Top News Headlines 12th Apr 2022: Period Of Detention For The Purpose Of 167(2) CrPC To Be Done Afresh If Additional Offence Found

Period Of Detention For The Purpose Of 167(2) CrPC To Be Done Afresh If Additional Offence Found: Rajasthan HC

• In Akheraj vs State of Rajasthan the Hon’ble Rajasthan HC has reiterated that the right to seek default bail under section 167(2) of CrPC is an indefeasible right of the accused, but this is so only in cases where the remedy has been availed of by preferring an application within the prescribed period. 
• The Court also observed that if an additional offence is found to be made against an accused then the computation of the period of 60 or 90 days, as is laid down under section 167 CrPC would be done afresh. 
• It is the case of the petitioner that an FIR was lodged on 16-10-2021 under section 363 IPC by the complainant alleging that his brother’s daughter was abducted by the accused/petitioner, in pursuance of which the accused/petitioner was arrested on 19-10-2021. He remained in custody for one day and was released on 20-10-2021. However, subsequently the accused was again arrested and taken into custody on 27-10-2021 and remained in custody till 24-01-2022 (when the charge sheet was filed), after additional charges under sections 457, 342, 366A, 376(2)(n) 376D of IPC and 3/4 and 5(G)/6 of POCSO Act were made out against him and included in the charge sheet. 
• Thus, the Counsel for the petitioner alleged that the accused/petitioner had been in custody for a total period of 92 days, which exceeded the limits as provided in section 167(2) of CrPC, and that the accused had an indefeasible right to be released on bail.
• The Court observed that a bare perusal of section 167(2) CrPC shows that the period of 90 days would be computed when the investigation with regard to the said offence began. The Court also observed that if an additional or new offence is found to be made out by the investigating authority against the accused then the computation of the period under section 167(2) CrPC would be done afresh. 
• Thus, the Hon’ble HC agreed with the observation of the Trial Court when it had observed that the period of detention would be computed from 27-10-2021, until the charge sheet was filed on 24-01-2022, and therefore, the charge sheet was rightly filed within the stipulated period of 90 days. 
• The Court also observed that the accused/petitioner had, in the present case, filed an application for default bail on 22-02-2022, which is well beyond the statutory period of 90 days. 
• As regards the issue whether a bail application filed after the filing of the charge sheet, although the charge sheet had been filed after the expiration of the prescribed statutory period, would be maintainable, the Court referred to a plethora of decisions, including Suresh Kumar Bhikamchand Jain vs State of Maharashtra and ors (2013) SCC and Sanjay Dutt vs State through CBI Bombay (1994) SCC wherein it was observed that the right of statutory bail which is accrued to the accused and gains the status of an indefeasible right only after the expiry of the total period laid down in section 167(2) of CrPC and until the chargesheet is subsequently filed. It was also held in Sanjay Dutt’s case that the right to default bail is enforceable only after the expiry of the prescribed period, and the right does not survive after the charge sheet was filed, unless the right had been already availed of. 
• In Achpal and ors vs State of Rajasthan (2019) SCC the Apex Court had clarified that the Courts are not empowered to grant an extension of time for the detention of the accused or overlook the delay in filing of the chargesheet in case an application seeking bail is preferred by the accused.
• Thus, the Court was of the opinion that what is of utmost significance is whether the application seeking  default bail is filed before the filing of the charge sheet, and the said right of the accused becomes an indefeasible right only when the prescribed period had expired and the chargesheet had not been filed. Other attending circumstances are immaterial. 
• In light of the aforementioned observations, the petition was disposed of, and the order of the lower Court did not warrant interference. 

Appellate Court U/S 142 (b) Of NI Act May Remand Back Case For Consideration; If Accused Fails To Raise Ground Of Delay U/S 138 Of NI Act: Karnataka HC

• In M/s. A. Seating & Others v. M/s. Nandini Modulars (2021), Justice HP Sandesh observed that the Appellate court has the authority to remand the case for a new hearing on the matter of condonation of delay under Section 142(b) of the Act if the accused party fails to raise the ground of delay in filing the complaint before the court of the first instance under Section 138 of the Negotiable Instruments Act. Furthermore, the complainant's case cannot be dismissed only due to a delay.
• In this case, the petitioners were given an undertaking by the accused, stating the accused would discharge the amount of Rs.13,58,921/- within 15 days and issued four cheques as security to the said loan amount. On presenting those cheques, the same was dishonoured. Therefore, a case was filed in which the petitioners did not plead guilty. However, after considering the evidence, the trial court convicted the petitioners. Thereafter, a revised petition to overturn the Trial Court's judgment was filed in the Hon'ble HC to set aside the decision of the Appellate Court, remanding the case to the Trial Court. The Trial Court's ruling upheld the petitioner's conviction under Section 138 of the Negotiable Instruments Act. Following this, the appellate court remanded the case to reconsider it, allowing the complainant to file the necessary application for condonation of delay. Additionally, the Trial Court was directed to decide the application, thus setting aside the Trial Court's order of conviction and sentence.
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• Section 138 of the Negotiable Instruments Act, 1881 specifies the conditions in which a case for cheque dishonour can be brought. It stipulates that a check must be delivered to the bank within 6 months of the day it was drawn or during the validity term of the check, whichever comes first. In Harman Electronics Ltd. v. National Panasonic India Ltd. [(2009) 1 SCC 720], it was decided that the geographical jurisdiction of an offense under Section 138 of the Negotiable Instruments Act, 1881 is controlled by Section 177 of the Criminal Procedure Code, 1973.
• Section 142(b) in The Negotiable Instruments Act, 1881 states that the complaint must be filed within one month of the day on which the cause of action arises.
• In Pawan Kumar Ralli Vs. Maninder Singh Narula (2014), the High Court invalidated the appellant's criminal proceedings against the respondent under Section 138 of the Negotiable Instruments Act, 1881.
• After considering the aforementioned cases and hearing both sides, the Hon'ble court determined that the accused would have to have submitted an application for delay condonation before the trial court to use such a defence. Furthermore, the trial court has the jurisdiction to order the complainant to file an application for delay condonation in the event of a delay. Finally, the Hon'ble court found that the 2003 amendment to section 142 of the Act was made to alleviate the complainant's burden. Furthermore, if the court did not examine the proviso of section 142(b) of the NI Act, which affirms the court's competence to condone the delay, the whole aim of Parliament would be undermined.
• Therefore, the petition was dismissed by the Hon'ble Court.