Bail u/s 167 (2) crpc

Tashi Norbu Basi (Querist) 07 August 2013 This query is : Resolved
My cousin has been in custody for almost 90 days now (FIR is u/s 302 IPC). Bail has already been rejected several times. I would like to know what the rules are for bail u/s 167 (2)CrPC.

1. If the arrest was made in late afternoon, will that day be counted as 1 full day of custody?

2. If on the 91st day I file bail application but the date of hearing fixed by Court is after several days AND within the days between filing and hearing the I.O. files charge sheet - what happens?

Any case laws on the above two points, which I can refer to, will be most appreciated.

Thank you.

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Nadeem Qureshi (Expert) 07 August 2013
Dear Querist
as per the rule the counting of the days start from the appearance before the court, you can file the bail application before court on 91 day and if after that IO has submit charge sheet the the accused shall be released on bail as per section 167 (2) of Cr.PC
Kerala High Court
T.A.Mohammed , Aged 26 Years vs State Of Kerala on 5 March, 2010
IN THE HIGH COURT OF KERALA AT ERNAKULAM Bail Appl..No. 1337 of 2010()

1. T.A.MOHAMMED , AGED 26 YEARS,

... Petitioner

2. AZIZ, AGED 34 YEARS,

Vs

1. STATE OF KERALA,

... Respondent

For Petitioner :SRI.P.VIJAYA BHANU

For Respondent :PUBLIC PROSECUTOR

The Hon'ble MR. Justice K.T.SANKARAN

Dated :05/03/2010

O R D E R

K.T.SANKARAN, J.

------------------------------------------------------ B.A. NO. 1337 OF 2010

------------------------------------------------------ Dated this the 5th day of March, 2010

O R D E R

This is an application for bail under Section 439 of the Code of Criminal Procedure. Petitioners are accused Nos.2 and 3 in C.R.No.8 of 2009 of the Excise Enforcement and Anti Narcotic Squad, Kottayam.

2. The offences alleged against the petitioners are under Sections 21(c), 29 and 49 of the Narcotic Drugs and Psychotropic Substances Act, 1985.

3. The prosecution case is that on 24.7.2009, accused Nos.1 to 3 were found transporting 1.47 kgs of Hashish oil in an autorickshaw driven by accused No.4. It was found that the Hashish oil was kept in the dashboard of the autorickshaw. Accused Nos.1 to 4 were arrested on 24.7.2009. The prosecution case is that accused Nos.5 and 6 had supplied the Hashish oil to the other accused.

4. The petitioners are in judicial custody since 24.7.2009. The learned counsel for the petitioners submitted that the petitioners are B.A. NO. 1337 OF 2010

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entitled to get default bail under the proviso to Section 167(2) of the Code of Criminal Procedure, since no application was filed by the prosecution to enlarge the period of 180 days mentioned in the proviso to sub-section (4) of Section 36A of the NDPS Act. The counsel also relied on the decision in Union of India v. Thamisharasi and others ((1995) 4 SCC 190). The learned counsel for the petitioners submitted that as per the order dated 22.2.2010 in B.A.No.872 of 2010, bail was granted to accused No.4. While granting bail to accused No.4, this Court held thus: "4. The petitioner is in judicial custody since 24.7.2009.The period of 180 days is over. The investigation is not complete and final report is not filed. It is submitted by the learned counsel for the petitioner that sub-section (4) of Section 36A of the Narcotic Drugs and Psychotropic Substances Act, 1985 read with the proviso to Section 167(2) of the Code of Criminal Procedure would entitle the petitioner to get default bail, since no application was filed by the prosecution to enlarge the period of 180 days mentioned in the proviso to sub-section (4) of Section 36A of the Narcotic Drugs and Psychotropic Substances Act, 1985. The learned counsel for the petitioner also relied on the decision in Union of India v. Thamisharasi and others ((1995) 4 B.A. NO. 1337 OF 2010

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SCC 190); wherein it was held that the limitations on granting of bail specified under Section 37(1) of the Narcotic Drugs and Psychotropic Substances Act, 1985 are in addition to the limitations provided under Section 437 of the Code of Criminal Procedure and they do not exclude the applicability of the proviso to Section 167(2) of the Code of Criminal Procedure.

