Cases referred:

1. Dhola v State. 1975 Cr.L.J. 1274.

2. Mohanlal v. State of Gujarat. A.I.R. 1968 S.C. 733.

3. Ramesh v. Gendla. 1966 Mh.L.J. 729 = A.I.R. 1966 S.C. 1445.

4. Madras v. Tractors Export, Moscow. A.I.R. 1970 S.C. 1168

5. Mohammad Amin Brothers Ltd. v. Dominion of India. A.I.R. 1950 F.C. 77.

6. Natabar Parida v. State of Orissa. 1975 Cr.L.J. 1212

7. Central Bank of India Ltd. v. Gokalchand. A.I.R. 1967 S.C. 799.

8. U. S. v. Brown. C. A. No. 301.

Advocates appeared:

R.M. Hajarnavis, for applicants.

M.B. Mor, Asstt. Govt. Pleader, for non-applicant.

GANDHI J.M., J.:- This is an application arising out of the judgment and order of the learned Additional Sessions Judge, Bhandara, dated 1-12-1975. The important question raised by this criminal application is whether under section 397 (2) of the Code of Criminal Procedure, 1973 (No. 2 of 1974) a revision application is barred from the order passed by the Judicial Magistrate, First Class refusing bail, especially under circumstances when the provisions of section 167 (2) have come into operation In other words, the question raised by this application is whether an order passed by the learned Judicial Magistrate refusing to exercise his jurisdiction to grant bail when the prosecuting agencies have not completed the investigation and filed a charge-sheet for a period of sixty days after the arrest of the accused, is an interlocutory order as mentioned in section 397 and, therefore, cannot be revised by the appellate Court, or whether it is an order which finally decides the rights of the parties irrespective of the relation to the proceedings in which such right has arisen.

2. In order to appreciate the arguments advanced at the Bar, it will be necessary first to look at certain provisions of the Code of Criminal Procedure. Section 167 is in Chapter XII of the Code, which is headed Information to the police and their powers to investigate. Section 167 (1) reads as follows:

Whenever any person is arrested and detained in custody, and it appears that the investigation cannot be completed within the period of twenty four hours fixed by section 57, and there are grounds for believing that the accusation or information is well-founded, the officer-in-charge of the police station or the police officer making the investigation, if he is not below the rank of sub-inspector, shall forthwith transmit to the nearest Judicial Magistrate a copy of the entries in the diary hereinafter prescribed relating to the case, and shall at the same time forward the accused to such Magistrate.

Sub-section (2) reads:

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 he 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 15 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 hail; 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;

3. Chapter XXIV deals with General Provisions as to inquiries and trials, and section 309 in that Chapter provides as follows:

309. (1) In every inquiry or trial, the proceedings shall be held as expeditiously as possible and in particular, when the examination of witnesses has once begun, the same shall be continued from day to day until all the witnesses in attendance have been examined, unless the Court finds the adjournment of the same beyond the following day to be necessary for reasons to be recorded.

(2) 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 inquiry 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: Provided that no Magistrate shall remand an accused person to custody under this section for a term exceeding fifteen days at a time:

Provided *** *** *** ***

Explanation 1.-If sufficient evidence has been obtained to raise a suspicion that the accused may have committed an offence, and it appears likely that further evidence may be obtained by a remand, this is a reasonable cause for a remand.

Explanation 2.- * * * *

4. Chapter XXX deals with Reference and Revision and section 397 in that chapter reads as follows:

397. (1) The High Court or any Sessions Judge may call for and examine the record of any proceeding before any inferior Criminal Court situate within its or his local jurisdiction for the purpose of satisfying itself or himself as to the correctness, legality or propriety of any finding, sentence or order, recorded or passed, and as to the regularity of any proceedings of such inferior Court, and may, when calling for such record, direct that the execution of any sentence or order be suspended and if the accused is in confinement, that he be released on bail or on his own bond pending the examination of the record.

Explanation:-All Magistrates, whether Executive or Judicial, and whether exercising original or appellate jurisdiction, shall be deemed to be inferior to the Sessions Judge for the purposes of this sub-section and of section 398.

(2) The powers of revision conferred by sub-section (1) shall not be exercised in relation to any interlocutory order passed in any appeal, inquiry, trial or other proceedings.

