BAIL APPLN./207/2016 of JANKI Vs STATE GOVT OF NCT OF DELHI

IN THE HIGH COURT OF DELHI AT NEW DELHI+BAIL APPLN. 207/2016JANKIPetitioner

PetitionerThroughMr. Raman Sawhneyand Mr. S.N.Pandey, Advocates

versus

STATE GOVT OF NOT OF DELHIRespondentThroughMs. Neelam, APP along with SubInspector Mahinder, PS Rajouri Garden.

CORAM:

HON'BLE MS. JUSTICE SUNITA GUPTA

ORDER%11.05.2016

1.This is an application under Section 167(2) read with Section439 & 482 of Cr.P.C.moved by the petitionerfor grantof regularbailin case FIR No. 1267/2015 under Section 307/34 IPG read withSection25/27 Arms Act, registeredat Police StationRajouri Gardenon the ground that despite noticing that the charge sheet was notsubmittedwithin the stipulatedperiod of 90 days yet, the petitionerhas not been released on bail.

2.FIR in the instant case was registered on the basis of acomplaintmade by injuredPraveenstatingthereinthat in the eveningof 30thAugust, 2015 at about 8:00 PM, some quarrel was going onamongst Sushil Arora and Ghisa outside the house of the applicant.He along with his friend Rupesh intervenedbut petitionerexhortedGhisa and Amru to assault him upon. On this, both of them took outtheirpistol and fired in the air. ThereafterAmru fired upon him and

the bullet hit on the lower part of his abdomen.

3.The petitionerwas arrestedon 31^' August, 2015 and was sentto judicial custody on the same day. Since the charge sheet was notfiled by the Investigating Officer of the case within 90 days, as such,the application u/s 167 (2) Cr.P.C. was moved by the petitioner forgrant of compulsive bail. However, the application was dismissed on30* November,2015 on the groundthat on 28* November,2015, 90days custody was not completed and no right of compulsive bailaccrued in favour of the accused/petitioner. Moreover, the Trial Courtrelied upon Sanjay Dutt vs. State through CBI, 1994 (5) SCC 410and Pragyna Singh Thakur vs. State of Maharashtra, 2011 X SCC445 for observingthat since the charge sheet has been filed prior tothe considerationof the bail application,as such, the petitioneris notentitled for compulsive bail.

4.Counsel for the petitionersubmitsthat the petitioner for the petitionersubmitsthat the petitioner the petitionersubmitsthat the petitioner petitionersubmitsthat the petitionersubmitsthat the petitionerthat the petitioner the petitioner petitioneris entitledtobe releasedon bail, interalia,on the followinggrounds:-

Counsel for the petitionersubmitsthat the petitioner for the petitionersubmitsthat the petitioner the petitionersubmitsthat the petitioner petitionersubmitsthat the petitionersubmitsthat the petitionerthat the petitioner the petitioner petitioneris entitled

(i)Reliance placed by the learned Trial Court on SanjayDutt and Thakur no (supra) Pragyna Singh (supra),Dutt and Thakur no (supra) Pragyna Singh (supra),longer holds goodlawinview of subsequentpronouncementby the Hon'ble SupremeCourt in UnionofIndia vs. Nirala Yadav,MANU/SC/0580/2014.pronouncementby the Hon'ble SupremeCourt in UnionofIndia vs. Nirala Yadav,MANU/SC/0580/2014.

(ii)Sincethe applicationwas moved for grantofcompulsivebail u/s 167(2)Cr.P.C.and the chargesheetwas not filedbail u/s 167(2)Cr.P.C.and the chargesheetwas not filed

by the Investigating Officer of the case within 90 days, assuch, mere fact that the concernedMagistratedid notpass any order on the same day does not extinguish theright of the petitioner to the grant of bail.

