When bail becomes a matter of right!

A Magistrate is empowered to authorise detention of the accused in custody, pending investigation for an aggregate period of 90 days in cases where the investigation relates to offence punishable with death, imprisonment for life or imprisonment for not less than 10 years or more and in other cases the period of 60 days has been kept. The power under Section 167 of Cr.P.C is given to detain a person in custody while the police goes on with the investigation and before the Magistrate starts the enquiry. Section 167 occurs in Chapter XII of Cr.P.C dealing with the powers of the police to investigate in criminal offence which starts with lodging of information in cognizable cases under Section 154, and ultimately culminating in submission of report on completion of investigation under Section 173. Soon after completion of investigation the officer in charge of Police Station has to forward to the Magistrate, empowered to take cognizance of the offence, a report in the prescribed form and once such report is filed before the Magistrate which is commonly termed as “challan” then the custody of the accused is no longer required to be dealt with under Section 167 of the Code, but under Section 209. Section 167, therefore, is the provision which authorises the Magistrate permitting detention of an accused in custody and prescribing the maximum period for which such detention could be ordered.On expiry of the period indicated in the proviso to sub-section (2) of Section 167 of the Code of Criminal Procedure the accused has to be released on bail, if he is prepared to and does furnish the bail. Even though a Magistrate does not possess any jurisdiction to refuse bail when no charge sheet is filed after expiry of the period stipulated under the proviso to sub-section (2) of Section 167 and even though the accused may be prepared to furnish the bail required, but such furnishing of bail has to be in accordance with the order passed by the Magistrate. In other words, without an order of the Magistrate the legislative mandate engrafted in the proviso to sub-section (2) of Section 167 cannot be given effect to. The right of an accused to be released on bail after expiry of the maximum period of detention provided under Section 167 can be denied only when an accused does not furnish bail. ((2001) 5 SCC 453 Uday Mohanlal Acharya v. State of Maharashtra)

The indefeasible right accruing to the accused in such a situation is enforceable only prior to the filing of the challan and 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. (1995 Cri LJ 477Sanjay Dutt vs. State through C.B.I. Bombay(II))

Today, i.e. on. 24.09.2018 in the matter of Achpal @ Ramswaroop & Another v. State of Rajasthan, the Hon’ble Supreme Court expressed that no court has the power to extend the period of investigation in terms of Section 167 of Cr.P.C. The Hon’ble Apex Court expressed:

The letter of and spirit behind enactment of Section 167 of the Code as it stands thus mandates that the investigation ought to be completed within the period prescribed. Ideally, the investigation, going by the provisions of the Code, ought to be completed within first 24 hours itself. Further in terms of sub-section (1) of Section 167, if “it appears that the investigation cannot be completed within the period of twenty-four hours fixed by Section 57” the concerned officer ought to transmit the entries in the diary relating to the case and at the same time forward the accused to such Magistrate. Thereafter, it is for the Magistrate to consider whether the accused be remanded to custody or not. Sub-Section (2) then prescribes certain limitations on the exercise of the power of the Magistrate and the proviso stipulates that the Magistrate cannot authorize detention of the accused in custody for total period exceeding 90 or 60 days, as the case may be. It is further stipulated that on the expiry of such period of 90 and 60 days, as the case may be, the accused person shall be released on bail, if he is prepared to and does furnish bail. (Para 16)

The provision has a definite purpose in that; on the basis of the material relating to investigation, the Magistrate ought to be in a position to proceed with the matter. It is thus clearly indicated that the stage of investigation ought to be confined to 90 or 60 days, as the case may be, and thereafter the issue relating to the custody of the accused ought to be dealt with by the Magistrate on the basis of the investigation. Matters and issues relating to liberty and whether the person accused of a charge ought to be confined or not, must be decided by the Magistrate and not by the Police. The further custody of such person ought not to be guided by mere suspicion that he may have committed an offence or for that matter, to facilitate pending investigation. (Para 17)

The provisions of the Code do not empower anyone to extend the period within which the investigation must be completed nor does it admit of any such eventuality. There are enactments such as the Terrorist and Disruptive Activities (Prevention) Act , 1985 and Maharashtra Control of Organised Crime Act, 1999 which clearly contemplate extension of period and to that extent those enactments have modified the provisions of the Code including Section 167. In the absence of any such similar provision empowering the Court to extend the period, no Court could either directly or indirectly extend such period.  (Para 18)

-Tushar Kaushik

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