(3) If an application under this section has been made by any person either to the High Court or to the Sessions Judge, no further application by the same person shall be entertained by the other of them.

5. Chapter XXXIII provides for bail and bonds, and section 437 provides when bail may be taken in case of non-bailable offences; section 438 provides for anticipatory bail to a person apprehending arrest and section 439 provides for special power of the High Court or Court of Session regarding bail.

6 These are all the relevant provisions which have been referred to during the arguments advanced at the Bar and I thought it necessary to mention them in the very opening of my judgment.

7. Mr. Hajarnavis appearing on behalf of the applicants submitted that looking to the scheme of the Code of Criminal Procedure and especially the new Criminal Procedure Code, 1973, the provisions in section 167(2) are mandatory, and if in a case where an offence has been committed and the accused has been arrested and within sixty days from the date of his arrest, investigation is not completed and a charge-sheet is not filed before the proper Court, the provisions create a substantive right in the accused person to be released on bail and the provisions are mandatory and there is no discretion left with the judicial authority except to release the accused on bail if the conditions mentioned in sub-section (2) are existing. Mr. Hajarnavis submitted that the whole purpose of the Legislature is to see that a person is not unauthorisedly detained in police custody in the guise of investigation not being completed. The Legislature intends that howsoever grave may be the case or howsoever complicated may be the nature of investigation, it is incumbent upon the investigating agency to file a charge-sheet within sixty days. Once that is not done, a right vests in the accused who has been arrested to be released on bail under the provisions of section 167 (2) and that right cannot be denied by the Magistrate on any account whatsoever.

8. Referring to the facts of the present case and the case of the applicants in the present criminal application, Mr. Hajarnavis submitted that the alleged offence, though of a serious nature, is alleged to have been committed on 11-6-1975, that the applicant No. 1 Ramsaran was arrested on 22-6-1975 and the applicant No. 2 Namdeo was arrested on 29-6-1975. He submitted that as till 4 9-75 i.e. for more than sixty days after the arrest of Ramsaran and Namdeo no charge-sheets were filed by the investigating agency, an application for bail was made by the applicants on 4-9-1975. That application was heard and decided on 17-9-1975 and the application was rejected by the Judicial Magistrate First Class, Sakoli. He submitted that this order of the Judicial Magistrate was against the provisions of law and liable to be set aside and could not be sustained in view of the mandatory provisions of section 167 (2) where there was no discretion to the Magistrate as no charge-sheet was filed within sixty days as required under section 167.

9. Being aggrieved by the order of the learned Judicial Magistrate dated 17-9-1975 rejecting their application for bail, the applicants on 20-9-1975 presented a revision application before the Sessions Judge, Bhandara, and that Criminal Application bearing No. 21 of 1975 was heard by the learned Additional Sessions Judge, Bhandara. Mr. Hajarnavis submitted that the learned Additional Sessions Judge rightly came to the conclusion that the provisions of section 167 (2) were mandatory and having also rightly come to the conclusion that there was no discretion in the learned Judicial Magistrate to refuse bail, unfortunately thinking that under section 397 (2) he had no jurisdiction to entertain the revision application as the order dated 17-9-1975 by the Judicial Magistrate was an interlocutory order, has fallen into an error that the order passed by the Judicial Magistrate was an order of interlocutory nature and as his hands were tied down he could not do justice to the applicants. Mr. Hajarnavis submitted that the learned Additional Sessions Judge in dismissing the criminal revision application, relied upon an authority of the Rajasthan High Court in (Dhola v State)1, 1975 Cr.L.J. 1274. I will deal with that authority a little later. The proposition relied upon observation from that judgment, that an order on an application for bail is an order on an interlocutory proceeding and, therefore, under section 397 (2) no revision can lie. Mr. Hajarnavis submitted that the judgment of the Rajasthan High Court is based on certain civil rulings which interpreted the word interlocutory and submitted that that judgment is not binding on this Court and is not the correct pronouncement of law on the subject. He submitted that looking to the scheme of the Code of Criminal Procedure a right which arises in favour of an accused who has been arrested and detained and no charge-sheet having been filed against him for sixty days, is a substantive vested right and that is determined by the Judicial Magistrate finally because the determination of that question has nothing to do with the proceedings or the merits of the case. It is a matter dealing with the liberty of an individual who has been arrested and detained and the law authorises the Magistrate to continue the detention authorisedly only for a period of sixty days: Once the period of sixty days is over, the detention would be unauthorised, and it is a mandatory provision of law which requires the Magistrate to release him on bail immediately.

