Allowed

Prakash v. State of Rajasthan

Rajasthan HC9 Dec 2022CRLR/1286/2022

Case brief

AI extract

What is this about?

The High Court allowed a criminal revision petition, quashing an order that dismissed an application for default bail. The Court held that the investigating agency's failure to file a complete charge-sheet within 90 days granted the accused an indefeasible right to bail upon application, regardless of subsequent filings or minor defects. The accused was ordered released on bail.

What did the court decide?

The impugned order dated 15.07.2022 was quashed. The accused was released on bail on personal bond of Rs.50,000/- and two sureties of Rs.25,000/- each.

Prakash Vs State of Rajasthan — Pension and Retirement Benefits | Rajasthan HC (2022)

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HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR

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S.B. Criminal Revision Petition No. 1286/2022

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Prakash S/o Bhura Meena, Aged About 26 Years, R/o Urna Ps Shakkargarh Dist. Bhilwara (Presently Lodged In Dist. Jail Bhilwara)

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----Petitioner

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Versus

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State Of Rajasthan, Through Pp 2. Premchand S/o Lokha Meena, Sujanpura, P.s. Shakkargarh, Dist. Bhilwara.

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	----Respondents
For Petitioner(s)	: Mr. Neeraj Kumar Gurjar Ms. Shobha Prabhakar
For Respondent(s)	: Mr. Javed Gauri,PP

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HON'BLE MR. JUSTICE FARJAND ALI

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Order

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09/12/2022

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The legality, correctness and propriety of the order dated 15.07.2022 passed by the Special Judge, Protection of Children from Sexual Offences Act and Commissions for Protection of Child Rights Act, No.01, Bhilwara in Session Case No. 93/2022, which arose out of FIR No.62/2022, Police Station Shakkargarh, Bhilwara has been challenged by the accused-petitioner by way of filing the instant criminal revision petition.

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The notice issued by this Court has been duly served upon the private respondents; the proof of which has been filed on record as per which, the SHO, P.S. Shakkargarh, Bhilwara intimated the complainant regarding hearing of the bail application

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which has been converted into the present revision petition and it is also reflecting from perusal of orders dated 15.09.2022 and 17.10.2022 that the private respondent has been represented by counsel on previous dates.

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Bereft of elaborate details, the brief facts necessary for disposal of the instant Criminal Revision Petition are that the petitioner was arrested and sent to judicial custody on 11.04.2022 in connection with aforementioned FIR dated 30.03.2022 for the offences under Sections 363 of IPC. Thereafter, the investigating agency filed charge sheet for offences under Sections 363, 366, 376(2)(n), 376(3) of IPC and Sections 5(l) & 6 of POCSO Act.

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As per the statutory provisions contained in Sub-Clause (2) of Section 167 of the Cr.P.C., the charge-sheet is supposed to be submitted within 90 days of arrest of the accused/his or her production before the learned Magistrate concerned for remand. It is emanating from the record that the charge sheet came to be submitted by the investigating agency on 07.07.2022 but the same was returned by the learned court below stating the reason that the charge sheet was not complete. On 11.07.2022, the period of 90 days from the arrest of the accused was coming to an end but no charge sheet came to be filed, therefore, on behalf of the accused, an application seeking default bail was filed in the Court below on the ground of non-filing of the charge sheet which came to be dismissed vide order dated 15.07.2022 which is under assail before this Court. The complete charge-sheet came to be filed by the agency on 13.07.2022 and on this day, cognizance was taken. It is manifesting from the order-sheets of the learned Special Judge that the challan was brought before the court on

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07.072022 but some deficiencies were found, therefore, it was not taken on record and was sent back to the agency. A copy of the default bail application and endorsement made by the Court dated 11.07.2022 is available on record. It is emanating from the endorsement that upon filing of the default bail application, the learned Judge directed to list the matter on 13.07.2022 after preparation of check-report by the office. It is an undisputed fact that the charge-sheet was filed in this case on 13.07.2022 i.e., well after the expiry of 90 days of the arrest of accused and even after filing of the application for default bail. It has been propounded by Hon’ble the Supreme Court in the case of Uday Mohan Lal Acharya Vs. State of Maharashtra reported in AIR 2001 SC 1910 that the right of an accused to be released on bail due to commission of default in submission of charge-sheet within the stipulated period is a valuable and an indefeasible right. The above referred judgment of a three Judges’ Bench has been recapitulated by the Hon’ble Supreme Court in a catena of judgments and the same principle has been reiterated time and again.

