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Lalloo And Others v. State Of M.P.

Madhya Pradesh High Court

Dec 1, 1976

Judgment

Subsequent
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Case Information

CITATION CODES

citation codes

CASE NO.

Misc. Cri. C. No. 1216 of 1976

Attorney(S)

For applicant-R.N. Rai.

For State-Dilip Naik.

JUDGES

S.M.N.Raina

ACTS

subsection (2) of section 167 of the Code of Criminal Procedure, 1973 (hereinafter referred to as the Code of 1973').

sub-section (1) of section 437 of the Code of 1973. The provisions of section 167

sub-section (1) or sub-section (2) of section 437 of the Code of 1973

provisions of sub-section (2) of section 167 of the Code of 1973,

sections 396/397/307 and 149 of the Indian Penal Code

sub-section (2) of section 167 of the Code of 1973,

sub-section (5) of section 437 of the Code of 1973.

sub-section (1) of section 167 of the Code of 1973

sub-section (2) of section 309 of the Code of 1973

provisions of sub-section (2) of section 167

sub-section (5) of section 437 of the Code,

sub-section (2) of section 167 of the Code.

Sub-section (1) of section 437 of the Code

section 167 of the Code of 1973

sub-section (2) of section 167

sub-section (5) of section 437

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Smart Summary (Beta)

Structured Summary of the Opinion

Factual and Procedural Background

Nine persons, including the applicants, were arrested for offences under sections 396, 397, 307 and 149 of the Indian Penal Code in connection with a dacoity at the house of Bhagirath of village Bakai, police-station Bijodondi during the night preceding 1-7-1976. The police failed to file a challan within 60 days, and consequently the applicants were released on bail under sub-section (2) of section 167 of the Code of Criminal Procedure, 1973 ("the Code of 1973"). A challan was later filed and the trial Magistrate fixed the matter for passing the committal order on 27-11-1976. The Magistrate indicated his intention to arrest the applicants and commit them to jail custody on the view that they were no longer entitled to remain on bail. The applicants approached the Court seeking anticipatory bail in case they were re-arrested under the Magistrate's orders.

Legal Issues Presented

Whether a Court (or Magistrate), after presentation of the challan, has the power to re-arrest and commit to custody a person who was released on bail under sub-section (2) of section 167 of the Code of 1973.
Whether such re-arrest and commitment can be ordered in the absence of any allegation that the accused has abused the liberty granted to him by being released on bail under sub-section (2) of section 167.

Arguments of the Parties

Applicants' Arguments

As argued by Shri R.N. Rai (counsel for the applicants), once an accused is released on bail under the provisions of sub-section (2) of section 167 of the Code of 1973, the bail can be canceled and the accused re-arrested only if it is shown that he has abused the liberty granted to him.
The counsel did not press any other ground for bail beyond this contention.

No other detailed account of the opposing party's or the Magistrate's legal arguments is set out in the opinion; the Magistrate's expressed view (that the applicants were no longer entitled to remain on bail) is recorded as a factual premise.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Natabar Parida v. State of Orissa, AIR 1975 S.C. 1465	Interpreting section 167: the proviso (a) requires release on bail after 60 days if the accused furnishes bail and provides that a person released under section 167(2) is to be deemed released under Chapter XXXIII (bail provisions), thereby enabling the releasing Court under Chapter XXXIII to direct re-arrest and commitment under sub-section (5) of section 437.	The Court relied on the Supreme Court's observations in Natabar Parida to support the conclusion that it is open to a Court releasing an accused under section 167(2) to direct that he may be re-arrested and committed to custody under section 437(5) after the challan is presented.

Court's Reasoning and Analysis

The Court's analysis proceeds from a careful construction of sub-section (2) of section 167 of the Code of 1973 together with the relevant provisions of Chapter XXXIII of the Code.

