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High Court of Judicature at Madras
THE HONOURABLE MR. JUSTICE JANARTHANAM
Sankar Alias Gowri Sankar And Others - Appellant
Versus
State Of Tamil Nadu - Respondents
Crl.M.P.No.10755 of 1990 and Crl.M.P.S.R. No. 61754 of 1990
Decided On : 19 September 1990
CRIMINAL PROCEDURE CODE - SECTION 167(2) - BAIL - RIGHT TO BAIL - ACCUSED ENTITLED TO BAIL ON DEFAULT OF PROSECUTION TO FILE CHARGE-SHEET WITHIN PRESCRIBED PERIOD - SUCH RELEASE DEEMED TO BE UNDER CHAPTER XXXIII - NO INFERENCE OR DEDUCTION THAT ACCUSED DEEMED TO HAVE BEEN RELEASED ON BAIL ON EXPIRY OF 90/60 DAYS - FURTHER DETENTION NOT ILLEGAL.
Fact of the Case:
Petitioners were arrested and charged with offences of murder. Investigation revealed that six murders were committed by the petitioners on different dates. They were remanded to custody by the Magistrate. The remand periods were extended on various dates by the Magistrate time and again. The petitioners were placed under detention under the provisions of the National Security Act. The investigating agency was stated to be having obstacles in the course of investigation relating to the identity of the deceased, since skeletons of five of the murder victims alone were recovered during investigation. The modern techniques of investigation as respects the identity of the deceased were stated to be adopted, thereby delaying the process of completion of investigation within the statutory period contemplated under Section 167, Cr.P.C. Despite all such insurmountable difficulties, investigation was however completed and a charge-sheet/final report was laid under section 173(2), Cr.P.C. before the competent Court on 26-12-1988, and it was taken on file as P.R.C. No. 55 of 1988 on 28-12-1988. The detention of the petitioners under the National Security Act was however set aside by this Court. In these circumstances, the petitioners have filed Crl.M.P. No. 10755 of 1990 for their release on bail, invoking the benevolent provision of Section 167(2), Cr.P.C., since the final report had not been filed within the statutory period of 90 days from the date of their first production before Court, contending that in such a situation, it should be construed that they should have been deemed to have been released on bail on and from the 91st day of their first production before Court, thereby making further detention illegal and that such order of release can only be annulled by cancellation of bail, if circumstances so warrant, by resorting to the provisions of Sections 437(5) and 439(2), Cr.P.C.
Finding of the Court:
The Magistrate who is not otherwise having the power to release a person accused of a non-bailable offence acquires such a power in the contingency of the investigating agency not filing the final report within the prescribed statutory period, and such release on bail, if the person is prepared to and does furnish bail, shall be deemed to be a release under Chapter XXXIII of the Code of Criminal Procedure and there is no warrant for the inference or deduction that the accused shall be deemed to have been released on bail on the expiry of 90/60 days, thereby making the further detention illegal.
Issues: Whether the petitioners are entitled to bail on account of default on the part of the prosecution to file charge-sheet within the prescribed period?
Ratio Decidendi: An order for release on bail under proviso (a) to S. 167(2) is an order on default. The accused is entitled to be released on bail on account of default on the part of the prosecution to file charge-sheet within the prescribed period if he is prepared to and does furnish bail. It is a legislative command and not Court's discretion. In other words, if the investigating agency fails to file charge-sheet before the expiry of 90/60 days as the case may be the accused in custody should be released on bail; but at that stage merits of the case are not to be examined. The Magistrate has no power to remand the accused beyond the stipulated period of 90/60 days, and he should be released on bail if he is prepared to and furnishes bail, The accused cannot claim any special right to remain on bail. In other words, the accused cannot claim that his right to remain on bail can, under no circumstances, be defeated. If the investigation reveals that (i) the accused has committed a serious offence; and (ii) charge-sheet is filed, the bail granted under proviso (a) to S. 167(2) could be cancelled. If the accused has not made application for his release on bail, after expiry of the period prescribed by the proviso (a) to S. 167(c) and before filing of the charge-sheet had no right to claim has release on bail after filing of the charge-sheet/final report, solely on the ground that the charge-sheet/final report was not submitted within the prescribed period.
Final Decision: Crl.M.P. No. 10755 of 1990 is dismissed and Crl.M.P. SR No. 61754 of 1990 is rejected as not maintainable.
The Inspector of Police, C.B., C.I.D., Madras, on the lodging of a report, registered a case against the petitioners herein for alleged offences under section 120-B read with Sections 147, 148, 364, 302 and 201, I.P.C. and took up investigation. The investigation revealed that six murders were committed on different dates by the petitioners and consequently they were arrested and later remanded to custody by the Magistrate, as detailed below :
The remand periods were extended on various dates by the Magistrate time and again. The petitioners were placed under detention under the provisions of the National Security Act. The investigating agency was stated to be having obstacles in the course of investigation relating to the identity of the deceased, since skeletons of five of the murder victims alone were recovered during investigation. The modern techniques of investigation as respects the identity of the deceased were stated to be adopted, thereby delaying the process of completion of investigation within the statutory period contemplated under Section 167, Cr.P.C. Despite all such insurmountable difficulties, investigation was however completed and a charge-sheet/final report was laid under section 173(2), Cr.P.C. before the competent Court on 26-12-1988, and it was taken on file as P.R.C. No. 55 of 1988 on 28-12-1988. The detention of the petitioners under the National Security Act was however set aside by this Court. In these circumstances, the petitioners have filed Crl.M.P. No. 10755 of 1990 for their release on bail, invoking the benevolent provision of Section 167(2), Cr.P.C., since the final report had not been filed within the statutory period of 90 days from the date of their first production before Court, contending that in such a situation, it should be construed that they should have been deemed to have been released on bail on and from the 91st day of their first production. before Court, thereby making further detention illegal and that such order of release can only be annulled by cancellation of bail, if circumstances so warrant, by resorting to the provisions of Sections 437(5) and 439(2), Cr.P.C. The State represented by the Inspector of Police, on the other hand, filed Cr. S.R. No. 61754 of 1990 for cancellation of the deemed order of bail enuring to the benefit of the petitioners/accused, as contended by them.
2. Mr. A. Natarajan, learned counsel appearing for the petitioners/accused, in support of the contention of the, petitioners, placed implicit reliance on the decision of Arunachalam, J. in Judu alias Daswaran v. State of Tamil Nadu, (1990 LW Crl 53), wherein it was held as follows :
"The power of the Magistrate to remand the accused to jail custody came to an end with the expiry of 90/60 days from the date when the accused was first produced before the Magistrate after his arrest. Once the period of 90/60 days expired, on the command of the legislature, if a charge-sheet were not to be filed, the accused is entitled to be released on bail. The power of remand under S. 309(2), Cr.P.C., after first taking cognizance of the offence will have to be read in the light of the right of entitlement of the accused to be released on bail under S. 167(2)(a), Cr.P.C.
The accused is entitled to bail which must be deemed to have been made on the expiry of 90 days. This can only be annulled by a cancellation of bail, if circumstances so warrant."
Learned counsel for the petitioners also drew my attention to the various decisions referred to in the aforesaid judgment, and submitted that the petitioners are entitled to bail which must be deemed to have been made on the expiry of 90 days of their first production before the Magistrate.
3. Mr. R. Shanmughasundaram, Additional Public Prosecutor, would vehemently contend that the power to order release of a person accused of a non-bailable offence on bail, was not at all inhering in the Magistrate under section 167, Cr.P.C. prior to its amendment, that such po
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