ACHPAL @ RAMSWAROOP & ANOTHER versus STATE OF RAJASTHAN on 24 September 2018

ACHPAL @ RAMSWAROOP & ANOTHER

v.

STATE OF RAJASTHAN

(Criminal Appeal No. 1218 of 2018)

SEPTEMBER 24, 2018

[ABHAY MANOHAR SAPRE AND UDAY UMESH LALIT, JJ.]

Code of Criminal Procedure, 1973 – s.167(2) – Investigationnot complete within the period prescribed under – Right of anaccused in custody, to be released on bail – FIR registered againstappellants-accused– Appellants arrested and remanded to police/magisterial custody – Petition filed by the complainant praying forfair and impartial investigation– High Court passed order dtd.03.07.18 inter alia directing that investigation be conducted by agazetted police officer, not below the rank of AdditionalSuperintendent of Police (ASP)– On 05.07.18 charge-sheet filedby the police officer lower in rank than ASP– Magistrate returnedthe charge-sheet to the police for due compliance– Immediately afterthe expiry of 90 days, the appellants filed application for bail u/s.167(2) – Rejected– Held: In terms of s.167(2), the stage ofinvestigation ought to be confined to 90 or 60 days, as the casemay be– On the expiry of the period stipulated, an indefeasibleright accrues in favour of the accused for being released on bailon account of default by the investigating agency in completion ofthe investigation within the period stipulated – Since, the appellantswere in custody from 08.04.18, in terms of s.167(2) the investigationhad to be completed by 07.07.18 – However, in the present case, oncompletion of 90 days of prescribed period, there were no papersof investigation before the concerned Magistrate– Appellants werethus denied protection established by law– Appellants entitled tobail in terms of s.167(2).

Code of Criminal Procedure, 1973 – s.167(2) – Period under,for investigation – If can be extended by the High Court – Held:Provisions of the Code do not empower anyone to extend the periodwithin which the investigation must be completed nor does it admitof any such eventuality.

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AAllowing the appeal, the Court

HELD: 1.1 On the expiry of the period stipulated underSection 167(2), Code of Criminal Procedure, 1973 an indefeasibleright accrues in favour of the accused for being released on bailon account of default by the investigating agency in the completionBof the investigation within the period stipulated and the accusedis entitled to be released on bail, if he is prepared to and furnishes the bail as directed by the Magistrate. [Para 11] [334-E-F]

1.2 The letter of and spirit behind enactment of Section167 of the Code mandates that the investigation ought to beCcompleted within the period prescribed. Ideally, the investigation,going by the provisions of the Code, ought to be completed withinfirst 24 hours itself. Further in terms of sub-section (1) of Section167, if “it appears that the investigation cannot be completedwithin the period of twenty-four hours fixed by Section 57” theconcerned officer ought to transmit the entries in the diary relatingDto the case and at the same time forward the accused to suchMagistrate. Thereafter, it is for the Magistrate to considerwhether the accused be remanded to custody or not. Sub-Section(2) then prescribes certain limitations on the exercise of the powerof the Magistrate and the proviso stipulates that the MagistrateEcannot authorize detention of the accused in custody for totalperiod exceeding 90 or 60 days, as the case may be. It is furtherstipulated that on the expiry of such period of 90 and 60 days, asthe case may be, the accused person shall be released on bail, ifhe is prepared to and does furnish bail.[Para 16] [339-D-G]

F1.3 The provision has a definite purpose in that; on thebasis of the material relating to investigation, the Magistrate oughtto be in a position to proceed with the matter. It is thus clearlyindicated that the stage of investigation ought to be confined to90 or 60 days, as the case may be, and thereafter the issue relatingto the custody of the accused ought to be dealt with by theGMagistrate on the basis of the investigation. Matters and issuesrelating to liberty and whether the person accused of a chargeought to be confined or not, must be decided by the Magistrateand not by the Police. Further custody of such person ought notto be guided by mere suspicion that he may have committed an H

offence or for that matter, to facilitate pending investigation. Inthe present case as on the 90[th] day, there were no papers or thecharge-sheet in terms of Section 173 of the Code for theconcerned Magistrate to assess the situation whether on meritsthe accused was required to be remanded to further custody.Though the charge-sheet in terms of Section 173 came to befiled on 05.07.2018, such filing not being in terms of the orderpassed by the High Court on 03.07.2018, the papers were returnedto the Investigating Officer. The fact of the matter is that as oncompletion of 90 days of prescribed period under Section 167 ofthe Code there were no papers of investigation before theconcerned Magistrate. The accused were thus denied of protectionestablished by law. The issue of their custody had to be consideredon merits by the concerned Magistrate and they could not besimply remanded to custody dehors such consideration. Thesubmission advanced by the appellant therefore has to beaccepted. [Paras 17, 18] [339-G-H; 340-B-C, E-F]

