- Bench - Dipak Misra, J
- Appellant - Union of India through CBI
- Respondent - Nirala Yadav
Issues
Whether the High Court has correctly applied the legal principles while granting a bail to the respondent?
Facts
â—� The respondent was an accused in Nauhatta PS Case for the offences punishable under Sections 302, 304, 353, 323, 149, 148 and 147 of the Penal Code, 1860 (IPC), under Section 27 of the Arms Act - for the murder of a Divisional Forest Officer, Sanjay Kumar Singh. The initial investigation carried out by local investigating agency, and later handed over to the CBI - revealed these facts.
â—� The deceased officer was on a surprise visit in Village Dehal, District Rohtas, accompanied by his subordinate staff - at the juncture of which he was surrounded by 25-30 unidentified Naxalites. They demanded a ransom of 5,00,000/- for his release, to which he refused to comply. He was taken aside and shot dead.
â—� On the basis of the FIR filed, the investigation commenced. The accused was arrested and sent to judicial custody. As the charge-sheet was not filed in the statutory period of 90 days, the respondent filed for an application for release under Section 167(2) of CrPc for release on bail. Reverting to this, the CBI filed for an an extension of 30 days under Section 49(2)(b) of POTA - but no order regarding this or the bail application was passed by the judge on that day.
â—� Granting extension to the CBI, the special judge refused bail to the respondent - accused. Aggrieved by this, he moved to the High Court where the judge held that the right to bail had already been accrued to the respondent when he moved to the court with this and that he shall be granted bail, with certain conditions imposed.
Appellant's Arguments
â—� The appellant in their submissions claimed that the High Court had been totally misguided by placing reliance upon law laid down in Hitendra Vishnu Thakur case, without apprising itself about the decision by the Constitution Bench in Sanjay Dutt v. State case - thus rendering the order unsustainable.
â—� He further contended that when the application for bail was filed on the ground that no charge-sheet was filed for 90 days, the said application was not considered and no order was passed by the trial judge - totally decimating the respondent's right, however the High Court had failed to appreciate the said legal principle which made the order sensitively untenable.
â—� Further submission reads that the learned single judge has failed to apply the right of "compulsive bail" , proposing that such a right should be available at the time of bail application which was taken up for consideration but not presentation.
Respondent's Arguments
â—� Contradicting the appellant's submission, the learned counsel appearing on the behalf of the respondent submitted that the controversy had been squarely covered in the decision in Uday Mohanlal Acharya case, and since the High Court had based their decision on the same backdrop considering the factual scenario, the order is absolutely defensible and does not suffer from any infirmity warranting interference.
â—� She further contended that the indefensible right available to the accused - being granted a bail if no chargesheet has been filed for 90 days - cannot be forfeited simply because the appellant filed for an extension. For if such is allowed, the purpose of provision grafted under Section 167(2) of CrPc would be rendered useless.
Judgement
The Court did not find any error in the order of the high court in overturning the order, refusing bail and extending the benefit to the respondent and accordingly the appeal failed and was dismissed.
Relevant Paragraphs
â—� 43. Section 20 of the TADA Act prescribes the modified application of the Code of Criminal Procedure indicated therein. The effect of sub-section (4) of Section 20 is to apply Section 167 of the Code of Criminal Procedure in relation to a case involving an offence punishable under the TADA Act subject to the modifications indicated therein. One of the modifications made [pic]in Section 167 of the Code by Section 20(4) of the TADA Act is to require the investigation in any offence under the TADA Act to be completed within a period of 180 days with the further proviso that the Designated Court is empowered to extend that period up to one year if it is satisfied that it is not possible to complete the investigation within the said period of 180 days, on the report of the public prosecutor indicating the progress of the investigation and the specific reasons for the detention of the accused beyond the said period of 180 days. This gives rise to the right of the accused to be released on bail on expiry of the said period of 180 days or the extended period on default to complete the investigation within the time allowed.”
â—� 48. We have no doubt that the common stance before us of the nature of indefeasible right of the accused to be released on bail by virtue of Section 20(4)(bb) is based on a correct reading of the principle indicated in that decision. The indefeasible right accruing to the accused in such a situation is enforceable only prior to the filing of the challan and it does not survive or remain enforceable on the challan being filed, if already not availed of. Once the challan has been filed, the question of grant of bail has to be considered and decided only with reference to the merits of the case under the provisions relating to grant of bail to an accused after the filing of the challan. The custody of the accused after the challan has been filed is not governed by Section 167 but different provisions of the Code of Criminal Procedure. If that right had accrued to the accused but it remained unenforced till the filing of the challan, then there is no question of its enforcement thereafter since it is extinguished the moment challan is filed because Section 167 CrPC ceases to apply.
â—� 49. This is the nature and extent of the right of the accused to be released on bail under Section 20(4)(bb) of the TADA Act read with Section 167 CrPC in such a situation. We clarify the decision of the Division Bench in [pic]Hitendra Vishnu Thakur, accordingly, and if it gives a different indication because of the final order made therein, we regret our inability to subscribe to that view.
â—� (2)(b) The “indefeasible right” of the accused to be released on bail in accordance with Section 20(4)(bb) of the TADA Act read with Section 167(2) of the Code of Criminal Procedure in default of completion of the investigation and filing of the challan within the time allowed, as held in Hitendra Vishnu Thakur is a right which ensures to, and is enforceable by the accused only from the time of default till the filing of the challan and it does not survive or remain enforceable on the challan being filed. If the accused applies for bail under this provision on expiry of the period of 180 days or the extended period, as the case may be, then he has to be released on bail forthwith.
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