Dismissed

Abhishek Singh and Anr. v. State of U.P. and Anr.

Allahabad HC1 May 2023/1513/2021

Case brief

AI extract

What is this about?

This appeal challenged an order rejecting default bail after a charge-sheet in an SC/ST matter was filed on the 61st day. The Court held that CrPC Section 167(2) applies as the SC/ST Act lacks an explicit exclusion, making the 90-day limit (not 60 days) the governing standard.

What did the court decide?

Criminal Appeal dismissed; impugned order rejecting default bail application upheld.

Abhishek Singh and Anr. Vs State of U.P… — Labour and Industrial Disputes | Allahabad HC (2023)

¶1

¶2

Neutral Citation No.2023:AHC-LKO:34054

¶3

A.F.R.

¶4

HIGH COURT OF JUDICATURE AT ALLAHABAD (LUCKNOW)

¶5

Court No. - 15

¶6

Case :- CRIMINAL APPEAL No. - 1513 of 2021 Appellant :- Abhishek Singh And Anr. Respondent :- State Of U.P. And Anr.

¶7

Counsel for Appellant :- Rahul Srivastava,Amit Kumar Awasthi,Ipsha Mishra,Sushil Kumar Singh,Vivek Tiwari

¶8

Counsel for Respondent :- G.A.,Dileep Kumar Yadav,Suresh Kumar Yadav

¶9

Hon'ble Ajai Kumar Srivastava-I,J.

¶10

1. Heard Sri Amit Kumar Awasthi, learned counsel for the appellants, Sri Dileep Kumar Yadav, learned counsel for the opposite party no.2, Sri Alok Saran, learned A.G.A. for the State and Sri S.S. Rajawat Advocate and Sri Saksham Agarwal, Advocates, who have also addressed this Court on the question of law involved in this case.

¶11

2. The instant Criminal Appeal is filed under Section 14 A(2) of The Scheduled Castes and the Scheduled and Tribes (Prevention of Atrocities) Act, 1989 (hereinafter referred to as 'Act, 1989') to assail the order dated 10.09.2021 passed by learned Special / A.D.J., S.C./S.T. Act, Lakhimpur Kheri in Bail Application under Section 167 of Code for default bail read with Rule 7(2) of The Scheduled Castes and the

¶12

CRIMINAL APPEAL No.1513 of 2021

¶13

¶14

Scheduled Tribes (Prevention of Atrocities) Rules, 1995 (hereinafter referred to as 'Rules, 1995') dated 26.08.2021 in Crime No.566/2021, under Sections 304, 326, 323, 506 I.P.C. and Section 3(2)(V) of Act, 1989, Police Station Kotwali Sadar, District Lakhimpur Kheri.

¶15

3. The only short question, which fell for consideration, is whether the period provided for completion of investigation relating to offence(s) under Act, 1989 shall be governed by the Rule 7(2) of Rules, 1995 and in the event of nonsubmission of police report under Section 173(2) of Code within 60 days as provided in Rule 7(2) of Rules, 1995, irrespective of nature of offence(s) and punishment provided therefor, an accused/appellant shall be entitled to be released on default bail as provided in Section 167(2) of Code of Criminal Procedure (hereinafter referred to as 'Code') ?

¶16

4. Brief facts leading to this criminal appeal are that a first information report bearing Case Crime No.0566 of 2021 came to be lodged against four accused persons including the present appellants. The appellants were arrested on 26.06.2021 and were produced before the learned Court concerned on the same day. Thereafter, they were remanded to judicial custody and were sent to jail. According to the present appellants, the period of 60 days as provided in Rule 7(2) of Rules 1995 came to be completed on 25.08.2021 and by that date, no police report under Section 173(2) of Code was submitted before the learned Special Court concerned. Therefore, on 26.08.2021, the present appellants moved an application, seeking default bail as provided in Section 167(2) of Code before

¶17

CRIMINAL APPEAL No.1513 of 2021

¶18

¶19

the learned Special Court concerned on the ground that the investigation was not concluded within the period of 60 days as provided in Rule 7(2) Rules, 1995 and no charge sheet came to be submitted within the period of 60 days, therefore, the appellants were entitled to default bail as provided in Section 167(2) of Code. It also appears from the perusal of memo of instant appeal that according to the present appellants, the charge sheet came to be submitted against the present appellants on 26.08.2021. However, ultimately the application seeking default bail under Section 167(2) of Code came to be rejected by means of impugned order dated 10.09.2021.