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The learned trial Court has dismissed the bail application on the ground that the charge-sheet had been submitted by the agency on 07.07.2022 itself and it was not returned, rather the Station Officer was directed regarding the deficiencies of the charge sheet. However, the record is reflecting altogether a different scene. Indisputably, the default bail application was filed by the accused on 11.07.2022. It is nowhere reflecting that the accused was not willing and ready to furnish the bail bonds.

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A perusal of the application is manifestly revealing that the accused was ready and willing to furnish bail bonds, thus, it was imperative upon the Court to pass an order in respect of furnishing bail bonds but the same was not done. This practice cannot be appreciated that when an accused prefers an application for default bail on the ground of non-filing of the charge-sheet after expiry of the statutory period, the Court considers the date of filing of incomplete charge sheet with shortcomings as the date when the charge sheet was filed with a view to facilitate the agency to submit the charge-sheet in the meantime.

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In the judgment rendered in case of Bikramjit Singh Vs. State of Punjab, reported in (2020) 10 SCC 616, a threejudge Bench of the Hon’ble Supreme Court has enunciated the expression “if already not availed of” in the following words:

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“The Court then held:

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“13.…The crucial question that arises for consideration, therefore, is what is the true meaning of the expression “if already not availed of”? 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 bail? In our considered opinion it would be more in consonance with the legislative mandate to hold that an accused must be held to have availed of his indefeasible right, the moment he files an application for being released on bail and offers to abide by the terms and conditions of bail. To interpret the expression “availed of” to mean actually being released on bail after furnishing the necessary bail required would cause great injustice to the accused and would defeat the very purpose of the proviso to Section 167(2) of the Criminal Procedure Code and further would make an illegal custody to be legal , inasmuch as after the expiry of the stipulated period the Magistrate had no further jurisdiction to remand and such custody of the accused is without any valid order of remand. That apart, when an accused files an application for bail indicating his right to be released as no challan had been filed within the specified period, there is no discretion left in the Magistrate and the

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only thing he is required to find out is whether the specified period under the statute has elapsed or not, and whether a challan has been filed or not.

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If the expression “availed of” is interpreted to mean that the accused must factually be released on bail, then in a given case where the Magistrate illegally refuses to pass an order notwithstanding the maximum period stipulated in Section 167 had expired, and yet no challan had been filed then the accused could only move to the higher forum and while the matter remains pending in the higher forum for consideration, if the prosecution files a chargesheet then also the so-called right accruing to the accused because of inaction on the part of the investigating agency would get frustrated. Since the legislature has given its mandate it would be the bounden duty of the court to enforce the same and it would not be in the interest of justice to negate the same by interpreting the expression “if not availed of” in a manner which is capable of being abused by the prosecution.

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The second vexed question which arises on the facts of this case is the question of grant of default bail. It has already been seen that once the maximum period for investigation of an offence is over, under the first proviso (a) to Section 167(2), the accused shall be released on bail, this being an indefeasible right granted by the Code. The extent of this indefeasible right has been the subject matter of a number of judgments. A beginning may be made with the judgment in Hitendra Vishnu Thakur v. State of Maharashtra (1994) 4 SCC 602, which spoke of “default bail” under the provisions of the Terrorist and Disruptive Activities (Prevention) Act, 1987 (hereinafter referred to as “TADA”) read with Section 167 of the Code as follows:

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“19. Section 20(4) of TADA makes Section 167 of CrPC applicable in relation to case involving an offence punishable under TADA, subject to the modifications specified therein…while clause (b) provided that reference in sub-section (2) of Section 167 to ‘15 days’, ‘90 days’ and ‘60 days’ wherever they occur shall be construed as reference to ‘60 days’, ‘one year’ and ‘one year’ respectively. This section was amended in 1993 by the Amendment Act 43 of 1993 with effect from 22-5-1993 and the period of ‘one year’ and ‘one year’ in clause (b) was reduced to ‘180 days’ and ‘180 days’ respectively, by modification of sub-section (2) of Section 167. After clause (b) of sub-section (4) of Section 20 of TADA, another clause (bb) was inserted which reads:

