Table of content:-
- Background of the case
- Issues Raised
- Statutory provisions Involved
- Submissions of the Parties
- Judgment Analysis
- Case Laws:-
- Ravindran vs The Intelligence Officer Directorate of Revenue Intelligence
- Fakhrey Alam vs The State of Uttar Pradesh.
Shri Santosh vs The State of Karnataka [Criminal Petition No. 101403/ 2021]
Background of the case
The petitioner of the present case is one of the accused who is charged under sections 380, 457, 458, 382, and 201 of the Indian Penal Code, 1860 and Section 25 (I-A) of the Arms act, 1959. On 4th January 2021 Police had completed their investigation and filed the charge sheet. As per the charge sheet, the petitioner is the accused no. 1. He was arrested on 6th February 2021. On 17th May 2021 a supplementary charge sheet under section 173 (8) of the Code of Criminal Procedure, 1973. The petitioner seeks the statutory bail under section 167 (2) of the Code of Criminal Procedure, 1973 on the ground that the charge sheet was not filed within 90 days from the date of his arrest and the same was rejected. Therefore, the petitioner filed a revision petition before the session judge and it was also rejected.
Thus the petitioner filed the present petition.
Can bail can be taken as a matter of Right under section 167 (2) Crpc if the supplementary charge sheet was filed beyond the prescribed time?
Statutory Provisions Involved
- Section 167 (2) of the Code of Criminal Procedure, 1973
“Procedure when investigation cannot be completed in twenty four hours.
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, 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 considers further detention unnecessary, he may order the accused to be forwarded to a Magistrate having such jurisdiction: Provided that-
(a) the Magistrate may authorise 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 authorise 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 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 provisions of Chapter XXXIII for the purposes of that Chapter;]
(b) No Magistrate shall authorise 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 authorise detention in the custody of the police. 1 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;]. 2 Explanation II.- If any question arises whether an accused person was produced before the Magistrate as required under paragraph (b), the production of the accused person may be proved by his signature on the order authorising detention.]”
- Section 173 (8) of the Code of Criminal Procedure, 1973
“Report of police officer on completion of investigation.
Nothing in this section shall be deemed to preclude further investigation in respect of an offence after a report under sub- section (2) has been forwarded to the Magistrate and, where upon such investigation, the officer in charge of the police station obtains further evidence, oral or documentary, he shall forward to the Magistrate a further report or reports regarding such evidence in the form prescribed; and the provisions of sub- sections (2) to (6) shall, as far as may be, apply in relation to such report or reports as they apply in relation to a report forwarded under sub- section (2).”
- Section 439 of the Code of Criminal Procedure, 1973
“Special powers of High Court or Court of Session regarding bail.
(1)A High Court or Court of Session may direct-
(a)that any person accused of an offence and in custody be released on bail, and if the offence is of the nature specified in subsection (3) of section 437, may impose any condition which it considers necessary for the purposes mentioned in that sub- section;
(b)that any condition imposed by a Magistrate when releasing an person on bail be set aside or modified: Provided that the High Court or the Court of Session shall, before granting bail to a person who is accused of an offence which is triable exclusively by the Court of Session or which, though not so triable, is punishable with imprisonment for life, give notice of the application for bail to the Public Prosecutor unless it is, for reasons to be recorded in writing, of opinion that it is not practicable to give such notice.
(2)A High Court or Court of Session may direct that any person who has been released on bail under this Chapter be arrested and commit him to custody.”
- Section 457 of the Indian Penal Code, 1860
“Lurking house-trespass or house-breaking by night in order to commit offence punishable with imprisonment
Whoever commits lurking house-trespass by night, or house-breaking by night, in order to the committing of any offence punishable with imprisonment, shall be punished with imprisonment of either description for a term which may extend to five years, and shall also be liable to fine; and, if the offence intended to be committed is theft, the term of the imprisonment may be extended to fourteen years.”
- Section 458 of the Indian Penal Code, 1860
“Lurking house-trespass or house-breaking by night after preparation for hurt, assault, or wrongful restraint
Whoever commits lurking house-trespass by night, or house-breaking by night, having made preparation for causing hurt to any person or for assaulting any person, or for wrongfully restraining any person, or for putting any person in fear of hurt, or of assault, or of wrongful restraint, shall be punished with imprisonment of either description for a term which may extend to fourteen years, and shall also be liable to fine.”
