RUSTAM VS STATE OF MP

CASE NAME:	RUSTAM VS STATE OF MP
EQUIVALENT CITATION:	1955 (0) MPLJ 799
DATE OF JUDGEMENT:	17-8-1994
COURT:	HIGH COURT
CASE NO.:	CRIMINAL APPEAL NO. 1995
PETITIONER:	RUSTAM
RESPONDENT:	STATE OF MP
BENCH:	J.G. CHITRE

FACTS OF THE CASE

. The applicant Prakash s/o Rustam along with other accused have been charged for committing murders of Raju s/o Baboolal and Rukhji s/o Baboolal. The present applicant was arrested on 5-9-1993 and was remanded to judicial custody. On production on 6-9-1993, the judicial custody remand granted in respect of the applicant Prakash s/o Rustam on that date was till 18-9-1993.

.  The Challan against the applicant and other co-accused was filed in the Court on 2-12-1993. It appears from the order of this Court passed in Misc. Cri. Case No. 3492/93 that on 23-11-1993 the accused persons were not produced in the Court, only warrants were produced and the learned Magistrate remanded them to judicial custody till 30-11-1993. On 30-11-1993 also they were not produced before J.M.F.C. However, the remand was granted till 14-12-1993.

. This is the second bail application of the applicant. The previous bail application hearing number Misc. Cri. Case No. 3492/93 has been decided on merit on 19-1-1994. The bail was granted to two accused-applicants namely Rustam s/o Chhotu and Dinesh s/o Rustam. However, the prayer for bail made by the present applicant was dismissed by Hon’ble Justice R. D. Shukla. The reason given for releasing the applicants-accused Rustam s/o Chhotu and Dinesh s/o Rustam was that the charge-sheet was not filed against them within the period of 90 days. Thus, the accused-applicants were released on bail in view of the provisions of SECTION 167(2) of the Code of Criminal Procedure, 1973 (hereinafter referred to as ‘Code’). In the said order, it was observed that so far as the accused-applicant Prakash s/o Rustam, was concerned the charge-sheet was filed against him within the period of 90 days because he was arrested on 5-9-1993.

.  In the present bail application, which has been filed by the applicant in view of the provisions of section 439 of the Code, the applicant has contended in the present bail application in paragraph No. 3 that the applicant was not produced from 23-11-1993 till 14-12-1-993 and the period of 90 days was over. He has further contended that on 2-12-1993 though challan was filed against the applicant, the copy was supplied to him on 14-12-1993.

. The applicant has filed the certified copy of the order-sheet pertaining to the case against him and pertaining to the Court of J.M.F.C. concerned.

. The learned counsel for the petitioner Shri Jai Singh argued that from the certified copy of the order so far as this applicant is concerned, it is quite obvious, that the remand has been granted in respect of this applicant without his production before J.M.F.C. He submitted further that though challan was filed against him on 2-12-1993, the copies were not supplied to him till 14-12-1993. It is his argument that in view of that, the applicant is entitled to get released on bail. He also submitted that as other co-accused have been released on bail, this applicant needs to be released on bail. He justified his argument by relying on some judgments.

. Shri G. Desai, Deputy Government Advocate for the State submitted that it has been held by Supreme Court and other High Courts as well as this High Court that non-production of the accused because of some compelling reason would not be the ground for releasing such accused on bail. He submitted that the reliance which has been placed by Shri Jai Singh, counsel for the applicant on the judgments of this High Court are not relevant to the facts of the present case and the applicant cannot take advantage of such judgments of this High Court. He submitted that the bail application be dismissed.

RELEVANT SECTIONS

1. SECTION 167(2) OF CRPC – The sole purpose of this section is to determine whether bail can be granted after the expiration of a time period of 90 days.

• SECTION 439 OF CRPC – Special power to HIGH COURTS regarding bail.

• SECTION 302 OF IPC – Punishment for murder.

ISSUES RAISED

. The moot question arises as to what could be the prejudice which could be caused to the defence of the accused by the delay in supplying the copy of the challan or investigation papers to the accused so far as his claim for bail is concerned, when the charge-sheet has been submitted within 90/60 days?

.  Whether the accused would be prevented by such delay in pressing prayer for getting released on bail?

CONTENTION OF PETITIONER

. The petitioner claims that he shall be released on bail because the charge sheet was filed after the expiration of 90 days of his arrest.

. The learned counsel for the petitioner Shri Jai Singh argued that from the certified copy of the order so far as this applicant is concerned, it is quite obvious that the remand has been granted in respect of this applicant without his production before J.M.F.C. He submitted further that though challan was filed against him on 2-12-1993, the copies were not supplied to him till 14-12-1993. It is his argument that in view of that, the applicant is entitled to get released on bail. He also submitted that as other co-accused have been released on bail, this applicant needs to be released on bail. He justified his argument by relying on some judgments.

.In the matter of RAM NARAYAN SINGH  VS STATE OF DELHI AND OTHERS. , a judgement reported in AIR 1953 SC 277, the Supreme Court has observed ‘detention of a person in custody after the expiry of remand order, without any fresh order of remand committing him to further custody while adjourning the case under SECTION 344, Code is illegal’.

