Umashanker And Ors. vs State Of Madhya Pradesh on 25 February, 1982 CriLJ 1186

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Facts

The appellants, Umashanker, Ramchandra and Raju alias Rajendra, were arrested by Lordganj Police Station, Jabalpur on 18 September 1981 for offenses under Sections 364, 365 and 302 of the Penal Code. They were produced before the Magistrate’s Court, First Class, Jabalpur, and were remanded till December 1981, the term of which was to expire on 22 December 1981. On 19 December 1981, an application for bail under proviso (a) to section 167( 2 ) of the Penal Code was filed on behalf of the applicants stating that they had been in continuous detention for more than 90 days and no charges had been filed. Their readiness to post bail was also mentioned in the application. No order has been submitted for this application. On the same day, a challan was filed against the complainants by the Lordganj police and the Magistrate directed to produce the seized property within three days. The magistrate noted that the accused were already in custody by 22 December 1981 and scheduled the case to be adjourned to that date. Subsequently, the application for bail was rejected on the grounds that the custody was changed to custody under Section 309 and therefore the proviso to Section 167(2) was found to be inapplicable. The plaintiffs challenged this decision in this revision.

Issue :

 The issue in this case is whether the applicants are entitled to bail under clause (a) of Section 167(2) of the Criminal Procedure Code, given that they have been continuously detained for more than 90 days without an application for indictment filed .

Contention

Counsel for the applicants argued that the applicants should be released on bail as they have been in continuous custody for more than 90 days and no charges have been filed against them. They claimed that S.167 paragraph 2 of the Criminal Code entitles them to release on bail under these circumstances.

Judgment

 The court referred to the proviso of Section 167, Paragraph 2 of the Criminal Code, which was adopted to ensure the speedy completion of the investigation and the release of the accused, if the investigation was not completed within the specified period. The court noted that the provision originally allowed for detention for a maximum period of 60 days, and if the investigation was not completed within that period, the accused had to be released on bail. The Court referred to the judgment of the Supreme Court in the case of Natwar Parma v. State of Orissa where it was held that a release on bail under this provision was deemed to be a release under Chapter XXXIII and the accused could be arrested and remanded only under Section 437(5) of the Penal Code . The court noted that the provision has been criticized for granting accused persons the right to bail even in the case of serious offences. Subsequently, the provision was amended in 1978 to allow detention pending investigation for a cumulative period of 90 days in serious offenses and 60 days in other cases, while retaining the right to be released on bail if the investigation was not completed within these periods.

The court referred to the Supreme Court’s judgment in Hussainara Khatoon v. State of Bihar, which held that when a prisoner is produced before a magistrate and is in custody for a prescribed period, the magistrate must inform the prisoner of his rights. be released on bail. Based on these precedents and the provisions of clause (a) of Section 167(2), the court held that the applicants were entitled to bail as they had been in continuous custody for more than 90 days without charge against them.

Conclusion

 In this case, we conclude that the court allowed the review and held that the appellants are entitled to bail under proviso (a) of Section 167(2) of the Code of Criminal Procedure as they have been continuously in custody for more than 90 years. days without filing an indictment. The court set aside the order of the Judicial Magistrate, First Class, Jabalpur, rejecting the bail application of the applicants.

written by Mrugen Dhage intern under legal vidhiya

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