(iii)One of the grounds taken by the State for not filing the sheet within is that on 28'*^ sheet within is that on 28'*^charge stipulated periodNovember, 2015, one of the co-accused Gheesa was gotdeclaredproclaimedoffenderand the next date, i.e., 29^^November, 2015 was Sunday, therefore, the charge sheetwas filed on 30'^ November, 2015. The provisions ofSection 10 of General Clauses Act does not apply to suchan eventuality and, therefore, the prosecution does notget any benefitof the fact that 29'^ November,2015 wasa Sunday.November, 2015, one of the co-accused Gheesa was gotdeclaredproclaimedoffenderand the next date, i.e., 29^^November, 2015 was Sunday, therefore, the charge sheetwas filed on 30'^ November, 2015. The provisions ofSection 10 of General Clauses Act does not apply to suchan eventuality and, therefore, the prosecution does notget any benefitof the fact that 29'^ November,2015 wasa Sunday.

(iv)The applicantis an old aged ailinglady ofabout63 yearsand has been sufferingfrom heart problem, high bloodpressureand is diabeticpatient. She, being lady, isotherwiseentitledto the benefitof provisionsof Section437(i) (ii) Cr.P.C.and has been sufferingfrom heart problem, high bloodpressureand is diabeticpatient. She, being lady, isotherwiseentitledto the benefitof provisionsof Section437(i) (ii) Cr.P.C.

(v)Even on merits, the petitioner has good case as thepetitionerwas not presentat the spot. She had gone toSunday Bazar which is located about 2 kms from herhouse. The complainantparty barged into her house andbroke motorcycle,scooty,fridge and all windowpain ofpetitionerwas not presentat the spot. She had gone toSunday Bazar which is located about 2 kms from herhouse. The complainantparty barged into her house andbroke motorcycle,scooty,fridge and all windowpain of

the house.On receipt of informationregarding thebreaking and destruction of her house from neighbour,she rushedback to her houseand theninformedthepoliceat 100 number,on the basis of which, FIRNo.1268/2015 was registered at Police Station RajouriGarden. If the applicant had been present at the time ofalleged occurrence as stated in the present FIR, shewould not have dared to lodge the FIR at the same timewith the same Investigating Officer of the case.

(vi)The prosecution is relying upon the previous antecedentsof the accused, however, it is submitted that she has beenacquitted in all those cases. Certified copies of the ordershave been placed on record.of the accused, however, it is submitted that she has beenacquitted in all those cases. Certified copies of the ordershave been placed on record.

(vii) Lastly,the petitionerhas deep rootsin the society. Thereare no chances of her abscondingor tamperingwith theprosecution evidence. She is in custody since 31'^August, 2015. As such, she be released on bail.are no chances of her abscondingor tamperingwith theprosecution evidence. She is in custody since 31'^August, 2015. As such, she be released on bail.

5.The applicationis opposed by the learned Additional PublicProsecutorfor the Stateon the groundthatthe petitioneris not entitledfor compulsive bail as after the filing of the charge sheet, thepetitionerfiled applicationu/s 167(2)Cr.P.C.Therewas only one daydelay in filing the charge sheet. The same could not be filed in timebecauseone ofthe co-accusedwas got declaredproclaimedoffender

on 28^^ November, 2015 and 29*^ November, 2015 was Sunday,therefore, on the opening day, the charge sheet was filed.

6.It is further submitted that the petitioner is registered badcharacter of bundle of Police Station Rajouri Garden and isinvolved in 14 criminal cases. Most of them are u/s 21 of NDPS Act.As such, it is submitted that the petitioner is not entitled to be releasedon bail.

7.It is not in that the was arrested on 31^' dispute petitionerAugust, 2015. Since the petitioner was booked for offence u/s 307/34IPG r/w Section 25/27 of Arms Act, as such, the punishment foroffence u/s 307 IPG is imprisonmentwhich may extend upto 10 yearsand if hurt is caused, then it can go up to imprisonment for life. Inview of Section 167 (2)(a)Gr.P.G.,the charge sheet is requiredto befiledwithina periodof 90 days. It is not indisputethatthe 90 days inthe instantcase expiredon 28"" November,2015 but the chargesheethas been filed on 30"^ November,2015 meaningtherebythat it wasfiledon 92"''day. The bail applicationu/s 167(2)Gr.P.G.was filedon28thNovember, 2015 but it was taken up for hearing on 30"^November, 2015 by which date, challan was filed.

