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High Court Of Delhi
OM PRAKASH - Appellant
Versus
STATE - Respondent
BAIL APPLICATION : 1372 of 2005
Decided On : 06/22/2005
bail-on-default - Offences under Sections 376 (2) (g)/506/34 of the Indian Penal Code, 1860 - Proviso (a) (ii) to Section 167 (2) of the Code of Criminal procedure, 1973 - [167(2), 376(2)(g), 506, 34] - The court discussed the interpretation of the provisions of Proviso (a) (ii) to Section 167 (2) of the CrPC and the applicability of the period of detention for offences under Section 376 (2) (g) of the IPC. The court highlighted the indefeasible right of the accused to be released on bail if the charge-sheet is not filed within the prescribed period and emphasized that the mere filing of the charge-sheet during the pendency of the bail application does not extinguish or defeat the accrued right of the accused. The court also analyzed the meaning of the term 'punishable' and concluded that the offence under Section 376 (2) (g) of the IPC falls under Clause (a) (i) of the proviso to Section 167 (2) of the CrPC, requiring the charge-sheet to be filed within 90 days. The court referred to various decisions and highlighted the legislative intent behind the amendment in Section 167 of the CrPC, providing a comprehensive analysis of the legal provisions and their interpretations, which influenced the court's decision.
Fact of the Case:
The petitioner is accused of having committed offences under Sections 376 (2) (g)/506/34 of the Indian Penal Code, 1860. The petitioner claims bail-on-default under the provisions of Proviso (a) (ii) to Section 167 (2) of the Code of Criminal procedure, 1973. The charge-sheet was required to be filed within 60 days from the date of the first remand. The charge-sheet was filed after the 60-day period, and the petitioner filed an application for bail.
Finding of the Court:
The court found that the filing of a charge-sheet subsequent to the period prescribed under Section 167 (2) of the CrPC and during the pendency of an application for bail does not cure the defect and does not disentitle the accused to bail under the said provision. The court also found that the offence under Section 376 (2) (g), IPC falls under Clause (a) (i) of the proviso to Section 167 (2), CrPC, requiring the charge-sheet to be filed within 90 days.
Issues: The issues before the court were: (1) Whether the filing of a charge-sheet subsequent to the period prescribed under Section 167 (2) of the CrPC and during the pendency of an application for bail would cure the defect and disentitle the accused to bail under the said provision? (2) Whether the offence under Section 376 (2) (g), IPC would be covered under Clause (a) (i) of the proviso to Section 167 (2), CrPC or under Clause (a) (ii) of the proviso to Section 167 (2), CrPC?
Ratio Decidendi: The court held that the filing of a charge-sheet subsequent to the period prescribed under Section 167 (2) of the CrPC and during the pendency of an application for bail does not cure the defect and does not disentitle the accused to bail under the said provision. The court also held that the offence under Section 376 (2) (g), IPC falls under Clause (a) (i) of the proviso to Section 167 (2), CrPC, requiring the charge-sheet to be filed within 90 days.
Final Decision: The court decided in favor of the petitioner, holding that the filing of a charge-sheet subsequent to the period prescribed under Section 167 (2) of the CrPC and during the pendency of an application for bail does not cure the defect and does not disentitle the accused to bail under the said provision. The court also decided that the offence under Section 376 (2) (g), IPC falls under Clause (a) (i) of the proviso to Section 167 (2), CrPC, requiring the charge-sheet to be filed within 90 days.
( 1 ) -THE petitioner is accused of having committed offences under Sections 376 (2) (g)/506/34 of the Indian Penal Code, 1860 (hereinafter referred to as the ipc ). The petitioner claims bail-on-default under the provisions of Proviso (a) (ii) to Section 167 (2) of the Code of Criminal procedure, 1973 (hereinafter referred to as the crpc ). Therefore, some dates would be relevant. The First Information Report (FIR) was registered at Police station Sameypur Badli on 17. 2. 2005. He was arrested on the same day. On 18. 2. 2005, he was remanded to judicial custody and continues to be in custody. According to the learned Counsel for the petitioner the charge-sheet was required to be filed within 60 days from the date of the first remand i. e. , 18. 2. 2005. Since the charge-sheet had not been filed by 18. 4. 2005 (the date, when, the 60 days period came to an end) the petitioner on 4. 5. 2005 filed an application before the Magistrate claiming release on bail in terms of Proviso (a) (ii) to Section 167 (2) of Crpc. While the application was pending, the charge-sheet was filed on 12. 5. 2005. When the said application came to be disposed of on 21. 5. 2005, two issues arose for consideration. The first issue was about the filing of the charge-sheet and as to whether it cured the alleged defect of non-filing of the same in time. To be fair to the Magistrate, he decided this issue straightaway and, I may add, correctly by holding that the subsequently filed charge-sheet would not cure the defect. The second issue was whether the case at hand fell under Proviso (a) (ii) to Section 167 (2), Crpc or under Proviso (a) (i) to Section 167 (2), Crpc. The former requires the chargesheet to be filed within 60 days and the latter, 90 days. The Magistrate held that the 90 day period was applicable and therefore the charge-sheet was in time. The petitioner then moved an application before the Sessions Court. The learned Additional Sessions Judge, by an order dated 23. 5. 2005 rejected the same holding that the period applicable was 90 days and the charge-sheet had been filed within that period.
( 2 ) BEING aggrieved, the petitioner has now approached this Court. The questions remain the same:
(1) Whether the filing of a charge-sheet subsequent to the period prescribed under Section 167 (2), Crpc and during the pendency of an application for bail, would cure the defect and disentitle the accused to bail under the said provision? (2) Whether the offence under Section 376 (2) (g), IPC would be covered under Clause (a) (i) of the proviso to Section 167 (2), Crpc or under clause (a) (ii) of the proviso to Section 167 (2), Crpc? the answers are: (1) No; (2) The offence under Section 376 (2) (g), IPC would be covered under Clause (a) (i) of the proviso to Section 167 (2), Crpc. The reasons are as follows: re: Question (1) 2. 1. 1 There is no difficulty with the well settled position that non- completion of investigation within the period prescribed under Section 167 crpc gives an accused an indefeasible right to be released on bail. But, how long does this right enure to the benefit of the accused? In Sanjay Dutt v. State through CBI, Bombay (II), IV (1994) CCR 744 (SC)= (1994) 5 SCC 410, the supreme Court held that (page 442): "the indefeasible right accruing to the accused in such a situation is enforceable only prior to the filing of the challan and it does not survive or remain enforceable on the challan being filed if already not availed of. Once the challan has been filed the question of grant of bail has to be considered and decided only with reference to the merits of the case under the provisions relating to grant of bail to an accused after the filing of the challan. The custody of the accused after the challan has been filed is not governed by Section 167 but different provisions of the Code of criminal Procedure. If that right had accrued to the accused but it remained unenforced till the filing of the chal
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