On Discovery Of New Offences Committed By The Accused, The Calculation Of The Period Of Detention For Default Bail Would Be Done Over Again: Akheraj Vs State Of Rajasthan

Date of Judgement:
24thMarch2022

Coram/judge:
The Hon’ble Justice Pushpendra Singh Bhati

Parties to the Case:
Petitioner-Akheraj
Respondent -State of Rajasthan

Legal Provisions

• Section 167 of Criminal Procedure Code (CrPC), 1973 - lays down the procedure when investigation cannot be completed in 24 hours in given a given case.
• Section 363 of Indian Penal Code, 1860 - lays down the punishment for kidnapping.

Overview

• An F.I.R was lodged on under Section 363 IPC by Chhoturam stating that his brother’s daughter was abducted by the present petitioner along with other persons.
• The petitioner was initially arrested on 19.10.2021, in connection with alleged commission of offence of kidnapping. He was presented before a Magistrate and was granted bail on 20.10.2021.
• Subsequently, during the period of investigation, the investigating officer filed an application before the Judicial Magistrate that the petitioner had allegedly committed various other offences under IPC along with offences under POCSO act, 2012. The application was accepted by the Learned Magistrate. The investigating officer was granted permission to arrest the petitioner. Hence, the petitioner was arrested again on 27.10.2021 and presented before the learned Court below on 28.10.2021.
• He was remanded topolice custody. On 31.10.2021, the petitioner was remanded to judicial custody. On 24.01.2022, The charge sheet was filed.

Arguments Advanced by The Petitioner

• Learned counsel for the petitioner submitted that the petitioner was taken into custody and remained there for one day, until ordered to be released by the competent court. However, later the petitioner wasagain arrested and taken into custody. The total period of the petitioner’s custody went beyond the mandated time period.
• Learned counsel further submitted that the petitioner was arrested on 19.10.2021 and was in custody till 20.10.2021. Further from 27.10.2021 to 24.01.2022 he was in custody. He was also in custody in October for 5 days, in November for 30 days, in December for 31 days and in January for 24 days, until the chargesheet was filed on 24.01.2022. Thus, the total period exceeded the limits prescribed in section 167 of CrPC.
• Various leading case laws were citing by the Counsel to prove his point.
• The contention was that the period during which the petitioner was arrested for the first time and detained in custody, before which the additional offences were added by the investigation officer, would be computed and therefore the total period of detention of the accused person in custody would exceed 90 days, making him entitled to statutory bail.

Arguments Advanced by The Respondent

• Learned Public Prosecutor, on the contrary, submitted that the learned Court had rightly held that once a charge sheet had been filed and cognizance was taken against the petitioner,the right to claim bail under Section 167 CrPC did not subsist. As the petitioner made the application seeking statutory bail after the charge sheet was filed, he renounced his right to seek bail as a matter of right.
• In Sanjay Duttv. State through C.B.I. Bombay, it was held that the right of the accused for bail after filing of the chargesheet, notwithstanding the default in filing it within the time allowed, was to be governed only by the provisions relating to the grant of bail applicable at that stage.

Issue

• Whether computing the total period of detention of accused person as under Section 167 during which the petitioner was in custody, was rightly done by excluding the period before which the additional offences against him were found to be framed by the investigating officer?
• Whether a statutory bail application filed after the charge sheet, wherein the charge sheet had been filed after the expiry of the prescribed statutory time limit under section 167 CrPC,would be maintainable?

Judgement Analysis

• The Court observed that the petitioner made an application seeking bail before the Learned Subordinate Court, on 22.02.2022, after the charge sheet was filed, and cognizance of the offences mentioned in the F.I.R. was taken against him, which was within the stipulated period of90 days as laid down in Section 167 CrPC, which was computed from 27.10.2021.
• In Sanjay Dutt v. State through C.B.I. Bombay, the constitution bench had made it clear that the indefeasible right accruing to the Accused was enforceable only prior to the filing of the charge sheet and it did not remain enforceable after the said event, if already not availed. The Constitution Bench was of the view that the right of 'default/statutory bail' continues till the charge sheet would be filed and later it would get extinguished.
• Clearly the petitioner was re-arrested upon fresh inclusion of the alleged offences. A plain reading of Section 167 CrPC reveals that the period of 90 days would be computed when the investigation, with regard to particular offences began.
• If an additional or new offence were made out by the investigating authority, against an accused, then the computation of the period, as laid down under Section 167 CrPC would be done from the beginning.
• In the present case, new offences were found to be made out against the petitioner, by the investigating officer during the course of investigation.
• Hence. the subordinate Court had rightly found that the total period of detention of the petitioner had to begin from 27.10.2021, until the date when the charge sheet was filed on 24.01.2022. Hence, the charge sheet was filed within the prescribed time period of 90 days.
• In the light of various leading case laws, it was held that if a bail application under Section 167 CrPC (seeking default/statutory bail) was filed after filing of the charge-sheet, even if the charge-sheet had been filed after expiry of the prescribed statutory time limit& under the said provision of law, would not in fact be maintainable.
• Hence, the Court found that the impugned order passed by the Learned Subordinate Court did not suffer from any legal infirmity and was upheld. The present petition was dismissed.

Conclusion

The Honourable High Court Construed the provision related to statutory bail as envisaged in section 167 of Criminal Procedure Code, 1973. It was held that whenever additional offences were made out against the accused in a criminal proceeding, the period for statutory bail under section 167 of CrPC would be started afresh and would not be supplement to period spent in custody with regard to the offence previously alleged.

Learn the practical aspects of CrPC HERE, CPC HERE, IPC HERE

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