Janki v. State Govt of NCT of Delhi

ORDER %

11.05.2016

¶1This is an application under Section 167(2) read with Section 439 & 482 of Cr.P.C.moved by the petitionerfor grantof regularbail in case FIR No. 1267/2015 under Section 307/34 IPG read with Section25/27 Arms Act, registeredat Police StationRajouri Garden on the ground that despite noticing that the charge sheet was not submittedwithin the stipulatedperiod of 90 days yet, the petitioner has not been released on bail.

¶2FIR in the instant case was registered on the basis of a complaintmade by injuredPraveenstatingthereinthat in the evening th of 30 August, 2015 at about 8:00 PM, some quarrel was going on amongst Sushil Arora and Ghisa outside the house of the applicant. He along with his friend Rupesh intervenedbut petitionerexhorted Ghisa and Amru to assault him upon. On this, both of them took out theirpistol and fired in the air. ThereafterAmru fired upon him and BailAppln. No. 207/2016 Page I of15 the bullet hit on the lower part of his abdomen.

¶3The petitionerwas arrestedon 31^' August, 2015 and was sent to judicial custody on the same day. Since the charge sheet was not filed 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 for grant of compulsive bail. However, the application was dismissed on 30* November,2015 on the groundthat on 28* November,2015, 90 days custody was not completed and no right of compulsive bail accrued in favour of the accused/petitioner. Moreover, the Trial Court relied upon Sanjay Dutt vs. State through CBI, 1994 (5) SCC 410 and Pragyna Singh Thakur vs. State of Maharashtra, 2011 X SCC 445 for observingthat since the charge sheet has been filed prior to the considerationof the bail application,as such, the petitioneris not entitled for compulsive bail.

¶4Counsel for the petitionersubmitsthat the petitioneris entitled tobe releasedon bail, interalia,on the followinggrounds:-

(i) Reliance placed by the learned Trial Court on Sanjay Dutt (supra) and Pragyna Singh Thakur (supra), no longer holds good law in view of subsequent pronouncementby the Hon'ble SupremeCourt in Union ofIndia vs. Nirala Yadav,MANU/SC/0580/2014.

(ii) Sincethe applicationwas moved for grantofcompulsive bail u/s 167(2)Cr.P.C.and the chargesheetwas not filed BailAppln.No. 207/2016 2 ,5 by the Investigating Officer of the case within 90 days, as such, mere fact that the concerned Magistrate did not pass any order on the same day does not extinguish the right of the petitioner to the grant of bail.

(iii) One of the grounds taken by the State for not filing the charge sheet within stipulated period is that on 28'*^ November, 2015, one of the co-accused Gheesa was got declaredproclaimedoffenderand the next date, i.e., 29^^ November, 2015 was Sunday, therefore, the charge sheet was filed on 30'^ November, 2015. The provisions of Section 10 of General Clauses Act does not apply to such an eventuality and, therefore, the prosecution does not get any benefitof the fact that 29'^ November,2015 was a Sunday.

(iv) The applicantis an old aged ailinglady ofabout63 years and has been sufferingfrom heart problem, high blood pressureand is a diabeticpatient. She, being a lady, is otherwiseentitledto the benefitof provisionsof Section 437(i) (ii) Cr.P.C.

(v) Even on merits, the petitioner has good case as the petitionerwas not presentat the spot. She had gone to Sunday Bazar which is located about 2 kms from her house. The complainantparty barged into her house and broke motorcycle,scooty,fridge and all windowpain of BailAppln.No. 207/2016 " , , the house. On receipt of information regarding the breaking and destruction of her house from a neighbour, she rushed back to her house and then informed the police at 100 number, on the basis of which, FIR No.1268/2015 was registered at Police Station Rajouri Garden. If the applicant had been present at the time of alleged occurrence as stated in the present FIR, she would not have dared to lodge the FIR at the same time with the same Investigating Officer of the case.

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

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

¶5The applicationis opposed by the learned Additional Public Prosecutorfor the Stateon the groundthatthe petitioneris not entitled for compulsive bail as after the filing of the charge sheet, the petitionerfiled applicationu/s 167(2)Cr.P.C.Therewas only one day delay in filing the charge sheet. The same could not be filed in time becauseone ofthe co-accusedwas got declaredproclaimedoffender BailAppln. No. 207/2016 ,5 t) on 28^^ November, 2015 and 29*^ November, 2015 was a Sunday, therefore, on the opening day, the charge sheet was filed.

¶6It is further submitted that the petitioner is a registered bad character of bundle A of Police Station Rajouri Garden and is involved 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 released on bail.

