ASLAM BABALAL DESAI v. STATE OF MAHARASHTRA
Citation: [1992] SUPP. 1 S.C.R. 545; 1992 INSC 245
Court: Supreme Court of India
Bench: A.M. AHMADI , M.M. PUNCHHI, K. RAMASWAMY
Judgment date:
Case summary
1992 INSC 245. Supreme Court of India judgment dated 1992-09-15. ASLAM BABALAL DESAI v. STATE OF MAHARASHTRA. Read the judgment and case details on LawSphereX.
Judgment text
546 SUPREME COURT REPORTS[1992] SUPP. 1 S. C. R. ASLAM BABALAL DESAI v. STATE OF MAHARASHTRA SEPTEMBER 15, 1992 (A. M. AHMADI, M. M. PUNCHHI AND K. RAMASWAMY, JJ. ) Code of Criminal Procedure 197rSection 167(2)-Bail granted for failure of prosecution to complete investigation within tim~Whether liable to be cancelled when challan/chargesheet presented. A complaint was lodged against the appellant and 8 others, alleging Commission of offences punishable under sections 147, 148, 302 and 323 read with section 149 of I. P. C. in regard to an incident which took place on 8th September 1990. The appellant was arrested in that connection of the next day i. e. 9th September 1990. The appellant thereafter made an application before the Sessions Judge, for being enlarged on bail. That was rejected.
He approached the High Court but later withdrew the application and then once again moved the Sessions Judge for bail under the proviso to section 167 (2) of the Code on the ground that the investigation bad not been completed within 90 days and the appellant was released on bail vide order dated 11th March 1991. The charge-sheet and other documents were tendered subsequent thereto and the Stat• of Mauarasbtra moved an application under Section 439(2) of the . code in the High Court for cancellation of bail granted by the Sessions Judge. The High Conrt cancelled the bail vide order dated 31st March 1992 stating that the bail bad been granted on a technical ground namely, failure to file the chargesbeet within the time allowed and since the investigation revealed the commission of a serious offence of mrder, on the ratio of this Court's decision in Rajnikant Jeevanlal Patel v. Intelligence Officer NCB, New Delhi, (1981) 3 S. C. C.
532, it was open to the High Court to direct cancellation of the bail. In obedience to the order of the High Court the appellant surrendered to bis bail. Now the question under consideration is can bail granted under the proviso to subsection (2) of Section 167 of the Criminal Procedure Code 1973, for failure to complate the investigation within the prescribed period thereunder be cancelled on the mere presentation of the challan (charge sheet) at any item thereafter. Grantig the Special Leave, the Court, HELD: That the provisions of the Code, in particular sections 57 and 167 manifest the legislative anxiety that once a person's Liberty has been interfered with by the police arresting him without a court's order or a warrant the investigation must be carried out within the maximum period allowed by the proviso (a) to Section 167(2) of the Code as the said proviso was introduced in the code by way of enlargement of time for which the arrested accused could be kept in custody.
Therefore the prosecution agency must realise that if it fails to show a sense of urgency in the investigation of the case and omits or defaults to file a chargesheet within the time prescribed, the accused would be entitled to he released on bail and the order passed to that effect under section 167 (2) would be an order under Section 437(1) or (2) or 439 (1) of the Code. Since section 167 does not empower cancellation of the bail the power to cancel the bail can only be traced to section 437 (5) or 439 f2) of the code. The bail can then be cancelled on considerations which ae valid for cancellation of bail granted under section 437(1) or (2) or 439(1) of the code. The fact that the bail was earlier rejected or that it was secured by the thrust of proviso (a) of section 167(2) of the code then recedes in the background. Once the accused has been released on bail, bis liberty cannot be interfered with lightly i. e.
on the ground that the prosecution has subsequently submitted a charge sheet. Such a view would introduce a sense of complacency in the investigating agency and would distroy the very purpose of instilling a sense of urgency expected by sections 57 and 167(2) of the code. (566 F-H, 567 A-BJ So, once an accused is released on bail under section 167(2) he cannot be taken back in custody merely on the filing of a chargesheet but there must exist special reasons for so doing besides the fact that the chargesheet reveals the commission of a non-bailable crime. The ratio of Rajnikant's case to the extent it Is inconsistent herewith, does not, with respect, state the law correctly. (567-C] Further, even where two views are possible, this being a matter belonging to the field of criminal justice involving the liberty of an in· dividual, the provision must be construed strictly in favour of individual, liberty since even the law expects early completion of the investigation.
