- (1.) THESE two criminal misc. petitions under Section 482, Cr. P. C. raises common controversy or the self-same incident in F. I. R. No. 281/89 P. S. Ashok Nagar (Jaipur ). Therefore, these two petitions which seek to quash order dated 30. 11. 1989 of the Judicial Magistrate No. 2, Jaipur City Jaipur & then to release the petitioners on bail giving benefit under Section 167 (2), O. P. C. , lend themselves support to disposal by this common order.
(2.) THE facts & circumstances giving rise to these petitions which lie in a short compass are- For the incident of committing order of Ram Kishan a written report was lodged by one, Uttam Prakash at Police Station Ashok Nagar on 1. 9. 1989 at 9 p. m. and a criminal case was registered at the police station. In the written report, it had been alleged that on 1. 9. 1989 at 9 a. m. the petitioners along with three or four more persons entered the house of the complainant and inflicted injuries on the person of his father thereby, Ramkishan succumbed to his injuries at the spot. Investigation commenced. The petitioners wee arrested on 2. 9. 1989 and on that very day, they were produced before the concerned Magistrate for remand which was granted and then they remained in judicial custody and on 30. 11. 1989, bail were produced before the Judicial Magistrate No. 2, Jaipur City, Jaipur by jail authorities and because of the scarcity of the police force, the petitioners were not produced before the Magistrate. The learned Magistrate extended the period of detention of the petitioners upto 19. 12. 1989, on the request of the prosecution side seeking time to submit the charge-sheet against the petitioners, on the ground that the investigation had not then been completed These facts find place in the order-sheet of 30. 11. 1989. The order-sheet further gives out that the charge-sheet against the petitioners was filed by the Asstt. Public prosecutor on 30. 11 89 at 4 p. m. It was been averred in the petitions that as the charge-sheet was not filed against the petitioners even after the expiry of 90 days so, the Magistrate was not authorised to extend the period of detention upto 14. 12. 1989 in as much as he was legally bound to enlarge the petitioners on bail under Section 167 (2) Cr. P. C. It has been submitted that the petitioners made an oral request on 30. 11. 89 that they are ready to furnish bail bonds & surety as the Court deems proper but, the Magistrate did not pass any order on the said request for releasing the petitioners on bail and instead, the Magistrate extended the period of detention upto 14. 12. 1989 thereby the investigating agency was allowed to file the challan upto 14. 12. 1989. According to the petitioners, the Magistrate had no jurisdiction and competence to pass such an order in view of the provisions contained in Section 167 (2), Cr. P. C. in as much as he had no discretion to extend the period of detention after the expiry of 90 days and further to grant more time to the investigating agency for filing the challan because as per Section 167 (2) Cr. P. C. , total period of detention cannot exceed 90 days and maximum period for filing the challan prescribed is 90 days and in case, the investigating agency fails to file the charge-sheet within 90 days, then in that situation, it is obligatory on the part of the Magistrate to have asked the person under detention for furnishing the bail bonds etc. Taking the aid of the aforesaid facts and circumstances, learned counsel for the petitioners contended that a right has accrued to the petitioners for being released on bail after expiry of 90 days and then there is nothing in Section 167 (2), Cr. P. C. that the person under detention should make a written request to the Magistrate for his release on bail; but the matter is left purely discretionary to the concerned Magistrate to examine the period of detention and if he finds that period of 90 days has expired then in that situation, it has been made obligatory for the concerned Magistrate to ask the person under detention for furnishing bail bonds etc. Learned counsel then argued that the remand form of the petitioners was produced before the Magistrate on 30. 11. 89 before lunch hours without filing the challan and the Magistrate extended the period of detention without filing challan upto 14. 12. 1889, and this according to the learned counsel, has resulted in abuse of powers and the Magistrate has exceeded his jurisdiction under Section 167 (2) Cr. P. C. Shri Biri Singh added that although a request was made on behalf of the petitioners for their release on bail but the Magistrate, without paying heed to such a request, passed an arbitrary order extending the period of detention and allowing the investigating agency to file the charge-sheet after the expiry of 90 days, by over-reaching the provisions of Section 167 (2), Cr. P. C, which empower the Magistrate to release the accused on bail by asking them to furnish the bail bonds.
