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Prem Raj v. The State Of Rajasthan
Factual and Procedural Background
This opinion concerns an application for bail under Section 439 of the Criminal Procedure Code (Cr. P.C) filed on behalf of accused-applicants Prem Raj and Nand Lal. The accused were initially implicated in an offence involving the death of Banshi Lal. The Sessions Judge, Bikaner, rejected their earlier bail application on 10/11/1975, noting that eyewitnesses named the accused as assailants, though their names were absent from the First Information Report (FIR). The case was under investigation at that time, and the Sessions Judge held that granting bail could hamper the investigation.
Initially, charges under sections 307/324 IPC were registered against others, but after the victim succumbed, charges against the accused-applicants were framed under sections 302, 307, 324, 148, 149, and 34 IPC. A cross case was registered against the complainant party, who were granted bail. The accused-applicants were arrested on 30/9/1975, and the challan (charge-sheet) was submitted on 1/12/1975.
Legal Issues Presented
- Whether the accused-applicants are entitled to bail as a matter of right under Section 167(2)(a) Cr. P.C due to non-submission of the charge-sheet within 60 days of arrest.
- Whether detention beyond 60 days without bail is lawful if the charge-sheet is submitted after the 60-day period but before bail application.
- The applicability and interpretation of Sections 167 and 309 Cr. P.C concerning detention, remand, and bail rights during investigation and trial.
Arguments of the Parties
Applicants' Arguments
- The applicants were arrested on 30/9/1975 and the challan was filed only on 1/12/1975, exceeding the 60-day limit prescribed under Section 167(2)(a) Cr. P.C.
- Detention beyond 60 days without bail is illegal, entitling them to bail as a matter of right.
- Reliance was placed on the precedent of State Of Rajasthan v. Bhanwaru Khan supporting the mandatory nature of Section 167(2)(a).
State's Arguments
- Expiry of 60 days does not automatically entitle the accused to walk free; they must apply for bail.
- Before bail application disposal, the investigation was completed and the challan was filed on 1/12/1975.
- Once the challan is submitted, bail can only be granted on merits, not merely because 60 days elapsed.
- Reliance was placed on Heeraman…Applicant; v. State Of U.P…Opp. Party, which held that detention remains lawful until bail is furnished and that submission of the charge-sheet ends the applicability of Section 167(2)(a).
- The remand order dated 25/11/1975 extending detention beyond 60 days was valid as it ended when the challan was submitted on 1/12/1975.
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| Khinvdan Alias Khinv Singh v. State Of Rajasthan | Illegality of detention beyond 60 days under Section 167(2)(a) Cr. P.C without bail | The court agreed that detention beyond 60 days is illegal and ordered bail in line with this precedent. |
| State Of Rajasthan v. Bhanwaru Khan | Mandatory nature of proviso (a) to Section 167(2), Cr. P.C; illegal detention beyond 60 days | Supported applicants' entitlement to bail as a matter of right due to non-submission of challan within 60 days. |
| Natabar Parida v. State of Orissa | Interpretation of Sections 167(2) and 309 Cr. P.C; mandatory release on bail after 60 days even in serious offences | The court followed this Supreme Court view emphasizing mandatory bail after 60 days, rejecting discretionary detention. |
| Heeraman…Applicant; v. State Of U.P…Opp. Party | Accused not entitled to automatic release after 60 days; bail claim arises only if accused applies and furnishes bail; charge-sheet submission ends applicability of Section 167(2)(a) | The court found this precedent distinguishable and not fully aligned with Supreme Court authority but considered its reasoning regarding bail application timing. |
Court's Reasoning and Analysis
The court analyzed the mandatory provisions of Section 167 Cr. P.C, which restrict detention without bail to a maximum of 60 days during investigation. It noted that the accused-applicants were detained beyond this period without bail, which is impermissible under the law. The court examined the effect of Section 309 Cr. P.C, which allows remand after cognizance, but clarified that this does not override the mandatory bail provisions of Section 167(2)(a) during investigation.
The court considered the precedents, particularly Khinvdan Alias Khinv Singh and Natabar Parida, which emphasize the illegality of detention beyond 60 days without bail. Although the State relied on Heeraman, the court found that case distinguishable because the charge-sheet there was filed within 60 days, whereas in the instant case it was filed after 60 days.
The court further observed that the remand order extending detention beyond the 60-day limit was invalid. It concluded that the accused-applicants had a right to bail as the mandatory period expired without completion of investigation within 60 days, and the charge-sheet was submitted only after this period.
Holding and Implications
The court ordered that the accused-applicants Prem Raj and Nand Lal be enlarged on bail. They are to furnish personal bonds of Rs. 10,000 each with two sureties of Rs. 5,000 each to the satisfaction of the learned Sessions Judge, Bikaner, and appear on the specified dates.