8.The question,therefore,for considerationis whetherunder theprovisionsof Section 167(2), an accused against whom the chargesheet is not presentedbeforethe Gourt withinthe periodof 90 or 60days, as the case may be, is entitledto be offeredbail as matter of LearnedTrial Gourt relied the thisright. upon judgmentpassed by

CourtinSanjeevBhatiavs. Statedecidedon 26^^ March,2014,whereby relying upon the ratio of Sanjay Dutt vs. State through Cfi/(supra)and Pragyna Singh Thakur vs. State of Maharashtra{s\ypxdi), it washeld that once the charge sheet has been filed. Magistrate is toconsiderthe applicationfor bail on merits and not under Section167(2) Cr.P.C.In that case, the charge sheet was filed on the sameday but after the bail application was moved on behalf of the accused.Relying on this judgment, the learned Trial Court dismissed the bailapplication on the ground that since the charge sheet has been filedprior to consideration of the bail application, therefore, the applicationdoes not lie.

9.Learnedcounselforthepetitionerreliesupon NiralaYadav{swpY2i),wherein challenge was to the order passed by learnedsingle Judge of High Court of Judicature at Patna whereby therespondent was enlarged on bail solely on the ground that he wasentitledto the benefitunderthe provisoappendedto Section167(2)ofthe Code of CriminalProcedure. Hon'ble SupremeCourt referredtovarious judgments passed by the Apex Court and then referred to thejudgment of Udai MohanlalAcharya vs. State of Maharashtra,(2001) 5 see 453 where after referringto the ConstitutionBenchdecisionin SanjayDutt'scase, the majorityposedthe questionaboutthe true meaningofthe expressionofthe followinglines

"the indefeasibleright accruing to the accused in such situation isenforceableonlypriorto thefilingofthechollonanditdoesnotsurviveorremainenforceableon thechollonbeingfiled, ifalreadynotavailed.

After referringto various decisions,the Court culled out six

conclusions which are necessitous to be produced. They are:-

1. Under Sub-section (2) of Section 167, Magistratebefore whom anaccused is produced whiie the police is investigatinginto the offence canauthorisedetentionof the accused in such custody as the Magistratethinks fit for term not exceeding 15 days on the whole.2. Under the proviso to the aforesaid Sub-section (2) of Section 167, theMagistrate may authorise detention of the accused otherwise than in thecustody of police for total period not exceeding90 days where theinvestigationrelates to offence punishablewith death, imprisonment forlife or imprisonment for term of not less than 10 years, and 60 dayswhere the investigation relates to any other offence.3. On the expiry of the said period of 90 days or 60 days, as the case maybe, an indefeasible right accrues in favour of the accused for beingreleased on bail on account of default by the investigating agency in thecompletion of the investigation within the period prescribed and theaccused is entitledto be released on bail, if he is preparedto andfurnishes the bail as directed by the Magistrate.

4. When an applicationfor bail isfiled by an accused for enforcement ofhis indefeasible right alleged to have been accrued in his favour onaccount of default on the part of the investigatingagency in completionof the investigation within the specified period, the Magistrate/courtmust dispose of it forthwith, on being satisfied that infact the accusedhas been in custodyfor the periodof90 days or 60 days, as specifiedandno charge-sheethasbeenfiledby the investigatingagency.Such promptactiononthepart oftheMagistrate/courtwillnotenabletheprosecutionto frustrate the object of the Act and the legislativemandate of anaccusedbeing releasedon bail on accountofthe defaulton the partofthe investigatingagencyin completingthe investigationwithinthe periodstipulated.

5. If the accused is unable to furnish the bail as directed by theMagistrate,then on conjointreadingofExplanationIand the provisotoSub-section(2) ofSection167, the continuedcustodyofthe accusedevenbeyond the specifiedperiod in para (a) wiii not be unauthorised,andtherefore, if during that period the investigationis complete and thecharge-sheetis filed then the so-calledindefeasiblerightofthe accusedwould stand extinguished.