The delay in completion of the investigation can be on pain of the accused ASLAM BABALAL v. STATE 547 being released on bail. The prosecution cannot be allowed to trifle with individual liberty if it does not take its task seriously and does not complete it within the time allowed by law. It would also result in avoidable difficulty to the accused if the latter is asked to secure a surety and a few days later be placed behind the bars at the sweet will of the prosecution on production of a charge sheet. Thus unelss there are strong grounds for cancellation of the bail the bail once granted cannot be cancelled on mere production of the charge sheet. This view is consistent with the court's view in the case of Bashir & Raghubii; (1978] 1 SCR 585 but if any ambiguity has arisen on account of certain observations in Rajni-Kant,s case, our endeavour is to clear the same and set the controversy at rest.
(567 D-G] The impugned order of the High Court is set aside and the matter ~ remitted to the High Court for reconsideration and disposal on merits Jn the light of the legal position bereinabove stated. (567-H] The following cases were considered, Bashir & Ors. v. State of Haryana, (1978] 1 S. C. R. 585; Raghubir Singh & Ors. v. State of Bihar, (1986] 3 S. C. R. 802; Rajnikant Jeevanlal Patel v. Intelligence Officer NCB, New Delhi, (1989] 3 SCC 532; State (Delhi Admn. ) v. Sanjay Gandhi, (1978] 2 SCC 411 and Bhagirathsinh S! o Mahipat Singh Judeja v. State of Gujarat, [1984] 1 sec 284. As per Pun. :hhi, !. The question which requires determination in this appeal rather is in contrast to the one posed by brother Ahmadi, J. i. e.
whether an order granting bail under the proviso to sub-section (2) of Section 167 of the code of Criminal Procedure 1973, for failure to complete the investigation within the period prescribed thereunder, after the presentation of the challan (charge sheet) can be recalled or reviewed and on what grounds? [568-C] The view of this Court ever since the decision in State Delhi Administration v. Sanjay Gangh~ (19781 2 sec 411 has been that when a decision of bail already made on merit after due deliberation, is required to be reviewed on prayer for cancellation of bail it would require the exercise to be undertaken with the necessary care and circumspection. In the above referred case this question arose in the backdrop of Section 439 (2) of the Code wherein the High Court or court of Sessions can direct that any such person who has been realeased on bail under chapter XXXIII be arrested and committed to custody.
So also Is the power to cancel bail Is exercisable vis-a-vis an order p&ssed by the High Court or Sessions Conrts under sub-section (1) of Section 439, sub-sections (1) & (2) of Section 437 of the Code since bail orders under the aforesaid provisions by the very nature are decisions on merit and if a review is attempted a strong case has to be made out so as to secure cancellation of bail. Hence the apparent distinction in the approach of the court while granting bail and cancelling bail. [568-H, 569 B-C] The code designedly classifies offences bailable as well as non bailable and in case of non bailable offences it is left to the discretion of the Court. The power of arrest and detention is integral part of the investigat· ing process and that of the trial in order to preserve on the one band an individual's personal dignity and on the other the general interests of the society at large and the concept of bail is an inter-position between the two.
The constitution and our laws are so designed. The tests to be applied by courts In granting bail is by reference to many considerations such as the nature of the accusation. The evidence in support thereof, the severity of punishment or conviction which would entail the character, behaviour, means and standing of the accused etc. At the same time larger interest of the State have to be kept in view in granting or refusing bail and thus the court Is obligated to strike a balance. So a bail order-on-default is, a specie apart which involves no such deliberation and so cannot be equated with bail orders passed on merit by a court other than a High Court or a Court of Sessions under sub-sections (1) and (2) of section 437 or such a bail order passed by the High Court or Court of Sessions under sub section (1) of Section 439 of Cr. P. C.
