1999 Supreme(Bom) 384

IN THE HIGH COURT OF BOMBAY
(NAGPUR BENCH)
J.N. Patel, J.
Bhulabai wd/o Barkaji Matre..... Applicant.
Versus
Shankar Barkaji Matre others..... Non-applicants.
Criminal Application Nos. 600 and 601 of 1999, decided on 7-6-1999.
Advocates appeared :
R.P. Joshi, for applicants.
D.B. Patel, A.P.P., for State.

Headnote:Section 167 and Contempt of Court-Guidelines/measures to prevent misuse of Section 167, Criminal Procedure Code-Any person interested and aggrieved by the non-compliance of the guidelines entitled to initiate proceedings for Contempt of court.-All actions of the State or its authorities and its officers must be carried out in accordance with the Constitution and within the limits set up by law, it is obligatory on the part of the investigating agency to conclude investigation within the prescribed period of 60/90 days, as contemplated in Section 167(2), Criminal Procedure Code. A duty is cast on the Investigating Officer to satisfy the Magistrate as to why he could not file the charge-sheet within the prescribed time, by filing his explanation, giving special reasons ~upported by an affidavit and case dIary on or before last date of the prescribed period and on the date charge-sheet is\ filed beyond the prescribed period to enable the Magistrate to satisfy himself that in the facts and circumstances brought before him such investigation could not haw been completed within prescribed period for justifiable reasons. If the Magistrate is satisfied that the explanation so given is reasonable, he may record so which will result in absolving the investigating officer and his obligation under law and committing the default. If the Magistrate finds that there is no justifiable reason for not filing the chargesheet within prescribed time, then he should record so and then it will be the duty of the Public Prosecutor to submit his report to the disciplinary authority of the Investigating Officer for appropriate action, against the investigation officer for such default in performing the duty. Thereafter the disciplinary authority is expected to proceed in the matter and submit his action taken report to the concerned Magistrate, through their prosecuting agency. Failure to comply with the above requirements apart from rendering the official concerned liable for departmental action, would also render him liable to be punished for contempt of court and any person interested, if aggrieved by non-compliance of these directions will be entitled to initiate proceedings for contempt of court. AIR 1958 SC 376; AIR 1993 SC 1; 1994 Vol. I Crimes 56; 1993 Vol. II Crimes 405; 1995 Vol. II Crimes 481; 1993 Vol. I Crimes 339; 1993 Vol. II Crimes 84; 1996 Cri LJ 3319-Referred.

       Sections 167(2), 437(5) and 439(2)-Nature of bail granted either on merits or in default under Section 167(2) is one and the same-Such bail liable to be cancelled under Section 437(5) or 439(2) of the Code as the case may be.-Bail granted on merits or in default, as contemplated under Section 167(2) of the Criminal Procedure Code, is one and the same and, therefore, any cancellation of such bail can only be done by the Court in exercise of its powers under Sections 437(5) and 439(2) of the Criminal Procedure Code. The only distinction is that powers for cancellation of bail under sub-section (5) of Section 437 can be exercised by any Court whereas power under Section 439(2) to cancel bail vests with the High Court or Court of Session.

       Sections 437 and 439-Bail-Denial-Is a restriction on the freedom of the accused, access to lawyer! and preparing defence-Presumption of innocence until proof of guilt requires clear justification for depriving a person of liberty before conviction.

       Sections 437(5) and 439(2)Cancellation of bail-Grounds on which bail can be cancelled-Grounds for cancellation of bail are not provided by Section 437(5) or 439(2) of the Code of Criminal Procedure, but such grounds again specified by the Courts by judicial pronouncements and can be summed up as under: (i) Where the person on bail, during the period of bail-(a) commits the very same offence for which he is being tried or has been convicted; or (b) hampers the investigation; or (c) tampers with the evidence, e.g. by intimidating, bribing or tampering with prosecution witnesses, or removing traces or proof of crime; (d) runs away to a foreign country, or goes underground or beyond the control of sureties; or (e) commits act of violence, in revenge, against the police and the prosecution witnesses and those who have booked him or are trying to book him. (ii) Where the order granting bail is found to be without jurisdiction. Mere vague allegations are not sufficient grounds for cancellation of bail. (iii) Where the Court comes to the conclusion that the accused has committed non-bailable offence and that it is necessary that he should be arrested and committed to custody.