Statutory framework examined:
- Section 167(1): arrested/detained person to be produced before Magistrate within 24 hours (recorded as context).
- Section 167(2): Magistrate may authorize detention for up to 15 days; proviso (a) permits detention beyond 15 days only when satisfied of adequate grounds but not exceeding a total of 60 days; on expiry of 60 days the accused shall be released on bail if prepared to furnish bail; every person released under this provision is to be deemed released under the provisions of Chapter XXXIII for the purposes of that Chapter.
Interaction of sections 167(2) and 437:
- Section 437(5) allows any Court which has released a person on bail under sub-section (1) or (2) of section 437 to direct that such person be arrested and committed to custody, if it considers it necessary.
- Because section 167(2) expressly deems a person released under it to be released under Chapter XXXIII, the Court concluded that such a person is to be treated, for the purposes of section 437(5), as having been released on bail by the Court itself.
On the specific contention that re-arrest is permissible only when the accused has abused his liberty:
- The Court rejected the absolute form of that contention. It recognized that while bail is often cancelled when the privilege has been abused, the statutory scheme does not limit the Court's power under section 437(5) to cases of abuse alone.
- The Court observed that if bail was granted on grounds which have ceased to be operative or have lost validity, the Court may properly exercise its discretion under section 437(5) to order arrest and commitment.
Policy considerations:
- Section 437(1) embodies a policy that persons accused of offences punishable with death or life imprisonment are not to be released if reasonable grounds exist to believe they are guilty; this policy is material to the exercise of discretion under section 437(5).
- The proviso to section 167(2) aims to ensure speedy investigation and presentation of the challan within 60 days to avoid unnecessary detention; however, that object does not override the broader bail-policy reflected in Chapter XXXIII.
Precedent support:
- The Court relied on the Supreme Court's interpretation in Natabar Parida to conclude that a Court may direct re-arrest under section 437(5) of a person previously released by operation of section 167(2) after the challan is presented.
Conclusion of analysis:
- Applying the statutory text, the policy in Chapter XXXIII and the cited Supreme Court decision, the Court found that the Magistrate has jurisdiction and ample power under section 437(5) to direct the arrest and committal to custody of the applicants after presentation of the challan.

Holding and Implications

DISMISSED.

Direct effect on the parties:

The applicants' application for anticipatory bail (in the event of re-arrest under the Magistrate's orders) was dismissed; the Court held that the Magistrate has authority under section 437(5) to arrest and commit persons released on bail under section 167(2) once the challan is presented.

Broader implications (as explained by the Court in this opinion):

A person released on bail under section 167(2) is to be treated for the purposes of Chapter XXXIII as having been released on bail by a Court, and therefore the Court retains discretion under section 437(5) to order arrest and committal when appropriate—especially where the grounds for bail have ceased to operate or in light of the policy reflected in section 437(1).

The opinion does not state that it is creating any novel legal precedent beyond applying statutory provisions and the Supreme Court's decision in Natabar Parida; it concludes on the parties' rights in the instant matter by dismissing the application.

Show all summary ...

This is an application for grant of bail.

2. Nine persons including the applicants have been arrested for offences under sections 396/397/307 and 149 of the Indian Penal Code in connection with a dacoity which took place at the house of Bhagirath of village Bakai, police-station Bijodondi during the night preceding 1-7-76. As the police failed to file a challan within 60 days, the applicants were released on bail under subsection (2) of section 167 of the Code of Criminal Procedure, 1973 (hereinafter referred to as the Code of 1973'). The challan was subsequently filed and the case is now fixed by the trial Magistrate for passing the committal order on 27-11-1976. The Magistrate has expressed his intention to arrest the applicants-and commit them to jail custody because in his view the applicants are no longer entitled to remain on bail. Being aggrieved thereby the applicants have come up before this Court for grant of anticipatory bad in case the applicants are re-arrested under the orders of the Magistrate.

3. The ease of the applicants as put by Shri R.N. Rai, counsel for the applicants, is that once an accused is released on bail under the provisions of sub-section (2) of section 167 of the Code of 1973, his bail can be cancelled and he can be re-arrested only if it is shown that he had, in any manner, abused the liberty granted to him and not otherwise. He did not press for bail on any other ground.

4. An answer to the question posed by Shri Rai; depends on a proper construction of the proviso to sub-section (2) of section 167 of the Code of 1973 in the light of other provisions of the Code of 1973. It is, therefore, necessary to examine the language of the aforesaid sub-section carefully for the purpose. sub-section (2) of section 167 reads as under:-

"167………….

(1)………

(2) 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 has no jurisdiction to try the case or commit it 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 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 purpose of that Chapter :-

(b)........

(c)........"

5. Under sub-section (1) of section 167 of the Code of 1973 a person arrested and detained in custody by the police has to be produced before the Magistrate within 24 hours. Under sub-section (2) the Magistrate has been empowered to authorise the detention of the accused in such custody as he thinks fit for a term not exceeding 15 days. Under clause (b) of the proviso to sub-section (2) the Magistrate has been further empowered to authorise the detention of the accused beyond 15th days only if he is satisfied that adequate grounds exist for doing so, but in no case beyond a total period of 60 days. On the expiry of the said period of 60 days, the accused person is entitled to be released on bail if he is prepared to and does furnish bail. It is, therefore, clear that under the aforesaid clause of the proviso an accused person becomes entitled to bail as of right irrespective of the nature of the offence which he may have committed if the challan is not presented within 60 days because once the challan is presented the matter is governed by sub-section (2) of section 309 of the Code of 1973 under which the Court has power to remand the accused to custody from time to time during the inquiry or trial.