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

¶8The question,therefore,for considerationis whetherunder the provisionsof Section 167(2), an accused against whom the charge sheet is not presentedbeforethe Gourt withinthe periodof 90 or 60 days, as the case may be, is entitledto be offeredbail as a matter of right. LearnedTrial Gourt relied upon the judgmentpassed by this BailAppln. No. 207/2016 p^gg5 ,5 CourtinSanjeevBhatiavs. Statedecidedon 26^^ March,2014,where by relying upon the ratio of Sanjay Dutt vs. State through Cfi/(supra) and Pragyna Singh Thakur vs. State of Maharashtra{s\ypxdi), it was held that once the charge sheet has been filed. Magistrate is to consider the application for bail on merits and not under Section 167(2) Cr.P.C. In that case, the charge sheet was filed on the same day but after the bail application was moved on behalf of the accused. Relying on this judgment, the learned Trial Court dismissed the bail application on the ground that since the charge sheet has been filed prior to consideration of the bail application, therefore, the application does not lie.

¶9Learned counsel for the petitioner relies upon Nirala Yadav{swpY2i),wherein challenge was to the order passed by learned single Judge of High Court of Judicature at Patna whereby the respondent was enlarged on bail solely on the ground that he was entitledto the benefitunderthe provisoappendedto Section167(2)of the Code of CriminalProcedure. Hon'ble SupremeCourt referredto various judgments passed by the Apex Court and then referred to the judgment of Udai MohanlalAcharya vs. State of Maharashtra,

(2001) 5 see 453 where after referringto the ConstitutionBench decisionin SanjayDutt'scase, the majorityposedthe questionabout the true meaningofthe expressionofthe followinglines "the indefeasibleright accruing to the accused in such a situation is enforceableonlypriorto thefilingofthechollonanditdoesnotsurviveor remainenforceableon thechollonbeingfiled, ifalreadynotavailed. After referringto various decisions,the Court culled out six BailAppln.No. 207/2016 ^ J5 conclusions which are necessitous to be produced. They are:-

¶1Under Sub-section (2) of Section 167, a Magistrate before whom an accused is produced whiie the police is investigating into the offence can authorise detention of the accused in such custody as the Magistrate thinks fit for a term not exceeding 15 days on the whole.

¶2Under the proviso to the aforesaid Sub-section (2) of Section 167, the Magistrate may authorise detention of the accused otherwise than in the custody of police for a total period not exceeding 90 days where the investigation relates to offence punishable with death, imprisonment for life or imprisonment for a term of not less than 10 years, and 60 days where the investigation relates to any other offence.

¶3On the expiry of the said period of 90 days or 60 days, as the case may be, an indefeasible right accrues in favour of the accused for being released on bail on account of default by the investigating agency in the completion of the investigation within the period prescribed and the accused is entitled to be released on bail, if he is prepared to and furnishes the bail as directed by the Magistrate.

¶4When an applicationfor bail isfiled by an accused for enforcement of his indefeasible right alleged to have been accrued in his favour on account of default on the part of the investigatingagency in completion of the investigation within the specified period, the Magistrate/court must dispose of it forthwith, on being satisfied that infact the accused has been in custodyfor the periodof90 days or 60 days, as specifiedand no charge-sheethasbeenfiledby the investigatingagency.Such prompt actiononthepart oftheMagistrate/courtwillnotenabletheprosecution to frustrate the object of the Act and the legislativemandate of an accusedbeing releasedon bail on accountofthe defaulton the partof the investigatingagencyin completingthe investigationwithinthe period stipulated.

¶5If the accused is unable to furnish the bail as directed by the Magistrate,then on a conjointreadingofExplanationIand the provisoto Sub-section(2) ofSection167, the continuedcustodyofthe accusedeven beyond the specifiedperiod in para (a) wiii not be unauthorised,and therefore, if during that period the investigationis complete and the charge-sheetis filed then the so-calledindefeasiblerightofthe accused would stand extinguished. BailAppln.No. 207/2016 Page7of15

¶6The expression "if not already availed of used by this Court in Sanjay Dutt case MANU/SC/0554/1994 : (1994) 5 SCC410 must be understood to mean when the accused files an application and is prepared to offer bail on 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 an application 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 right even though the court has not considered the said application and has not indicated the terms and conditions of bail, and the accused has not furnished the same.

