Rajnikant
Jivanlal Patel & ANR Vs. Intelligence Officer Narcotic Control Bureau New Delhi [1989] INSC 196 (26 June 1989)
Shetty,
K.J. (J) Shetty, K.J. (J)
CITATION:
1990 AIR 71 1989 SCR (3) 377 1989 SCC (3) 532 JT 1989 (3) 67 1989 SCALE (1)1586
ACT:
Criminal
Procedure Code, 1973: Sections 167(2) proviso (a), 437, 439 and 482--Accused
remanded to jail custody--Charge sheet filed after ninety days--Magistrate
releasing accused on bail-High Court ordering re-arrest of accused by cancelling
bail--Validity of High Court order.
Narcotics
Drugs & Pyschotroic Substance Act, 1985:
Sections
21, 23 and 29--Accused released on bail by Magistrate on ground charge-sheet
not filed within ninety days--High Court cancelling bail and ordering re-arrest
of accused--Validity of High Court order.
HEAD NOTE:
The
petitioners were arrested on March 23, 1988
and produced before the Chief Metropolitan Magistrate, who remanded them to
jail custody. During the pendency of petitioner's application for bail, the
prosecution filed charge-sheet on June 23, 1988 for offences under Section 21, 23
and 29 of the Narcotic Drugs and Psychotropic Substances Act. 1985. Thereafter,
on the petitioners' application for bail under Section 167(2) Cr.P.C. on the
ground that the charge-sheet was filed after the expiry of ninety days of their
arrest, the Magistrate enlarged them on bail.
On an
application, under sec. 439(2) read with Section 482 of the Cr. P.C., filed by
the prosecution for cancellation of the bail, stating that since two of the accused
were earlier absconding, the investigation in the case could not be completed
within the time frame, the High court cancelled the bail order. Hence, the
special leave applications by the petitioners.
On the
question: whether the discretion exercised by the High Court was legally
sustainable and whether the accused had a special right to remain on bail
merely because they had been enlarged under Proviso (a) to Section 167(2) of
the Code, 378 Dismissing the Special Leave Petitions,
HELD:
An order for release on bail under proviso (a) to Section 167(2) of the Code of
Civil Procedure may appropriately be termed as on order-on-default. Indeed, it
is a release on bail on the default of the prosecution in filing charge-sheet
within the prescribed period. The right to bail under the provision is
absolute. It is a legislative command and not Court's discretion. If the
investing agency fails to file charge sheet before the expiry of 90/60 days, as
the case may be, the accused in custody should be released on bail. At that
stage, merits of the case are not to be examined. 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. [381E-G] The accused cannot claim any special right to
remain on bail. If the investigation reveals that the accused has committed a
serious offence and charge-sheet is filed, the bail granted under proviso (a)
to Section 167(2) could be cancelled under Sections 437(5) or 439(2) of the
Code.
[381H]
In the instant case, the offences alleged are of serious nature and the
discretion exercised by the High Court does not call for any interference.
[382A] Raghubir Singh v. State of Bihar, [1986] 3 SCR 802, referred to.
CRIMINAL
APPELLATE JURISDICTION: Petitions for Special Leave to Appeal (Criminal) Nos.
1090-91 of 1989.
From
the Judgment and Order dated 8.5.1989 of the Delhi High Court in Misc. Appln. No.
106/89 & 107/1989.
U.R. Lalit,
Tushar Shah and B .V. Desai for the Petitioners.
J.S. Arora
and Satish Agarwala for the Respondent.
The
Judgment of the Court was delivered by K. JAGANNATHA SHETTY, J The petitioners
were released on bail by the Enquiry Magistrate under proviso (a) to Section
167(2) of the Code of Criminal Procedure. After filing of the charge-sheet the
High Court ordered their rearrest by cancelling the bail. The order of 379 the
High Court is now under challenge.
I do
not find any merit in these petitions. But before dismissing, I wish, however,
to draw attention to some aspects of the question raised.