10. By dealing with an application made under these circumstances, namely, the determination of a right which vests in an accused who has been detained if an investigation is not completed and if a charge-sheet is not filed within 60 days it finally decides his right and if that decision is not left to the discretion of the Judicial Magistrate but it is mandatorily provided that the Judicial Magistrate shall release him on bail, such determination of his right is finally made by the Judicial authority and, therefore, it cannot be said that it was a determination of an interlocutory proceeding Mr. Hajarnavis also relied upon two authorities of the Supreme Court. The first was (Mohanlal v. State of Gujarat)2, A.I.R. 1968 S.C. 733 which deals with the question of a final order and relied upon the following observations in that judgment. The decision was by majority consisting of Wanchoo C. J. and Shelat and Vaidialingam J.J., and it was held:

The order passed by the High Court in revision was a final order within the meaning of Article 134 (1) (c). The controversy between the parties as to whether the complaint in respect of offences under sections 467 and 468 read with section 114 Penal Code, was justified or not was disposed of by the order of dismissal and the proceeding regarding that question was finally decided. The finality of that order was not to be judged by co-relating that order with the controversy in the complaint viz., whether the appellant had committed the offence charged against him therein. The fact that controversy still remained alive was irrelevant.

From the facts of that case it was clear that originally it was intended to prosecute the person under sections 205; 467 and 468 read with section 114 of the Indian Penal Code by the trial Court. In appeal it was decided by the Additional Sessions Judge that only proceedings under section 205 read with section 114 could be instituted and that proceedings under sections 467 and 468 read with section 114 cannot be instituted. In other words, during judicial proceedings when certain offences were discovered and before delivery of judgment under section 476 of the Code of Criminal Procedure, the learned Judge came to the conclusion that three of the offences were committed for which complaints should be lodged, the High Court came to the conclusion that only in respect of one offence under section 205 read with section 114 the complaint should be lodged and not for the offences under sections 467 and 468 for which the complaints were directed to be lodged by the trial Court. When the matter came up before the Supreme Court, it was urged that the Supreme Court had no jurisdiction to entertain the appeal as under Article 134 (I) (c) of the Constitution this was not a final order and, therefore,, the Supreme Court could not interfere. On these facts, by majority judgment the Court held that the question whether there should be a complaint filed under sections 467 and 468 or not was finally decided by the revision petition filed in the High Court and, therefore, it was to that extent a final order. Against such an order passed by the High Court this application was filed before the Supreme Court and the Supreme Court relied upon its previous judgment in (Ramesh v. Gendlal)3, 1966 Mh.L.J. 729 = A.I.R. 1966 S.C. 1445 and further observed:

... the finality of that order was not to be judged by corelating that order with the controversy in the complaint, viz., whether the appellant had committed the offence charged against him therein. The fact that the controversy still remained alive is irrelevant. It must consequently be held that the order passed by the High Court in the revision filed by the appellant was a final order within the meaning of Article 134 (1) (c).

11. Another authority relied upon by Mr. Hajarnavis Tarapore and Co.,( Madras v. Tractors Export, Moscow)4, A.I.R. 1970 S.C. 1168 and he relied upon the observations of the Supreme Court in paragraph 3. This decision refers to the decision in Mohan-la] v. State of Gujarat and Mr. Hajarnavis submits that the decision in Tarapore and Co.s case reiterates the principles laid down in Mohanlals case; but in the case before them as the principles laid down in Mohanlals case were not applicable to the facts of that case, they came to the conclusion that the order before them was not a final order. In paragraph 3 of that judgment, Shah J. observed as follows:

The expression judgment in Article 133 (1) in the context in which it occurs means a final adjudication by the Court of the rich s of the parties, and that an interlocutory judgment even if it decides an issue or issues without finally determining the rights and liabilities of the parties is not a judgment, however, cardinal the issue may be. In the present case not even an issue has been decided, and it is not contended that the order of the High Court amounts to a judgment or a decree. The expression final order, it has been held by a long course of authorities, occurring in section 205 of the Government of India Act, 1935, section 109 of the Code of Civil Procedure and Articles 133 (1) of the Constitution means a final decision on the rights of the parties in dispute in a suit or proceedings; if the rights of the parties in dispute in the suit oar proceeding remain to be tried, after the order, the order is not-final.