¶10Elaborating further, the Court held that if the charge-sheet is filed subsequent to the availing of the indefeasible right by the accused then that right would not stand frustrated or extinguished and, therefore, if an accused is entitledto be releasedon bail by application of the proviso to Sub-section (2) of Section 167 Code of Criminal Procedure, makes the application before the Magistrate, but the Magistrateerroneouslyrefuses the same and rejects the application and then the accused moves the higher forum and while the matter remainspendingbefore the higher forum for considerationa charge-sheetis filed,the so-calledindefeasiblerightof the accusedwouldnot stand extinguishedthereby,and on the other hand, the accusedhas to be releasedon bail. The Court furtherproceededto say that such an accused,thus is entitledto be releasedon bail in enforcementof his indefeasibleright will, however, have to be produced before the Magistrateon a charge-sheetbeing filed in accordancewith Section 209 and the Magistratemust deal with him in the matterofremandto custody subject to the provisionsof the Code relating to bail and subject to the provisionsof cancellationof bail, already granted in BailAppln. No. 207/2016 accordance with the law laid down by the Court in the case of Mohd. Iqbal (supra).

¶11The Apex Court referred to the subsequent decisions as well rendered in Ateef Nasir Mulla v. State of Maharashtra,

(2005) 7 see 29; Union of India v. Hassan Ali Khan and Anr.,

(2011) 10 see 235; Sayed Mohd. Ahmad Kazmi v. State (Government ofNCT of Delhi) and Ors., (2012) 12 SCC 1 and held that the principle laid down in Pragyna Singh Thakur{s>\\^v2^does not state the correct principle of law. That was a case u/s 302 and various other provisions of Indian Penal Code besides Section 27 of the Arms Act and Section 49(2) (b) of Prevention of Terrorist Activities Act which provided the initial period for filing charge sheet as 90 days, however, the period could be extendedon appropriateapplicationmoved by the State. On factualmatrixof the case, it was found that priorto the date of expiry of 90 days, the prosecutionneitherhad filed charge sheet nor had it filed an application for extension. After the accused filed the application for release on bail, the prosecution submitted an applicationseekingextensionoftime for filingofthe chargesheet. It was observedthat the day the accusedfiled the applicationfor benefit ofthe defaultprovisionas engraftedunderprovisoto Sub-section(2) of Section 167 Code of Criminal Procedurethe Court required the accused to file a rejoinder affidavit by the time the initial period providedunderthe statutehad expired.There was no questionofany contestas if the applicationfor extensionhad been filed prior to the expiry of time. The adjournment by the learned Magistrate was BailAppln.No. 207/2016 Page9of15 misconceived.He was obligedon that day to deal withthe application filed by the accused as required Under Section 167(2) Code of Criminal Procedure. We have no hesitation in saying that such procrastination frustrates the legislative mandate. A Court cannot act to extinguish the right of an accused if the law so confers on him. Law has to prevail. The prosecution cannot avail such subterfuges to frustrateor destroythe legal right of the accused. Such an act is not permissible. As such, it was observed that there was no error in the orderof the High Courtin grantingthe benefitto the respondentand the appeal was dismissed.

¶12In view of this latest legal proposition,once the petitionerhad filed the application u/s 167(2) on account of default on the prosecuting agency to file the charge sheet within the stipulated period of 90 days, the mere fact that subsequentthereto the charge sheet was filed by the State, the right accrued in favour of the petitionerwas not extinguished. Moreover,as held inPowellNwawa Ogechi vs. The State (Delhi Administration),1986 Cri. LJ 2081, Section 10 of the General Clauses Act does not apply to such a situationand it cannot be invokedto defeat the accrued right of an accusedpersonto be freed. The right of accused to be releasedon bail is absoluteandindefeasibleunlesshe/shefails to furnishbail.

¶13Moreover,comingto the otherpleastakenby the petitioner,the role assigned to the present petitioneris that of exhortationto co-accused,however,accordingto the petitioner,she was not presentat BailAppln.No. 207/2016 ,5 the spot at the time of incident and in fact, according to her, the complainant party had ransacked her house. On getting the information,sherushedbackto herhouse,informedthe policeandon their arrival lodged a complaint which resulted in registrationof cross-FIR. This aspectalso requiresconsiderationduringthe trial of the case.

¶14Right of the petitionerto be releasedon bail is also challenged by the prosecution on account of her involvement in several cases. As perthe statusreport,the petitioneris involvedinfollowingcases Sr. No. Case FIR No. Police Station Present status of the case

¶1525/88 u/s 21 NDPS Act Rajouri Garden Acquitted

¶2146/90 u/s 21 NDPS Act Rajouri Garden Acquitted

¶3270/93 u/s 21 NDPS Act Rajouri Garden Acquitted

¶4719/02 u/s 21 NDPS Act Tialk Nagar Acquitted

¶504/03 u/s 21 NDPS Act Narcotics Acquitted

¶653/04 u/s 21 NDPS Act Narcotics Acquitted

¶7814/05 u/s 21 NDPS Act Tilak Nagar P.T.