6. The expression"if not already availed of used by this Court in SanjayDutt case MANU/SC/0554/1994 : (1994) 5 SCC410 must be understood tomean when the accused files an applicationand is prepared to offer bailon being directed. In other words, on expiry of the period specified in para(a) of the proviso to Sub-section (2) of Section 167 if the accused files anapplication for bail and offers also to furnish the bail on being directed,then it has to be held that the accused has availed of his indefeasible righteven though the court has not consideredthe said application and hasnot indicated the terms and conditions of bail, and the accused has notfurnished the same.

10.Elaborating further, the Court held that if the charge-sheet isfiled subsequent to the availing of the indefeasible right by theaccused then that right would not stand frustrated or extinguished and,therefore, if an accused is entitledto be releasedon bail by applicationof the proviso to Sub-section (2) of Section 167 Code of CriminalProcedure, makes the application before the Magistrate, but theMagistrateerroneouslyrefuses the same and rejects the applicationand then the accused moves the higher forum and while the matterremainspendingbefore the higher forum for considerationa charge-sheetis filed,the so-calledindefeasiblerightof the accusedwouldnotstand extinguishedthereby,and on the other hand, the accusedhas tobe releasedon bail. The Court furtherproceededto say that such anaccused,thus is entitledto be releasedon bail in enforcementof hisindefeasibleright will, however, have to be produced before theMagistrateon charge-sheetbeing filed in accordancewith Section209 and the Magistratemust deal with him in the matterofremandtocustody subject to the provisionsof the Code relating to bail andsubject to the provisionsof cancellationof bail, already granted in

accordance with the law laid down by the Court in the case of Mohd.Iqbal (supra).

11.The Apex Court referred to the subsequent decisions as wellrendered in Ateef Nasir Mulla v. State of Maharashtra,(2005) 7see 29; Union of India v. Hassan Ali Khan and Anr.,(2011) 10see 235; Sayed Mohd. Ahmad Kazmi v. State (Government ofNCTof Delhi) and Ors., (2012) 12 SCC 1 and held that the principle laiddown in Pragyna SinghThakur{s>\\^v2^does not state the correctprinciple of law. That was case u/s 302 and various other provisionsof Indian Penal Code besides Section 27 of the Arms Act and Section49(2) (b) of Prevention of Terrorist Activities Act which provided theinitial period for filing charge sheet as 90 days, however, the periodcould be extendedon appropriateapplicationmoved by the State. Onfactualmatrixof the case, it was found that priorto the date of expiryof 90 days, the prosecutionneitherhad filed charge sheet nor had itfiled an applicationfor extension.After the accused filed theapplication for release on bail, the prosecution submitted anapplicationseekingextensionoftime for filingofthe chargesheet. Itwas observedthat the day the accusedfiled the applicationfor benefitofthe defaultprovisionas engraftedunderprovisoto Sub-section(2)of Section 167 Code of Criminal Procedurethe Court required theaccused to file rejoinder affidavit by the time the initial periodprovidedunderthe statutehad expired.There was no questionofanycontestas if the applicationfor extensionhad been filed prior to the of time. The the learned wasexpiry adjournment by Magistrate

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misconceived.He was obligedon that day to deal withthe applicationfiled by the accused as required Under Section 167(2) Code ofCriminal Procedure. We have no hesitation in saying that suchprocrastination frustrates the legislative mandate. Court cannot actto extinguish the right of an accused if the law so confers on him. Lawhas to prevail. The prosecution cannot avail such subterfuges tofrustrateor destroythe legal right of the accused. Such an act is notpermissible.As such, it was observed that there was no error in theorderof the High Courtin grantingthe benefitto the respondentandthe appeal was dismissed.

12.In view of this latest legal proposition,once the petitionerhadfiled the application u/s 167(2) on account of default on theprosecuting agency to file the charge sheet within the stipulatedperiod of 90 days, the mere fact that subsequentthereto the chargesheet was filed by the State, the right accrued in favour of thepetitionerwas not extinguished. Moreover,as held inPowellNwawaOgechi vs. The State (Delhi Administration),1986 Cri. LJ 2081,Section 10 of the General Clauses Act does not apply to such asituationand it cannot be invokedto defeat the accrued right of anaccusedpersonto be freed. The right of accused to be releasedonbail is absoluteandindefeasibleunlesshe/shefails to furnishbail.

