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1999 Supreme(MP) 528
High Court Of Madhya Pradesh
R. S. GARG
AKHLAK - Appellant
Versus
STATE OF M.P. - Respondents
M. CRI. C. 4018 Of 1999
Decided On : 08/04/1999
A.K.JAIN, AHLUVALIA
The right of an accused person to be released on bail under Section 167(2) of the Code of Criminal Procedure is indefeasible from the date of default in filing the challan till the date of filing of the challan.
Headnote:
CRIMINAL PROCEDURE CODE - SECTION 167(2) - BAIL - DEFAULT BAIL - INDEFEASIBLE RIGHT - CANCELLATION OF BAIL - GROUNDS - SECTION 439(2) - APPLICABILITY.
Fact of the Case:
The applicants were arrested on 27-12-1998 for transporting illicit liquor. The prosecution case was that the applicants in a tanker of Indian Oil Company which is generally used for carrying and transporting L.P.G. were transporting the liquor without any authority. The applicants filed an application under S. 167 (2), Cr. P. C. before the trial Court inter alia pleading that as they were in custody for more than 90 days and as the challan was not filed, the applicants were entitled to be released on bail, in view of S. 167 (2) of the Code of Criminal Procedure. The learned trial Court rejected the said application on 12-1-1999 observing that without pursuing the case diary, it would not be proper to direct release of the applicants. Being dissatisfied by the said order, the applicants preferred an application before the Session Judge who found that the accused persons were arrested on 26-12-1998 and were in judicial custody from 27-12-1998. He found and it is undisputed fact, that within the period of 90 days and up to the date of his order challan was not filed by the Police. He also found that the police did not file challan up to the date of his order before the competent Court. The learned Session Judge observing that an order passed under S. 167 (2) of Cr. P. C. is an order in default and if such an order is passed in favour of the accused the Court granting the application as a right to recall the grant of bail under S. 439 (2) of Cr. P. C. Referring to the merits of the case, the learned Judge found that the accused persons who were transporting illicit liquor would not be entitled to be released on bail. Referring to the judgment reported in 1993 JLJ 29, it observed that in a case under Ss. 8/18 read with S. 37 Narcotic Drugs and Psychotropic Substances Act (for short 'n. D. P. S. ') even if the challan was not filed the accused would not be entitled to bail under S. 167 (2 ). Further placing reliance upon the judgment of the Supreme Court in the matter of Raghubir Singh v. State of Bihar, AIR 1987 SC 149 : (1987 Cri LJ 157) and Rajnikant v. Intelligence Officer Narcotic Control Bureau, New Delhi, AIR 1990 SC 71 : (1990 Cri LJ 62) it held that though the accused are entitled to be released under S. 167 (2) but bail cannot be granted to them under S. 439 (2) of Cr. P. C. Being aggrieved by the order passed by the learned Session Judge, the applicants have filed this petition under S. 439, Cr. P. C. read with S. 167 (2) inter alia pleading that as the prosecution did not file the challan up to the date of order, the Court below was unjustified in rejecting the application, illegally applying the provisions of S. 439 (2) of Cr. P. C.
Finding of the Court:
The Court held that the applicants were entitled to be released on bail under Section 167(2) of the Code of Criminal Procedure as the challan was not filed within the prescribed period of 90 days. The Court further held that the learned Session Judge erred in rejecting the bail application on the ground that the accused were transporting illicit liquor and that bail could not be granted under Section 439(2) of the Code of Criminal Procedure. The Court clarified that Section 439(2) can only be invoked after bail has been granted and not at the time when the grant of bail is under consideration.
Issues: 1. Whether the applicants were entitled to be released on bail under Section 167(2) of the Code of Criminal Procedure? 2. Whether the learned Session Judge erred in rejecting the bail application on the ground that the accused were transporting illicit liquor and that bail could not be granted under Section 439(2) of the Code of Criminal Procedure?
