B.R.ARORA, J. - (1.) THIS miscellaneous petition is directed against the order dated January 30, 1990, passed by the Munsif and Judicial Magistrate, First Class, Ladnu, by which the learned Magistrate rejected the bail application file by the petitioners and refused to enlarge them on bail under Section 167 (2)Crp. C.
(2.) GORDHAN Gurjar, on October 19, 1989, filed a written report at Police Station, Ladnu, to the effect that the accused petitioners alongwith other co-accused armed with sword, Barchhis as Lathis, passed through the lane where the complainant alongwith his brother Bhagirath and son Ladu Lal was sitting. After sometime, he heard a noise that some persons are burning the ice factory. When he went there, forty to fity Mohammedan persons were destroying his factory bringing the wood from inside the factory and were burning the wood. On seeing the complainant party, the acccused party tried to kill them, but complainant party rescued themselves by hiding themselves in the house of one Sanwat Ram and saw the incident from the roof of the house of Sanwat Ram. In the meanwhile, his son Kailash Gurjar came on a bicycle. The rioter encircled him and exclaimed to kill him, whereupon Nawab Khan inflicted sword blow on Kailash Gurjar and Kailash on receiving the injuries, fell down. Forty-fifty persons of the accused party including the 17 named persons, after inflicting injuries on Kailash, went away. After they had gone, Kailash Gurjar was taken to the hospital, were he died. On the basis of this report, a case under Section 147, 148, 149, 307, 302 & 450 I. P. C. was registered against the accused-petitioner Nawab Khan, Anish Ahmad, Mahboo Ali, Sumer Khan, Sardar Khan, Aazam Ali, Babu Khan, Iqbai Khan, Fattu Khan, Chand Khan, Banne Khan, Aziz Khan, Babu Khan S/o Shri Alladeen Khan, Aamin Khan, Iliyas Khan, Mustak Khan and Ayub Khan. During the course of investigation, the accused Nawab Khan, Aziz Khan, Anish Ahmad. Mahboo Ali, Sumer Khan, Sardar Khan. Aazam Ali, Babu Khan, Iqbal Khan, Fattu Khan, Chand Khan, and Banne Khan were arrested. on October 20, 1989. The accused Babu Khan S/o Alladeen Khan Aamin Khan and Iliyas Khan were arrested on October 21, I989 and the remaining accused Ayub Khan and Mustak Khan were arrested on October 22, 1989. The police, after necessary investigation, presented the challan against the 17 accused - petitioners on January 8, 1990 in the Court of the Munsif and Judicial Magistrate, First Class, Ladnu, in which it was, also mentioned that the investigation with respect to the other accused is going on and further report under Section 173 (8) Cr. P. C. will be submitted after completion of the investigation. The learned Magistrate, by his order dated January 23, 1990, took cognizance against the present accused-petitioners though the challan was presented by the police on January 8, 1990, The petitioners, on January 27, 199, moved an application under Section 167 (2) Cr. P. C, to release them on bail. The learned Magistrate dismissed the bail application filed under Section 167 (2) Cr. P. C. by his order dated January 30, 1990, as according to the learned Magistrate, the provisions of Sect on 167 (2) Cr. P. C. were not available in the case of the petitioner. It is against this order that the present petition under Section 482 Cr. P. C. has been filed for releasing the accused-petitioners on bail. Heard learned counsel for the petitioners, the learned counsel for the complainant and the learned Public Prosecutor. It is contended by the learned counsel for the petitioners that since the police has failed to submit the charge-sheet within ninety days from the date of the arrest of the accused-petitioners and as such the accused-persons are entitled to be released on bail under proviso (a) to Section 167 (2) of the Code of Criminal Procedure. Alternatively, it is, also, submitted that even if we take into account that the challan was presented within ninety days, even then as it was not a complete challan, therefore, it cannot be said to be a 'challan' in the eye of law. it was also, submitted that as the learned Magistrate did not take cognizance within ninety days from the date of the arrest of the accused, they are, therefore, entitled to be released on bail. According to the learned counsel for the petitioners, the right to bail under Sec. 167 (2) proviso (a) Cr. P. C. is an absolute right and has a legislative command, and the Court has no discretion in the matter and if the investigating agency fails to file the charge-sheet within ninety days, then the petitioners are entitled to be released on bail. The learned counsel for the petitioners, in support of his arguments, has placed reliance on T. W. Salrna vs. Smt. Durga Kamla Devi (1 ). Hussainara Khatoon and others vs. Home Secretary, State of Bihar (2), Manta Majoomdar and another vs. The State of Bihar The State of Uttar Pradesh