1.4 The provisions of the Code do not empower anyone toextend the period within which the investigation must becompleted nor does it admit of any such eventuality. Thereare enactments such as the Terrorist and DisruptiveActivities (Prevention) Act, 1985 and Maharashtra Control ofOrganised Crime Act, 1999 which clearly contemplate extensionof period and to that extent those enactments have modified theprovisions of the Code including Section 167. In the absence ofany such similar provision empowering the Court to extend theperiod, no Court could either directly or indirectly extend suchperiod. In any event of the matter all that the High Court hadrecorded in its order dated 03.07.2018 was the submission thatthe investigation would be completed within two months by aGazetted Police Officer. The order does not indicate that it wasbrought to the notice of the High Court that the period forcompleting the investigation was coming to an end. Mererecording of submission of the Public Prosecutor could not betaken to be an order granting extension. Thus, the submissionsin that behalf advanced by the State and the complainant arerejected. The accused having shown their willingness to beadmitted to the benefits of bail and having filed an appropriate AB

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Aapplication, an indefeasible right did accrue in their favour.Appellants are entitled to be admitted to bail in terms of Section167(2) of the Code on such conditions as the trial Court maydeem appropriate. However, it would not prohibit or otherwiseprevent the arrest or re-arrest of the accused on cogent groundsin respect of charge in question and upon arrest or re-arrest theBaccused would be entitled to petition for grant of regular bailwhich application would then be considered on its own merit.[Para 18-20] [340-F-H; 341-A-C, F-H; 342-A]

Uday Mohanlal Acharya v. State of Maharashtra (2001)5 SCC 453: [2001] 2 SCR 878; Rakesh Kumar Paul v.CState of Assam (2017) 15 SCC 67 – relied on.

Hitendra Vishnu Thakur and Others v. State ofMaharashtra and others (1994) 4 SCC 602 : [1994]1 Suppl. SCR 360; Sanjay Dutt v. State through C.B.I.,Bombay (II) (1994) 5 SCC 410 : [1994] 3 Suppl. SCR D263; Bipin Shantilal Panchal v. State of Gujarat (1996)1 SCC 718 : [1996] 1 SCR 193; State of W.B. v. DineshDalmia (2007) 5 SCC 773 : [2007] 5 SCR 561; SanjayKumar Kedia v. Intelligence Officer, Narcotics ControlBureau and Another (2009) 17 SCC 631 : [2010]E1 SCR 555; Union of India v. Nirala Yadav (2014) 9SCC 457 : [2014] 6 SCR 148; Ranbeer Shokeen v. State(NCT of Delhi) (2018) 4 SCC 405 – referred to.

CRIMINAL APPELLATE JURISDICTION: Criminal AppealNo. 1218 of 2018

From the Judgment and Order dated 23.07.2018 of the High Courtof Judicature for Rajasthan Bench at Jaipur in S.B. CriminalMiscellaneous Bail No. 9035 of 2018.

Siddhartha Dave, Rishi Matoliya, Ms. Sumati Sharma, MahaveerJat, H. D. Thanvi, Purushottam Lal Goyal, Milind Kumar, M. C. Dhingra,Gaurav Dhingra, Piyush Kant Roy, Vikrant Yadav, Advs. for theappearing parties.

The Judgment of the Court was delivered by UDAY UMESH LALIT, J. 1. Leave granted.

2. This appeal challenges the correctness of the judgment andorder dated 23.07.2018 passed by the High Court of Judicature forRajasthan Bench at Jaipur in SBCRMB No.9035 of 2018.