5. Taking into account the facts and circumstances of the case, the duration of the judicial custody undergone by the petitioner, the nature of the offence and the present stage of investigation and also taking note of the fact that the period of 180 days from the date of arrest of the petitioner is over, I am of the view that bail can be granted to the petitioner."

5. The petitioners moved for bail before the learned Sessions Judge. The applications filed by the petitioners were dismissed by the order dated 27.2.2010. It would appear that the order in B.A.No.872 of 2010 was brought to the notice of the learned Sessions Judge. However, the learned Sessions Judge brushed aside the contentions put forward by the petitioners and held thus: B.A. NO. 1337 OF 2010

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"11. It is also contended on behalf of the petitioners that the 4th accused has already moved a bail application No.872/2010 before the Hon'ble High Court of Kerala and as per the order dated 22.2.2010 he was granted bail on certain conditions. It is vehemently argued that since the Hon'ble High Court granted bail to A4 the petitioners are also entitled to get equal treatment and hence they are entitled to bail. On this aspect, I am of the view that the Hon'ble High Court of Kerala while granting bail to A4 has not specifically held the question whether 37(ii) need not be looked into and ignoring 37(ii) bail has to be granted. As per para 5 of the order of Hon'ble High Court of Kerala in bail application No.872/2010 it can be seen that bail is granted taking note of the fact that 180 days is already over. Since application of Sec.37(ii) is not specifically excluded by the Hon'ble High Court of Kerala I am of the view that the spirit of the said order cannot be applied in these applications."

6. The learned Sessions Judge appears to have interpreted the decision of the High Court according to his own imagination. The High Court had relied on the decision of the Supreme Court in Union of India v. Thamisharasi and others ((1995) 4 SCC 190). The learned Sessions Judge did not say anything about the decision of B.A. NO. 1337 OF 2010

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the Supreme Court in (1995) 4 SCC 190. I am of the view that the learned Sessions Judge was not justified in ignoring the decision of the Supreme Court and in misinterpreting the order passed by the High Court in the manner in which it was done in paragraph 11 of the order passed by him. Astuteness in making an order is understandable. But, that does not enable a judicial officer to disregard the binding precedents. Even assuming that the order passed in B.A.No.872 of 2010 need not be treated as a precedent, what about the decision of the Supreme Court referred to in the order passed by the High Court ? Did the learned Sessions Judge refer to it ? How could the learned Sessions Judge bypass the decision of the Honourable Supreme Court ? I am of the view that the binding precedents should be respected and followed by the subordinate courts. The order passed by the learned Sessions Judge (Sri.V.T.Raghunath) does not appear to reflect a healthy trend in the judicial hierarchy.

7. In Union of India v. Thamisharasi and others ((1995) 4 SCC 190), the submission made by the learned Additional Solicitor General was referred to in paragraph 5 of the judgment which reads as follows:

B.A. NO. 1337 OF 2010

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"5. The submission of the learned Additional Solicitor General is that by virtue of the special provisions in the NDPS Act and particularly Sections 36 and 37 thereof, the application of the proviso to sub- section (2) of Section 167 CrPC is excluded in the case of a person accused of any offence punishable under the NDPS Act. On the other hand, Shri Ram Jethmalani, learned counsel for the respondents contends that the scheme of the NDPS Act supports the applicability of the proviso to sub-section (2) of Section 167 CrPC instead of indicating its exclusion in such cases."

8. These contentions were dealt with by the Honourable Supreme Court and it was held thus:

"8. ...... The clear reference to the power of the Magistrate under Section 167 CrPC, particularly sub- section (2) thereof, is an indication that no part of sub- section (2) of Section 167 of the Code is inapplicable in such a case unless there be any specific provision to the contrary in the NDPS Act. ...... Except for Section 37 of the NDPS Act, no other provision of the NDPS Act is relied on to contend that there is any inconsistent provision in the NDPS Act to exclude the applicability B.A. NO. 1337 OF 2010

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merely of the proviso to sub-section (2) of Section 167 CrPC when sub-Section (2) of Section 167 of the Code is made expressly applicable by Section 36A of the NDPS Act.

