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1992 Supreme(Guj) 50

Gujarat High Court
Judgename :B.C.PATEL
JITUBHAI SHANABHAI BHATT - Appellant
Versus
STATE - Respondent
MISC.CRI.APPLN. 625 of 1992
Decided On : 02/26/1992

Advocates Appeared: K.B.ANANDJIVALA, S.R.DIVETIA

Headnote:

Code of Criminal Procedure, 1973 –SECTION 156, 158, 159, 160, 161, 172, 204, 207, 209, 437 (1) – Learned Counsel has preferred this bail application. He has relied upon First Information Report and the order passed by learned Additional Sessions Judge in bail application for enlarging the petitioner on bail after perusing the said documents as this Court was not inclined to admit the matter, the learned Counsel requested the Court to permit him to withdraw the application on the ground that if permission is not granted he will not be in a position to file another bail application of the Code of Criminal Procedure (hereinafter referred to as the Code) empowers the Police officer to investigate any cognizable case. Section 157 of the Code contemplates procedure for investigation. Sections 158, 159, 160 and 161 of the Code empower the Police officer to forward his report, hold investigation or preliminary inquiry and it also empowers him to call upon any person being acquainted with the facts and circumstances of the case and to examine such persons. Section 162 of the Code contemplates recording and use of statements. Section 164 of the Code provides for recording of confessions and statements. Section 165 of the Code authorises the officers to make search. Section 167 comes into play when investigation cannot be completed within twenty-four hours. Reading that section it is clear that if investigation cannot be completed within a period of 24 hours as fixed by sec. 57 of the Code and there are grounds for believing that accusation or information is well founded, the officer-in-charge of the Police Station or the police officer making the investigation, if he is not below the rank of Sub- inspector, shall forthwith transmit to the nearest Judicial Magistrate a copy of entries in the diary prescribed relating to the case and shall at the same time forward the accused to such Magistrate –Held, Procedure which is reasonable, fair and just for a person accused of an offence must be held implicit in the guarantee of Art. 21. Article 39a of the Constitution is in Part IV of the Constitution pertaining to directive principles of State policy, which is an important article. According to that the State shall secure that the operation of the legal system promotes justice on a basis of equal opportunity. . . . . . First part of Art. 39a clearly provides for the operation of legal system which must promote justice on the basis of equal opportunity case where a bail application is submitted, the prosecution has all materials available to it to make the submissions before the Court pointing out that the accused is involved in an offence of grave nature and should not enlarge on bail while the accused is not equipped by the State with any material, as the same is under its custody material is provided only after the charge-sheet is filed. If there is a denial of a right of submitting bail application or considering the same on the ground that earlier bail application was submitted, would be clearly violative of principles of natural justice and will also be violative of Art. 21 as well as Art. 39a of the Constitution the accused had all the material on which the prosecution relies and having that material with the accused if the application is heard and decided, then it can be said that prosecution as well as the accused both had all materials available to them to make their submissions opportunity must be equal to the accused as well as to the prosecution accused had to make submissions without relevant materials earlier because he had no materials with him when the previous order was passed, while the prosecution with all materials in their possession objected the bail application the accused as well as the prosecution should be armed with the same material. Therefore, after filing charge-sheet, an opportunity must be given to the accused to make out a case for bail – Application stands rejected.

B. C. PATEL, J.

( 1 ) MR. Anandjiwala, learned Counsel has preferred this bail application. He has relied upon First Information Report (Annexure "a") and the order passed by learned Additional Sessions Judge in bail application No. 86 of 1992 for enlarging the petitioner on bail (Annexure "b" ). After perusing the said documents, as this Court was not inclined to admit the matter, the learned Counsel requested the Court to permit him to withdraw the application on the ground that if permission is not granted, he will not be in a position to file another bail application.

( 2 ) SECTION 156 of the Code of Criminal Procedure (hereinafter referred to as the Code) empowers the Police officer to investigate any cognizable case. Section 157 of the Code contemplates procedure for investigation. Sections 158, 159, 160 and 161 of the Code empower the Police officer to forward his report, hold investigation or preliminary inquiry and it also empowers him to call upon any person being acquainted with the facts and circumstances of the case and to examine such persons. Section 162 of the Code contemplates recording and use of statements. Section 164 of the Code provides for recording of confessions and statements. Section 165 of the Code authorises the officers to make search. Section 167 comes into play when investigation cannot be completed within twenty-four hours. Reading that section it is clear that if investigation cannot be completed within a period of 24 hours as fixed by sec. 57 of the Code and there are grounds for believing that accusation or information is well founded, the officer-in-charge of the Police Station or the police officer making the investigation, if he is not below the rank of Sub- inspector, shall forthwith transmit to the nearest Judicial Magistrate a copy of entries in the diary prescribed relating to the case and shall at the same time forward the accused to such Magistrate. That section also authorises the magistrate either to grant remand or forward the accused to judicial custody, or looking to the facts and circumstances of the case and in accordance with law, the Court may enlarge the accused on bail as per Sec. 437 of the Criminal procedure Code. That section also provides that when an accused person is forwarded, then in any case the Magistrate shall not authorise detention in any custody under the said section for a total period exceeding 90 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, and for a period of 60 days where the investigation relates to any other offence. On the expiry of the said period of 90 days or 60 days as the case may be, the accused person shall be released on bail if he is prepared to and does furnish the bail, and every person released on bail under that section shall be deemed to be so released under the provisions of Chapter XXXIII for the purpose of that Chapter. Section 169 of the Code provides that if it appears to the officer-in-chargi of the Police Station that there is no sufficient evidence or reasonable ground of suspicion to justify the forwarding of the accused to a Magistrate, such officer shall, if such person is in custody, release him on his executing a bond with or without sureties, as such officer may direct, to appear, if and when so required, before a magistrate empowered to take cognizance of the offence on a police report and to try the accused or commit him for trial. Section 172 of the Criminal procedure Code contemplates that every Police officer making an investigation shall day by day enter his proceedings in the investigation in a diary, setting forth the time at which the information reached him, the time at which he began and closed the investigation, the place or places visited by him, and a statement of the circumstances ascertained through his investigation.

( 3 ) SECTION 173 of the Code contemplates that investigation shall be completed withou










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