¶20

5. It is submitted by learned counsel for the appellants that the impugned order is patently illegal insofar as the same has been passed without due application of judicial mind and in utter violation of provision contained in Rule 7(2) of Rules, 1995.

¶21

6. His further submission is that the impugned order dated 10.09.2021 itself reveals the fact that in this matter charge sheet came to be filed in the learned trial court on the 61^st day. Learned trial court took cognizance of the matter and proceeded accordingly, however, by means of impugned order dated 10.09.2021, learned trial court rejected the application moved by the appellants seeking default bail which, according to learned counsel for the appellants, the appellants were entitled to, in view of provision contained in Section 7(2) of Rules, 1995. He has also submitted that learned trial court fell in error in holding that since it is a case of default bail, it shall necessarily be governed by the provision contained in Section 167(2) of

¶22

CRIMINAL APPEAL No.1513 of 2021

¶23

¶24

Code and the period prescribed for concluding the investigation would be 90 days having regard to the punishment provided for the offence under Section 304 & 326 I.P.C.

¶25

7. He further submits that having regard to the fact that the investigation in this matter relates to offences under Act, 1989 also and this being special Act, provisions contained thereunder in form of Rule 7(2) of Rules, 1995 shall have overriding effect over the provisions contained in Section 167(2) of Code, therefore, their application seeking default bail ought to have been allowed by the learned trial Court.

¶26

8. In order to substantiate the aforesaid submissions, reliance has been placed on judgment rendered by Hon'ble the Supreme Court in the case of M. Ravindran Vs. Intelligence Officer, Directorate of Revenue Intelligence¹ wherein it has been held that in case, an accused has already applied for default bail, the prosecution cannot defeat enforcement of its indefeasible right by subsequently filing final report/additional complaint or report seeking extension of time.

¶27

9. Per contra Sri Dileep Kumar Yadav, learned counsel for the opposite party nos.2 and Sri Alok Saran, learned A.G.A. for the State have vehemently opposed the prayer by submitting that the object behind incorporating Rule 7(2) Rules 1995 is nothing but to ensure the speedy and time bound conclusion of investigation of offence(s) pertaining to Act, 1989. Their submission is that there is no specific provision for default bail in Act, 1989 or the Rules, 1995,

¶28

1 AIR 2020 SC 5245

¶29

CRIMINAL APPEAL No.1513 of 2021

¶30

¶31

therefore, as default bail was being sought under 167(2) of Code, it necessarily had to be dealt with in accordance with the provision contained in Section 167(2) of Code and the period prescribed for conclusion of investigation regarding various offence(s) in Section 167(2) of Code would necessarily apply in this case also. They, therefore, submit that in this view of the matter, the impugned order is a reasoned and well discussed order wherein no interference by this Court is warranted.

¶32

10. Sri S.S. Rajawat and Sri Saksham Agarwal, Advocates have also submitted that there is no provision either in Act, 1989 or in Rules, 1995 which expressly excludes the provision contained in Section 167 of Code. Their further submission is that a Division Bench of this Court in the case of Gyanendra Maurya vs. Union of India and others² has held that unless expressly barred, the provisions of Code shall be applicable while trying the cases under the Act, 1989. Therefore, their submission is that the learned trial Court has rightly rejected the application seeking default bail on account of applicability of Section 167 of Code.

¶33

11. They have also submitted that in absence of any explicit provision like Section 36-A (4) of Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as 'N.D.P.S. Act') which has provided for extended period for concluding investigation in certain cases under N.D.P.S. Act, the provision contained in Section 167 of Code shall have application in respect of investigation concerning offence(s) under Act, 1989.