Such a compulsive bail by the thrust of section 167 (2) can in no event be termed as a decision on merit to which the dlstrictive approach as given in Sanjay Gandhi's case is to play its significant part when effort to cancel bail is attempted. [569 D-H, 570 A-C] Any person released on bail under section 167 (2) shall be deemed to be so released under the provision of chapter XXXIII for the purposes of that chapter and does not ipso facto mean that the bail order assumes the kind conceived of in sub- section (1) & (2) of Section 437 or Sub-section (1) of Section 439 of the Code. Fiction of this kind cannot be permitted to go to the length of converting an order of bail under sub-section (2) of Section 167 not on merit as If passed on merit. This view is ASLAM BABALAL v. STATE 549 expressed by this Court in Bashir & Ors. v. State of Haryana, (1978) 1 SCR 585.
For cancellation of bail even when granted under section 167(2) or sub-sections (1) & (2) of 437 the only provision employable is section 437 (5) of the Code. [570 D-F] The existence of special ground for cancellation of bail, over and above the well known grounds for cancellation of bail granted under section's 167(2) of the code was re-affirmed and repeated in Ranghubir Singh & Ors. v. State of Bihar, [1983) 3 SCR p. 826. The same was followed in Rajnikant Jivanlal & Ors. v. Intelligence Officer, Narocotic Control Bureau, New Delhi, [19891 3 sec 532.
[572-FJ Thus on analysis off the case law, the conclusion is that a compulsive is bail under 167(2) being not on merit when required to be cancelled after the filing of the charge sheet or cballan would not involve any review of a decision made on merit and such bail is cancellable if the court has reason to entertain the belief that the accused bas committed a non-bailable offence and it is necessary to arrest him and commit him to custody. The goal of the Court in any event is to strike a judicial balance depending on the exigencies of the situation keeping in view amongst others, the claims of personal liberty and the larger interests of the State. Thus bail granted under Section 167 (2) of the code cannot debar or deprive the court ofits power to see to the merits of the case and perform its elementary function to administer justice and weigh the claims oo merit.
(573 G-H, 574 A-C] So in the instant case High Court has rightly relied on the decision of Raghubir case as the basis thereof. Since the accused or the appellant has committed a non-bailable offence which may invite capital punishment or imprisonment for life and thus there are sufficient grounds to arrest him and commit him into custody. Thus there being strong ground for cancellation of bail, the view of the High Court thus seems to be right for thus the appeal must fail and be accordingly dismissed. [574-E) As per K Ramaswamy, J. Agreeing with the view expressed and the order proposed brother Admadi, J. the only question in this appeal is whether the liberty had by the accused by statutory operation of the proviso to section 167 (2) of the code ipso facto is co-terminus with the filing of the charge sheet (chalan) under section 173 of the code.
(575-C] On receiving complaint or information orally or in writing of the Commission of a cognizable office Section 154 sets the Criminal Law In motion. Sections 156 and 157 give the power to investigate the facts and arrest the offender if necessary. Section 41 empowers the investigating officer to arrest any person concerning the said cognizable offence. Section 57 is supplement to and effectuates the constitutional mandate of Article 22(2) that every person arrested and detained in custody shall be produced before the nearest Magistrate etc. etc. It suppliments section 167 (1). The detention period is not to exceed 90 days, when the offence committed is punishable with death or imprisonment for life or imprison· ment for a term of not less than 10 years. Every person being released on bail for non completion of investigation within the requisite period, shall be deemed to be released under the provision of Chapter XXXIII.
Under clause (b) of sub-section (2) of section 167 production of the accused the Magistrate is mandatory before authorising detention of the accused in custody under that section. [575 D-H, 576 A-Bl If the investigation is not completed and cbargesbeet is not liled within 90/60 days based on the nature of offence then under section 173, the law mandates that the accused be released, if he is prepared to and does furnish the bail, by operation of explanation 1 to section 167 (2). This proviso puts an embargo on the power of the court to extend remand on expiry of 90/60 days. This was meant to expedite investigation and to incul· cate a sense of urgency. Such a release is by fiction of law as if one under Chapter XXXIII which includes sections 437 & 439 which empower the Court of Session and the High Court to release the accused on ball and also empowers to cancel the bail so granted. The relevant provisions of cancella· lion of bail have been considered by brother Ahmadi, J.