Ratio Decidendi: 1. The right of an accused person to be released on bail under Section 167(2) of the Code of Criminal Procedure is indefeasible from the date of default in filing the challan till the date of filing of the challan. 2. The Court cannot refuse bail under Section 167(2) on the ground that the accused has committed a serious offence and that the bail granted to him is likely to be cancelled under Section 437(5) or 439(2) of the Code of Criminal Procedure. 3. Section 439(2) of the Code of Criminal Procedure can only be invoked after bail has been granted and not at the time when the grant of bail is under consideration.
Final Decision: The Court allowed the petition and directed that each of the applicants be released on bail on furnishing a personal bond of Rs. one lac with two local sureties in the like amount each to the satisfaction of C.J.M. Raisen.
( 1 ) BY this petition under S. 439 read with S. 167 (2) of the Code of Criminal Procedure the applicants who have been arrested by the Police Mandideep in connection with Crime No. 227/98 for committing offences punishable under Ss. 467, 471, 478, 487 read with S. 109, I. P. C. and Ss. 34, 36 and 39 of M. P. Excise Act have prayed for grant of bail.
( 2 ) UNDISPUTEDLY, the accused persons were arrested on 27-12-1998 for transporting illicit liquor. The prosecution case is that the applicants in a tanker of Indian Oil Company which is generally used for carrying and transporting L. P. G. were transporting the liquor without any authority. The prosecution case is that the accused persons and others after forging certain documents used the same for transporting the liquor and as each of them was involved in commission of the crime, they were required to be arrested. Undisputedly, the accused persons were arrested on 27-12-1998. It is also not in dispute before me that up to 12-5-1999 i. e. the date of the order passed by the learned Sessions Judge, Raisen challan was not filed. At a request made by Shri Jain, learned counsel for the applicants, I enquired from the Session Judge, Raisen as to whether challan was filed or not Shri Shirpurkar, Addl. Registrar (Judicial) after making the enquiries informed me that up to 29th of July, 1999 challan was not filed before the competent Court.
( 3 ) THE applicants filed an application under S. 167 (2), Cr. P. C. before the trial Court inter alia pleading that as they were in custody for more than 90 days and as the challan was not filed, the applicants were entitled to be released on bail, in view of S. 167 (2) of the Code of Criminal Procedure. The learned trial Court rejected the said application on 12-1-1999 observing that without pursuing the case diary, it would not be proper to direct release of the applicants. Being dissatisfied by the said order, the applicants preferred an application before the Session Judge who found that the accused persons were arrested on 26-12-1998 and were in judicial custody from 27-12-1998. He found and it is undisputed fact, that within the period of 90 days and up to the date of his order challan was not filed by the Police. He also found that the police did not file challan up to the date of his order before the competent Court. The learned Session Judge observing that an order passed under S. 167 (2) of Cr. P. C. is an order in default and if such an order is passed in favour of the accused the Court granting the application as a right to recall the grant of bail under S. 439 (2) of Cr. P. C. Referring to the merits of the case, the learned Judge found that the accused persons who were transporting illicit liquor would not be entitled to be released on bail. Referring to the judgment reported in 1993 JLJ 29, it observed that in a case under Ss. 8/18 read with S. 37 Narcotic Drugs and Psychotropic Substances Act (for short 'n. D. P. S. ') even if the challan was not filed the accused would not be entitled to bail under S. 167 (2 ). Further placing reliance upon the judgment of the Supreme Court in the matter of Raghubir Singh v. State of Bihar, AIR 1987 SC 149 : (1987 Cri LJ 157) and Rajnikant v. Intelligence Officer Narcotic Control Bureau, New Delhi, AIR 1990 SC 71 : (1990 Cri LJ 62) it held that though the accused are entitled to be released under S. 167 (2) but bail cannot be granted to them under S. 439 (2) of Cr. P. C. Being aggrieved by the order passed by the learned Session Judge, the applicants have filed this petition under S. 439, Cr. P. C. read with S. 167 (2) inter alia pleading that as the prosecution did not file the challan up to the date of order, the Court below was unjustified in rejecting the application, illegally applying the provisions of S. 439 (2) of Cr. P. C.
( 4 ) LEARNED counsel for the State submits that looking to the nature of the offence and the quantity of the illicit liquor and the price of the same, th
