State
of Maharashtra Vs. Mrs. Bharati Chandmal Varma @ Ayesha
Khan [2001] Insc 638 (4
December 2001)
K.T.
Thomas & S.N. Phukan Thomas, J.
Leave
granted.
A huge
quantity of counterfeit notes of Rs.500 digit has been intercepted by the
authorities and a case was registered by the Thane Police, Maharashtra. A number of persons were arrested
in connection with the said racket.
We are
now concerned only with the arrest of a lady by name Ayesha Khan (also called Smt.
Bharati Chandmal Varma) the respondent in this case. After the arrest she was
produced before the Metropolitan Magistrate who remanded her to custody. As a
charge sheet was not laid within 90 days thereof she applied for being released
on bail as per the proviso to Section 167(2) of the Code of Criminal Procedure
(for short the Code). Though the Metropolitan Magistrate disallowed her prayer
a single Judge of the High Court of Bombay allowed her to be released on bail
solely on the aforesaid ground. The said order of the High Court is now being
challenged by the State of Maharashtra.
The
main contention of the State is that the period of 90 days envisaged in Section
167(2) of the Code should be reckoned from the date when the police started
investigation into the offences under the Maharashtra Control of Organised
Crime Act, 1999 (its acronym is MCOC).
For
considering the aforesaid contention more details of the facts are necessary.
Respondent was arrested on 1.4.2001 for the offences under Sections 489A 489B,
489C 120B and 420 of the Indian Penal Code. She was produced before the
Metropolitan Magistrate on 2.4.2001 and he remanded the respondent to police
custody first and later to judicial custody. During the investigation police
discovered that organised crimes under MCOC Act had also been committed and the
respondent was one of the links connected with foreign collaborators in pumping
such counterfeit currency notes into India. The investigating agency sought sanction of the authorities under the
MCOC Act for conducting investigation under the said Act. Such sanction was
granted on 21.4.2001 and thenceforth investigation was conducted into the
offences under the MCOC Act also. Finally the charge-sheet was laid on
12.7.2001.
Respondent
moved for bail principally on the ground that charge sheet was not laid within
90 days. If the period of 90 days is to be reckoned from 2.4.2001 there is no
doubt that respondent is entitled to bail under the proviso to Section 167(2)
of the Code. Sub-section (1) of Section 167 of the Code enjoins that the
arrested person shall be produced before a magistrate if his detention is
required for a period beyond 24 hours and any further custody of that person
can be made only if the magistrate authorises to do so. Sub-section (2)
empowers the magistrate to authorise the arrested person to be detained in
custody for a term not exceeding 15 days and a magistrate having jurisdiction
to try the case or commit the case for trial is empowered to authorise
detention of the accused person even beyond the period of 15 days, if the
magistrate is satisfied that there are adequate grounds for doing so.
Nonetheless, such magistrate cannot authorise detention for a total period
exceeding 90 days where the investigation relates to an offence punishable with
imprisonment for a term of not less than 10 years. As the proviso to Section
167(2) is the hub of the plea made by the respondent we find it necessary to
extract it here.
It
reads thus:
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.
{Sub
clauses (b) and (c) of the proviso are not relevant now and hence they are
omitted}.
If the
position remained under the said proviso the respondent has no difficulty to
have the impugned order sustained because the appellant State cannot, by any
stretch of imagination, show that charge-sheet was laid within 90 days from the
date she was remanded to the custody at the first instance. But the endeavour
of the State was to show that the said proviso can now be read only subject to
the modifications made by the MCOC Act.
Section
21 of the MCOC Act made modifications of the application of Section 167(2) of
the Code. It is useful to extract Section 21 of that Act. It reads thus:
21.
Modified application of certain provisions of the Code.
(1)
Notwithstanding anything contained in the Code or in any other law, every
offence punishable under this Act, shall be deemed to be a cognizable offence
within the meaning of clause (c) of section 2 of the Code and cognizable case
as defined in that clause shall be construed accordingly.
(2)
Section 167 of the Code shall apply in relation to a case involving an offence
punishable under this Act subject to the modifications that, in sub-section
(2),-- (a) the reference to fifteen days and sixty days wherever they occur,
shall be construed as references to thirty days and ninety days respectively.
(b)
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 ninety days, the Special Court shall extend the said period upto
one hundred and eighty days, 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 ninety days.
(3)
Nothing in section 438 of the Code shall apply in relation to any case
involving the arrest of any person on an accusation of having committed an
offence punishable under this Act.
(4)
Notwithstanding anything contained in the Code, no person accused of an offence
punishable under this Act shall, if in custody, be released on bail or on his
own bond, unless- (a) the Public Prosecutor has been given an opportunity to
oppose the application of such release; and (b) where the Public Prosecutor
opposes the application, the Court is satisfied that there are reasonable
grounds for believing that he is not guilty of such offence and that he is not
likely to commit any offence while on bail.