[577 B·C, 577 G-H] The scope of this proviso in Natabar Parida & Ors. v. State of Orissa, [1975] Cr. LJ. 1212 and in Central Bureau of Investigation v. Anupam J. Kulkarni, J. T. (1992) 3 SC 366 bas been reiterated Whereas in Rajnikant Jivanla/ & Ors. v. Intelligence Officer Narcotic Control Bun! au, [1989] 3 ! :'CC 532 upheld cancellation of the bail on liling the cbargesbeet for an off;·nce under Narcotic Drugs Psychotropic Substance Act 1985. [578-C] Undoubtedly by operation of the proviso to section 167(2) ol the Code, the accused is entitled to bail due to default of not completinio the investigation within the prescribed period of 90/60 days and not on me ~its. The fiction of law under the proviso applying the provisions in Chirpier ASLAM BABALAL v. STATE [AHMADI, J. ] 551 XXXIII is to serve the purpose of law. [581-D] The purpose of interpretation is to sustain the law.
The Court must interpret the words or the language in the statute to promote public good and misuse of power is inter dieted. (582-A] Criminal Law primarily concerns with social protection and prescribes rules of behaviour to be observed by all. Law punishes for defiance, transgression violation or omission. Liberty of the individual and security and order of the society or public order are delicate and yet paramount considerations. Undue emphasis on either would impede harmony and hamper public good as well as disturb social weal and peace. To keep the weal balanced, must be the prime duty of the Judiciary. (582-B] Thus the purpose of the proviso to section 167 (2) read with Chapter XXXIII of the code is to impress upon the need for expeditious completion of the investigation by the police officer within the prescribed limitation and to prevent laxity in that behalt On its default the release of the accused on bail shall be furnished if the accused is ready and does furnish the bail.
At the same time during investigation or trial the power of the court to have the bail cancelled and have the accused taken into custody are presen-ed. But as interpreted by this Court on the happening of the catalyst act i. e. expiry of 90/60 days, the hammer of release on default would fall. Aller filing of the charge sheet, to have the bail cancelled on committing the accused for trial or taking cognizance of the offence would depend on the nature of the evidence collected the conduct of the accused after the release and all other relevant facts. (582 C-H] CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No. 559of1992. From the Judgment aod Order dated 31. 3. 1992 of the Bombay High Court in Criminal Application No. 842 of 1991. S. V. Deshpaode for the Appellaot. A. S. Bhasme for the Respondent. The Judgments of the Court were delivered by AHMADI, J. Special leave graoted.
Can bail granted under the proviso to Sub-section (2) of Section 167 of the Code of Criminal Procedure, 1973 (hereafter called 'the Code') for failure to complete the investigation within the period prescribed thereunder be cancelled on the mere presentation of the challan (charge-sheet) at any time thereafter? This is the question which we are called upon to answer in the backdrop of the following facts. A complaint was lodged against the appellant and 8 others at Miraj City Police Station, District Sangli alleging commission of offences punishable under Sections 147, 148, 302 and 323 read with Section 149 IPC, in regard to an incident which took place at about 11 p. m. on 8th September, 1990. The appellant was arrested in that connection on the next day i. e. 9th September, 1990. The appellant thereafter made an application before the Sessions Judge, Sangli for being enlarged on bail That application was rejected.
The appellant approached the High Court but later withdrew the application and then once again moved the Sessions Judge, Sangli for bail under the proviso to Section 167 (2) of the Code on the ground that the investigation had not been completed within 90 days. The learned Sessions Judge by his order dated 11th March, 1991 directed the release of the appellant on bail. After the charge-sheet was submitted and the documents were tendered subsequent thereto, the State of Maharashtra moved an application under Section 439 (2) of the Code in the High Court for cancellation of bail granted by the Sessions Judge. The High Court by the impugned Order dated 31st March, 1992 cancelled the bail.