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“(bb) in sub-section (2), after the proviso, the following proviso shall be inserted, namely:— ‘Provided further that, if it is not possible to complete the investigation within the said period of one hundred and eighty days, the Designated Court shall 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; and’ ”

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…Sub-section (2) of Section 167 of the Code lays down that the Magistrate to whom the accused is forwarded may

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authorise his detention in such custody, as he may think fit, for a term specified in that section. The proviso to subsection (2) fixes the outer limit within which the investigation must be completed and in case the same is not completed within the said prescribed period, the accused would acquire a right to seek to be released on bail and if he is prepared to and does furnish bail, the Magistrate shall release him on bail and such release shall be deemed to be grant of bail under Chapter XXXIII of the Code of Criminal Procedure…Section 167 read with Section 20(4) of TADA, thus, strictly speaking is not a provision for “grant of bail” but deals with the maximum period during which a person accused of an offence may be kept in custody and detention to enable the investigating agency to complete the investigation and file the charge sheet, if necessary, in the court. The proviso to Section 167(2) of the Code read with Section 20(4)(b) of TADA, therefore, creates an indefeasible right in an accused person on account of the ‘default’ by the investigating agency in the completion of the investigation within the maximum period prescribed or extended, as the case may be, to seek an order for his release on bail. It is for this reason that an order for release on bail under proviso (a) of Section 167(2) of the Code read with Section 20(4) of TADA is generally termed as an “order-on-default” as it is granted on account of the default of the prosecution to complete the investigation and file the challan within the prescribed period. As a consequence of the amendment, an accused after the expiry of 180 days from the date of his arrest becomes entitled to bail irrespective of the nature of the offence with which he is charged where the prosecution fails to put up challan against him on completion of the investigation. With the amendment of clause (b) of subsection (4) of Section 20 read with the proviso to subsection (2) of Section 167 of CrPC an indefeasible right to be enlarged on bail accrues in favour of the accused if the police fails to complete the investigation and put up a challan against him in accordance with law under Section 173 CrPC. An obligation, in such a case, is cast upon the court, when after the expiry of the maximum period during which an accused could be kept in custody, to decline the police request for further remand except in cases governed by clause (bb) of Section 20(4). There is yet another obligation also which is cast on the court and that is to inform the accused of his right of being released on bail and enable him to make an application in that behalf. (Hussainara Khatoon case [Hussainara Khatoon v. Home Secy., State of Bihar, (1980) 1 SCC 98 : 1980 SCC (Cri) 40 : AIR 1979 SC 1369] ). This legal position has been very ably stated in Aslam Babalal Desai v. State of Maharashtra [(1992) 4 SCC 272 : 1992 SCC (Cri) 870 : AIR 1993 SC 1] where speaking for the majority, Ahmadi, J. referred with approval to the law laid down in Rajnikant Jivanlal Patel v. Intelligence Officer, Narcotic Control Bureau, New Delhi [(1989) 3 SCC 532 : 1989 SCC (Cri) 612 : AIR 1990 SC 71] wherein it was held that : (SCC p. 288, para 9) “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

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expiry of 90/60 days, as the case may be, the accused in custody should be released on bail. But at that stage, merits of the case are not to be examined. Not at all. In fact, the Magistrate has no power to remand a person beyond the stipulated period of 90/60 days. He must pass an order of bail and communicate the same to the accused to furnish the requisite bail bonds.”

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(Emphasis supplied) Thus, in view of the above, it is held that on expiry of the said period of 60 days, 90 days, 180 days or as the case may be, an indefeasible right accrues in favour of the accused for his release on default bail by the investigating agency on nonsubmission of the charge-sheet within the prescribed period and the accused is entitled to be released on bail, if he is ready and willing to furnish bail bonds. The preparation, willingness as well as his intent to pursue the default bail application can be gathered from the moment he files an application for release on default bail. Of course, it is for the Court to pass an order regarding the amount of surety and bail bonds and an express order of his release upon fulfillment of the conditions. Neither the agency nor the Court can seek advantage of the aforesaid condition on the ground that before hearing the default bail application and passing order on it, the charge-sheet has been submitted. It is deprecated that the courts below encourage re-submission of charge-sheets after curing of defects and deficiencies in order to bring the period of closure of investigation within the span of ninety days.

