HIGH COURT OF CHHATTISGARH BIWPUR Criminal Misc. Petition 31 of 2007 Gyan ‘Qhandra Agrawal Vs. Cenn'al Bumau of Invesn’gation ORDER Post for 07.05.2007 Sd/- SUNIL KUMAR SINHA I/x‘” Judge f :1‘L*"‘”\?m “R; "\ URTDF CHHA’I‘TISGARH BILASPUR M lmlnal Misc. Petition 31 of 2007 M Petitioner: Gyan sio Law Chandra Mahavaer Agmwal, Agmal, Aged about 48 years, Rlo 52] 15, Nehru Nagar, East Bhilai, Disuict Durg, Chhattisgarh Vs. Ragndent: Central Investigah'on, Burcau Camp: of Bhilai. Sactor-Q, Bhilai, Distt. Burg, Chhattisgarh CRIMINAL MISC. PETITION U1 S 482 OF THE CODE OF CRIMINAL PROCEDURE wage—: Shxi Sanjay K. AgraWal. counsel for thc petitioner. Shri Shailendm Dubey, counsel hr the respondent] C.B.l. ORDER (01.5.2007) Sum! Kumar‘ Sinhg, J, (1) “Whether a pemon, who has been granted an order of compulsive bail u] s 167(2) of the Code of Cummal Procedure by the Magisixate and who éid not furnish ball- bond and for a charge a long iimc sheet pursuant was med, to the in onier the meanwhile, on such bail can on be his subseque furmshmg tly bail-bond mleased on short the question strength raised of thn earlier for considemn’on order ‘P, is in a this petition. [2) The brief facts are that this petitioner in an accused in Crime No.76 of 2004 re ’ tered at Police Station, Bhilaibhatti for the 0&nce punishable u/ss 420, 467, 468, 469 8n 471 of the Q @ I.P.C. Firstly, he moved an applicau'on for grant of anticipatory bail in the said crime which was dismissed by the High Court on 18th of August, 2004 and the matter was dimcted to be investigatod by the Central Bureau of Investigation (for short “C.B.I"). Consequently, the matter was transfcrmd to the C.B.I., where it was registered as C' e No.R.C.10(A)/O4/C.B.I./ Jabalpur, (Case Diary No.44). The pen'tioner was arrested in the said Crime Number. He made an application befom this Court vide M.Cr.C.No.3266/2005 for grant of regular bail u/s 439 Cr.P.C. The afoxesaid application was dismissed by the High Court by Older dated 16.2.2006. Themafter, since the prosecution could not hie a charge sheet in time, an application u/s 167(2) Cr.P.C. was hled by the petitioner. This application = came up for hearing before the Special Mag'shate (C.B.l) on 10.3.2006, Who allowed the same and passed an order u/s 167(2) directing the petih'oner to iiu'm'sh two solvent sureties of Rs.50,000/- each with a personal bond in sum of Rs.1 lakh (one lakh) for his release on compulsive bail. It is important to meniion this fact here that the petitioner did not comply with the bail order granted by the Mag'strate (C.B.l.) as he did not furnish bail-bond pursuant to the said order, because according to the petitioner, in the meanwhile, he was also arrested in Crime No.77/2004 registered at Police Station Bhilaibhatti, Distt. Durg for commission of another oh‘ence punishable u/ ss 420, 468, 469 and 471 of I.P.C., for which a bail application (M.Cr.C.No.2528/2006) was tiled before the High Court. The ~ € said bail application, seeldng mgular bail in Crime No.7712004 wag dismissed by the High Court on 21.11.2006. Against 11m aforesaid Older of dismissal, the petitioner moved a Special Leave Petition before Hon’ble the Supmme Court bearing Special Leave to Appeal (Criminal) No.6485/2006 (Gyan Chamha Aglawal —Vs- State of Chhattiegarh). The aibiesaid S.L.P. came up for healing before the Supreme Court on 15. 12.2006, Wham it was directed that the petitioner shall be mleased on bail on his furnishing two smen'es of Rs.25,000[-‘and a personal bond of the like amount to the saiisfaction of the tie] Court. (3) According to the petitionemhas tinnished bail bond in Cn’me No.77/2004 and necessaty‘ oiders were passed in that case, however, he could not he teleased h'om jail as he was also required in earlier Crime No.76[2004 (Changed No.R.C.10(A)/ O4/C.B.I./Jabalpur, (Case Diary No.44.C.B.I) because he had not furnished bail-bond pursuant to the order passed by the Magisn'ate (C.B.I) u/s 167(2) Cr.P.C. in the said case. (4) Themafter on 19.12.2006 the petitioner furnished bail bond pursuant to the order of the Magistrate dt. 10.3.2006 which was not mpted by the Magistrate on the ground that by that time on 30.3.2006, the C.B.I. has alreadyhled a charge sheet in the matter and now aiier dling of the charge sheet as aforementioned, the petitioner could not be released in pursuance of the order dt. 10.3.2006 passed u/s 167(2) Cr.P.C. (5) The order passegi by thz Mag‘stmtz (C.B.I) was chalknged before the Special Judge (C.B.I), Raipur in Criminal RevisiOn No.2]2007. ’I‘hc learned SpBCial Judge dismiswd the revision coming the order passed by the Magistrate on the gmund that the petitioner was not entitled to be mleased on the snengfh of the earlier order é‘ated 10.3.2006 passed