¶34

2 2023 SCC Online All 46

¶35

CRIMINAL APPEAL No.1513 of 2021

¶36

¶37

12. So far as the issue of applicability of Code of Criminal Procedure before the Exclusive/Special Court created under Act, 1989 is concerned, a Division Bench of this Court in the case of Gyanendra Maurya (supra) in paragraph nos.22 to 27 has held as under :-

¶38

"22. In the Act 1989 or the Rules of 1995, the procedure to be followed by these Courts under the Act 1989 has not been prescribed. Such procedure has been prescribed in the Code 1973 which contains the general law relating to criminal procedure.

¶39

23. In this context it is relevant to refer to Section 4 of the Code 1973 which reads as under:

¶40

“4. Trial of offences under the Penal Code, 1860 and other laws. (1) All offences under the Penal Code, 1860 (45 of 1860) shall be investigated, inquired into, tried, and otherwise dealt with according to the provisions hereinafter contained.

¶41

(2) All offences under any other law shall be investigated, inquired into, tried, and otherwise dealt with according to the same provisions, but subject to any enactment for the time being in force regulating the manner or place of investigating, inquiring into, trying or otherwise dealing with such offences.”

¶42

24. Section 5 of the Code 1973 reads as under:

¶43

“ 5. Saving. Nothing contained in this Code shall, in the absence of a specific provision to the contrary, affect any special or local law for the time being in force, or any special jurisdiction or power conferred, or any special form of procedure prescribed, by any other law for the time being in force.”

¶44

25. As per Sections 4 and 5 of Code 1973 all offences under any other law (which shall

¶45

CRIMINAL APPEAL No.1513 of 2021

¶46

¶47

include the Act, 1989) shall be investigated, inquired, tried and otherwise dealt with according to the Code of Criminal Procedure subject to there being any enactment on the subject containing a specific provision to the contrary. We find that certain provisions of the Code 1973 have specifically been excluded from their application to the proceedings under the Act, 1989. Section 18 of the Act 1989 excludes the application of Section 438 of Code 1973 regarding anticipatory bail. Sections 18 and 18A of the Act 1989 exclude any preliminary inquiry before registration of a First Information Report contrary to the provisions contained in Sections 154 and 156 of Code 1973 Section 19 excludes applicability of Section 360 of the Code 1973. The applicability of other provisions of the Code 1973 have not been excluded specifically or generally, therefore, it leads us to reasonably infer that other provisions of the Code 1973 will apply to the Courts established and specified under the Act, 1989, subject to Section 20 thereof.

¶48

26. Section 20 of the Act 1989 provides as under:

¶49

“20. Act to override other laws.— Save as otherwise provided in this Act, the provisions of this Act shall have effect notwithstanding anything inconsistent therewith contained in any other law for the time being in force or any custom or usage or any instrument having effect by virtue of any such law.”

¶50

27. As per Section 20 of the Act 1989 save as otherwise provided in the Act, 1989, the provisions of the said Act shall have effect notwithstanding anything inconsistent therewith contained in any other law for the time being in force or any custom or usage or any instrument having effect by virtue of any such law. Thus, subject to any inconsistency between the Act 1989 and the Code 1973, the said Code 1973 would apply unless it has been otherwise provided in the Act 1989 itself. This would obviously refer to the exclusion from

¶51

CRIMINAL APPEAL No.1513 of 2021

¶52

¶53

applicability of Section 438 of Code 1973, etc. as referred in Sections 18, 18A and 19 of the Act, 1989. Apart from these three provisions, there is no other provision in the Act 1989 excluding the applicability of the Code 1973 to the proceedings under the Act 1989 which is also indicative of applicability of other provisions of the Code 1973 including Section 156(3) of Code 1973, to proceedings under the Act, 1989. Sections 4(2) and 5 of the Code 1973 support this reasoning."