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In a case that came up before this Court in S.B. Criminal Miscellaneous (Petition) No. 6267/2021 titled Mahendra Vs. State of Rajasthan, it was observed vide order dated 05.01.2022 that an indefeasible right accrues in favour of the accused-petitioner after expiry of stipulated period if charge-sheet

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is not filed by the agency. Reliance was placed on the judgment

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rendered by Hon’ble the Apex Court in Achpal @ Ramswaroop & Anr. Vs. State of Rajasthan reported in AIR 2018 SC 4547. The relevant paragraphs of Mahendra (supra) are as follows:

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“5. Heard learned counsel for the parties, perused the material available on record. As a matter of fact, on 22.7.2020 when the custodial period of the accused had crossed 90 days, when the accused petitioner moved the application under Section 167(2) Cr.P.C, neither the charge-sheet was available with the court nor prior to it, cognizance of offence had been taken. No copy of charge-sheet had been supplied to the accused so that he may know the nature of allegation and availability of material in support thereof. Apparently, when the application for statutory bail was filed, the outer limit of 90 days for remand of accused hadelapsed and the report under Section 173 Cr.P.C was not available with the court and thus an indefeasible right accrued in favour of the accused petitioner to be released on bail. This court is aptly guided by the observations made by Hon’ble Supreme court in the case of Achpal @ Ramswarop (supra):-

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“… The fact of the matter is that as on completion of 90 days of prescribed period under Section 167 of the Code there were no papers of investigation before the concerned Magistrate. The accused were thus denied of protection established by law. The issue of their custody had to be considered on merits by the concerned Magistrate and they could not be simply remanded to custody dehors such consideration. In our considered view, the submission advanced by Mr.Dave, learned Advocate therefore has to be accepted. We now turn to the subsidiary issue, namely whether the High Court could have extended the period. The provisions of the Code do not empower anyone to extend the period within which the investigation must be completed nor does it admit of any such eventuality...”

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In the present case, in my considered view, the act of considering 07.07.2022 as the date of filing of charge sheet when in reality, the charge sheet was found to be riddled with defects and it was returned and the complete charge sheet was filed later on 15.07.2022, that is well after the expiry of the period of 90 days, is an endeavor to frustrate and defeat the cause of the

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accused-petitioner. An incomplete charge sheet cannot be regarded as a charge sheet as contemplated under Section 167(2) of the Code as it defeats the very purpose of the said provision. This court is aptly guided by the principles of law laid down by Hon’ble the Apex Court through a slew of judicial pronouncements and is of the considered view that the accused of this case had moved an application seeking default bail and his intent and preparation has been shown by filing the application for default bail and the Court below was under an obligation to pass an appropriate order on the application for default bail.

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There is no provision except Section 167 under which the magistrate is empowered to send the accused to remand (JC/PC) and if the magistrate remands the accused and sends him back to custody in contravention of Section 167 of CrPC or does not abide by the stipulations prescribed under the aforesaid provision and sends the accused to custody beyond the period of 60/90/180 days, then the said remand amounts to illegal detention of the accused, thus, in the present factual matrix, the accused was also subjected to illegal detention and he deserves to be enlarged on bail on this count as well.

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In view of the above, the Criminal Revision Petition succeeds and is allowed. The order dated 15.07.2022 passed by learned Special Judge, Protection of Children from Sexual Offences Act and Commissions for Protection of Child Rights Act, No.01, Bhilwara in Session Case No. 93/2022 is hereby quashed and set aside. The accused is directed to be released on bail upon furnishing personal bond in the sum of Rs.50,000/- along with two sureties in the sum of Rs.25,000/- each to the satisfaction of the learned trial

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Court with the stipulation to appear before that Court on all dates

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of hearing and as and when called upon to do so.

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(FARJAND ALI),J

Prakash v. State of Rajasthan

Case brief

What is this about?

What did the court decide?

Prakash v. State of Rajasthan

Case brief

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