IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL Original Jurisdiction Dated: Nainital the 22nd Day of April, 2013 1st Bail Application No. 556 of 2013 Order on the Bail Application: CRIMINAL SIDE Sandeep Kumar Applicant. Versus [ENTITY] Respondent. Present: Mr. [ENTITY], Advocate for the applicant. Mr. [ENTITY], Brief Holder for the [ENTITY] / respondent. Hon'ble [ENTITY], J. (Oral)
This is a bail application seeking regular bail in [CASE NUMBER] under [SECTION] [ACT], Police Station Kotwali Jwalapur, District Haridwar.
Undisputedly applicant was sent to judicial custody, in the present case, on 20.12.2012. Undisputedly applicant moved an application seeking bail, under [SECTION] of the [ACT], since prosecution did not submit the charge-sheet within 60 days. Learned Sessions Judge rejected the bail application of the applicant on the ground that on 18.03.2013 itself charge-sheet was submitted by the prosecution, therefore, no benefit under [SECTION] of the Code can be extended in favour of the applicant.
[SECTION] [ACT] reads as under:
304-B. Dowry death.-(1) Where the death of a woman is caused by any burns or bodily injury or occurs otherwise than under normal circumstances within seven years of her marriage and it is shown that soon before her death she was subjected to cruelty or harassment by her husband or any relative of her husband for, or in connection with, any demand for dowry, such death shall be called "dowry death", and such husband or relative shall be deemed to have caused her death.
As per [SECTION] [ACT], Court can award the sentence to the offender for a period of 7 years and maximum life imprisonment.
[SECTION] [ACT] reads as under:
(2) The Magistrate to whom an 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 person, 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 [SECTION] for the purposes of that Chapter;] Having perused Sub Section (i)(ii) of clauses (a) of Sub Section 2 of Section 167 [ACT], this Court has no hesitation to hold 90 days period is available to the prosecution to file charge-sheet if offence is punishable for a term of not less than 10 years or imprisonment for life or with death.
However, if minimum punishment, can be awarded by the Code, is less than 10 years then statutory period available to the prosecution is only 60 days, in view of the fact that law makers have intentionally used the word "not less than 10 years" under [SECTION] of the Code. In the firm opinion of this Court while interpretating any provision, Court must read the provision as it is and should not add or omit any word in the provision.
Learned Single Judge of Karnataka High Court, in the case of [PRECEDENT], at page 4798 has also opined that since punishment under [SECTION] [ACT] may be 7 years and above, therefore, statutory period of 60 days to file charge- sheet is available to the prosecution.
Learned Single Judge of Jharkhand High Court, in the case of [PRECEDENT], at page 2507 has also opined that since offence under [SECTION] [ACT] is punishable with 7 years or more, therefore, statutory period of 60 days is available to the prosecution to file charge-sheet.
Hon'ble Apex Court in the case of [ENTITY] vs. State of Maharashtra reported in 2001, Volume 5 SCC page 453 in paragraph No. 13 observed as under:
1. Under [SECTION], a Magistrate before whom an accused is produced while the police is investigating into the offence can authorise detention of the accused in such custody as the Magistrate thinks fit for a term not exceeding 15 days on the whole.
2. Under the proviso to the aforesaid [SECTION], the Magistrate may authorise detention of the accused otherwise than in the custody of police for a total period not exceeding 90 days where the investigation relates to offence punishable with death, imprisonment for life or imprisonment for a term of not less than 10 years, and 60 days where the investigation relates to any other offence.
3. On the expiry of the said period of 90 days or 60 days, as the case may be, an indefeasible right accrues in favour of the accused for being released on bail on account of default by the investigating agency in the completion of the investigation within the period prescribed and the accused is entitled to be released on bail, if he is prepared to and furnishes the bail as directed by the Magistrate.
4. When an application for bail is filed by an accused for enforcement of his indefeasible right alleged to have been accrued in his favour on account of default on the part of the investigating agency in completion of the investigation within the specified period, the Magistrate/court must dispose of it forthwith, on being satisfied that in fact the accused has been in custody for the period of 90 days or 60 days, as specified and no charge-sheet has been filed by the investigating agency. Such prompt action on the part of the Magistrate/court will not legislative mandate of an accused being released on bail on account of the default on the part of the investigating agency in completing the investigation within the period stipulated.
5. If the accused is unable to furnish the bail as directed by the Magistrate, then on a conjoint reading of [SECTION] and the proviso to [SECTION], the continued custody of the accused even beyond the specified period in para (a) will not be unauthorised, and therefore, if during that period the investigation is complete and the charge-sheet is filed then the so-called indefeasible right of the accused would stand extinguished.
6. The expression "if not already availed of" used by this Court in [ENTITY] case3 must be understood to mean when the accused files an application and is prepared to offer bail on being directed. In other words, on expiry of the period specified in para (a) of the proviso to [SECTION] if the accused files an application for bail and offers also to furnish the bail on being directed, then it has to be held that the accused has availed of his indefeasible right even through the court has not considered the said application and has not indicated the terms and conditions of bail, and the accused has not furnished the same.
With the aforesaid interpretation of the expression "availed of" if the charge-sheet is filed subsequent to the availing of the indefeasible right by the accused then that right would not stand frustrated or extinguished, necessarily therefore, if an accused entitled to be released on bail by application of the proviso to [SECTION], makes the application before the Magistrate, but the Magistrate erroneously refuses the same and rejects the application and then the accused moves the higher forum and while the matter remains pending before the higher forum for consideration a charge-sheet is filed, the so-called indefeasible right of the accused would not stand extinguished thereby, and on the other hand, the accused has to be released on bail. Such an accused, who thus is entitled to be released on bail in enforcement of his indefeasible right will, however, have to be produced before the Magistrate on a charge- sheet being filed in accordance with [SECTION] and the Magistrate must deal with him in the matter of remand to custody subject to the provisions of the Code relating to bail and subject to the provisions of cancellation of bail, already granted in accordance with the law laid down by this Court in the case of [PRECEDENT].
In view of the dictum of the Apex Court in the case of [ENTITY] (Supra) if prosecution fails to file charge-sheet within the statutory period of 90 days or 60 days, as the case may be, accused acquires indefeasible right of bail in default. If application is moved by the accused seeking bail, in default under [SECTION] of the Code prior to filing of charge-sheet and thereafter charge-sheet is filed by the prosecution then indefeasible right accrued in favour of the accused shall not be extinguished. However, if accused does not move the application seeking bail in default and meanwhile charge-sheet is filed, right of the accused to be enlarged on bail in default shall stand frustrated.
In the present case, accused was arrested on 20.12.2012, 60 days period to file charge-sheet for an offence punishable under [SECTION] stood expired on 20.02.2013 and thereafter accused moved an application seeking bail, in default on 18.03.2013, however, on the same day charge- sheet was submitted by the prosecution. In view of the fact that accused availed his indefeasible right to seek bail, in default, by moving an application on 18.03.2013 therefore, on filing of the charge-sheet on the same day, indefeasible right of the accused shall not stand frustrated.
In view of the above discussion, in the firm opinion of this Court accused was wrongly denied his legal right to be enlarged on bail on account of default committed by the prosecution by not filing charge- sheet within 60 days.
Consequently, present application is allowed. Accused / applicant be enlarged on bail on furnishing his personal bond of `50,000/- and two sureties of the like amount to the satisfaction of Chief Judicial Magistrate, Haridwar.
([ENTITY], J.) 22.04.2013 [ENTITY]