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1974 Supreme(Gau) 39
GAUHATI HIGH COURT
M. C. PATHAK, C. J. AND D. M. SEN, J.
VED KUMAR SETH AND ANOTHER
VERSUS
THE STATE OF ASSAM
Criminal Revn. Nos. 180 and 184 of 1974,
Decided on : 16 -12 -1974.
An accused person is entitled to be released on bail after 60 days in custody, even if the offence is punishable with death or life imprisonment.
Headnote:
BAIL - SECTION 167(2) - SECTION 437(1) - SECTION 309(2) - SECTION 190(1)(B) - SECTION 173(2) - SECTION 2(R) - Accused entitled to bail after 60 days in custody - Magistrate has no jurisdiction to remand accused after 60 days - Remand orders under Section 309(2) can only be passed after taking cognizance of an offence - Cognizance can only be taken after submission of police report under Section 173(2) - Police report under Section 173(2) is a condition precedent for taking cognizance of an offence - Accused entitled to bail under Section 167(2) after 60 days in custody, even if offence is punishable with death or life imprisonment.
Fact of the Case:
Accused were arrested and remanded to custody for more than 60 days in a murder case. They filed bail applications under Section 439 read with Section 401 of the Criminal Procedure Code, 1973, claiming to be enlarged on bail as of right after expiry of sixty days from the date of their arrest. The Chief Judicial Magistrate rejected their bail applications.
Finding of the Court:
The Court held that after an accused person is kept in custody for sixty days in all, the Magistrate must release him on bail if he is prepared to and does furnish bail and there is no jurisdiction of the Magistrate under Section 167, Criminal P.C. to pass remand orders or to pass orders for detention of the accused persons after he has already been in custody for sixty days.
Issues: Whether the accused were entitled to bail after 60 days in custody.
Ratio Decidendi: The Court held that the mandatory provision in proviso (a) to Sub-Section (2) of S.167 to the effect that on the expiry of the period of sixty days in custody, the accused person shall be released on bail if he is prepared to and does furnish bail, is not controlled by provisions of Sub-Section (1) of S.437 to the effect that the accused person shall not be released on bail if there appear reasonable grounds for believing that he has been guilty of an offence punishable with death or imprisonment for life.
Final Decision: The Court allowed the revision petitions and directed that the accused-petitioners shall be released on bail of Rs. 10,000/- (Rupees Ten thousand) only with one surety of the like amount in each case to the satisfaction of the Chief Judicial Magistrate, Kamrup at Gauhati.
Pathak, C.J. :- The facts leading to these applications for bail under Section 439 read with Section 401 of the Criminal P.C. 1973 are as follows :-
One Ramesh Kumar Arora lodged a First Information Report with the Gauhati Police Station on 24th June, 1974, alleging that while his uncle Kalwant Singh Bedi alias Kanti Bedi was returning home from his Automobile Shop (M/s. Rajdhani Automobiles, A. T. Road, Gauhati) driving his own car at about 7-30 P.M. some unknown person/persons fired at him causing serious injury to his person. He was immediately removed to Chatribari Mission Hospital where he succumbed to the injury. It was suspected that he had been murdered by some of his family members for the interest of property.
2. On receipt of the First Information Report the Police registered case No. 149(6) of 1974 under Section 302, Indian Penal Code.
3. In connection with the aforesaid case under Section 302, Indian Penal Code, the Police arrested Ajit Kumar Singh, Ved Kumar Seth and Harnam Singh on 25-6-1974, Sita Rani Bedi on 28-6-1974, Avtar Singh on 9-7-1974 and Sardar Ajit Singh Walia on 12-8-1974
4. Accused Ved Kumar Seth is the petitioner in Criminal Revision No. 180 of 1974, accused Sardar Ajit Singh Walia, and Avtar Singh and also Sita Rani Bedi and Ajit Singh Bedi by a separate petition are the Petitioners in Criminal Revision No. 184/74. After arrest the accused-petitioners were produced before the Chief Judicial Magistrate, who remanded the accused-petitioners for some time in Police custody and thereafter to jail custody. Bail petitions were moved on behalf of the accused petitioners which were rejected. On behalf of the accused Ved Kumar Seth bail application was moved on 11-9-74 claiming to be enlarged on bail as of right after expiry of sixty days from the date of his arrest. The petition was rejected by the learned Chief Judicial Magistrate by his order dated 15-10-1974. On behalf of the other petitioners also bail petitions were moved on similar grounds and the learned Chief Judicial Magistrate rejected them.
5. By these applications the petitioners have challenged the orders dated 15-10-1974 and 16-10-1974 passed by the learned Chief Judicial Magistrate by which all the accused-petitioners have been remanded to custody.
6. We have heard Mr. B.C. Barua and Mr. J.P. Bhattacharjee the learned counsel for the Petitioners at length. The learned counsel for the petitioners submit that under Section 167(2) of the Criminal P.C. 1973, the petitioners are entitled to be released on bail as of right after the expiry of the total period of sixty days in custody since they are prepared to furnish bail and that the learned Chief Judicial Magistrate has no jurisdiction to remand the accused-petitioners to custody after the total period of sixty days in custody has expired.
7. The admitted position is that all the accused-petitioners are in custody for more than sixty days when the applications for bail were moved before the learned Chief Judicial Magistrate.
8. It is submitted on behalf of the petitioners that they were arrested on 25-6-1974, 28-6-1974, 9-7-1974 and 12-8-1974 as stated hereinbefore. On behalf of the petitioners applications for bail were moved before the learned Chief Judicial Magistrate after expiry of 60 days in custody in each case. The investigation has not yet been completed and no police report has been submitted to the Magistrate under Sub-Section (2) of Section 173, Criminal P.C. and therefore the Magistrate could not take cognizance of the offence and in the circumstances the accused-petitioners were entitled to be released on bail under Section 167(2), Criminal P.C. as of right.
9. Sub-Section (1) of S.167, Criminal P.C. lays down that whenever any person is arrested and detained in custody and it appears that the investigation cannot be completed within the period of twenty-four hours fixed by Section 57, Criminal P.C., and there are grounds for believing that the accusation or information is well
