SCOPE OF SECTION 167(2) Cr.P.C. AND ITS EXCEPTION INTRODUCTION:-

 

SCOPE OF SECTION 167(2) Cr.P.C. AND ITS EXCEPTION

INTRODUCTION:-

The liberty of an individual as enshrined in Article 21 of the Constitution of India has been reflected in Section 167(2) of Code of Criminal Procedure. For easy reference Section 167(2) Cr.P.C. is extracted hereunder.

Section 167Cr.P.C. – Procedure when investigation cannot be completed in 24 hours.

167(2) (a) No Magistrate shall authorize 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.

Thus, if an accused is taken into judicial custody in relation to any offence and investigation of such offence is not completed and no final report is filed till 60/90 as the case may be, the learned Magistrate shall not extend the custody of such person beyond 60/90 days as the case may be.

Hence, personal liberty of an individual as guaranteed by our Constitution has been safeguarded by insertion of Section 167(2) in the Code of Criminal Procedure.

a) Whether Right of an accused u/s. 167(2) Cr.P.C., is absolute ?

The right of an accused to get bail in default of filing of Challan by the prosecution agency is absolute, and the same is indefeasible right and so it cannot be denied on any ground such as heinous crime / huge money involved.

How to calculate 60/90 days to avail relief u/s. 167(2) Cr.P.C.?

It is the date of first remand and not the date of arrest. This view has been approved in the following cases.

1[CBI Vs. Anupam Kulkarni]

2[State Vs. Md. Ashraft Bhal]

3[State of Maharastra Vs Bharati Chandmal Varma]

4[State of MP Vs Pustam & others]

The Hon’ble Apex Court held that “date is to be calculated from the date of remand and not from the date of arrest. Before invoking 167(2) Cr.P. C., charge sheet was filed. So, bail can be considered only on merits and not on default bail.

b) When the indefeasible right accrues and Limitation if any to avail such right?

The full bench of Allahabad High Court answering the reference was pleased to observe and held that

The right to apply for bail under this provision expires as soon as the charge sheet is filed.

c) Whether notice to Public Prosecutor is necessary?

In Section 167(2) Cr.P.C., there is no provision for giving any notice to the Public Prosecutor.

d) Petition u/s. 167(2) Cr.P.C., to be decided on the same day

If an application for bail u/s. 167(2) Cr.P.C. is filed, if not decided on the same day then the accused will be deprived of his valuable right and it would violate Article 21 of the Constitution of India. Thus, it is well settled by catena of decisions, that plea for default bail u/s. 167(2) Cr.P.C., has to be decided on the same day without adjourning the matter.

5[Mohamed Iqbal Madar Sheikh and others Vs. State of Maharashtra].

“Any such act on the part of any Court cannot be approved”.

1.(1992) 3 SCC 141 : 1992 SCC Crl. 554

2.1996 SCC (Crl.) 117

3.(2002) SCC Crl. 299

4.1995 SCC Crl. 830

5.1997(1) MWN (Crl.) SC 40

“If an accused charged for any kind of offence becomes entitled to be released on bail under proviso (a) to Section 167(2) Cr.P.C., that statutory right should not be defeated by keeping the application pending till the charge sheets are submitted so that the right which had accrued is extinguished and defeated”

The Constitutional Bench of the Hon’ble Apex Court in

- 6[Sanjay Dutt Vs. The State thro’ CBI., Bombay].

The indefeasible right of an accused to be released on bail in accordance with Section 20(4) (bb) of TADA Act r/w. Section 167(2) Cr.P.C., in default of completion of investigation and filing of challan within the time allowed as held in 7[Hitendra Vishnu Thakur] case is a right which answers to and is enforceable by the accused only from the time of default till the filing of challan and it does not survive or remain enforceable on challan being filed.

It is now made clear that an accused can avail this valuable right as soon as the right accures on him, and this right would be made available in between, “Right arose till challan filed. If bail is ordered and charge sheet is filed, before the surety is accepted by competent Court, still the right can be enforced. Mere filing of final report after the bail order u/s. 167(2) Cr.P.C., will not take away the right of an accused.