The direct effect of this decision is the release of the accused on bail due to mandatory legal provisions limiting detention without bail to 60 days during investigation. The court did not set new precedent but reaffirmed existing Supreme Court rulings on the mandatory nature of Section 167(2)(a) Cr. P.C and clarified the limited applicability of Section 309 Cr. P.C remand powers once the 60-day period elapses.
P.D Kudal, J.:— This is an application Tor bail under Section 439, Cr. P.C on behalf of the accused-applicants Prem Raj and Nand Lal.
2. An application for bail was moved on behalf of Prem Raj and Nand Lal before the learned Sessions Judge, Bikaner, who rejected the same on 10/11/1975. The learned Sessions Judge observed that the eye-witnesses who were examined by the investigating agency, have named these persons as the assailants of the deceased Banshi Lal, though their names do not appear in the First Information Report. It was further observed that as the case was still under investigation, the enlargement of these appli-cants would hamper the investigation.
3. Initially, the police had registered a case under section 307/324 I.P.C against Shivji Lal and Gordhan. Later on, as the victim Banshi Lal succumbed to his injuries, the offences were changed to under sections 302, 307, 324, 148, 149, and 34 IPC. A cross case was also registered against the complainant party under sections 452, 307 and 148 IPC, but they were enlarged on bail.
4. It was contended on behalf of the applicants that they were arrested on 30/9/1975, and the challan has been submitted against them on 1/12/75. It was, therefore, contended that the period of 60 days as envisaged in section 167/(2)(a) Cr. P.C, 1973 expired on 28th November, 1975, and that the detention of these persons beyond that period was illegal. It was, therefore contended that these applicants are now entitled to be released on bail as a matter of right, as the investigation was not completed within the stipulated period of 60 days. The learned counsel for the applicants have submitted a certified copy of the challan filed by the investigating agency on 1/12/1975. Reliance was placed on State Of Rajasthan v. Bhanwaru Khan (3). Placing reliance on these authorities, the learned counsel for the applicants contended that as the challan was not submitted within 60 days, the accused-applicants are entitled to bail as a matter of right.
5. On behalf of the State, it was contended that merely because 60 days have elapsed, the applicants did not get any right to walk out of the custody. The accused-applicants had to move an application for their enlargement on bail. It was further contended that before their application for bail could be disposed of the investigation has been completed, and the investigating agency has already filed a challan on 1/12/75 before the competent Court. It was further contended that once the challan has been submitted, the enlargement of the accused-applicant on bail could be ordered only on the merits of the case, and not on the ground that because 60 days as envisaged in Section 167(2)(a), Cr. P.C have elapsed. Reliance was placed on Heeraman…Applicant; v. State Of U.P…Opp. Party. (4). It was further contended that the order of remand passed on 25.11.1975 for a period of 15 days elapsed on 1.1.75, when the challan was submitted before the Court, and as such, the prayer of the learned counsel for the applicants that they be released under the provisions of Section 167(2)(a) does not deserve any merit. In short, the contention of the learned counsel appearing on behalf of the State is that once the challan has now been submitted, the enlargement of the accused applicants on bail, can only be ordered if the facts of the case so warrant, and not because of the provisions of Section 167(2)(a), Cr. P.C
6. The respective contentions of the learned counsel for the accused-applicants and the learned Public Prosecutor have been considered. The provisions of Section 167, Cr. P.C provides that 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 he 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.
7. At this stage, it would be advisable to refer to Section 309(2), Cr. P.C, 1973, which provides that if the Court after taking cognizance of an offence, or commencement of trial, finds it necessary or advisable to postpone the commencement of, or adjourn, any enquiry or trial, it may, from time to time, for reasons to be recorded, postpone or adjourn the same on such terms as it thinks fit, for such time as it considers reasonable, and may by a warrant remand the accused if in custody.
8. In the case of Khinvdan Alias Khinv Singh v. State Of Rajasthan (1), it has been held that further detention of the accused in custody beyond the period of 60 days was illegal, and the accused was enlarged on bail. In that case, the petitioner was arrested on 2-12-1974. His request for being enlarged on bail was rejected on 23.1.1975 He again moved an application praying that as more than 60 days have elapsed since the day of his arrest, he is entitled to be released on bail under the proviso (a) to Sub-section (2) of Section 167, Cr. P.C On 22-2-1975, the police again applied for further remand of the petitioner to the judicial custody, whereupon the learned Magistrate ordered that the remand may be extended upto 8.3.1975 On being moved, it was held by this Court that the learned Magistrate acted in excess of his jurisdiction and ordered the enlargement of the accused on bail.