The High Court was of the view that since the learned Sessions Judge had granted bail on a technical ground, namely, failure to file the charge-sheet within the time allowed and since the investigation revealed the commission of a serious offence of murder, on the ratio of this Court's decision in Rajnikant Jeevanlal Patel v. Intelligence Officer NCB, New Delhi, [1989] 3 SCC 532 it was open to the High Court to direct cancellation of the bail. On this line of reasoning the High Court cancelled the bail and directed the appellant to surrender to the bail. In obedience to that order the appellant has surrendered to his bail. These, in brief, are the facts which have a bearing on the question under consideration. Sub-section ( 1) of Section 167 insofar as it is relevant for our puq ise provides that whenever any person is arrested and detained in custody .
nd it appears that the investigation cannot be completed within 24 hours ind there are grounds for believing that the accusation or information is veil AST"AM BABALAL v. STATE [AHMADI, J. ] 553 founded, the officer-in-charge of the police station or the investigating officer not below the rank of Sub Inspector shall forthwith transmit to the nearest Judicial Magistrate a copy of the entries in the diary and forward the accused to such Magistrate.
Sub-Section (2) of Section 167 which has bearing on the question under consideration may be extracted at this stage: "167 (2):- The Magistrate to whom and accused person is forwarded under this section may, whether he has or has not jurisdiction to try the case, from time to time, authorise the detention of the accused in such custody as such Magistrate thinks fit, for a term not exceeding fifteen days in the whole; and if he has no jurisdiction to try the case or commit it for trial, and considers further detention unnecessary, he may order the accused to be forwarded to a Magistrate having such jurisdiction: Provided that - (a) the Magistrate may authorise the detention of the accused persons, otherwise than in the custody of the police, beyond the period of fifteen days if he is satisfied that adequate grounds exist for doing so, but no Magistrate shall authorise the detention of the accused person in custody under this paragraph for a total period exceeding, - (i) ninety 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; (ii) sixty days, where the investigation relates to any other offence, and, on the expiry of the said period of ninety days, or sixty days, as the case may be, the accused person shall be released on bail if he is prepared to and does furnish bail, and every person released on bail under this sub-section shall be deemed to be so released under the provisions of Chapter XXXIII for the purposes of that Chapter: At this stage we may mention that the State of Maharashtra :ias not made any amendment in the aforesaid provision.
On a plain reading of this sub-section it becomes clear that the Magistrate to whom the accused is forwarded may authorise his detention in such custody as he may think fit for a term not exceeding 15 days in the whole. If the Magistrate has no jurisdiction to try the case or commit it for trial, and considers further detention unnecessary, he is required to order the accused to be forwarded to a Magistrate haivng jurisdiction. Such Magistrate may authorise his detention beyond the period of 15 days if adequate grounds exist but no Magistrate can authorise the detention of the accused persons in custody for a total period exceeding 90 days or 60 days . S the case may be depending on the nature of the crime alleged to have been coffimitted.
The· proviso, therefore, fixes the outer limit within which the investigation must be completed and if the same is not completed within the said prescribed period, the accused has a right to be released on bail if he is prepared to and does furnish bail. Where a person in released on bail in such circumstances under the said sub-section, such release must be deemed to be one under the provisions of Chapter XXXIII of the Code which contains provisions in regard to bail and bonds. In the present case, as stated earlier, the appellant had applied for bail before the expiry of the period of 90 days which was refused by the learned Sessions Jndge since the offence allegedly committed was of a serious nature.
However, unfortunately the investigating agency did not show urgency and did not complete the investigation within the maximum period allowed by the proviso to Section 167 (2) and hence on the appellant making an application for release on bail, the learned Sessions Judge had no alternative but to direct that he be released on bail on his executing a bond for Rs. 5,000 with one surety for like amount. Undoubtedly this release was solely on account of the fact that the investigating agency had failed to complete the investigation within the maximum period allowed by the proviso to Section 167 (2) i. e. 90 days. This default on the part of the investigating agency enabled the appellant to seek and secure his release on bail. The investigating agency submitted the charge-sheet at a later date and appended the documents subsequent thereto. On the completion of the charge-sheet the investigating agency moved the High Court for cancellation of the bail under Section 439(2) of the Code.