3. FIR No.16 of 2018 was registered on 24.03.2018 with PoliceStation Baharwanda Kalan, Distt. Sawai Madhopur for offencespunishable under Sections 143, 341, 323, 452, 336, 302 read with Section149 of the Indian Penal Code against 18 persons. The appellants werenamed as Accused Nos.1 and 2 in said crime and came to be arrestedon 08.04.2018. They were subsequently remanded to police/magisterialcustody from time to time.

4. Later, Criminal Misc. Petition No.3517 of 2018 was filed bythe complainant praying for fair and impartial investigation in the matter,in which an order came to be passed by the High Court on 03.07.2018.Said order recorded the submission of the Public Prosecutor as under:

“The learned Public Prosecutor for the State, to allay theapprehension of the petitioner, at the outset, has submitted thatnot only fair investigation shall be conducted by a gazetted policeofficer, not below the rank of Additional Superintendent of Policebut the report of the investigation along with the opinion of theInvestigating Officer shall be submitted in the concerned Courtwithin a period of two months from the date of receipt of certifiedcopy of this order by the Investigating Officer.”

The petition was disposed of in terms of the submissions sorecorded.

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A5. Since the appellants had been in custody from 08.04.2018, theinvestigation, in terms of Section 167 of the Code of Criminal Procedure(the Code for Short) had to be completed by 07.07.2018. On 05.07.2018a report under Section 173 of the Code was filed by the police beforethe concerned Judicial Magistrate. Since said report was filed by apolice officer lower in rank than an ASP and was thus contrary to theBorder passed by the High Court on 03.07.2018, an application was filedby the complainant placing certified copy of the aforesaid order dated03.07.2018. The Magistrate having noted the contents of said order,returned the charge-sheet with certified copy of the order dated03.07.2018 to the police for due compliance. Thus as on the expiry ofC90[th] day i.e. on 07.07.2018 no report under Section 173 of the Code wason record with the Magistrate.

6. Immediately after the expiry of 90 days the appellants filed anapplication for bail under the provisions of Section 167(2) of the Code.

7. The Judicial Magistrate, Khandar, Distt. Sawai Madhopur byDhis order dated 09.07.2018 rejected the prayer for benefit under Section167(2) of the Code. It was observed that since the charge-sheet filedon 05.07.2018 was not in compliance of the order passed by the HighCourt, the charge-sheet was returned due to technical fault. It wasfurther observed that the effect of the order dated 03.07.2018 passed byEthe High Court was extension of period within which the investigationcould be completed.

8. The rejection as aforesaid came to be challenged by filing SBCrl. Misc. Bail No.9035 of 2018 and the High Court while rejecting saidpetition on 23.07.2018 stated as under:F“No case for grant of bail under Section 167(2) Cr.P.C. is madeout, as the time was extended by the High Court in CriminalMiscellaneous (Petition) No.3517 of 2018 and Investigating Officerwas afforded two months time to file charge-sheet. It is alsoimportant to note that the Investigating Officer had produced theGcharge-sheet before the concerned Court prior to 90 days but thesame was returned in view of the order of the High Court.”

9. The order passed by the High Court is presently under appeal.We heard Mr. Siddhartha Dave, learned Advocate for the appellants,Mr. Milind Kumar, learned Advocate for the State and Mr. M.C. Dhingra, H

ACHPAL @ RAMSWAROOP & ANOTHER v. STATE OFRAJASTHAN [UDAY UMESH LALIT, J.]

learned Advocate for the complainant. It was submitted by Mr. Dave,learned Advocate that the report filed under Section 173 of the Code on05.07.2018 having been returned by the Magistrate for due complianceof the High Court order dated 03.07.2018, as on the expiry of 90 days,there was no charge-sheet for the consideration of the Court. He furthersubmitted that the Code does not contemplate any extension of periodwithin which the investigation could be completed and as such the HighCourt order dated 03.07.2018 can never be construed to have extendedthe period for investigation. In his submission, the appellants havingshown their willingness to be admitted to the benefit of bail and preferredappropriate application, in view of the law laid down by this Court theywere entitled to be released on bail. The learned Advocates for theState and the complainant on the other hand submitted that the investigationwas completed and appropriate charge-sheet was filed on 05.07.2018and the return of the papers in compliance of the order dated 03.07.2018ought to be construed as a step towards further investigation in the matter.