(3.) LEARNED counsel also that the Magistrate extended the time because at the time when he extended the time of detention upto 14. 12. 1989, no challan was filed before the Magistrate and which was filed at 4 p. m. on 30. 11. 89, as is clear from the order- sheet dated 30. 11. 89. LEARNED counsel therefore, contended that the Magistrate extended the period of remand without computing the total period, of detention and without considering the merits for extending the time and that being so, the petitioners seek relief under Section 167 (2), Cr. P. C. also because, the investigation was not completed Within 90 days from the date of the remand further that the provisions are mandatory in nature. A look at Section 167 (2), Cr. P. C. shows that it empowers the Magistrate to detain the accused in such custody as he thinks fit for a term initial for 15 days. And, as observed in Mantoo Majumdar Vs. State of Bihar (AIR 1980 SC 847), more importantly, there is a precious interdict protective of personal freedom which state that no Magistrate shall has committed a non-bailable offence and that it is necessary to arrest him and commit him to custody. Having considered the aforesaid submissions made at the bar, I may state that the decision of the present petitions depends upon interpretation of Section 167 (2) Cr. P. C. says as under:- The Magistrate to whom an accused person is forwarded under this Section may, whether he has or has not jurisdiction to try the case, from time to time, authorise the detention of the accused in such custody as such Magistrate thinks fit, for a term not exceeding fifteen days in the whole; and if he has no jurisdiction to try the case or commit it for trial, and considers further detention unnecessary, he order the accused to be forwarded to a Magistrate having such jurisdiction : provided that - (a) the Magistrate may authorise the detention of the accused person, otherwise than in the custody of the police, beyond the period of fifteen days if he is satisfied that adequate grounds exist for doing so, but no Magistrate shall authorise the detention of the accused person in custody under this paragraph for a total period exceeding- (i) ninety days, where the investigation relates to an offence punishable with death, imprisonment for life or imprisonment for a term of less than ten years; (ii) sixty days, where the investigation relates to any other offence, and, on the expiry of the said period of ninety days, or sixty days, as the case may be, the accused person shall be released on bail if he is prepared to and does furnish bail, and every person released on bail under this sub-section shall be deemed to be so released under the provisions of Chapter XXXIII for the purposes of that Chapter, (b) no Magistrate shall authorise detention in any custody under this section unless the accused is produced before him; (c) no Magistrate of the second class, not specially empowered in this behalf by the High Court, shall authorise detention in the custody of the police. " Having benefitted by the enlightenments derived from the authoritative pronoun cements, referred to above, and the provisions contained in section 167 (2), Cr. P. C. , it cannot be disputed that the investigating agency should complete its investigation within ninety days in the case of an offence punishable with death, imprisonment for life or imprisonment for a term of not less than ten years and sixty days in case of any other offences; and that, in case, the prosecution agency fails to complete the investigation within such stipulated period then, in that situation, the prosecution cannot be allowed further time for filing charge-sheet or for completing the investigation and no period of detention can be extended by the concerned Magistrate and that in case the prosecution agency the produce the charge- sheet within stipulated period hen the concerned Magistrate is legally bound to ask the person in detention to furnish bail bonds inasmuch as it is not necessary under Section 167 (2) Cr. P. C. that a request is required to be made by the person in detention for his release on bail. It is for the concerned Magistrate to ask the person in detention who is produced before him to extend his period of detention, to produce bail bonds etc. or to see whether the investigation has been completed within stipulated period or not and if he finds that the investigating agency has not completed its investigation within stipulated period, then the accused person shall be released on bail the Magistrate. My view expressed above is fortified by the decisions in Mantoo Majumdar Vs. State of Bihar (1), Hiraram & Anr. Vs. State of Rajasthan (2) and in Raghubir Singh Vs. State of Bihar (3 ). ;