uls 167(2) Cr.P.C. after a lapse of long pen’od, paxticularly, when in the meanwhile, charge sheet has aheady been med by the C.B.I. It is against these orders passed by the two Caurts below the petitioner has Eed this Criminal Misc. Peiin'on. (6) Learned counsel for the peiitioner, plming reliance on two decisions of the Apex Court rendered in the matter of Rghubir gggh and others ~Vs- State otnihar (19861 4 s.c.c. 481 and Aslam Babalal Dasai 43- State atWan (199g 4 SCC 272 argued that there is no limitation for furnishing bail bond pursuant to the order passed uls 167(2) Cr.P.C. and the Courts below Were not justihed in not accepu'ng the bail papers died by the petitioner for his release on compulsive bail on the strength of earlier order passed in his favour. He further argued that subsequent ming of the charge sheet, no where comes in the way once an order of compulsive bail is granted in favour of the accused and the bail bond has to he accepted mspecting the mandate of section 167(2). (7) Per contra, learned oounsel for the C.B.l., referring to the i decision muttered in the matter of veg Manama! échgga - 1/ vs. state otnanarasntgg. (20011 5 soc 453 argued that right w l \ v i { l i i l l \ t \ to be mleased on. compulsive bail gets exh’nguished on subsequent $ing of charge sheet if the same is not availed by the accused, particularly when the 01 31' of mlease was passed in his favour, but he did not furnish bail-bond pursuant to the said order. ‘ (8) I have heard Ieaxned counsel for the parh'es at length and have also perused the moords ofthe Misc. Cxi. Petin’on. (9) In Raghubir singh’s case (Supra), while dealing with enact of the new proviso to section 167, the Apex Court observed viie pam 20 that the edect of the new proviso is to entitle an accused person to be leleased on bail if the investigan'ng agency hils to complete the investigation within 60 days. A pelson leased on bail under the proviso to Secubn 167(2) for the default of the investigau'ng agency is statutorily deemed to be released under the pmvisions of Chapter XXX!!! of the Code for the purposes of that chapter, which is provided by the proviso itself. The Supreme Court observed that it means, hist, the provisions relating to bonds and sureties are attracted. Section 441 provides for the execution of bonds, with or Without sureties, by persons ordered to be released on bail. One of the provisions relating to bonds is Secn'on 445v which enabhs the Court to accept the deposit of a sum of money in lieu of execution of a bond by the person required to execute it with or without sureties. If the bond is executed (or the deposit of cash is accepted), the court admitting an accused person to bail is required by Section 442(1) to issue an order of release to the \ j } I! ,A o$cer—in—charge of the; jail in which such accused person is incarcemted. Sections 441 and 442, to borrow the language of the Civil Proceduxe Code, are in the nature of provisions for the execution of onicrs for the release on bail of accused persons. The Supreme Court obselved that what is of importance is that there is no limit of time within‘which the bond may be executed after the onier for release on bail is made. Very often amused persons find it dimcult to iilrnish bail soon after the making of an order for release on bail. The Apex Court further observed that this hequently happens because of the poverty of the accused persons and it also happens hequently that for various reasons the sureh'es produced on behalf of accused persons may not be acceptable to the court and fresh sureties will have to be produced in such an event. The Court said that the accused persons are not to be deprived of the beneht of the order for release on bail in their favour because of their inability to furnish bail straightway. Orders ibr release on bail are ed'ective until an order is made under Section 437(5) or Section 439(2). These two provisions enable the magistate who has released an accused on bail or the Court of Session 'or the High Court to direct the arrest of the person released on bail and to commit him to custody. The Court said that since release on bail under the proviso to section 167(2) is deemed to be release on bail under the provisions of Chapter XXXIII, an order for release under the proviso to section 167(2) is also subject to the provisions of secn'on 437(5) and 439(2) and may be exn'nguished @ by an Older under eithgar of these pmvisions. The Apex Court has quoted the instance of change of sumty u/s 444 and said that the Older of release on bail is not extinguished and is not to be defeated by the discharge of surety and the inability of the accused to straightway pmduce a h‘esh smety in that case. This all was said by the