10. The law on the point as to the rights of an accused who is incustody pending investigation and where the investigation is not completedwithin the period prescribed under Section 167(2) of the Code, iscrystallized in the judgment of this Court in Uday Mohanlal Acharya v.State of Maharashtra[1]. This case took into account the decision of thisCourt in Hitendra Vishnu Thakur and Others v. State of Maharashtraand others[2], Sanjay Dutt v. State through C.B.I., Bombay (II)[3]andBipin Shantilal Panchal v. State of Gujarat[4]. Justice Pattanaik (asthe learned Chief Justice then was) speaking for the majority recordedconclusions in para 13 of his judgment. For the present purposes, wemay extract conclusions 3 and 4 as under:- “……………………………………

3. On the expiry of the said period of 90 days or 60 days, as thecase may be, an indefeasible right accrues in favour of the accusedfor being released on bail on account of default by the investigatingagency in the completion of the investigation within the periodprescribed and the accused is entitled to be released on bail, if heis prepared to and furnishes the bail as directed by the Magistrate.

1 (2001) 5 SCC 4532 (1994) 4 SCC 6023 (1994) 5 SCC 4104 (1996) 1 SCC 718

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A4. When an application for bail is filed by an accused forenforcement of his indefeasible right alleged to have been accruedin his favour on account of default on the part of the investigatingagency in completion of the investigation within the specifiedperiod, the Magistrate/court must dispose of it forthwith, on beingsatisfied that in fact the accused has been in custody for the periodBof 90 days or 60 days, as specified and no charge-sheet has beenfiled by the investigating agency. Such prompt action on the partof the Magistrate/court will not enable the prosecution to frustratethe object of the Act and the legislative mandate of an accusedbeing released on bail on account of the default on the part of theCinvestigating agency in completing the investigation within the periodstipulated.

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11. The principles laid down in Uday Mohanlal Acharya (supra)have been consistently followed by this Court namely in State of W.B. v.DDinesh Dalmia[5]; Sanjay Kumar Kedia v. Intelligence Officer,Narcotics Control Bureau and Another[6]; Union of India v. NiralaYadav[7] and in Ranbeer Shokeen v. State (NCT of Delhi)[8]. It musttherefore be taken to be well settled that in terms of 3[rd] conclusion asrecorded in Uday Mohanlal Acharya (supra), on the expiry of the periodEstipulated, an indefeasible right accrues in favour of the accused forbeing released on bail on account of default by the investigating agencyin the completion of the investigation within the period stipulated and theaccused is entitled to be released on bail, if he is prepared to and furnishesthe bail as directed by the Magistrate.F12. The questions however arise in the present matter are slightly F12. The questions however arise in the present matter are slightlyof different dimension. Here investigation was completed and Challanunder Section 173 was filed on 05.07.2018. However, just two daysbefore that, an order had been passed by the High Court recordingsubmission of the public prosecutor that investigation in the matter wouldbe conducted by a Gazetted Police Officer. The investigation which ledGto the filing of the report on 05.07.2018, was not in conformity with thestatement made before the High Court. It was for this reason that the 5 (2007) 5 SCC 7736 (2009) 17 SCC 6317 (2014) 9 SCC 457H8 (2018) 4 SCC 405

papers were returned by the Magistrate. All this happened before theexpiry of 90[th] day. Can it be said that the investigation was complete forthe purposes of Section 167(2) of the Code so as to deny the benefit tothe accused in terms of said provision. Additionally another issue whicharises for consideration is whether the order passed by the High Courtcould be construed as one under which the period for completing theinvestigation was extended.

13. We may at this stage extract the relevant provisions namelySection 167 (1) & (2) of the Code:

“167 . Procedure when investigation cannot be completed intwenty-four hours. – (1) Whenever any person is arrested anddetained in custody and it appears that the investigation cannot becompleted within the period of twenty-four hours fixed by section57, and there are grounds for believing that the accusation orinformation is well-founded, the officer in charge of the policestation or the police officer making the investigation, if he is notbelow the rank of sub-inspector, shall forthwith transmit to thenearest Judicial Magistrate a copy of the entries in the diaryhereinafter prescribed relating to the case, and shall at the sametime forward the accused to such Magistrate.