In paragraph 6 of the following observations of Mukherjee J. in (Mohammad Amin Brothers Ltd. v. Dominion of India)5, A.I.R. 1950 F.C. 77 are quoted:

The expression final order has been used in contradistinction to what is known as interlocutory order. If the decision on an issue puts an end to the suit, the order will undoubtedly be a final one, but if the suit is still left live and has got to be tried in the ordinary way, no finality could attach to the order.

Referring to Mohanlal v. State of Gujarat in paragraph 10 it is observed as follows:

There is nothing in that judgment which supports the contention that this Court has departed from the principle of the earlier decisions or has suggested a different test for determining the finality of orders. The Court in that case was concerned merely with an order passed by the High Court which maintained the order of the Additional Sessions Judge that a complaint under section 205 read with section 114, Indian Penal Code could be filed against the appellant. The order of the High Court finally disposed of the proceeding in the Magistrates Court relating to the expediency of instituting criminal proceedings against the appellant. It was thereafter for the Court trying the complaint to decide whether the offence complained of was committed by the appellant. The proceeding for filing a complaint under section 476 of the Code of Criminal Procedure was a self-contained proceeding and was finally disposed of by the order directing the filing of a complaint under section 205 read with section 114, Indian Penal Code. The proceeding instituted on the complaint was not part of or incidental to the proceeding for an enquiry whether a complaint should be filed. The Court in that case expressly approved of the earlier view at p. 736 . ...

Then the judgment cites a passage frorn the earlier case Mohanlal v. State of Gujarat, and finally in the facts of that case they held that it was not a final order and so the Court could not interfere.

12. Mr. Hajarnavis referred to a third case (Natabar Parida v. State of Orissa)6, 1975 Cr.L.J. 1212 and submitted that by that decision the provisions of sections 167 (2) and 309(2) of the Code of Criminal Procedure, are considered and distinguished. After quoting the provisions of sections 167 (2) and 309 (2), Untwalia J. observed: Although the expression reasonable cause occurring in sub-section (1A) 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 to section 709 in the identical language. The law engrafted in the proviso (a) to section 167 (2) and section 309 of the new Code confers the powers 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-I in section 309 is not quite clear. 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 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, murder, 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 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 purposes of that Chapter. That may 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 section 427 occurring in Chapter XXXIII. It is also clear that after the taking of the cognizance 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 a 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.

13. Relying on these authorities Mr. Hajarnavis submitted that the learned Additional Sessions Judge ought not to have followed the Rajasthan decision in Dhola v. State. That decision directly deals with the question of section 397(2) of the new Code of Criminal Procedure and also deals with the question of a revision application filed against the order granting bail. The learned single Judge of the Rajasthan High Court, dealing with the petition before him, has observed:

An interlocutory order is one which is passed at some intermediate stage of a proceeding generally to advance the cause of justice for the final determination of the lights between the parties. The expression interlocutory order does not change its complexion when applied to the Code of Criminal Procedure, it can, therefore, be said that the grant or refusal of a bail application is essentially an interlocutory order as it enlarges the accused in nonmalleable cases to defend himself adequately and thereby assist the cause of justice: it is passed at some intermediate stage between the commencement and the end of the criminal cases and it does not determine the innocence or the guilt of the accused. A revision therefore does not lie against such an order in view of section 397 (2).