(5)
Notwithstanding anything contained in the Code, the accused shall not be
granted bail if it is noticed by the Court that he was on bail in an offence
under this Act, or under any other Act, on the date of the offence in question.
(6)
The limitations on granting of bail specified in sub-section (4) are in
addition to the limitations under the Code or any other law for the time being
in force on the granting of bail.
(7)
The police officer seeking the custody of any person for pre-indictment or
pre-trial interrogation from the judicial custody shall file a written
statement explaining the reason for seeking such custody and also for the
delay, if any in seeking the police custody.
It is
admitted by the learned senior counsel for the State of Maharashtra that the Public Prosecutor has not
filed any report before the Special Court
showing reasons for the detention of the respondent beyond 90 days from the
date of the first remand order. Hence they are disabled from contending that
the proviso to Section 21(2) of the MCOC Act would enable the investigating
agency to have the pre-trial custody of the respondent extended beyond 90 days.
In order to circumvent the said hurdle learned counsel adopted a two-fold
contention. First is that the period of 90 days can be reckoned from 21.4.2001
(the date when the investigation was allowed to be conducted for the offence
under the MCOC Act). Second is that the provision regarding bail under the said
Act is very stringent as quoted above and the High Court did not consider it
from the said angle.
The
second limb of the said contention need not bother us at the present stage as
that would become germane only when any motion for bail is made de hors Section
167(2) of the Code. For that purpose we may refer to the decision of a three
Judge Bench of this Court in Uday Mohanlal Acharya vs. State of Maharashtra{2001 (5) SCC 453}. Pattanaik J.,
who spoke for the majority view, pointed out that even in cases where the
accused who is entitled to be released on bail under the proviso to Section
167(2) of the Code can be dealt with by the magistrate concerned by remanding
into custody subject to all the provisions of the Code relating to bail etc.
This is what the learned Judges have stated on that aspect.
Such
an accused, who thus is entitled to be released on bail in enforcement of his
indefeasible right will, however, have to be produced before the Magistrate on
a charge- sheet being filed in accordance with Section 209 and the Magistrate
must deal with him in the matter of remand to custody subject to the provisions
of the Code relating to bail and subject to the provisions of cancellation of
bail, already granted in accordance with the law laid down by this Court in the
case of Mohd. Iqbal v. State of Maharashtra{1996 (1) SCC 722}.
So we
leave the second limb of the contention without expressing any opinion on the
merits since it is open to the court concerned to consider that aspect when any
motion is made in that behalf.
Dealing
with the first limb of the contention learned counsel elaborated it by
reference to Section 23(1) of the MCOC Act, which contains an embargo that
notwithstanding anything contained in the Code no information about the
commission of an offence of organised crime under this Act, shall be recorded
by a police officer without the prior approval of the police officer not below
the rank of the Deputy Inspector General of Police. Hence it was submitted that
investigation was impermissible until the approval has been accorded and its
corollary is that the period for completion of investigation could be counted
only from the date when investigation could legally be commenced.
For
the application of the proviso to Section 167(2) of the Code there is no
necessity to consider when the investigation could legally have commenced. That
proviso is intended only for keeping an arrested person under detention for the
purpose of investigation and the legislature has provided a maximum period for
such detention. On the expiry of the said period the further custody becomes
unauthorized and hence it is mandated that the arrested person shall be
released on bail if he is prepared to and does furnish bail. It may be a
different position if the same accused was found to have involved in some other
offence disconnected from the offence for which he was arrested. In such an
eventuality the officer investigating such second offence can exercise the
power of arresting him in connection with the second case. But if the
investigation into the offence for which he was arrested initially had revealed
other ramifications associated therewith, any further investigation would
continue to relate to the same arrest and hence the period envisaged in the
proviso to Section 167(2) would remain unextendable.
We
are, therefore, unable to agree with the contention of the learned counsel for
the State of Maharashtra that a new period of 90 days would
commence from the date when approval was accorded under Section 23 of the MCOC
Act for initiating investigation for any offence under the said Act. In the
present case, accused would be entitled to bail, not on the merits of the case,
but on account of the default of the investigating agency to complete the
investigation within 90 days from the date of the first remand of the
respondent.
We,
therefore, dismiss this appeal without prejudice to the right of the
prosecution to move for cancellation of the bail in the manner indicated by
this Court in Uday Mohanlal Acharya vs. State of Maharashtra (supra), the relevant portion of which has been extracted
above.
As the
respondent has been taken back to jail when the impugned order was suspended we
direct the jail authorities to release her on the strength of the bail bond
which she had executed pursuant to the order of the High Court. Such bail bond
would thus revive and could be enforced as and when necessary. The appeal is
thus dismissed.
J [
K.T. Thomas ]
J [
S.N. Phukan ] December
4, 2001.
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