6. sub-section (5) of section 437 of the Code of 1973, provides that any Court which has released a person on bail under sub-section (1) or sub-section (2), may, if it considers it necessary so to do, direct that such person be arrested and commit him to custody. Although the aforesaid section is applicable where the accused person has been released on bail under sub-section (1) or sub-section (2) of section 437 of the Code of 1973 by the Court before which any inquiry or trial is proceeding, clause (a) of proviso to sub-section (2) of section 167 of the Code of 1973, lays down that a person released on bail there under shall be deemed to be so released under the provisions of Chapter XXXIII for the purpose of that Chapter which deals with the powers of the Court to release persons accused of offences on bail Thus it would appear that a person released on bail under the provisions of sub-section (2) of section 167 is, for the purpose of sub-section (5) of section 437 of the Code, to be treated as a person released on bail by the Court itself and, therefore, it is open to the Court to consider under the said sub-section whether such person be arrested and committed to custody.

7. Thus on reading sub-section (5) of section 437 of the Code along with the proviso to sub-section (2) of section 167 it becomes clear that the Court has jurisdiction after the presentation of the challan to re-arrest a person released by it on bail under sub-section (2) of section 167 of the Code. Once it is held that the Court has jurisdiction to direct that a person on bail be arrested and committed to custody under sub-section (5) the only question that remains for consideration is whether it would be proper for the Court to do so in the absence of any allegation that the person concerned has abused the privilege granted to him.

8. Sub-section (1) of section 437 of the Code lays down that when any person accused or suspected of commission of any non-bailable offence is arrested or detained without warrant by an officer-in-charge of the police-station or appears or is brought before a Court he may be released on bail, but he shall not be so released if there appear reasonable grounds for believing that he has been guilty of an offence punishable with death or imprisonment for life. It is thus clear that if there are reasonable grounds for believing that an accused person is guilty of an offence punishable with death or imprisonment for life, he is not to be released on bail. This is in substance the policy of law and can very well be taken into consideration for exercising the discretion under subsection (5) of the said section.

9. I find no merit in the contention of the learned counsel for the applicants that the Court has no power under sub-section (5) of section 437 of the Code of 1973. to direct that a person released on bail under sub-section (2) of section 167 be re-arrested and committed to custody unless it is shown that he has abused the privilege granted to him by being released on bail. It is true that normally bail is cancelled on such consideration, but where bail is granted on grounds which have ceased to be operative or have lost their validity, it is open to the Court to exercise its discretion under sub-section (5) of section 437 of the Code of 1973.

10. An accused person becomes entitled to bail under sub-section (2) of section 167 of the Code irrespective of the nature of the offence committed by him on the expiry of the period of 60 days after his arrest because the Magistrate has no power to keep him in detention there under unless the accused is not in a position to furnish bail. The purpose of the proviso to sub-section (2) of section 167 of the Code seems to be to insist on speedy investigation and presentation of the challan within 60 days, so as to avoid unnecessary detention of the accused during investigation. The purpose of sub-section (2) of section 167 of the Code is a limited one and it cannot be construed so as to negative the policy of law as embodied in Sub-section (1) of section 437 of the Code of 1973. The provisions of section 167 are clearly subject to the provisions of Chapter XXX11I of the Code of 1973 and that has been made abundantly clear by expressly laying down in the proviso to sub-section (2) of section 167 that a person released on bail there under shall be deemed to be so released under the provisions of Chapter XXXIII of the Code of 1973.

11. Their Lordships of the Supreme Court had occasion to construe section 167 of the Code of 1973 in Natabar Parida v. State of Orissa AIR 1975 S C 1465. Their Lordships made the following observations in paragraph 8 which are pertinent:

"But then the command of the Legislature in proviso (a) is that the accused person has got to be released on bail if he is prepared no 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 inter-state 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 tae investigation within the period of 60 days. Ye t 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 purposes of that Chapter. That may empower the Court releasing him on bail, it considers necessary so to do, to direct that such person be arrested and committed to custody as provided in sub-section (5) of section 437 occurring in Chapter XXXIII."

It is clear from the aforesaid observations that it is open to the Court releasing an accused on bail under sub-section (2) of section 167 of the Code to direct that he may be re-arrested and committed to custody under sub-section (5) of section 437 of the Code of 1973.

12. The Magistrate has, therefore, ample power under sub-section (5) of section 437 of the Code of 1973 to direct that the applicants be arrested and committed to custody.

13. The application, therefore, fails and is hereby dismissed.

Application dismissed.