(2) The Magistrate to whom an accused person is forwardedunder this section may, whether he has or has not jurisdiction totry the case, from time to time, authorize the detention of theaccused in such custody as such Magistrate thinks fit, for a termnot exceeding fifteen days in the whole; and if he has no jurisdictionto try the case or commit it for trial, and considers further detentionunnecessary, he may order the accused to be forwarded to aMagistrate having such jurisdiction:”

Provided that (a) the Magistrate may authorise the detentionof the accused person, otherwise than in the custody of the police,beyond the period of fifteen days, if he is satisfied that adequategrounds exist for doing so, but no Magistrate shall authorise thedetention of the accused person in custody under this paragraphfor a total period exceeding, — (i) ninety days, where theinvestigation relates to an offence punishable with death,imprisonment for life or imprisonment for a term of not less thanten years; (ii) sixty days, where the investigation relates to any AB

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Aother offence, and, on the expiry of the said period of ninety days,or sixty days, as the case may be, the accused person shall bereleased on bail if he is prepared to and does furnish bail, andevery person released on bail under this sub-section shall bedeemed to be so released under the provisions of Chapter XXXIIIfor the purposes of that Chapter; (b) no Magistrate shall authoriseBdetention in any custody under this section unless the accused isproduced before him; (c) no Magistrate of the second class, notspecially empowered in this behalf by the High Court, shallauthorise detention in the custody of the police.”

14. The historical background which led to the enactment ofCSection 167 of the Code, as it presently stands has been dealt with byMadan B. Lokur, J. in paragraphs 11 to 15 of his judgment in RakeshKumar Paul v. State of Assam[9]. Paragraphs 11 and 12 extract portionsfrom the report of Law Commission of India in its 41[st] report, the proposedprovisions as suggested by the Law Commission and the Statement ofDObjects and Reasons dated 07.11.1970 while introducing the Code. SaidParagraphs 11 and 12 are quoted here:- “11. Unfortunately, all laws tend to be misused wheneveropportunity knocks, and Section 167 of the Code of CriminalProcedure, 1898 was no exception. Since there was a practicalEdifficulty in completing investigations within the 15-day time-limit,the prosecution often took recourse to the provisions of Section344 of the Code of Criminal Procedure, 1898 and filed a preliminaryor incomplete report before the Magistrate to keep the accused incustody. The Law Commission of India noted this in its 41st Report(after carefully studying several earlier Reports) and proposed toFincrease the time-limit for completion of investigations to 60 days,acknowledging that:

“14.19. … such an extension may result in the maximumperiod becoming the rule in every case as a matter of routine; butwe trust that proper supervision by the superior courts willGprevent that.”

(emphasis supplied)

The view expressed by the Law Commission of India and itsproposal is as follows:

H9 (2017) 15 SCC 67

ACHPAL @ RAMSWAROOP & ANOTHER v. STATE OFRAJASTHAN [UDAY UMESH LALIT, J.]

“14.19. Section 167.—Section 167 provides for remands.The total period for which an arrested person may be remandedto custody—police or judicial—is 15 days. The assumption is thatthe investigation must be completed within 15 days, and the finalreport under Section 173 sent to court by then. In actual practice,however, this has frequently been found unworkable. Quite often,a complicated investigation cannot be completed within 15 days,and if the offence is serious, the police naturally insist that theaccused be kept in custody. A practice of doubtful legal validityhas therefore grown up. The police file before a Magistrate apreliminary or “incomplete” report, and the Magistrate, purportingto act under Section 344, adjourns the proceedings and remandsthe accused to custody. In the Fourteenth Report, the LawCommission doubted if such an order could be made under Section344, as that section is intended to operate only after a Magistratehas taken cognizance of an offence, which can be properly doneonly after a final report under Section 173 has been received, andnot while the investigation is still proceeding. We are of the sameview, and to us also it appears proper that the law should be clarifiedin this respect. The use of Section 344 for a remand beyond thestatutory period fixed under Section 167 can lead to serious abuse,as an arrested person can in this manner be kept in custodyindefinitely while the investigation can go on in a leisurely manner.It is, therefore, desirable, as was observed in the FourteenthReport, that some time-limit should be placed on the power of thepolice to obtain a remand, while the investigation is still going on;and if the present time-limit of 15 days is too short, it would bebetter to fix a longer period rather than countenance a practicewhich violates the spirit of the legal safeguard. Like the earlierLaw Commission, we feel that 15 days is perhaps too short, andwe propose therefore to follow the recommendation in theFourteenth Report that the maximum period under Section 167should be fixed at 60 days. We are aware of the danger that suchan extension may result in the maximum period becoming the rulein every case as a matter of routine; but we trust that propersupervision by the superior courts will prevent that. We proposeaccordingly to revise sub-sections (2) and (4) of Section 167 asfollows:

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A‘167. (2) The Magistrate to whom an accused person is forwardedunder this section may, whether he has or has not jurisdiction totry the case, from time to time authorise the detention of the accusedin such custody as such Magistrate thinks fit, for a term notexceeding fifteen days at a time and sixty days in the whole. Ifhe has no jurisdiction to try the case or commit it for trial, andBconsiders further detention unnecessary, he may order the accusedto be forwarded to a Magistrate having such jurisdiction:

Provided that—

(a) no Magistrate shall authorise detention in any custodyunder this section unless the accused is produced before him; C

(b) no Magistrate of the Second Class not speciallyempowered in this behalf by the High Court shall authorisedetention in the custody of the police.

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(4) Any Magistrate other than the Chief Judicial Magistratemaking such order shall forward a copy of his order, with hisreasons for making it, to the Chief Judicial Magistrate.’”

12. The recommendations of the Law Commission of India werecarefully examined and then accepted. The basic considerationsfor acceptance, as mentioned in the Statement of Objects andReasons dated 7-11-1970 for introducing the (new) Code ofCriminal Procedure, 1973 were:

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“3. The recommendations of the Commission were examinedcarefully by the Government, keeping in view among others, theFfollowing basic considerations—

(i) an accused person should get a fair trial in accordancewith the accepted principles of natural justice;

(ii) every effort should be made to avoid delay in investigationand trial which is harmful not only to the individuals involved butalso to society; and G

(iii) the procedure should not be complicated and should, to theutmost extent possible, ensure fair deal to the poorer sections ofthe community.

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The occasion has been availed of to consider and adopt whereappropriate suggestions received from other quarters, based onpractical experience of investigation and the working of criminalcourts.”

15. As observed by the Law Commission in paragraph 14.19 ofits 41[st] Report, a practice of doubtful legal validity had grown up wherePolice used to file before a Magistrate a preliminary or incomplete reportand the Magistrate, purporting to act under Section 344 of the Code ofCriminal Procedure, 1898 used to adjourn the proceeding and remandthe accused to custody. It was observed that such remand beyond thestatutory period fixed under Section 167 would lead to serious abuse andtherefore some time limit was required to be placed on the power of thepolice to obtain remand and as such the maximum period for completionof investigation was suggested. The objects and Reasons for introductionof new Code voiced similar concern.

16. The letter of and spirit behind enactment of Section 167 of theCode as it stands thus mandates that the investigation ought to becompleted within the period prescribed. Ideally, the investigation, goingby the provisions of the Code, ought to be completed within first 24hours itself. Further in terms of sub-section (1) of Section 167, if “itappears that the investigation cannot be completed within the period oftwenty-four hours fixed by Section 57” the concerned officer ought totransmit the entries in the diary relating to the case and at the same timeforward the accused to such Magistrate. Thereafter, it is for theMagistrate to consider whether the accused be remanded to custody ornot. Sub-Section (2) then prescribes certain limitations on the exerciseof the power of the Magistrate and the proviso stipulates that theMagistrate cannot authorize detention of the accused in custody for totalperiod exceeding 90 or 60 days, as the case may be. It is further stipulatedthat on the expiry of such period of 90 and 60 days, as the case may be,the accused person shall be released on bail, if he is prepared to anddoes furnish bail.