For the above observations the learned Judge had relied upon the Supreme Court decision in the (Central Bank of India Ltd. v. Gokalchand)7, A.I.R. 1967 S.C. 799 where it had been observed that interlocutory orders are steps taken towards the final adjudication and for assisting the parties in the prosecution of their case in the pending proceeding, and also relied upon one American decision, namely (U. S. v. Brown)8, C.A. No. 301., where the order was of retransferring a criminal case from the District Court to Western District of North Carolina. I have already quoted the relevant observations, and after those observations the learned Judge proceeded to observe:

My reasons briefly are that an accused is usually enlarged on bail in non-bailable cases to enable him to defend himself adequately and thereby assists the cause of justice. It is ordinarily at some intermediate stage between the commencement and the end of criminal cases that it is granted and further that it is open to re-call or modification and it does not determine the guilt or innocence of the accused and thus fulfils all the characteristics usually attached to an interlocutory order.

As I have already observed before, this was a case where the prosecution had come against the bail granted and the revision application was contested by the counsel on behalf of the accused who had been released on bail, on the ground that such an interlocutory order cannot be revised. It cannot be gainsaid that the decision of the Rajasthan High Court is directly under section 397 (2) and it deals directly with the bail order passed by the lower Court. With utmost respect to the learned Judge, however, I feel that that decision cannot be of universal nature and especially that decision cannot lay down a principle of universal nature when we are concerned with a question of refusal of bail by the Judicial Magistrate to an accused person in whom the right has vested under the mandatory provisions of the Code of Criminal Procedure under section 167 (2). These observations cannot apply to the present case as here I am dealing with a limited question of criminal application arising out of the refusal by the Additional Sessions Judge to interfere in revisional jurisdiction on an application arising out of the Judicial Magistrates order refusing bail when the provisions of section 167 (2) had already come into operation and when the Legislature mandatorily provided that an accused person shall be entitled to be released on bail if the charge sheet is not filed within sixty days. I am only considering the question for that purpose and I wish to confine my observations to the present application only.

14 Mr. Mor fairly submitted that the facts are not in dispute. It is not denied that the accused were arrested and within sixty days the charge-sheet was not filed. But he submitted that the operation of the provisions of section 167(2) has a limited application and he added that it is necessary to note one more date in addition to the dates already mentioned, namely, 1-11-1975 on which date, i. e. during the time when the revision application was pending before the Additional Sessions Judge, a charge-sheet was filed-by the investigating agency, and according to Mr. Mor, as a charge-sheet had been filed there cannot be operation of section 167 (2). Whatever may be the provisions made by the Legislature in section 167 (2), it has a limited operation to the period between the date of arrest of the accused and the date of the filing of the charge-sheet. Mr. Mor also submitted that there are various other provisions for bail, and even if the accused has been denied bail by the Judicial Magistrate in exercise of the jurisdiction under section 167 (2) or exercising discretion not to grant bail even when the charge-sheet is not filed within 60 days, it cannot be said that the right of the accused is finally decided one way or the other or there has been a determination of any issue finally, because the proceedings are still to go on and the accused has still got a chance to fight the prosecution and by showing proper grounds he has also a chance to be released on bail if he makes out a case under the provisions of the Code of Criminal Procedure. He submitted that there being Chapter XXXIII specially dealing with bail and bonds, wherein powers to the Court of Sessions as well as to the High Court to grant bail under sections 437 and 439 are provided, the order passed by the first Court must be declared to be an interlocutory order because there is an independent provision to move the High Court for bail. He further submitted that if it is not held as an interlocutory order, there would be multiplicity of proceedings as it has been the case in the present proceedings that the accused may move for a revision under section 397 as well as move the High Court under section 437 or 439. He submitted that even the accused can move for bail under section 482 under the inherent jurisdiction of the High Court and, therefore, an order passed on an application for bail should always be considered as an interlocutory order as it does not finally decide the rights of the parties, and it is in the interlocutory stage between the commencement of the trial or the arrest of the accused and the final result of the trial.