. SUBHASH VS STATE OF MP (supra) and DODHA v. STATE OF M.P. (supra). In these matters there were several  grounds which were significant and  responsible for release of the accused on bail.

CONTENTION OF RESPONDENT

. The claim of respondent is that the charge sheet was filed within the time period of 90 (i.e. from 5/9/1993 -2/12/1993).

. If due to some reason the chargesheet is not filed within the 90 days then that can’t be the sole basis to release the accused on bail who has been charged for murder.

 Shri G. Desai, Deputy Government Advocate for the State submitted that it has been held by Supreme Court and other High Courts as well as this High Court that non-production of the accused because of some compelling reason would not be the ground for releasing such accused on bail. He submitted that the reliance which has been placed by Shri Jai Singh, counsel for the applicant on the judgments of this High Court are not relevant to the facts of the present case and the applicant cannot take advantage of such judgments of this High Court. He submitted that the bail application be dismissed.

. In the matter of ANAND KUMAR VS STATE OF MP, a judgement reported in 1989 JLJ 55, Single Bench of this High Court held that when the accused could not be produced for valid reasons, custody does not become illegal entitling accused for grant of bail. In the said, the Single Bench of this High Court dealt with a number of judgments including the judgments of Supreme Court and other High Courts. In that judgement, the judgement of the Single Bench of this High Court in the matter of SUBHASH VS STATE OF MP., 1988 MPLJ 508 = 1988 JLJ 444 was also considered.

JUDGEMENT

.  In the present matter, the applicant was not produced before the Court from 23-11-1993 to 14-12-1993 and the charge-sheet has been filed in the Court against him in his absence. No reason has been given for non-production of the accused-applicant before the Court during that period. It is a mistake on the part of the learned Magistrate that he did not make the inquiry about the reasons for non-production of the accused. The learned Assistant Public Prosecutor appearing for prosecution also committed a mistake in not making any enquiry about the reasons behind non-production of accused and is not bringing on record those reasons to the notice of the Court. But as the Supreme Court has held in the matter of SANDEEP KUMAR DEY   OFFICE IN CHARGE SAKCHI PS JAMSHEDPUR (supra) non-production of the accused before the Court would not by itself make detention illegal. So far as non-supplying of the copy of the challan or the papers of investigation is concerned there has been a delay of only 12 days or so. There might have been the reasons for it, but unfortunately nothing has been brought on record in the context. It is a matter of experience that nowadays because of the increasing number of crimes and insufficiency of typewriters, it has become very difficult to prepare the copies of papers of investigation. That might have been the reason for the said delay. It might have been attributable to the casualness or negligence of the person looking after this aspect of the prosecution. But because of that only, an accused, who has been charged for committing two murders and against the release of such accused, an apprehension has been expressed that by release of such an accused on bail there is likelihood of danger to the life and safety of the eye-witness as well as to leading of the evidence by prosecution in the Court, cannot be released on bail. It is pertinent to note at this juncture that the prosecution has a good case for going to the trial against this accused and the prosecution is in possession of the evidence of eye-witnesses which is prima facie corroborated by the medical evidence.

. Thus the HON’BLE HIGH COURT dismissed the argument advanced on behalf of the applicant and the prayer for his release on bail. Bail application stands dismissed.

CONCLUSION

. Whether the bail application be granted to the accused after the expiration of 90 days if the police fail to file the chargesheet within that limited duration of 90 days if there is any delay then such has to be conveyed and must be reasonable. Thus the delay in filing the chargesheet within 90 days can’t be the sole basis to release a convict who is accused of murder and it will also be a threat to the sole eye -witness, it varies from case to case and situations of the cases .

.  In the matter of KURRA DASARATH RAMIAH AND OTHERS VS STATE OF ANDHRA PRADESH, a judgement reported in 1992 Cri.L.J. 3485, the Full Bench of Andhra Pradesh High Court observed that non-availability of escorts for non-production of the accused person constitutes a ground from infraction of the mandatory requirement of SECTION 167(2) of the Code. If the accused is not produced the Magistrate can enquire into the reasons for such non-production. It is only when the non-production is due to reasons beyond the control of ‘the police or jail authorities, he can authorise further remand but before doing so, he must be satisfied that there are adequate grounds for so doing. Mere default on the part of the jail or police authorities in producing accused before Magistrate cannot be a valid reason to release the accused either on bail or without any conditions. Such a course of action would amount to abdication of his judicial functions.

. Thus, it would be clear from the observations of various High Courts and the Supreme Court on which the reliance was placed that the accused would not be entitled to get the bail only on the ground of non-production of the accused before the Court. The casualness or apathy on the part of the jail authority or police resulting in non-production of the accused before the Court without justifiable ground has been deprecated but only on that ground the accused has not been released on bail. If the accused is to be released on bail, the charge-sheet filed should be beyond the period of 90/60 days.

written by ADITYA SINGH, Shri ramswaroop memorial university