When the petition for availing the right u/s. 167(2) Cr.P.C. is pending disposal, if charge sheet is filed, it can not be considered as strict compliance of law and bail can be ordered since accused availed the right u/s. 167(2) Cr.P.C. is first and then challan is filed

8[Adbul Rahman Vs. State of TN through the Inspector of Police, Madurai and another]

6. 1995 Crl.L.J. 477 SC

7. (1994 SCC (Crl.) 1087)

8. 2000 (2) MWN (Crl.) 158

Defective Final report

If defective final report is filed in order to defeat the right of an accused and final report is returned for compliance, the same can not be considered as strict compliance and so right of an accused u/s. 167(2) Cr.P.C., exists and default bail cannot be denied.

e) Whether bail granted u/s. 167(2) Cr.P.C., can be cancelled on filing of final report?

“Once the indefeasible right has been accrued on the accused, subsequent remand u/s. 309(2) held would be of no consequences”. 9[Adbul Rahman Vs. State through the Inspector of Police, Madurai and another].

Bail if once granted u/s. 167(2) Cr.P.C. cannot be cancelled merely on the ground that final report is filed.

Bail once granted u/s. 167(2) Cr.P.C., can be cancelled only by invoking powers u/s. 437(5), 439(2) Cr.P.C., certainly not on the ground of charge sheet subsequently filed.

10[Nagarajan and others Vs. State of Tamil Nadu] – filing of defective charge sheet in order to defeat the rights of an accused to be enlarged on bail is no ground to reject bail.

f) Whether Judicial Magistrate can extend the time to file final report?

Section 36(A) (4) of the Narcotic Drugs and Psychotropic Substances Act, 1985 (Act 61 of 1985)

Section 36(A) offences triable by Special Court:

(Substituted by NDPS (Amendment) Act, 2001 w.e.f. 2.10.2001 vide SO 957(E) dt. 27.9.2007.

 

9. 2000(2) MWN (Crl.) 158

10. 2004 (2) LW (Crl.)

 

 

(4) In respect of persons accused of an offence, punishable under Section 19 or Section 24 or Section 27A or for offences involving commercial quantity the references in sub-section (2) of Section 167 of the Code of Criminal Procedure, 1973 (2) of 1974) thereof to ‘ninety days’, where they occur, shall be construed as reference to ‘one hundred and eighty days’.

Provided that, if it is not possible to complete the 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 continuation of investigation of the accused beyond the said period of one hundred and eighty days.

Section 43(D), (2) (b) of the Unlawful Activities (Prevention) Act, 1967 (Act 37 of 1967)

2. Section 167 of the Code shall apply in relation to a case involving an offence punishable under this Act subject to the modification that in sub section (2) –

(a) the references to “fifteen days”, ‘ninety days’ and “sixty days” wherever they occur, as references to “thirty days”, “ninety days” and “ninety days” respectively and (b) after the proviso, the following provisos shall be inserted, namely –

“Provided further that if it is not possible to complete the investigation within the said period of ninety days, the Court may if it is satisfied with the report of the Public Prosecutor indicating the progress of investigation and the specific reasons for the detention of the accused, beyond the said period of ninety days, extend the said period up to one hundred and eighty days.

The amendment effected in the above two Special Acts is Pari materia and to apply the same, the following are mandatory.

(a) a report of the Public Prosecutor

(b) Compelling reasons for seeking the detention of the accused beyond the period,

(c) The progress of the investigation,

(d) Notice to the accused.

In the following cases, the scope of amendments and powers of learned Judicial Magistrate have been decided:

11[Sanjay Kumar Kedia @ Sanjay Kedia Vs. Intelligence Officer, Narcotics Control Bureau and another]

12[Jith @ Indrajith and others Vs. Inspector ‘Q’ Branch, Pudukkottai – Madras High Court, Madurai Bench].