9. The question, therefore, is: Whether Section 37 of the NDPS Act is an inconsistent provision of this kind to exclude the applicability merely of the proviso to sub-section (2) of Section 167 CrPC when sub-section (2) of Section 167 is expressly made applicable by the NDPS Act? The non obstante clause at the beginning of sub-section (1) of Section 37 indicates that the provisions in clauses (a) and (b) thereof are inconsistent with the corresponding provisions of the Code. Clause (a) makes every offence punishable under this Act to be cognizable. Clause (b) imposes limitations on granting of bail specified therein which are in addition to the limitations under the Code of Criminal Procedure on granting of bail as stated in sub-section (2) of Section

37. Clause (b) of sub-section (1) specifies the two limitations on granting of bail, namely, (1) an opportunity to the Public Prosecutor to oppose the bail application, and (2) satisfaction of the court that there are reasonable grounds for believing that the accused is not guilty of such offence and that he is not likely to commit any offence while on bail. The learned Additional Solicitor General contends that these B.A. NO. 1337 OF 2010

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limitations on granting of bail specified in clause (b) of sub-section (1) of Section 37 indicate that the applicability of the proviso to sub-section (2) of Section 167 CrPC is excluded in such cases. We are unable to accept this contention.

...... ......

14. In our opinion, in order to exclude the application of the proviso to sub-section (2) of Section 167 CrPC in such cases an express provision indicating the contrary intention was required or at least some provision from which such a conclusion emerged by necessary implication. As shown by us, there is no such provision in the NDPS Act and the scheme of the Act indicates that the total period of custody of the accused permissible during investigation is to be found in Section 167 CrPC which is expressly applied. The absence of any provision inconsistent therewith in this Act is significant."

9. In view of the decision of the Supreme Court in Thamisharasi's case, I am of the view that the finding in paragraph 11 of the order passed by the learned Sessions Judge is in clear disregard of the law laid down by the Honourable Supreme Court.

10. A judicial officer may have his own views on questions of B.A. NO. 1337 OF 2010

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law. Those views need not necessarily be in consonance with the decisions of the superior courts. But such personal views should not be reflected in the judicial orders passed by a judicial officer, if the same runs contra to the law laid down by the superior courts. If a judicial officer is allowed to do so, there is no meaning in the hierarchy of courts and the powers of the Supreme Court and High Court in the matter of interpreting provisions of law and in laying down the principles. The subordinate courts are not entitled to ignore a binding precedent of the Supreme Court or of the High Court and to misinterpret any such binding precedent in the manner it was done by the learned Sessions Judge. Such practice is liable to be condemned.

11. The petitioners shall be released on bail on their executing bond for Rs.50,000/- each with two solvent sureties for the like amount to the satisfaction of the Court of the Special Judge for NDPS Act cases, Thodupuzha, subject to the following conditions: a) The petitioners shall report before the investigating officer between 9 A.M. and 11 A.M. on all Mondays and Thursdays, till the final report is filed or until further orders;

B.A. NO. 1337 OF 2010

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b) The petitioners shall appear before the investigating officer for interrogation as and when required; c) The petitioners shall surrender their passports, if any, before the Court of the Special Judge for NDPS Act cases, Thodupuzha, within a period of one week. If any of the petitioners does not hold an Indian Passport, an affidavit sworn to by him shall be filed before the Court of the Special Judge for NDPS Act cases, Thodupuzha, within one week;

d) The petitioners shall not try to influence the prosecution witnesses or tamper with the evidence;

e) The petitioners shall not commit any offence or indulge in any prejudicial activity while on bail; f) In case of breach of any of the conditions mentioned above, the bail shall be liable to be cancelled. The Bail Application is allowed as above. (K.T.SANKARAN)