- Section 382 of the Indian Penal Code, 1860
“Theft after preparation made for causing death, hurt or restraint in order to the committing of the theft
Whoever commits theft, having made preparation for causing death, or hurt, or restraint, or fear of death, or of hurt, or of restraint, to any person, in order to the committing of such theft, or in order to the effecting of his escape after the committing of such theft, or in order to the retaining of property taken by such theft, shall be punished with rigorous imprisonment for a term which may extend to ten years, and shall also be liable to fine. Illustrations
(a)A commits theft on property in Z’s possession; and, while committing this theft, he has a loaded pistol under his garment, having provided this pistol for the purpose of hurting Z in case Z should resist. A has committed the offence defined in this section.
(b)A picks Z’s pocket, having posted several of his companions near him, in order that they may restrain Z, if Z should perceive what is passing and should resist, or should attempt to apprehend A. A has committed the offence defined in this section. CLASSIFICATION OF OFFENCE Punishment—Rigorous imprisonment for 10 years and fine—Cognizable—Non-bailable—Triable by Magistrate of the first class—Non-compoundable.”
- Section 201 of the Indian Penal Code, 1860
“Causing disappearance of evidence of offence, or giving false information to screen offender
Whoever, knowing or having reason to believe that an offence has been committed, causes any evidence of the commission of that offence to disappear, with the intention of screening the offender from legal punishment, or with that intention gives any information respecting the offence which he knows or believes to be false; if a capital offence.—shall, if the offence which he knows or believes to have been committed is punishable with death, be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine; if punishable with imprisonment for life.—and if the offence is punishable with 1[imprisonment for life], or with imprisonment which may extend to ten years, shall be punished with imprisonment of either description for a term which may extend to three years, and shall also be liable to fine; if punishable with less than ten years’ imprisonment.—and if the offence is punishable with imprisonment for any term not extending to ten years, shall be punished with imprisonment of the description provided for the offence, for a term which may extend to one-fourth part of the longest term of the imprisonment provided for the offence, or with fine, or with both.”
- Section 25 (I-A) of the Arms Act, 1959
“Punishment for certain offences
Whoever acquires, has in his possession or carries any prohibited arms or prohibited ammunition in contravention of section 7 shall be punishable with imprisonment for a term which shall not be less than five years, but which may extend to ten years and shall also be liable to fine.”
Submissions of the Parties
The contentions of the Petitioner
- It was submitted that the petitioner was arrested on 6th February 2021 and the supplementary charge sheet was filed on 17th May 2021 that is beyond the period of ninety days and hence he is liable to get statutory bail but his application was rejected.
The petitioner has also relied upon the rulings of M. Ravindran vs The Intelligence Officer Directorate of Revenue Intelligence and Fakhrey Alam vs The State of Uttar Pradesh.
The contention of the Respondent
It was submitted that the charge sheet was filed before the arrest of the petitioner and therefore, the provision of section 167 (2) Crpc was not applicable to the petitioner.
The present petition was filed by the petitioner under section 439 Crpc by challenging the order of the Trial Court and Revisional Court. The court observed that the petition in itself is not maintainable as in the present petition section 482 Crpc was not invoked.
The court further observed that if we look on merits also this petition is not maintainable as the original charge sheet was filed on 4th January 2021 way before the arrest of the accused petitioner and the same was evident by the records produced by the petitioner himself and the supplementary charge sheet was filed by the investigating officer by taking the leave of the court by providing the reasoning that some of the accused were absconding.
The supplementary charge sheet was filed on 17th May 2021 by collecting some additional material.
The court examined section 167 (2) of the Code of Criminal Procedure, 1973 and observed that the magistrate can order the detention of the accused maximum of 90 days or 60 days as the case may be if the charge sheet was not filed within the prescribed period from the date of arrest.
If a charge sheet has been filed against a specified accused and the supplementary charge sheet was filed against other accused or for additional evidence and therefore, section 167 (2) of Crpc was not applied in the present case.
The court held that the question of the applicability of section 167 (2) Crpc did not arise here as the charge sheet had already been submitted against the accused before the arrest of the accused. Further, the court added t5yhat the reliance placed by the petitioner upon two cases but b0oth cases are under UAPA Act and also in both these cases after the arrest the charge sheet was filed. And to this effect the court passed the following order:
“The petition is dismissed.
In view of the dismissal of the above petition, pending
interlocutory applications, if any, do not survive for
consideration and are dismissed accordingly.”