The
facts:
On 23 March, 1988 the petitioners were arrested in Bombay by officers of the Narcotic Control
Bureau. They were ordered to be produced before the competent Magistrate at New Delhi. They were accordingly produced
before the Additional Chief Metropolitan Magistrate, New Delhi. On 29 March, 1988 they were remanded to jail custody till 12 April, 1988. The remand order was subsequently
renewed from time to time. On 10 May, 1988
the petitioners moved the Chief Metropolitan Magistrate for bail. When that
petition was pending consideration, the prosecution submitted charge-sheet. The
charge-sheet was filed on 23 June, 1988
for offences under Sections 21, 23 and 29 of the Narcotic Drugs and
Psychotropic Substances Act, 1985. On July 22, 1988 the petitioners filed an
application for bail under Section 167(2) Cr. P.C. on the ground that the
charge-sheet was filed after the expiry of 90 days of their arrest. On 29 July, 1988 learned Magistrate enlarged them on
bail on their furnishing self bonds in the sum of Rupees two lakhs each with
two surety bonds in the sum of Rs. 1 lakh each.
The
efforts of the prosecution to have the bail cancelled could not succeed before
learned Magistrate. So they moved the Delhi High Court under Section 439(2)
read with section 482 of the Cr.P.C. In that application, the nature of the
offence committed, the part played by the accused, the gravity of the offence
etc., were all set out. 1t was also stated that since two of the accused were
earlier absconding, the investigation in the case could not be completed within
the time frame.
The
High Court by following the decision of this Court in Raghubir Singh v. State
of Bihar, [1986] 3 SCR 802 and after
considering the material on record cancelled the bail order.
The
High Court said:
"In
the present cases, no doubt an order was passed granting bail because the
charge sheet was not filed within the statutory period of 90 days but it was
filed on 92 days.
380 There
is no doubt that the charge against the respondents is very serious in nature
because they are alleged to have entered into a conspiracy to export heroin out
of India. The minimum punishment prescribed
in such offence is a sentence of 10 years rigorous imprisonment, and a fine of
Rupees one lakh. I am, therefore, of the view that the authority referred above
is fully applicable to the facts of the present case. Respondents are further
alleged to have procured services of one H.S. Gala and a lady carrier Manjula
Ben who carried 3 Kg. heroin from India to USA in November 1987. Therefore it was
on the basis of the statements made by those persons in USA that the respondents were arrested in India.
I am,
therefore, of the view that it is a fit case where order of bail should be
cancelled." The question is whether the discretion exercised by the High
Court is legally sustainable? Whether the accused have a special right to
remain on bail merely because they have been enlarged under proviso (a) to
Section 167(2) of the Code? It is not disputed and indeed cannot be disputed
that when an accused is granted bail, whether under proviso (a) to Section
167(2) or under the general provisions of Chapter XXXIII, the only method by
which the bail may be cancelled is to proceed under Section 437(5) or Section
439(2). That is because the person released on bail under the proviso to
Section 167(2) shall be deemed to be so released under the provisions of
Chapter XXXIII of the Code.
Sub-section
(5) of Section 437 provides:
"Any
Court which has released a person on bail under sub-section (1) or sub-section
(2) may, if it considers it necessary so to do, direct that such person be
arrested and commit him to custody." Sub-section (2) of Section 439
provides:
"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." 381
Under sub-section (5) of Section 437, the Court if it considers it necessary,
direct that the person on bail be arrested and committed to custody. The bail
may be cancelled by the Court if it comes to the conclusion that there are
sufficient grounds that the accused has committed a nonbailable offence and
that it is necessary that he should be arrested and committed to custody. This
is what this Court observed in Raghubir Singh v. State of Bihar, [1986] 3 SCR 802. It was said (at
826):
"Where
bail has been granted under the proviso to section 167(2) for the default of
the prosecution in not completing the investigation in sixty days, after the
defect is cured by the filing of a charge-sheet, the prosecution may seek to
have the bail cancelled on the ground that the accused has committed a non-bailable
offence and that it is necessary to arrest him and commit him to custody. In
the last mentioned case, one would expect very strong grounds indeed." And
said:
"The
order for release on bail was not an order on merits but was what one may call
an order-on-default, and order that could be rectified for special reasons
after the defect was cured." An order for release on bail under proviso
(a) to Section 167(2) may appropriately be termed as an order-ondefault.
Indeed, it is a release on bail on the default of the prosecution in filing
charge-sheet within the prescribed period. 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 expiry of 90/60 days, as the case may be, the accused in custody should
he 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.
The
accused cannot, therefore, claim any special right to remain on bail. If the
investigation reveals that the accused has committed a serious offence and
charge-sheet is filed, the bail granted under proviso (a) to Section 167(2)
could be cancelled.
382 I
examined the material on record. The offences alleged are of serious nature. I
am of the opinion that the discretion exercised by the High Court does not call
for any interference. The Petitions, are, therefore, rejected.
N.P.V.
Petitions dismissed.
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