Nadeem Qureshi (Expert) 07 August 2013
Jharkhand High Court
Fulchu @ Jeet Goswami vs State Of Jharkhand And Anr. on 9 October, 2006
Equivalent citations: 2007 (1) JCR 507 Jhr
Author: M Karpagavinayagam
Bench: M Karpagavinayagam
ORDER

M. Karpagavinayagam, C.J.

1. Heard.

2. This revision is directed against the order refusing to grant bail to the petitioner under Section 167(2) of the Code of Criminal Procedure. The short facts are as follows:

The occurrence took place on 19th February, 2006. According to the prosecution, two accused persons, namely Ranjit Rewani and Deepak Chouhan along with two other accused came to the house of the deceased and fired shot on one Anil Kumar Yadav and Sanjay. On the way to hospital, the said Anil Kumar Yadav died and Sanjay Kumar got treated in the hospital. The case was registered on the complaint given by the brother of Anil Kumar Yadav for the offence under Section 326/307/302/34 of the Indian Penal Code and Section 27 of the Arms Act. As far as petitioner is concerned, it is stated that he came to the house of the deceased in another vehicle and when the other accused fired shot at the injured and deceased, in side the house, he was waiting outside the house. He was arrested and remanded on 21.2.2006 and the bail application has been filled on 22.5.2006 under Section 167(2), CrPC. Since char-gesheet was filed on 22.5.2006 i.e. 90th day, the bail application was dismissed on 23.5.2006, on the ground that chargesheet was filed in time on 90th day and as such he is not entitled to bail under Section 167(2), CrPC. This order was challenged by the petitioner before the Court of Sessions, which, in turn, set aside the order of dismissal and remanded the matter vide order dated 20.7.2006, directing the Magistrate to reconsider the bail application. Accordingly, the Chief Judicial Magistrate considered the arguments advanced by the counsel for the petitioner as well as the APP and in the light of the order of the Session Judge, held that the chargesheet has been filed on 90th day and as such accused/petitioner could not be entitled to bail under the provisions of Section 167(2), CrPC.

3. The said order dated 8.8.2006 is challenged in this revision petition.

4. Though the counsel for the petitioner on the strength of various decisions of the Supreme Court, particularly Uday Mohanlal Acharya v. State of Maharashtra contended that indefeasible right accrued to the accused cannot be defeated. Ultimately, counsel for the petitioner submits that even assuming that he is not entitled to bail under Section 167(2), CrPC, in view of the fact that petitioner was standing outside the house in which the occurrence took place, he may be considered for bail under the provisions of Section 439, CrPC.

5. Of course, this Court can direct the petitioner to file a separate application under Section 439, CrPC, but that, in my view, is not necessary, since this Court can invoke the provisions of Section 439, CrPC keeping in view the peculiar facts of the case, inasmuch as, admittedly the petitioner was standing outside the house and the overt act has been attributed to Ranjit Rewani and Deepak Chouhan alone who are said to have entered the house and fired shot at the deceased. It is stated that bail applications by the other main accused have already been dismissed earlier by the Sessions Court and they have now filed ball application before the High Court, which is pending.

6. The case of the petitioner would not be considered to be similarly placed to that of those two accused. Admittedly as per the prosecution they have caused injury on the deceased and specific overt act had been attributed to them in respect of murder. On the other hand, keeping in view the fact that the petitioner, who is a young many of 25 years of age, was standing outside the house and languishing in jail custody for the past seven months', this Court is inclined to grant him bail, subject to certain condition. It is also made clear that the ground on which bail is granted to the petitioner would not apply to the other accused to whom specific overt act has been alleged.

7. Accordingly, the petitioner (Fulchu @ Jeet Goswami) is directed to be enlarged on bail on executing bond of Rs. 5,000/-with two sureties of the like amount each to the satisfaction of Judicial Magistrate, Dhanbad in Dhanbad PS Case No. 129 of 2006 (G.R. No. 560 of 2006), subject to the condition that the petitioner shall report to the committal Court, once in a month, 1st working day of every month.

This revision application stands disposed of.

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