13.Moreover,comingto the otherpleastakenby the petitioner,therole assigned to the present petitioneris that of exhortationto co-accused,however,accordingto the petitioner,she was not presentat

the spot at the time of incident and in fact, according to her, thecomplainant party had ransacked her house.On getting theinformation,sherushedbackto herhouse,informedthe policeandontheir arrival lodged complaint which resulted in registrationofcross-FIR. This aspectalso requiresconsiderationduringthe trial ofthe case.

14.Right of the petitionerto be releasedon bail is also challengedby the prosecution on account of her involvement in several cases. Asperthe statusreport,the petitioneris involvedinfollowingcases

15.When the status report was filed by the State, at that verycounselfor thehad statedat bar that atnojuncture, petitioner presentcase is pendingagainstthe petitionerand she has beenacquittedin allother cases. Subsequentthereto, he has placed on record certifiedofthe orders. Aofthe same to showthat ascopiesperusal goes perthe listofinvolvementsfiled by the State,so far as case No. 1to 6areconcerned,it was reportedthat the petitionerhas been acquittedinthosecases. As regardsserialNos. 7,8,10,11,12,13,the petitionerhas

placed on record the certified copies which reflects that now the statusof these cases is as under

16.It is very shockingstate of affairsthat in the status report, theInvestigatingOfficer has shown these cases as pending against thepetitionerwhich reflectsthat the record maintainedby the police isnot updated.Conduct of the InvestigatingOfficer was seriouslycommented the learnedTrial Courtwhilethe bailupon by dismissingapplicationof the petitioneron the ground of compulsive bail byobserving as under:-

Beforeparting with bail application,it may be mentionedthat chargesheet has been filed by Sub InspectorMohinderSingh after stipulatedtime and therefore, copy of this order be sent to concerned JointcommissionerofPolicefor intimationandactionSHO necessary againstPoliceStationRG and InvestigatingOfficerSub InspectorMohinderSingh.This is not the first time that Sub Inspector Mohinder Singh hascommittedblunderas an investigatingofficer, in FIR No. 1616/15PoliceStation RG, InvestigatingOfficer did not invoke the relevant sectiondespitebeingpointedout by the courtand Ld. APP. There was clearlackofsupervisionon the partofSHO PoliceStationRG also and resultantly,accusedwasgrantedbailby Ld. ASJ. In anotherinstanceofnegligenceon

behalf of SHO Police Station RG in FIR No. 1763/15 copy of FIR in amurder case was not sent to the court as per CrPC. Show cause noticewere issued in FIR No. 1616/15 and 1763/15 to SHO but it seems that heis not taking his job seriously and he has miserably failed to supervise thework and investigationof cases of Police Station RG.

Copy of this order be sent to Joint Commissioner of Police forintimationand necessary action at his end.It is expected by this courtthat actiontakenagainstSHO Police StationRG and Sub InspectorMohinderSingh be communicatedto this court within 15 days fromtoday.Copy of orders in FIR No. 1616/15 and 1763/15 be also annexedwith the present order for kind perusal of worthy Joint CP."

17.It seems that despite passing of such strictures against theInvestigating Officer of the case as well as the concerned SHO, thingshave not improved. The casual manner in which the status report hasbeen filed speaks for itself. Learned Additional Public Prosecutor forthe State on behalf of the Investigating Officer who was presentduring the hearing of this application, submitted an unconditionalapology, however, mere tendering an apology orally does not meananything unless the Investigating Officer mends his ways which is notreflected in the present status report. It is not clear whether the actiontaken againstthe SI MahenderSinghand SHO PoliceStationRajouriGarden was communicated to the Court by Joint Commissioner ofPolice as directedvide order datedNovember,2015. In case, thesame has not been communicated so far, the same be communicatedwithin 15 days from today.

18.Keeping in view the fact that the petitioneris lady and, assubmittedby the counsel for the petitioner,is suffering from heartproblemand otherdiseasesand is in custodysince 3L* August,2015,