M. Rashid Choudhury vs State of Nagaland

Judicial Analysis Court Copy Headnote Facts Arguments Court observation

2021 Supreme(Gau) 675

IN THE HIGH COURT OF GAUHATI, (KOHIMA BENCH)
S. Hukato Swu, J.
M. Rashid Choudhury - Appellant
Versus
State of Nagaland - Respondent
Bail Appln. No. 16 of 2021
Decided On : 26-07-2021

Advocates Appeared:
For the Appellant : Mr. V. Theyo and Ms. Neise Liegise.
For the Respondent: Mr. K. Angami

Headnote:
India Penal Code, 1860 – Section 420/120 B/466/467/468/469/471 – Criminal Procedure Code, 1973, Section 163(2), 167 – Cheating and dishonestly inducing delivery of property – Criminal conspiracy – Forgery of record of Court or of public register, etc – Forgery of valuable security, will, etc – Forgery for purpose of cheating – Commits forgery – an application under section 439, CrPC read with section 167(2), CrPC praying for release of accused – Accused has been charged for offences under section 420/120 B/466/467/468/469/471, IPC State Crime P.S. Case – Held, petitioner right would have accrued and 20th being Sunday, the petitioner could have presented his default bail application prior to the State-respondents filing charge sheet – However, this was not the case and I am of the view that the petitioner could not file a petition prior to his right having been accrued and claim that he should be released under that statutory provision of law – There may be cases where the courts delay in hearing the bail application although petition has been filed after the lapse of statutory period with the intent of frustrating the application and denying the accused-petitioner of the right to go on bail by allowing the State- respondents to file charge sheet by keeping the hearing of bail in abeyance – In such cases the accused-petitioner's right could be protected. However, facts presented are not of that nature – Therefore, there is no reason to find fault with the learned Principal District and Sessions Judge for delay in hearing the application which would influence this court to grant relief to the accused-petitioner – For all reasons enumerated above, Court find no merit in the present bail petition and is accordingly rejected – Petition disposed of.

Judgement Key Points

Based on the provided legal document, the court's decision primarily hinges on the interpretation of the right to default bail under Section 167(2) of the Criminal Procedure Code (CrPC). The key points are as follows:

Timing of the Right to Bail: The right to seek default bail accrues only after the expiry of the statutory period of 90 days from the date of arrest, excluding the initial day of remand and the day charge sheet is filed (!) (!) . The right does not arise prematurely or before this period lapses (!) .
Filing of Bail Application: The bail application must be filed after the right has accrued, i.e., after the completion of the 90-day period. Filing before this period does not entitle the accused to bail, and such an application is considered premature and invalid (!) (!) .
Computation of Period: The calculation of the 90 days should include the days of detention, excluding the first day of remand and the day the charge sheet is filed. The period begins from the day after the initial remand and is inclusive of subsequent days until the charge sheet is filed (!) (!) .
Filing on Non-Working Days: Filing of the bail application on non-working days (such as weekends or holidays) does not affect the timing; the application could have been filed on the last working day before the expiry of the period (!) .
Premature Filing and Waiver: Filing a bail application before the statutory period has expired is considered a waiver of the right, and the court is not authorized to entertain such an application (!) (!) .
Order of Rejection: The court correctly rejected the bail application as premature because the right to default bail had not yet accrued at the time of filing. The order was based on the proper interpretation of statutory provisions and was not erroneous (!) (!) .
Delay in Hearing: While delays in hearing can sometimes be grounds for protecting the right, in this case, there was no such delay that would justify granting bail before the statutory period expired (!) .
Legal Procedure: The law mandates strict adherence to the timeline, and courts are not permitted to interpret or extend the period beyond what is explicitly provided. The right to bail is exercisable only after the prescribed period lapses and the right has accrued (!) (!) .

In summary, the court upheld that the right to seek default bail arises only after the completion of 90 days from the date of arrest, excluding the initial day of remand and the day the charge sheet is filed. Since the bail application was filed prematurely, before this period had lapsed, it was rightly rejected.

JUDGMENT :

1. This is an application under section 439, CrPC read with section 167(2), CrPC praying for release of accused M. Rashid Choudhury. The accused has been charged for offences under section 420/120 B/466/467/468/469/471, IPC in G.R 73/2019 State Crime P.S. Case No. 02/2019.

2. Learned counsel Ms. Neise Liegise appears for the accused-petitioner and the State-respondent is represented by Mr. K. Angami, learned P.P.

3. The accused was arrested on 22.3.2021 on the strength of warrant issued by the JMFC, Kohima and was produced before the court of JMFC, Kamrup Assam on the same day. The JMFC, Kamrup Assam on the same date granted 48 hours transit remand with effect from 22.3.2021 to 24.3.2021 directing the I.O. to produce the accused before the learned CJM, Kohima on or before 24.3.2021. The accused-petitioner was produced before the learned CJM, Kohima on 24.3.2021 and was further remanded to police custody from 24.3.2021 to 29.3.2021 and 29.3.2021 to 31.3.2021. Thereafter, the accused was remanded to judicial custody.

4. Bail application was filed under section 167(2)(a)(ii) of CrPC before the learned Principal District and Sessions Judge Kohima which was heard on 22.6.2021. The learned Principal District and Sessions Judge rejected the bail on the ground that the 90 days stipulated under section 167(2) of the CrPC is yet to be completed and rejected the bail by observing as follows:

“[T]he accused M. Rashid Choudhary was arrested on 22.3.2021 and was first produced on 24.3.2021 on which date he was remanded to police custody. As such, in the instant case, the period of 90 days after exclusion of the first day of remand would commence from 25.3.2021. The charge sheet was filed today. The accused has spent 7 days in custody in the month of March, 30 days in April, 31 days in May and is in the 22nd day of custody in the month of June. Thus, as of date, the accused is in his 90th day of custody and since the charge sheet has already been filed, no case of release of accused on default is made out.”

5. Being aggrieved by the order passed by the learned Principal District and Sessions Judge the accused is before this court on the following grounds:

(a) accused has ought to have been released on bail for indefeasible right had accrued as he was detained in custody for a period of 91 days from 23.3.2021 to 21.6.2021 excluding the first day of remand and the day of filing of the charge sheet.

(b) the right of the accused under section 167(2) of the CrPC commences from 23.3.2021 and not on 25.3.2021. The learned Principal District and Sessions Judge, Kohima committed error in computing 25.3.2021 as the first day of remand to give effect to the computation of section 167(2), CrPC for the benefit of the accused-petitioner.

6. The learned counsel for the petitioner submits that the Apex Court in the case of Gautham Naplaka v. National Investigation Agency in Criminal Appeal No. 510 of 2021 arising out of SLP Criminal No. 1796/2021 the Apex Court observed at para 76 as follows

“Now, the question may precede as to whether the remand pursuant to the transit remand is to police custody or judicial custody. It cannot be judicial custody as the police is exclusively entrusted with the man no doubt to produce him before the magistrate having jurisdiction. It is, therefore, police custody. If it is police custody then the order of the magistrate granting transit remand would set the clodc ticking in terms of (1986) 3 SCC 141 to complete the period for the purpose of default bail. We would hold that the remand order be transit remand order is one which is passed under section 167 of the CrPC and though it may be for the production of the appellant, it involved authorizing continued detention within the meaning of section 167.”

7. She has, therefore, contended that the learned Principal District and Sessions Judge had committed error in observing that the period of 90 days after exclusion of the first day of remand would commence from 25.3.2021

Click Here to Read the rest of this document