¶54

(emphasis supplied)

¶55

13. Hon'ble Supreme Court in the case of Bhavnagar University vs. Palitana Sugar Mill Pvt. Ltd. and others³

¶56

has held that it is the basic principle of construction of statute that the same should be read as a whole, then chapter by chapter, section by section and words by words. Recourse to construction or interpretation of statute is necessary when there is ambiguity, obscurity or inconsistency therein and not otherwise. An effort must be made to give effect to all parts of statute and unless absolutely necessary, no part thereof shall be rendered surplusage or redundant. True meaning of a provision of law has to be determined on the basis of what is provided by its clear language, with due regard to the scheme of law. Scope of the legislation on the intention of the legislature cannot be enlarged when the language of the provision is plain and unambiguous. In other words, statutory enactments must ordinarily be construed according to its plain meaning and no words shall be added, altered or modified unless it is plainly necessary to do so to prevent a provision from being unintelligible, absurd,

¶57

3 AIR 2003 SC 511

¶58

CRIMINAL APPEAL No.1513 of 2021

¶59

¶60

unreasonable, unworkable or totally irreconcilable with the rest of the statute.

¶61

14. In order to appreciate the scope of provision contained in Rule 7(2) of Rules, 1995, it is useful to refer to Rule 7(2) & 7 (2A) of Rules, 1995, which are quoted hereinbelow :-

¶62

"(2) The investigating officer so appointed under sub-rule (1) shall complete the investigation on top priority basis within thirty days and submit the report to the Superintendent of Police who in turn will immediately forward the report to the Director General of Police or Commissioner of Police of the State Government, and the officerin-charge of the concerned police station shall file the charge-sheet in the Special Court of the Exclusive Court within a period of sixty days (the period is inclusive of investigation and filing of charge-sheet)

¶63

(2A) The delay, if any, in investigation of filing of charge-sheet in accordance with sub-rule (2) shall be explained in writing by the investigating officer."

¶64

(emphasis supplied)

¶65

15. If read conjointly, the above provisions would indicate that they were incorporated in the Rules, 1995 to facilitate a prompt and efficient investigation of the matter related to the Act, 1989. In the event of any delay, instead of having a provision akin to Section 167(2) of Code, there is a provision in the form of Rule 7 (2A) in the Rules, 1995 that requires the Investigating Officer to explain cause for such delay in writing.

¶66

16. Section 167(2) of Code provides as under :-

¶67

"(2) The Magistrate to whom an accused person is forwarded under this section may, whether he has or has not jurisdiction to try the case, from time to time, authorise the detention of the accused in such custody as such Magistrate

¶68

CRIMINAL APPEAL No.1513 of 2021

¶69

¶70

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-

¶71

(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,-

¶72

(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;

¶73

(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;"

¶74

(emphasis supplied)

¶75

17. A survey of entire scheme of Act, 1989 and Rules, 1995 reveals that there is no provision akin to provision contained in Section 36-A (4) of N.D.P.S. Act which provides that in respect of persons accused of an offence punishable under Section 19 or Section 24 or Section 27-A or for offence(s) involving commercial quantity the references in sub-section (2) of Section 167 of Code thereof to “ninety days”, where they occur, shall be construed as reference to “one hundred and eighty days”. It also provides that if it is not possible to complete the

¶76

CRIMINAL APPEAL No.1513 of 2021

¶77

¶78

investigation within the said period of one hundred and eighty days, the Special Court may extend the said period up to one year on the report of the Public Prosecutor indicating the progress of the investigation and the specific reasons for the detention of the accused beyond the said period of one hundred and eighty days.

¶79

18. Thus, an inference that the provision contained in Rule 7(2) of Rules 1995, whereby the Investigating Officer is expected to conclude the investigation within 60 days irrespective of nature of offence and punishment prescribed therefor, has an overriding effect over provision contained in Section 167(2) of Code, and that too in absence of any provision contained in the Act, 1989 or in the Rules, 1995 which excludes application of provision contained in Section 167 of Code, especially Section 167(2) of Code cannot be drawn because such inference would be against the scheme of Act, 1989 & Rules, 1995.