13[Rakeshkumar Paul Vs State of Assam]

14[Thiruselvam Vs State]

To recapitulate the facts, the 90-day period qua Thiruselvam [A1], Kaviarasan [A3] and Kalailingam [A4] was to expire on 08.07.2014 and qua Karthik [A5] and John Martin [A6], it was to expire on 06.08.2014 and in the meantime, the Special Public Prosecutor filed the report under the proviso to Section 43-D(2) of the UAP Act for extending the period upto 180 days on 30.06.2014, on which, docket order was passed on 04.07.2014. Only thereafter, the accused filed the petition for statutory bail on 11.07.2014, which was not entertained by the trial Court. The charge sheet was filed by the NIA against all the accused on 30.09.2014. Therefore, in the light of the recent judgment of the Supreme Court in Rambeer Shokeen (supra), which is binding on this Bench under Article 141 of the Constitution of India, this Court is unable to persuade itself to follow the order of this Court in Thangaraj (supra) for granting relief to the appellants.

Lastly, this Court proposes to address the arguments of the learned counsel for the accused relating to the observations made in the Habeas Corpus proceedings, extracted in para 12 above. While dismissing the Habeas Corpus Petitions, the Division Bench has recorded that the Special Judge had not passed any judicial order of remand, but had extended the remand by making endorsements in the remand warrant as and when the accused were produced before him. Having observed thus, the Division Bench dismissed the Habeas Corpus Petitions holding as under:

 

11. (2011) 1 SCC (Crl.) 1099

12. CDJ 2013 MHC

13. 2018(1) SCC Crl. 401

14. 2018 3 MLJ Crl.303

In view of the above judgments of the Hon'ble Supreme Court, in the instant case, through the detention of the detenus between 18.07.2014 and 12.09.2014 was not by means of any valid order of remand, since on their subsequent production before the Special Court, there were valid orders of remand passed, the detention as of now, cannot be stated to be illegal and so they cannot be set at liberty."

The question is, will the accused be entitled to default bail on this ground? As explained above, default bail is a sort of a rap on the knuckles of the police for not completing the investigation and filing the final report within 90/60 days of first remand of the accused. For the failure of the Judge to pass a formal judicial order of extension of remand on the application of the prosecution, default bail is not the remedy. The maxim, Actus Curiae Neminem Gravabit - An act of the Court shall prejudice no one, cannot be ignored. Such a ground for bail cannot be founded either u/s 167(2) or u/s 437 Cr.P.C. This Court cannot hold that, failure of the Magistrate/Judge to pass judicial orders on extension of remand applications would entail default bail to the accused and thus invent an hitherto unknown new category of default bail.

Sec 167(2) Crl. PC – default bail – absence of discretion – there is no discretion while granting default bail where accused satisfies prerequisities for grant of bail under u/s 167(2) Cr.P.C- if the punishment is “imprisonment for a term not less than 10 years” – whether accused is entitled for default bail in 60 days or 90 days is a sort of a rap on the knuckles of the police for not completing the investigation and filing the final report within 90/60 days of first remand of the accused. For the failure of the Judge to pass a formal judicial order of extension of remand on the application of the prosecution, default bail is not the remedy. The maxim, Actus Curiae Neminem Gravabit - An act of the Court shall prejudice no one, cannot be ignored. Such a ground for bail cannot be founded either u/s 167(2) or u/s 437 Cr.P.C. This Court cannot hold that, failure of the Magistrate/Judge to pass judicial orders on extension of remand applications would entail default bail to the accused and thus invent an hitherto unknown new category of default bail.

Sec 167(2) Crl. PC – default bail – absence of discretion – there is no discretion while granting default bail where accused satisfies prerequisities for grant of bail under u/s 167(2) Cr.P.C- if the punishment is “imprisonment for a term not less than 10 years” – whether accused is entitled for default bail in 60 days or 90 days –

15[State of Maharashtra Vs. Surendra Pundlik Gadling & Ors.]

