On 23.03.1988 the accused was arrested by the police for an offence under Section 21 of the Narcotic Drugs and Psychotropic Substances Act, 1985, having been found to be in possession of One Kg. of heroin valuing at rupees one crore in the International Market. The charge sheet having not been filed within the prescribed period of 90 days, the Magistrate enlarged the accused on bail…. Decide.

Question: On 23.03.1988 the accused was arrested by the police for an offence under Section 21 of the Narcotic Drugs and Psychotropic Substances Act, 1985, having been found to be in possession of One Kg. of heroin valuing at rupees one crore in the International Market. The charge sheet having not been filed within the prescribed period of 90 days, the Magistrate enlarged the accused on bail on 22.07.1988.

On 29.07.1988 the State moved an application for cancellation of bail on the grounds that the charge sheet has since then been filed, that the offence alleged is of serious nature punishable with a minimum sentence of 10 years rigorous imprisonment and a fine of Rupees One Lakh, and that one accused from whom the recovered heroin has been confessed to having been purchased is absconding and investigation in the case could not be completed within the time frame. Decide. [D.J.S. 1990]

Find the answer to the mains question only on Legal Bites. [On 23.03.1988 the accused was arrested by the police for an offence under Section 21 of the Narcotic Drugs and Psychotropic Substances Act, 1985, having been found to be in possession of One Kg. of heroin valuing at rupees one crore in the International Market. The charge sheet having not been filed within the prescribed period of 90 days, the Magistrate enlarged the accused on bail…. Decide.]

Answer

Section 167(2) of the Code as far as it is relevant is extracted below.

The Magistrate to whom an accused person is forwarded under this section may, whether has or has no jurisdiction to try the case, from time to time, authorize the detention of the accused in such custody as such Magistrate thinks fit, for a term not exceeding fifteen day in this 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 the detention of the accused person, otherwise than in the custody of the police, beyond the period of fifteen days if he is satisfied that adequate grounds exist for doing 10, but no Magistrate shall authorize the detention of the accused person in custody under this paragraph for a total period exceeding,-

(i) ninety days) where the investigation relates to an offence punishable with death, imprisonment for life or imprisonment for a term of not ICES than ten years;

(ii) Sixty days, where the investigation relates to any other offence, and, on the expiry of the said period of ninety days, or sixty days, as the case may be, 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 sub-section shall be deemed to be so released under the provisions of Chapter XXXIII for the purposes of that Chapter.”

This provision provides that the Magistrate cannot remand an accused to judicial custody beyond the period of 90/60 days; if the accused is prepared to furnish bail bonds. This is a right conferred on the accused and it is the duty of the court that this prohibition of law is strictly complied with.

In the case of Heeraman v. State of U.P., 1975 Cri.L.J. 1508 the Hon’ble Court in the judgment has observed that if the charge sheet was not submitted within the period of 60/90 days then the accused should apply for bail on the ground that he is entitled to claim such a bail under the provision of Section 167(2)(2) of the Code. It was also observed that If the chargesheet has been submitted then the investigation came to an end and the provisions of Section 167(2) of the Code would cease to apply to such case and only the bail can be granted on merits.

The same view was taken by a division bench of this Court in the case of Lakshmi Brahman v. State, 1976 Cri.LJ. 118. Wherein after considering the various provisions of the Code, the bench came to the conclusion that Section 167(2)(a) provides that a Magistrate cannot during investigation remand the accused to custody beyond 60 days and if the accused la prepared to furnish bail bonds. It implies that if the accused even after the expiry of 60/90 days does not furnish the bail bunds the Magistrate may remand the accused to custody.

According to this authority, the accused should apply for bail to the Magistrate before the chargesheet is filed but after the expiry of 60/90 days. According to both these decisions if the accused does not apply for bail under these provisions then he is not entitled to claim bail as of right and if the chargesheet is tiled then the accused loses his right of statutory bail under Section 167(2)(a) of the Code.

In Rajnikani v. Intelligence Officer, Narcotic Control Bureau, New Delhi, AIR 1990 SC71, the Hon’ble Supreme Court has held that the right of bail under Section 167(2)(a) of the Code is absolute. It is a legislative command and not the court’s discretion. If the investigating agency fails to file chargesheet before the expiry of 60/90 days, as the case may be, the accused in custody should be released on bail. This case also shows that the right to bail under Section 167(2)(a) of the code has been granted to him by the legislative and it must comply with the Magistrate before proceeding further.

In that case, it has also been held that the Magistrate has no power to remand a person and he must pass an order of bail and communicate the accused to furnish the requisite bail bonds. This authority is clear on the point that it is the duty of the Magistrate to pass an order of bail on the expiry of 90/60 days period if the charge sheet has not been filed within that period. It leaves NO discretion with the Magistrate but obliges him to pass an order of bail and communicate to the accused that he may furnish the requisite bonds.

In the present case, no such order was passed by the Magistrate or by the Sessions Judge. Once the matter was brought to the notice of the Sessions Judge that the charge sheet has not been filed within the period of 90/60 days, the order which was to be passed by the court was that the accused is to be released on bail. This case is also the authority for the proposition that no application for bail is necessary by the accused on completion of 90/60 days and before the filing of the charge sheet.

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Important Mains/Long Questions for Judiciary, APO & University Exams

1. CRPC Mains Questions Series Part I: Important Questions
2. CRPC Mains Questions Series Part II: Important Questions
3. CRPC Mains Questions Series Part III: Important Questions
4. CRPC Mains Questions Series Part IV: Important Questions
5. CRPC Mains Questions Series Part V: Important Questions
6. CRPC Mains Questions Series Part VI: Important Questions
7. CRPC Mains Questions Series Part VII: Important Questions
8. CRPC Mains Questions Series Part VIII: Important Questions
9. CRPC Mains Questions Series Part IX: Important Questions
10. CRPC Mains Questions Series Part X: Important Questions
11. CRPC Mains Questions Series Part XI: Important Questions