- (1.) BY his order dated 4-6-1974, the Chief Judicial Magistrate, Bikaner, released Bhanwaru Khan, Mohammad, Alfu, Ganni and Bhanwaru son of Rahaman, non-petitioners on bail upon each of them furnishing a personal bond in the amount of Rs. 10,000/-, together with two sureties for Rs. 5000/-, each. Aggrieved by the order of the Chief Judicial Magistrate, the State of Rajasthan moved the Sessions Judge, Bikaner, for cancellation of bail granted to the non-petitioners. The learned Sessions Judge, Bikaner, rejected the application for cancellation of bail by his order dated 17-9-1974. Hence, the State has come up to this Court by way of an application under Sub-section (2) of Section 439 of the new Criminal Procedure Code for a direction that the non-petitioners, who have been released op bail, be arrested and committed to custody.
(2.) I have carefully gone through the record and heard the arguments advanced by Shri G. A. Khan for the State of Rajasthan and Mr. V. S. Dave, learned Counsel for the non-petitioners. It has been strenuously urged before me on behalf of the State that when the offence alleged to have been committed by the accused persons is a grave one like murder or an organised riot and there are reasonable grounds for believing that the accused persons have been guilty of an offence punishable with death or imprisonment for life, the Court ought not to have generally granted bail merely on the ground that the investigation could not be completed within a period of 60 days and that on the expiry of the said period of 60 days the accused person or persons became entitled to be released on bail under proviso (a) appended to Sub-section (2) of Section 167, Criminal Procedure Code 1973. It was further urged that the provisions contained in proviso (a) to Sub-section (2) of Section 167, Cr. P. C. are not of a mandatory nature and are controlled by other provisions of the Code contained in Sections 309 (2), 437 and 439 thereof, Mr. V. S. Dave appearing on behalf of the non-petitioners, on the other hand, contended that in the present case there has been unnecessary delay on the part of the investigating agency in completing the investigation and in submitting a report under Sub-section (2) of Section 173, Cr. P, C. to the Magistrate empowered to take cognizance of the offence on a police report, with the result that the non-petitioners were detained in custody for a total period exceeding 60 days and that on the expiry of the said period of 60 days the non-petitioners were rightly enlarged on bail by the Chief Judicial Magistrate as they were prepared to furnish bail bonds and in fact did furnish the same. According to Mr. V. S. Dave, the non-petitioners shall be deemed to have been released under the provisions of Chapter XXXIII of the Code which contains provisions as to bail and bonds and that their bail cannot be cancelled merely on the ground that they are involved in serious offences,
(3.) I have given my anxious consideration to the rival contentions. The short question that arises for determination is whether the provisions contained in proviso (a) to Sub-section (2) of Section 167 of the Criminal Procedure Code, 1973, are mandatory in the sense that nonobservance thereof renders the detention of the accused illegal after a total period of 60 days from the date of his arrest. To decide this question, it is necessary to consider the actual words used in this proviso and to find out the real intention of the Legislature, The proviso (a) to Sub-section (2) of Section 167, has been newly inserted in the Code of Criminal Procedure, 1973, in the following words: The Magistrate may authorise detention of the accused person, otherwise than in 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 section for a total period exceeding sixty days, and on the expiry of the said period of sixty days, 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 section shall be deemed to be so released under the provisions of Chapter XXXIII for the purposes of that Chapter. From a bare reading of the words used in this proviso to convey the intention of the Legislature, it appears that this new provision has been inserted in Section 167, C. P. C. to ensure that every investigation under this Chapter must be completed without unnecessary delay and that for this purpose a time-limit is set to the total period of a series of orders of remand under Section 167, Cr. P. C. Before the commencement of the new Code of Criminal Procedure there had been a practice of filing, incomplete charge-sheet by the police in many cases and of moving the court for remand under Section 344, Cr. P. C. before a complete challan was forwarded to the Magistrate for taking cognizance of an offence. This practice of doubtful legality resulted in causing hardship and misery to the accused in undergoing detention on remand for a considerably long period. A satisfactory solution of this problem was considered and the Legislature in its wisdom empowered the Magistrate to extend the period of detention, otherwise than in police custody, beyond 15 days, subject, of course, to a maximum time-limit of 60 days, if he is satisfied that sufficient grounds exist for granting such extension, It appears that the Legislature felt that a drastic remedy should be provided to check prolonged investigation. It has, therefore, been provided by enacting proviso (a) to Sub-section (2) of Section 167 Criminal P. C. that where an' accused person has been in custody for a total period of 60 days during investigation and such investigation is not completed, the accused shall be entitled to be released on bail irrespective of the fact whether the offence is bailable or not. If the words used in the said proviso are considered to be directory only, the benefit intended by the Legislature to be given to the accused by what is enjoined by this proviso will be taken away and accused will have to undergo detention for a considerably long period in some cases on account of the investigation being unnecessarily delayed. In this view of the matter, I have no hesitation in holding that the provisions contained in proviso (a) to Sub-section (2) of Section 167, Cr. P. C. are of a mandatory nature, meaning thereby that the contravention thereof renders illegal the detention of the accused under Section 167, Cr. P, C. beyond a total period of 60 days from the date of his arrest.;