9. In the case of State of Rajasthan v. Bhanwaru Khan(2), it was held that the provisions contained in proviso (a) to sub-section (2) of Sec. 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. In this case, the State applied for cancellation of bail, but it was held that the order of grant of bail was not erroneous, and that the application of the State was rejected.
10. In the case of Natabar Parida v. State of Orissa (3), it was held that the ‘reasonable cause’ occurring in sub-section (1)(a) of Section 344 is nowhere to be found in section 309 of the new Code. The explanation to Section 344 of the old Code has been retained as explanation (1) Section 309 in the identical language. The law as engrafted and proviso (a) to section 167(2) and Section 309 of the new Code confers power of remand to jail custody during the pendency of the investigation only for the former and not under the latter. Section 309(2) is attracted only after cognizance of an offence has been taken or commencement of trial has proceeded in such a situation what is the purpose of Explanation-1 in Section 309 is not quite clear. But then the command of the Legislature in proviso (1) is that the accused person has got to be released on bail if he is prepared to and does furnish bail and cannot be kept in detention beyond the period of 60 days even if the investigation may still be proceeding. In serious offences of criminal conspiracy-murders, dacoities, robberies by interstate gangs or the like, it may not be possible for the police, in the circumstances as they do exist in the various parts of our country, to complete the investigation within the period of 60 days. Yet the intention of the Legislature seems to be to grant no discretion to the Court and to make it obligatory for it to release the accused on bail. Of course, it has been provided in proviso (a) that the accused released on bail under Section 167 will be deemed to be so released under the provisions of Chapter XXXIII and for the purpose of that Chapter. That may however, empower the Court releasing him on bail, if it considers necessary so to do, to direct that such person be arrested and committed to custody as provided in Sub-Section (5) of S. 437 occurring in Chapter XXXIII. It is also clear that after the taking of the cognizance of power of remand is to be exercised under section 309 of the new Code. But if it is not possible to complete, the investigation within a period of 60 days then even in serious and ghastly types of crimes the accused will be entitled to be released on bail. Such a law may be “paradise for the criminals,” but surely it would not be so, as sometimes it is supposed to be, because of the Courts. It would be so under the command of the Legislature.
11. In the instant case, the learned Magistrate allowed remand on 25/11/1975 upto 9/12/1975, and the period of 60 days expired on 28/11/1975. The order of remand beyond 28/11/1975 was, therefore, beyond the period of 60 days.
12. The learned Public Prosecutor has relied on Heeraman…Applicant; v. State Of U.P…Opp. Party. (4), wherein it has been held that an accused is not to be allowed to walk out of the place of detention or of the jail after the expiry of sixty days automatically if no charge sheet has been submitted within that period. If no charge-sheet has been submitted within sixty days, Section 167 only empowers an accused to claim bail as of right. But the detention of an accused will continue to be legal till he actually applies for bail or in other words he “is prepared to and does furnish bail” The Magistrate shall not authorise detention for more than sixty days provided the accused person applies for bail on the expiry of the said period and does furnish bail. Even if no charge-sheet was submitted within sixty days but was submitted before the accused applied for bail, it will not be open to the accused to claim that he is entitled to bail as of right by invoking section 167(2)(a) because as soon as the charge-sheet was submitted, the period of remand pending investigation came to an end and provisions of Section 167(2)(a) would cease to apply to such a case and in such a case bail can be granted only on merits.
13. As the application under Section 439, Cr. P.C was submitted on 17/11/1975, the plea regarding the provisions of Section 167, Cr. P.C was not incorporated. During the pendency of this application, the period of 60 days elapsed. As the provisions of Section 167, Cr. P.C are mandatory in character, the learned counsel for the accused-applicants was permitted to raise this plea.
14. Having given my most anxious consideration to the respective contentions of the learned counsel for the accused-applicants, and the learned Public Prosecutor, I find myself in respectful agreement with the view taken in the case of Khinvdan Alias Khinv Singh v. State Of Rajasthan (1). This view further finds support from the decision of their Lordships of the Supreme Court reported in Natabar Parida v. State of Orissa (3). The view taken in Heeraman…Applicant; v. State Of U.P…Opp. Party. (4) is distinguishable as the report of the learned Magistrate showed that the charge-sheet was submitted within the period of 60 days. Even otherwise, the view taken in Heeraman…Applicant; v. State Of U.P…Opp. Party. (4) is not in conformity with the view taken by their Lordships of the Supreme Court in Natabar Parida v. State of Orissa (3).
15. As the accused-applicants were detained exceeding the period of 60 days, they are entitled to be enlarged on bail. It is accordingly ordered that the accused-applicants shall be enlarged on bail, if they furnish personal bond of Rs. 10,000/- each with two sureties of 5000/- each, to the satisfaction of the learned Sessions Judge, Bikaner, to appear before him on 24th December, 1975, and on subsequent dates as may be directed by him to do so.
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