15. To meet the argument of Mr. Mor that the Code of Criminal Procedure provides under section 438 the power to the Court to grant bail even before any proceedings are started or even before any arrest takes place, Mr. Hajarnavis submitted that the granting of an anticipatory bail to a person who only apprehends that he may be arrested cannot be said to be granting of bail in any proceeding, and if such grant of bail can be an independent order of a Court, it cannot be said to be an interlocutory order in any proceeding. In reply to this argument, Mr. Mor relied on (Smith v. Cowell)9, 1880-1 (6) Q.B.D. 75. Therein it has been held that the words interlocutory order in section 25, sub-section 8 of the Judicature Act, 1873 are not confined in their meaning to an order made between writ and final judgment but mean an order other than final judgment in an action, whether such order be made before judgment or after. In that case Baggalay L.J. observed:

The question is whether a fresh action is necessary. section 25, sub-section 8 of the Judicature Act, 1873, provides that a mandamus or injunction may be granted, or a receiver appointed by an interlocutory order of the Court, in all cases in which it shall appear just and convenient; and the defendants contention is that the Court has no power under that section to make an order for a receiver in an action after judgment, for that the words interlocutory order mean an order prior to final judgment. But with that contention I cannot agree. The interpretation of the word interlocutory, as used in that sub-section, is to be found later on in the subsection itself, which provides that if an injunction is asked whether before, or at, or after the hearing of a cause, it may be granted, & c.

These observations, if properly read and appreciated, are made because of the peculiar provisions of section 25 (8) of the Judicature Act and the provisions made therein. Therein it was specifically provided that an interlocutory order for the receiver can be made before or at the time of or after the hearing of the case. Therefore, by the legislation itself the order for appointment of a receiver has been characterised as an interlocutory order, whether it was passed before or at the time of or even after the judgment was delivered.

16. Mr. Mor relied upon one more decision of Supreme Court in Central Bank of India v. Gokul Chand which is again a civil case which has been referred to in the Rajasthan case, and relied upon the observations in paragraph 3:

The object of section 38 (1) is to give a right of appeal to a party aggrieved by some order which affects his right or liability. In the context of section 38 (1), the words every order of the Controller made under this Act, though very wide, do not include interlocutory orders, which are merely procedural and do not affect the rights or liabilities of the parties. In a pending proceeding, the Controller may pass many interlocutory orders under sections 36 and 37, such as orders regarding the summoning of witnesses, discovery, production and inspection of documents, issue of a commission for examination of witnesses, inspection of premises, fixing a date of hearing and the admissibility of a document or the relevancy of a question. All these interlocutory orders are steps taken towards the final adjudication and for assisting the parties in the prosecution of their case in the pending proceeding; they regulate the procedure only and do not affect any right or liability of the parties. The legislature could not have intended that the parties would be harassed with endless expenses and delay by appeals from such procedural orders.

I do not think that even the observations in this case can help Mr. Mor to advance his argument. As stated before, I am dealing with an application which has arisen out of the dismissal of a revision petition by the Additional Sessions Judge who, having come to the conclusion that under the provisions of section 167 (2) it was mandatory upon the Judicial Magistrate to have released the accused and that the order of the Judicial Magistrate was illegal, following the decision of the Rajasthan High Court holding that it was an order on a bail application which was an interlocutory order on which there were no revisional powers to the Sessions Judge, dismissed the application.