The High Court lur reasons already stated earlier cancelled the bail and directed that the appellant be taken into custody. Chapter XX. XIII of the Code comprises Sections 436 to 450; "of these Sections 437 and 439 have relevance so far as the question at issue is concerned. Sub-sections (1) & (2) of Section 437 insofar as relevant provide as under: ASLAM BABALAL v. STATE [AHMADI, J. ] 555 "437 • When bail may be taken in case of non-bailable offence .
• (1) When any person accused of, or suspected of, the commission of any non-bailable offence is arrested or detained without warrant by an office_r in charge of a police station or appears or is brought before a Court other than the High Court or Court of Session, he may be released on bail, but • (i) Such person shall not be so released if there appears reasonable grounds for believing that be has been guilty of an offence punishable with death or imprisonment for life; (ii) Such person shall not be released if such offence is a cognizable offence and he had been priviously convicted of an offence punishable with death, imprisonment for life or imprisonment for seven years or more, or he had been previously convicte\I on two or more occasions of a non· bailable and cognizable offence.
(2) If it appears to such officer or Court at any stage of the investigation, inquiry or trial, as the case may be, that there are not reasonable grounds for believing that the accnsed bas committed a non-bailable offence, but that there are sufficient grounds for further inquiry into his guilt, the accused shall, subject to the provisions of Section 446-A and pending such inquiry, be released on bail or, at the discretion of such officer or Court, on the execution by him of a bond without sureties for his appearance as hereinafter provided. " Sub-section (5) of Section 437 empowers the Court which has released the person on bail under Sub-sections (1) or (2) to cause his arrest and commit him to custody, if it considers it . necessary so to do. Section 439 empowers a High Court or a Court of Session to release any person accused of an offence and in custody on bail. Sub-section (2) next provides that a High Court or a Court of Se.
ssinn may direct that any person who has been released on bail under this Chapter be arrested and commit him to custody. It will thus be seen from the aforesaid two Sections that while power has been conferred on courts for grant of bai~ power has also been conferred for cancellation of bail in fit cases. The language of the proviso of Sub-sec-tion (2) of Section 167 specifically states that when an accused person is released on bail for failure to complete the investigation within the time prescribed, every person so released on bail 'shall be deemed to be so released under the provisions of Chapter XXXIII for the purposes of this Chapter'. Now before we proceed to deal with the submissions made before us it is necessary to bear in mind the scheme of the Code insofar as it relates to investigation on the criminal law having been set in motion by the filing of a First Information Report.
Section 41 empowers any police officer to arrest any person without an order from the Magistrate or without a warrant in the cases catalogued at clauses (a) to (i) of Sub-section (1) thereof. Section 57 next provides that the person arrested shall not be detained in custody by the police officer for a period longer than that which is reasonable but such period shall not exceed 24 hours exclusive of the time nece&•ary for journey from the place of arrest to the Magistrate's court in the absence of a special order under Section 167 of the Code. Article 22(2) of the Constitution also provides that every person who is arreste . SWAMY, J. ] 583 with brother Punchhi, J. that it might be possible to abuse the proviso by deliberate delay in completing the investigation to facilit&te the release of the accused oa bail.
I also agree that merits 1>1 ought out in the chargosheet and attending circumstances are relevant, as the boil was granted due to default of the investigating officer without court's adverting to the merits but strong grounds are necessary to cancel the bail. To that extent brother Ahmadi, J. also laid emphasis, namely, strong gorunds are to be made out in the chargesheet. With respect I agree with brother Ahmadi's emphasis that filing the chargesheet (challan) itself is not sufficient. However, I lay emphasis that the High Court or the Court of Sessions should consider the merits of the case. With respect, KJ. Shetty, J. , laid emphasis on the subsequent filing of the chargesheet and the power for cancellation under secs. 437 and 439 of the Code. Unfortunately, the ratio in Parida's and Bashir's cases was not brought to the notice of the learned Judge, which was directly on the point and for the reasons stated I find it difficult to agree with the learned Judge in that respect.
I am in full agreement with the view expressed by brother Ahmadi, J. and the order proposed by him. S. B. Appeal allowed.
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