17. The provision has a definite purpose in that; on the basis ofthe material relating to investigation, the Magistrate ought to be in aposition to proceed with the matter. It is thus clearly indicated that thestage of investigation ought to be confined to 90 or 60 days, as the casemay be, and thereafter the issue relating to the custody of the accused A

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Aought to be dealt with by the Magistrate on the basis of the investigation.Matters and issues relating to liberty and whether the person accused ofa charge ought to be confined or not, must be decided by the Magistrateand not by the Police. The further custody of such person ought not tobe guided by mere suspicion that he may have committed an offence orfor that matter, to facilitate pending investigation.B

18. In the present case as on the 90[th] day, there were no papersor the charge-sheet in terms of Section 173 of the Code for the concernedMagistrate to assess the situation whether on merits the accused wasrequired to be remanded to further custody. Though the charge-sheet interms of Section 173 came to be filed on 05.07.2018, such filing notCbeing in terms of the order passed by the High Court on 03.07.2018, thepapers were returned to the Investigating Officer. Perhaps it wouldhave been better if the Public Prosecutor had informed the High Courton 03.07.2018 itself that the period for completing the investigation wascoming to a close. He could also have submitted that the papers relatingDto investigation be filed within the time prescribed and a call couldthereafter be taken by the Superior Gazetted Officer whether the matterrequired further investigation in terms of Section 173(8) of the Code ornot. That would have been an ideal situation. But we have to considerthe actual effect of the circumstances that got unfolded. The fact of thematter is that as on completion of 90 days of prescribed period underESection 167 of the Code there were no papers of investigation beforethe concerned Magistrate. The accused were thus denied of protectionestablished by law. The issue of their custody had to be considered onmerits by the concerned Magistrate and they could not be simply remandedto custody dehors such consideration. In our considered view theFsubmission advanced by Mr. Dave, learned Advocate therefore has tobe accepted. We now turn to the subsidiary issue, namely, whether theHigh Court could have extended the period. The provisions of the Codedo not empower anyone to extend the period within which theinvestigation must be completed nor does it admit of any such eventuality.

There are enactments such as the Terrorist and DisruptiveGActivities (Prevention) Act, 1985 and Maharashtra Control of OrganisedCrime Act, 1999 which clearly contemplate extension of period and tothat extent those enactments have modified the provisions of the Codeincluding Section 167. In the absence of any such similar provisionempowering the Court to extend the period, no Court could either directlyH

or indirectly extend such period. In any event of the matter all that theHigh Court had recorded in its order dated 03.07.2018 was the submissionthat the investigation would be completed within two months by a GazettedPolice Officer. The order does not indicate that it was brought to thenotice of the High Court that the period for completing the investigationwas coming to an end. Mere recording of submission of the PublicProsecutor could not be taken to be an order granting extension. Wethus reject the submissions in that behalf advanced by the learned Counselfor the State and the complainant.

In our considered view the accused having shown their willingness to beadmitted to the benefits of bail and having filed an appropriate application,an indefeasible right did accrue in their favour.

19. We must at this stage note an important feature. In RakeshKumar Paul (supra), in his conclusions, Madan B. Lokur, J. observed inpara 49 as under:

“49. The petitioner is held entitled to the grant of “default bail” onthe facts and in the circumstances of this case. The trial Judgeshould release the petitioner on “default bail” on such terms andconditions as may be reasonable. However, we make it clear thatthis does not prohibit or otherwise prevent the arrest or re-arrestof the petitioner on cogent grounds in respect of the subject chargeand upon arrest or re-arrest, the petitioner is entitled to petitionfor grant of regular bail which application should be consideredon its own merit. We also make it clear that this will not impact onthe arrest of the petitioner in any other case.”

In his concurring judgment, Deepak Gupta, J. agreed[10] withconclusions drawn and directions given by Madan B. Lokur, J. inparagraphs 49 to 51 of his judgment. According to the aforesaidconclusions, it would not prohibit or otherwise prevent the arrest or re-arrest of the accused on cogent grounds in respect of charge in questionand upon arrest or re-arrest the accused would be entitled to petition forgrant of regular bail which application would then be considered on itsown merit.

20. We, therefore, allow this appeal and direct that the appellantsare entitled to be admitted to bail in terms of Section 167(2) of the Code 10 Para 86 of the Judgment of Hon’ble Deepak Gupta A

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Aon such conditions as the trial Court may deem appropriate. The mattershall be immediately placed before the trial court upon receipt of copy ofthis Judgment. We also add that in terms of conclusions arrived at in themajority Judgment of this Court in Rakesh Kumar Paul (supra), therewould be no prohibition for arrest or re-arrest of the appellants on cogentgrounds and in such eventuality, the appellants would be entitled to petitionBfor grant of regular bail.

21. The appeal thus stands allowed.

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Appeal allowed.

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