17. As observed before, the Legislature has declared in unmistakable terms the intention and the intention is so clear that the Legislature does not want the detention unauthorisedly beyond a particular period of an accused even alleged to have committed an offence of a very serious nature. In other words, by section 167 it has been clearly laid down that if after the arrest of the accused within sixty days the investigating agency cannot file a charge-sheet before the Court then he is entitled to be and he shall be released and the Magistrate shall release him, and to me this clearly indicates a right created in an individual for his liberty when he has been arrested. The very argument of Mr. Mor clearly shows that if the provisions of section 167 (2) have a limited application to the period between the date of the arrest and the filing of the charge-sheet, the determination of this issue whether the right vests in the accused or not or whether he is entitled as a matter of right to be released on bail, is finally made by the Judicial Magistrate. According to me, it is a determination of a right which has been created no doubt by a procedural law in the accused person who is now entitled to be released on bail if the investigating agency delay their investigation and fail to file a charge-sheet within sixty days. That determination of a right can be done only by the Judicial Magistrate before the filing of the charge sheet and that decision can be final. Confining to the facts of the present case, I hold that the order passed by the Judicial Magistrate on 17-9-1975 determining the most important issue, namely, the right of the accused to be released on bail when the investigating agency had failed to comply with the provisions of law and failed to file a character sheet within 60 days of his arrest. Mr. Mor submitted that it may lead to an anomaly that an accused person having got a right to be released on bail under section 167 (1), if concerned in a very serious crime can be re-arrested by showing certain acts on his part which entitles a prosecuting agency to apply for cancellation of his bail, whereas ordinarily if the charge-sheet would have been filed within sixty days, he could have been continued either in the police custody or in the jail custody and the trial would have gone on. On the contrary, I am of opinion that the order passed under section 167 (2) is to be treated on par with an order passed under Chapter XXXIII and, therefore, all the conditions applicable to any other order of bail will apply to this order, and therefore, if there is any abuse of the liberty granted under section 167 by the accused, the prosecution can always come forward by an application within the provisions of the Code of Criminal Procedure. But the main intention of the Legislature is that in criminal proceedings the harassment of the accused should be minimised and the investigating agency should be diligent and the prosecution should start in any event by filing a charge-sheet within sixty days and the result of not complying with that provision is entitlement of the right of the accused to be released on bail and that cannot be ignored. It is a substantive right and as observed by the Supreme Court in Natabar Parida v. State of Orissa though it may appear to be a paradise for the criminals, it is the intention of the Legislature which must be carried out and that intention is expressed in unmistakable terms in section 167 (2). In this view of the matter, as all the findings are in favour of the accused in the order of the learned Additional Sessions Judge, namely, that the accused was entitled to be released on bail and that the learned Magistrate was bound to release him on bail because of the provisions of section 397 (2), the learned Additional Sessions Judge felt himself to be helpless that no revision could lie, I feel that part of the judgment of the learned Additional Sessions Judge, though based on the authority of the Rajasthan High Court, is not correct.

18. Another argument was advanced, namely, that once a revision application has been filed under section 397 (2), there cannot be another application under section 397 (3) of the Code of Criminal Procedure. Mr. Hajarnavis rightly pointed out that section 397 (3) can have application where section 397 (2) cannot have application. Section 397 (1) deals with an entirely different jurisdiction, namely, where the revision application lies, and section 397 (2) whereby a revision application is not maintainable, and, therefore, the Additional Sessions Judge having come to the conclusion that there was no revisional power under section 397 (2) cannot be a fetter to the High Court not to entertain this application. In other words, Mr. Hajarnavis submitted that the learned Additional Sessions Judge has refused to exercise the jurisdiction and once a Court refuses to exercise jurisdiction, it cannot be said that the litigant is agitating the same question before two Courts and the second Court has no jurisdiction. I see considerable force in the argument of Mr. Hajarnavis and I see no bar even under section 397 (3).

19. A distinction was attempted to be made by reverting to section 309 (2), but I do not think that it is necessary to deal with that provision in the present case because I am confining my observations to the application which has been presented before me, namely, an application against the dismissal of the revision application on the ground that under section 397 (2) the Court had no jurisdiction to entertain a revision application, the bail order being an interlocutory order. As observed before, looking to the provisions of the Code of Criminal Procedure, I hold that it was incumbent upon the Magistrate to have realeased the accused on bail, that he failed to exercise the jurisdiction which was granted under section 167 (2) where he had no discretion and, therefore, the order was patently illegal, and that the order was illegal, erred in coming to the conclusion that he had no jurisdiction to entertain the application.

20. In the result, the application is bound to succeed. Rule made absolute. The accused be released on bail. I am informed that at the time of releasing the other accused by this Court conditions were imposed, namely, they were released on bail on their executing a bond for Rs. 5,000 with one surety in the like amount and a further condition was put on them that they should report to the Police Station Sakoli, twice a month. Mr. Mor submitted that the nature of the offence being very serious and in order to see that the trials smoothly proceed and are not interrupted by the absence of the accused, a stringent order for bail be passed, and instead of one surety for Rs. 5,000, the present applicants be ordered to be released on furnishing two sureties for Rs. 5,000 each. I see some force in Mr. Mors submission because the accused concerned i. e. the applicants are from a long distance away from Sakoli, and if proper sureties are not there, then to ensure their presence may become difficult. In the circumstances, I order that the applicants Nos. 1 and 2 be released on bail on their entering into a personal bond for Rs. 5,000 with two sureties for Rs. 5,000 each, and further the applicants should attend the Police Station, Sakoli, twice a month, i. e. on the 1st and 16th of each month.

Revision application allowed.

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