Apex Com‘t in View of the arguments raised by the counsel for the State of Bihar that the ordel for mlease on bail stood extinguished on the Iemand of the accused to custody u/s 309(2) Cr.P.C. The Apex Court said that there is no substance whatever in this submission. Section 309(2) merely enables the Court to ‘Iemand the accused if in custody’. It does not empower the Court to remand the accused if he is on bail. It does not enable the Court to ‘cancel bail’ as it were. That can only be done u/s 437(5) and section 439(2) . Finally it said in this paragraph that when an accused person is granted bail Whether under the proviso to section 167(2) or under the provisions of Chapter XXXIII, the only way the bail may be cancelled is to proceed under Section 437(5) or Section 439(2). ex g (10) The Apex Court summarized that an order for release on bail made under the proviso to section 167(2) is not defeated by lapse of n'me, the ming of the charge sheet or by remand to custody u/s 309(2). The order for release on bail may however be cancelled u/s 437(5) or section 439(2) Cr.P.C. Generally, the grounds for cancellation of bail, broadly, are interference or attempt to interfere with the due course of administian'on of justice, or evasion or attempt to evade the course ofjustioe, or abuse or the liberty gamed to him. Where bil has been granted under the proviso to section 167(2) for the default of the prosecution in not completing the investigan'on in 60 days, after the defect is outed by the ming of a charge sheet, the prosecution may seek to have the bail cancelled on the gmmd that there are reasonable grounds to believe that the accused '“Q’K I, has committed a non-bailable oEence and that it is necessary to anest him and commit him to custody and that such rekase on bail under the proviso to section 167(2) does not come to an end with the passage of time on the ming of the charge sheet (11) In Aslam Babalal Desai’s case (supra), While considering the question as to whether the bail granted under the provis o to sub-section(2) of section 167 Cr.P.C. for failure to complete investigation Within the period prescribed thereunder, be cancelled on mere presentation of challan at any time thereafter, the Apex Court, citing the judgnents of Raghubir Singh’s mse and various other judgments on the point ruled that once an accused is released on bail u/s 167(2), he shall not be taken back in custody meteiy on the hh'ng of the charge sheet, but there must exist special reasons for so doing besides the fact that the chaige sheet reveals the commission of a non-bailable crime. This view was taken by the Apex Court consistent with the earlier views in the case of Bashir and others -vs- state of Haryann (19777 4 SCC 410 and Raghbir’s case (supm; g (12} However, thereafter While dealing the case u/s 167(2) in the matter of Uday Mohanlal Acharya (supra), it was concluded by the Apex Coult, per majority, as follows: (i) “Under sub-section(2) of section 167, a Magistrate befom whom an accused is pmduced while the police is investigating into the oh‘ence can authorize detention of the accused in ‘such custody as the Mag'stmte thinks m for a term not exceeding 15 days on the Whole. fin; z (ii) Under the proviso to the aforesaid sub- section(2) of Section 167, the Magistrate may authorize detention of the accused otherwise than in the custody of police for a total pen'od not exceeding 90 days Where the investigation Ielates to odence punishable with death, imprisonment for life or impxisonment for a term of not less than 10 yeaxs, and 60 days where the investigation relates to any other oh'ence. (iii) 0n the expixy of the said petnxi of 90 days or 60 days, as the case may be, an indefeasible Iight accrues in favour of the accused for being released on bail on account of default by the investigating agency in the completion of the invesh'gation within the peiiod piescribed and the accused is entitled to be released on bail, ifhe is prepared to and furnishes the bail as directed by the Magistrate. (iv) When an applicah‘on for bail is tiled 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 speciiied period, the Magistrate/ court must dispose of it forthwith, on being satisned 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 hled by the investigating agency. Such prompt acu'on on the part of the Magistrate/ Court will not enable the prosecution to n'ustrate the object of the Act and the leg'slative mandate of an accused ¥ \\ \ being released on hail on account of the default on the pwt of the investigating agency 10 in completing the investigau'on Within the perioé s1ipulated. If the accused is unable to furnish the bail as dirccfzd by the Magistrate, then on a conjoint reading of Explanation-I