¶80

19. Had it been the legislative intent, the legislature should have explicitly provided for default bail in Act, 1989 or in Rules, 1995 or in alternative there should have been some provision in Act, 1989 or in Rules, 1995 which excludes the provision contained in Section 167(2) of Code. In absence of any provision akin to provision contained in Section 36-A(4) of N.D.P.S. Act, in the considered opinion of this Court, provision contained in Section 167 of Code would apply to the investigation of offence(s) under Act, 1989 also.

¶81

20. Adverting to the case at hand, admittedly the appellants were arrested on 26.06.2021 and charge sheet came to be submitted against the present appellants on

¶82

CRIMINAL APPEAL No.1513 of 2021

¶83

¶84

26.08.2021, which is annexed as annexure No.15 to the instant criminal appeal, under Sections 326, 304, 323, 506 I.P.C. and 3(2)5 SC/ST Act. The offence under Sections 304 & 326 I.P.C. are punishable with life imprisonment or imprisonment of 10 years, therefore, the period for concluding the investigation in this case would be 90 days according to Section 167(2) of Code. Therefore, having regard to the law laid down by Division Bench of this Court in Gyanendra Maurya (Supra) as the applicability of Section 167 of Code has not been specifically excluded or barred by any provision contained in the Act, 1989 or in the Rules, 1995, therefore, Section 167 of Code would apply in this case. Reckoned accordingly, the charge sheet came to be submitted on 61^th day, well within the stipulated period of 90 days, as stated above.

¶85

21. In view of the above, no indefeasible right to seek default bail accrued in favour of the present appellants. Therefore, law laid down by Hon'ble Supreme Court in M. Ravindran (supra), in the humble opinion of this Court, is not applicable in the facts of the case at hand.

¶86

22. The upshot of the aforesaid overall discussion is that the learned trial Court has rightly rejected the application moved by the present appellants seeking default bail under Section 167(2) of Code, which was moved on the ground that charge sheet was not submitted within 60 days as stipulated under Rule 7(2) of Rules 1995 and since no indefeasible right accrued in favour of the present appellants, therefore, rejection of application moved by the present appellants seeking default bail under Section

¶87

CRIMINAL APPEAL No.1513 of 2021

¶88

¶89

167(2) Code by learned Special Court cannot be faulted with.

¶90

23. Before parting, this Court places on record its appreciation for valuable and erudite assistance rendered by Sri S.S. Rajawat and Sri Saksham Agarwal, Advocates.

¶91

24. In view of the aforesaid discussion and for the reasons aforestated, this Court does not find any illegality or irregularity with the impugned order dated 10.09.2021, which may warrant interference by this Court. Therefore, the instant criminal appeal lacks merit, which deserves to be dismissed and the same is dismissed, accordingly.

¶92

[Ajai Kumar Srivastava-I, J]

¶93

May 01, 2023 Ashish Dewal

¶94

CRIMINAL APPEAL No.1513 of 2021

¶95

Digitally signed by :- ASHISH DEWAL High Court of Judicature at Allahabad, Lucknow Bench

Abhishek Singh and Anr. v. State of U.P. and Anr.

Case brief

What is this about?

What did the court decide?

Abhishek Singh and Anr. v. State of U.P. and Anr.

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Cases cited

Statutes considered

Parties & counsel

Coram

Case details

Similar cases

Ruchi Singh Vs State of U.P Thru Prin. Secy Home. and Others

C.B. Singh @ Chandra Bhawan Singh Vs State of U.P. Thru.Prin.Secy. Deptt. of Home and Another

Abhishek Kumar Srivastava Vs State of U.P. Thru. Addl.Chief Secy. Prin. Secy. Deptt. Home and Another

Sonu Alias Israk Khan Vs State of U.P. and Another

Rakesh and Others Vs State of U.P. and Another

Mohd. Ansar Vs State of U.P. Thru. Prin. Secy. Home, Up Lko. and Another