vs. Laxmi Brahmin (4), Shishpal vs. The State of Rajasthan (5), Powell Nwawa Ogechi vs. The State of Delhi Administration (6), Raghuveer Singh vs. The State of Bihar (7), Rajnikant Jeewan Lal vs. Intelligence Officer Narcotics Control Bureau (8), and Hira Ram and another vs. The State of Rajasthan The learned Public Prosecutor, on the other hand, has supported the order passed by the learned lower court and has submitted that the charge-sheet in the present case was submitted on January 8, 1990, i. e. within 90 days of the arrest of the accused and it was a complete charge-sheet. He has, also, submitted that the learned Magistrate took cognizance against the accused petitioners on January 27, 1990 and, the bail application under Sec. 167 (2) Cr. P. C. was filed by the petitioners on January 27, 1990, and therefore, the provisions of Sec. 167 (2) Cr. P. C. had no application in the case, as after the submission of the charge sheet, the question: whether to release the petitioners on bail or to remand them to judicial custody, had to be decided by the learned Magistrate in the light of the provisions contained under Section 309 Cr. P. C. having regard to the facts and circumstances of the case. In support of his contention, the learned Public Prosecutor has placed reliance over the judgment rendered in Umed Singh Wakmatji Jaleja vs. The State of Gujarat (10), Dada Saheb Krishna Rao Patil vs. Sarupajiyaber Charap (11), The State of Uttar Pradesh vs. Laxmi Brahmin (supra ). Rabindra Rai v. The State of Bihar (13), Raghuveer Singh vs. The State of Bihar (supra ). Nawal Sahni vs. The State of Bihar and Saldul Bhai Lakman Bhat vs. The State of Gujarat (14 ). In order to appreciate the scope of respective contentions made by the learned counsel for the parties, it is essential to briefly refer to the law relating to t|he controversy. Sections 167 (2), 209 (b) and 309 (2) of the Code of Criminal Procedure confer powers on the Magistrate to order detention of the accused from time to time since the beginning of the investigation till the conclusion of the trial. These three provisions deal with the detention of the accused when he has not been released on bail under Sec. 437 or 438 or 439 Cr. P. C. Sec. 167 (2) Cr. P. C. has applicable during the investigation of the. offence white Sec. 209 (b) Cr. P. C. is attracted during the pendency of the Sessions trial and Sec. 309 (2) Cr. P. C is applicable during the inquiry or trial other than the Sessions trial. Sec. 167 of the Code of Criminal Procedure finds place in Chapter XII. Chapter XII of the Code of Criminal Procedure, which covers Secs. 154 to 176 Cr. P. C. , deals with information to the police, and their powers to investigate. Sec. 167 (2) Cr. P. C. which is relevant for the present controversy is reproduced here, which reads as under: "167 Procedure when investigation cannot be completed in twenty-four hours. (1 ). . . . . . . . . . . . , (2) The Magistrate to whom an accused 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 for trial, and considers further detention unnecessary, he may 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 of 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 relate to an offence punishable with death, imprisonment for life or imprisonment for a term of not 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 it he is prepared to and does furnish bail, and every person shall be released on bail if sub-section shall be deemed to be so released under the provisions of Chapter XXX111 for the purpose of that Chapter. Explanation - I For the avoidance of doubts, it is hereby declared that, notwithstanding the expiry of the period specified in paragraph (a), the accused shall be detained in custody so long as he does not furnish bail. " In T. V. Salma V Durga Kamla Devi (supra) the question that came-up for consideration before the Andhra Pradesh High Court was that whether the preliminary charge-sheet, which was submitted by the police before the completion of the investigation can be said to be a charge - sheet as envisaged under Section 173 (2) Cr. P. C. and the. Court came to the. conclusion that incomplete charge-sheet submitted by the police without completion of the investigation cannot be said to be a charge-sheet as envisaged under Section 173 (2) Cr. P. C. and as the charge-sheet was not submitted within the period provided under Section 167 (2) of the Code of Criminal Procedure, the accused petitioners were, therefore, entitled to be released on bail as per proviso (a) to Section 167 (2) Cr. P. C. In the case in hand, the complete charge sheet was submitted by the police after necessary investigation against the accused-petitioners and on the basis of that complete charge-sheet, the cognizance was taken by the learned Magistrate. This case, cited by the learned counsel for the petitioners is, thus of no help to the petitioners.