and the proviso to sub-se¢on(2) of section 167, the continued custody of the accused even beyond the specined pen'od in para (a) will not be unauthorized, and therefom, if dun'ng that period the investigation is complete and the charge sheet is nled then the so-calh-d indefeasible n'ght of the accused would stand extinguished. (vi) The expression “if not already availed of” used by this Court in Sanjay Dutt Case must be understood to mean when the accused hles an application and is prepared to Oder bail on being dixected. In other words, on expity of the period specined in pain (a) of the proviso to sub-section (2) of Section 167 if the accused dies an application for bail and chem also to fumish the bail on being dixected, then it has to be held that the accused has availed of his indefeasihle right even though the court has not considered the said application and has not indnTated the terms and conditions of bail, and the accused has not furnished the same.” “JV [13) This judgment Iendered by the Apex Coult embodies the citations of Raghubir Singh’s case, Aslam’s Case (supra) and also the Constitution Bench decision of Way M —vs- State through GEL. (1994) 5 SOC 410 and thereaher the hnal outcome per majoxity has been tecorded as above. (14) ’I‘herefote, in View of the above and also in view of the provisions of section 167, it is Clear that section 167 gives power to the Magistrate permith'ng detention of an accused in custody and plescribing maximum petiod for which an accused can be detained. The proviso to sub-section (2) of section 167 deals 11 with the consequenqes and it clearly indicates that if the investigation is not completed within a perbd of 6O days or 90 days as the case may be, the accused shall be released on bail, If he is prepared to and does fumish bail which is commonly called as compulsive bail and further that the aforesaid mlease shall be deemed to be so released under the provisions of Chapter XXXIII , / for the puxpose of that chapter. The Explanation-l to section 167 makes it clear that this right of the accused can only be denied When an accused does not iiimish the bail as per the order of the Magistrate. This provision was engrafted in chapter XII Cr.P.C., for preventing long prolongation of the invesn‘gah'on and thereby keeping the detention of the accused in jail to ad- iryi'nitum Under the proviso to sub-section(2) of sech‘on 167, l now the Magistrate can detain the accused otherwise than in the custody of the Police for total period not exceeding 90 days where the investigation relates to odence punishablewith 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 odence and on expiry of such period, an indefeasihle right accrues in favour of the accused for being released on hail on account of not hling of the charge sheet, this is subject tog that the accused must be prepared to and furnishes the bail bond as directed by the Magistrate but in case where the accused is unable to furnish bail. as directed by the Mag'strate, the continued custody of the accused even beyond the statutorily specined period will not he unauthorized and if during this , 12 period the invesh'gation is complete and the charge shcet is med, the said indefeasible n'ght of t1]: aocuaad would stand extinguished. That is What the Apex Court has said in Uday Mohanlal Admiya’s case (supra) viie conclusion No.5. (15) In thc present case, go doubt, the indefeasible n'ght hai accrued in favour of the petitioner when the investigah'on was not completed and the charge sheet was not hlmi within the sn'pnlated petiod and for this reason, the Magistrate (C.B.I) passed/an order of compulsive bail on 10.3.2006 under the pmviso to section 167(2) Cr.P.C. But for the reason best lmown to the petitioner, the bail bond so ditected to be furnished by the order of Magishate were not furnished by the petitioner and ultimately they did not furnish it upto 19.12.2006 and after a lapse of such a long period of about more than 9 months, the petitioner furnished bail bond on 19.12.2006, but by that time the investigation was completed and the charge sheet was aheady tiled on 30.3.2006. Therefore, certainly the indefeasible right accrued in favour of the petitioner on account of not tiling of the charge-sheet within the statutoty period, after not hling of the bail bond as per the directions of the Magistrate dated 10.3.2006, stand extinguished on 30.6.2006 . The Magistlate as well as the Sessions Court had rightly rejected the prayer of the petitioner for releasing him on compulsive bail on the strength of the order dated 10.3.2006 by accepting the bail bond in the changed scenario on 19.12.2006 as the aforesaid right had extinguished by that time and the petih'oner was rightly not