uday Mohanlal Acharya s case and how the two- Judge Bench has understood the same in Pragyna Singh Thakur (supra). We have already reproduced the paragraphs in extenso from Uday Mohanlal Acharya s case and the relevant paragraphs from Pragyna Singh Thakur (supra). Pragyna Singh Thakur (supra) has drawn support from Rustam and others case to buttress the principle it has laid down though in Uday Mohanlal Acharya s case the said decision has been held not to have stated the correct position of law and, therefore, the same could not have been placed reliance upon. The Division Bench in paragraph 56 which have been reproduced hereinabove, as referred to paragraph 13 and the conclusions of Uday Mohanlal Acharya s case. We have already quoted from paragraph 13 and the conclusions. The opinion expressed in paragraph 54 a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... iso to Section 167(2) is over, as such right is extinguished the moment the challan is filed. 30. In this background, the expression availed of does not mean mere filing of the application for bail expressing thereunder willingness to furnish bail bond, but the stage for actual furnishing of bail bond must reach. If the challan is filed before that, then there is no question of enforcing the right, howsoever valuable or indefeasible it may be, after filing of the challan because thereafter the right under default clause cannot be exercised. On a careful reading of the aforesaid two paragraphs, we think, the two- Judge Bench in Pragyna Singh Thakur s case has somewhat in a similar matter stated the same. As long as the majority view occupies the field it is a binding precedent. That apart, it has been followed by a three-Judge Bench in Sayed Mohd. Ahmad Kazmi s case. Keeping in view the principle stated in Sayed Mohd. Ahmad Kazmi s case which has based on three-Judge Bench decision in Uday Mohanlal Acharys s case, we are obliged to conclude and hold the principle laid down in Paragraph 54 and 58 of Pragyna Singh Thakur s case(which have been underlined by us) do not state the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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