(3.) IN Hussainara Khatoon V. The State of Bihar (supra) the controversy before the Hon'ble Supreme Court was that certain under-trial prisoners remained in jail without bail for the maximum term for which they could have been sentenced it convicted and such persons had been in detention for the period longer than the maximum term of sentence as prescribed in proviso to Sec. 167 (2) Cr. P. C. when their trial having been commenced and the Supreme Court after considering the various provisions, held that if the accused is in detention for 60 days or 90 days, the Magistrate before making an order for further remand to judicial custody point out to the under trial prisoner that he is entitled to be released on bail. IN that case before the Supreme Court, the accused remained in jail without trial for a period longer than the maximum term for which they could have been sentenced and even in that case the cognizance was not taken and, therefore, the Hon'ble Supreme Court ordered for the release of the accused forthwith from detention. This authority is thus, also, of no help to the petitioners as it is not applicable in the facts and the circumstances of the case. In Manta Majoomdar V. The State of Bihar (supra) the Hon'ble Supreme Court held that Section 167 (2) Cr. P. C. empowers the Magistrate to authorise the detention of an accused in such custody as he thinks fit tor a term not exceeding 15 days in the whole, more importantly there is a precious interdict protective of personal freedom which states that no Magistrate shall authorise the detention of an accused person exceeding ninety days in grave case and sixty days in lesser cases. The case before the Supreme Court was that the accused had been kept in custody for six years and the Magistrate concerned had been mechanically authorising repeated detention oblivious of the provision which obligated him to monitor the proceedings which warranted such detention. In those circumstances, the accused was ordered to be released on bail. But in the present case, the challan against the accused was filed within ninety days of their arrest and the cognizance was taken by the learned Magistrate before filing of the application. This authority, cited by the learned counsel for the petitioners is, therefore, not applicable in the case of the petitioners and is of no help to them. In the State of Uttar Pradesh Vs. Laxmi Brahmin (supra) the police failed to submit the charge - sheet against the accused within the period of sixty days of their arrest as contemplated under sub-section (2) of Section 167 Cr. P. C. and the respondent moved an application under Section 439 Cr. P. C. for the grant of bail before the Allahabad High Court. The Division Bench of Allahabad High Court, which dealt with the application, was of the opinion that after the charge-sheet has been submitted under Section 170 of the Code of Criminal Procedure, the Magistrate has no jurisdiction to authorise the detention of the accused in custody under Section 167 Cr. P. C and, therefore, the authority to remand the accused to custody after the charge-sheet has been submitted, has to be gathered from other provisions of the Code. The Allahabad High Court, after examining the scheme of Sec. 167 (1) and (2) with proviso (a), concluded that on the expiry of sixty days from the date of the arrest of the accused, his further detention does not become ipso facto illegal or void, but if the charge-sheet submitted within 60 days then notwithstanding anything contained in Section 461 Cr. P. C. the accused shall be entitled to be released on bail if he is prepared to and does furnish the bail bonds. The State of Uttar Pradesh preferred an appeal before the Supreme Court and the Supreme Court up held the view taken by the Allahabad High Court and held that as the respondent did not apply for bail on the expiry of sixty days from the date of their arrest, their arrest, or continuous detention would not be illegal or without the authority of law. The Supreme Court also, in this case, approved the view of the Allahabad High Court to the effect that the jurisdiction to grant bail in the case where the investigation is not completed within the prescribed time limit as incorporated in Section 167 (1) Cr. P. C. vests in the Magistrate if the accused applies and is prepared to furnish the bail bonds. The Supreme Court, also observed that Section 167 Cr. P. C. envisages a stage when a suspect is arrested and the investigation is not completed within the prescribed period. The investigation would come to an end the moment the charge-sheet is submitted as required under Section 170 Cr. P. C. unless the Magistrate directs further investigation. The Supreme Court, in the result, allowed the appeal of the State of Uttar Pradesh and set-aside the order of the Allahabad High Court granting bail to the respondents. The view taken by the Supreme Court in this case, thus, does not help the petitioners on the contrary, if helps the prosecution and plays down a law that Section 167 Cr. P. C. has application only at the stage when the investigation is not completed within the prescribed period and has no application when the investigation is completed and the charge-sheet has been submitted, as after submission of the charge - sheet there is the commencement of the inquiry and Sec. 309 Cr. P. C. thereafter enables the Magistrate to remand the accused to the custody till the inquiry to be made, is completed. ;