¶811/06 u/s 21 NDPS Act Narcotics P.T. Bail Appln. No. 207/2016

¶996/06 u/s 21 NDPS Act Narcotics Gonvicted on

7.9.2010 by the court of SH. VK Bansal, ASJ, Rohini court with 3 months sentence and Rs. 15,000/- fine.

¶10418/07 u/s 498A/406/34 IPG Khyala P.T.

¶1178/08 u/s 21 NDPS Act Narcotics P.T.

¶12101/11 u/s 380/411 IPG Tilak Nagar P.T.

¶13447/11 u/s 21 NDPS Act Tilak Nagar P.T.

¶141267/15 u/s 307/34 IPG & 25/27/54/59 Arms Act Rajouri Garden P.T.

¶15When the status report was filed by the State, at that very juncture,counselfor the petitionerhad statedat bar that at presentno case is pendingagainstthe petitionerand she has beenacquittedin all other cases. Subsequentthereto, he has placed on record certified copiesofthe orders. Aperusalofthe same goes to showthat as per the listofinvolvementsfiled by the State,so far as case No. 1to 6are concerned,it was reportedthat the petitionerhas been acquittedin thosecases. As regardsserialNos. 7,8,10,11,12,13,the petitionerhas BailAppln. No. 207/2016 placed on record the certified copies which reflects that now the status of these cases is as under SI. No. Present status of the case Date

¶7Acquitted

19.03.2012

¶8Status report dated 2.4.2016 filed by the State stating therein that petitioner is not involved in this case

¶10Acquitted on

18.03.2013

¶11discharged on

11.02.2009

¶12Acquitted on

11.03.2014

¶13Acquitted on

07.05.2014

¶16It is very shockingstate of affairsthat in the status report, the InvestigatingOfficer has shown these cases as pending against the petitionerwhich reflectsthat the record maintainedby the police is not updated. Conduct of the InvestigatingOfficer was seriously commentedupon by the learnedTrial Courtwhile dismissingthe bail applicationof the petitioneron the ground of compulsive bail by observing as under:- Beforeparting with bail application,it may be mentionedthat charge sheet has been filed by Sub InspectorMohinderSingh after stipulated time and therefore, copy of this order be sent to concerned Joint commissionerofPolicefor intimationand necessaryaction againstSHO PoliceStationRG and InvestigatingOfficerSub InspectorMohinderSingh. This is not the first time that Sub Inspector Mohinder Singh has committedblunderas an investigatingofficer, in FIR No. 1616/15Police Station RG, InvestigatingOfficer did not invoke the relevant section despitebeingpointedout by the courtand Ld. APP. There was clearlack ofsupervisionon the partofSHO PoliceStationRG also and resultantly, accusedwasgrantedbailby Ld. ASJ. In anotherinstanceofnegligenceon Bail Appln. No. 207/2016 behalf of SHO Police Station RG in FIR No. 1763/15 copy of FIR in a murder case was not sent to the court as per CrPC. Show cause notice were issued in FIR No. 1616/15 and 1763/15 to SHO but it seems that he is not taking his job seriously and he has miserably failed to supervise the work and investigation of cases of Police Station RG. Copy of this order be sent to Joint Commissioner of Police for intimation and necessary action at his end. It is expected by this court that action taken against SHO Police Station RG and Sub Inspector Mohinder Singh be communicated to this court within 15 days from today. Copy of orders in FIR No. 1616/15 and 1763/15 be also annexed with the present order for kind perusal of worthy Joint CP."

¶17It seems that despite passing of such strictures against the Investigating Officer of the case as well as the concerned SHO, things have not improved. The casual manner in which the status report has been filed speaks for itself. Learned Additional Public Prosecutor for the State on behalf of the Investigating Officer who was present during the hearing of this application, submitted an unconditional apology, however, mere tendering an apology orally does not mean anything unless the Investigating Officer mends his ways which is not reflected in the present status report. It is not clear whether the action taken againstthe SI MahenderSinghand SHO PoliceStationRajouri Garden was communicated to the Court by Joint Commissioner of Police as directedvide order dated November,2015. In case, the same has not been communicated so far, the same be communicated within 15 days from today.

¶18Keeping in view the fact that the petitioneris a lady and, as submittedby the counsel for the petitioner,is suffering from heart problemand otherdiseasesand is in custodysince 3L* August,2015, BailAppln.No. 207/2016 Page 14 of15

IN THE HIGH COURT OF DELHI AT NEW DELHI + BAIL APPLN. 207/2016 JANKI Petitioner Through Mr. Raman Sawhneyand Mr. S.N. Pandey, Advocates versus STATE GOVT OF NOT OF DELHI Respondent Through Ms. Neelam, APP along with Sub Inspector Mahinder, PS Rajouri Garden. CORAM: HON'BLE MS. JUSTICE SUNITA GUPTA