Mr. Mukul Rohatgi, learned senior counsel appearing for the appellant/State has rightly contended that there is a material difference in the facts of the present case and those of Hitendra Vishnu Thakur8 case, in as much as the application in that case was in the form of an affidavit of the IO, whose signatures were identified by an endorsement of the public prosecutor. It is in those circumstances it was held that mere identification by the public prosecutor, of the deponent of the affidavit could not justify the application to be treated as a report of the public prosecutor. In the present case, the second document contains a clear endorsement of the public prosecutor in support of the averments made therein.

15. 2019 (2) SCC Crl. 472

No doubt, in para 23 of Hitendra Vishnu Thakur9 case, thisdefault bail is not the remedy. The maxim, Actus Curiae Neminem Gravabit - An act of the Court shall prejudice no one, cannot be ignored. Such a ground for bail cannot be founded either u/s 167(2) or u/s 437 Cr.P.C. This Court cannot hold that, failure of the Magistrate/Judge to pass judicial orders on extension of remand applications would entail default bail to the accused and thus invent an hitherto unknown new category of default bail.

Sec 167(2) Crl. PC – default bail – absence of discretion – there is no discretion while granting default bail where accused satisfies prerequisities for grant of bail under u/s 167(2) Cr.P.C- if the punishment is “imprisonment for a term not less than 10 years” – whether accused is entitled for default bail in 60 days or 90 days –

15[State of Maharashtra Vs. Surendra Pundlik Gadling & Ors.]

Mr. Mukul Rohatgi, learned senior counsel appearing for the appellant/State has rightly contended that there is a material difference in the facts of the present case and those of Hitendra Vishnu Thakur8 case, in as much as the application in that case was in the form of an affidavit of the IO, whose signatures were identified by an endorsement of the public prosecutor. It is in those circumstances it was held that mere identification by the public prosecutor, of the deponent of the affidavit could not justify the application to be treated as a report of the public prosecutor. In the present case, the second document contains a clear endorsement of the public prosecutor in support of the averments made therein.

15. 2019 (2) SCC Crl. 472

No doubt, in para 23 of Hitendra Vishnu Thakur9 case, thisCourt laid emphasis on the importance of the scrutiny by a public prosecutor, so as to not leave the detenu in the hands of the IO alone, being the police authority. The public prosecutor, thus, has the option to agree or disagree with the reasons given by the IO for seeking extension of time but in the facts of the present case, the second document in the form of an application shows scrutiny of the first document and thereafter details grounds and expanded reasons for the requirement of further time to complete the investigation.

Undoubtedly the request of an IO for extension of time is not a substitute for the report of the public prosecutor but since we find that there has been, as per the comparison of the two documents, an application of mind by the public prosecutor as well as an endorsement by him, the infirmities in the form should not entitle the respondents to the benefit of a default bail when in substance there has been an application of mind. The detailed grounds certainly fall within the category of "compelling reasons" as enunciated in Sanjay Kedia10 case.

WHETHER ONEREOUS CONDITION CAN BE IMPOSED WHILE GRANTING BAIL U/S 167(2) CR.P.C

It is settled that onereous condition cannot be imposed when an accused is released on regular bail or on statutory bail u/s 167(2) Cr.P.C.

16 [Vinoth Kumar Vs State]

1. “It is not a settled law when a court considers a statutory bail, onerous condition cannot be imposed and the court has to statisfy itself with the only requirement as to whether the accused person is prepared to furnish bail….”

 

2. “…the condition imposed by the court below directing the petitioner to deposit copy of documents worth Rs.5 Lakhs…set aside.”

 

16. 2019 (2) TNLR 934

 

 

17 [ Rajendran @ Thiyagarajan Vs The State

Bail was granted under section 167(2) Cr.P.C. – with condition to deposit a sum of Rs.5 Lakhs – order directing to deposit Rs.5 Lakhs as a condition precedent was challenged – petition allowed condition set aside.

CONCLUSION:-

Thus, the prolonged incarceration of accused has been curtailed by Section 167(2) Cr.P.C. and thereby the liberty of an individual has been protected.

17. 2019 (2) LW Crl 629