Wednesday, November 30, 2022

Allahabad High Court allows bail, quashes order passed by CJM Prayagraj

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The Allahabad High Court has quashed the order passed by the Chief Judicial Magistrate, Prayagraj while observing that an accused gets an indefeasible right to default bail if he makes an application after the maximum period for investigation of an offence is over, and before a charge sheet is filed.

A Single Bench of Justice Syed Aftab Husain Rizvi passed this order while hearing an application U/s 482 filed by Anwar Ali.

The application U/s 482 CrPC is filed to quash/ set aside the order dated 25.11.2021 passed in connection with default bail application filed under Section 167(2) CrPC in case under Section 302, 397/34 IPC, PS Mauaima, District Prayagraj by the CJM Allahabad.

It is further prayed that the applicant be released on bail in the aforesaid case crime.

On 19.07.2019 at 13:40 hrs, an FIR was lodged by informant Naveen Kumar Jaiswal against three unknown motorcycle riders registered as case crime no.327 of 2019 under Section 397 and 302 IPC at PS Mauaima, Prayagraj with respect to the incident dated 19.07.2019 at 9:40 am with regard to loot and murder of Anil Dohre, Branch Manager, Allahabad Bank.

During the course of investigation, the name of the applicant came to light. He moved an application for surrender and on the basis of a police report, the applicant surrendered on 26.08.2021 and taken into judicial custody and sent to jail.

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The counsel for the applicant submitted that even after completion of 90 days on 24.11.2021 from the first date of judicial remand, the Investigating Officer has not filed a police report under Section 173(2) CrPC against the applicant.

On 25.11.2021 at 10:00 am the applicant applied for default bail under Section 167 (2) CrPC. The Chief Judicial Magistrate passed an order and called a report from the Additional Public Prosecutor order dated 25.11.2021. In compliance of the aforesaid order, the Additional Public prosecutor submitted its report, thereafter he submitted another report before the Chief Judicial Magistrate, Allahabad. In the intervening time of two reports of the Additional Public Prosecutor, the Investigating Officer has enough time to submit a charge-sheet in the case against the applicant. The Chief Judicial Magistrate after receiving the copy of the police report/charge-sheet registered it as case no 13041 of 2021 and took cognizance but the reference of the offence is not mentioned therein. So this cognizance order is illegal.

The Chief Judicial Magistrate has authorized the detention of the applicant against the procedure established by law in violation of Article 21 of the Constitution. On 25.11.2021, the Chief Judicial Magistrate after receiving the second report, submitted by Additional Public Prosecutor, heard and rejected the default bail application of the applicant-accused.

The counsel further contended that till the filing of the default bail application and inasmuch as also the first report submitted by Additional Public Prosecutor, the Investigating Officer has not submitted the charge-sheet, whereas according to Section 167 (2) CrPC the prescribed time limit i.e 90 days has already expired on 24.11.2021.

The second report dated 25.11.2021 submitted by the Additional Public Prosecutor reveals that the Investigating Officer was called to submit a charge-sheet. The Chief Judicial Magistrate has awaited for second report submitted by Additional Public Prosecutor and after receiving thereof, heard and rejected the default bail application, whereas the Chief Judicial Magistrate ought to hear and decide the default bail application on the basis of first report dated 25.11.2021 submitted by Additional Public Prosecutor. The Chief Judicial Magistrate only in order to anyhow extinguish the statutory/ fundamental right of the applicant for default bail has awaited for a second report, whereas the applicant has already availed the remedy and made out a case of default bail prior to the submission of the charge-sheet.

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Thus, the right of default bail of the applicant cannot be extinguished but even though the Chief Judicial Magistrate has denied the applicant, his statutory as well as fundamental right as provided in Section 167(2) CrPC and Article 21 of the Constitution of India respectively. The impugned order dated 25.11.2021 is against the procedure established by law and is sans of merit and not sustainable in the eye of law.

Applicant undertakes that if he is released on bail, he will neither abscond nor tamper the prosecution case and not misuse the liberty of bail and will abide by the terms and conditions if so imposed by the Court.

Counsel further submitted that an indefeasible right has accrued to the applicant. Charge-sheet has been filed after moving the bail application. Hence impugned order is perverse and against the law.

AGA opposing the application submitted that order is perfectly just and legal. The Magistrate has not committed any illegality in rejecting the default bail application. The reasoning recorded by the Magistrate cannot be said to be illegal, perverse or erroneous which is based on a judgment in Pragyna Singh Thakur’s case (Supra) and Constitution Bench Judgment of Sanjay Dutt’s case.

“It is undisputed that the accused has surrendered on 26.08.2020 and was remanded to judicial custody on the same date while a charge-sheet has been filed on 25.11.2021. A three Judge Bench in M Ravindran (Supra) has observed that while computing the period of 90 days under Section 167(2) CrPC the date on which the accused was remanded to judicial custody has to be excluded and the date on which charge-sheet is filed has to be included. This period of 90 days will expire on 24.11.2021. The charge-sheet has been submitted on 25.11.2021. It is also established from the record that on 25.11.02021 before filing the charge-sheet, the accused applicant moved the bail application on which a report was called by the Magistrate from the Public Prosecutor. He submitted his report. Thereafter a second report was submitted and meanwhile, a charge-sheet was filed. So it is established that the accused-applicant has availed his right of bail before filing of charge-sheet. It does not matter whether any order has been passed on the aforesaid application or not.

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From the above discussion, it is clear that the charge-sheet has been submitted after a statutory period of 90 days and before filing the charge-sheet, the accused has moved for bail. Subsequent filing of chargesheet will not defeat the indefeasible right accrued to the applicant-accused. The Magistrate has failed to appreciate the facts and law on the point and order passed by the Magistrate is against the law,” the Court observed while allowing the  application U/s 482 Cr.P.C.

The Court ordered,

Accordingly, the order dated 25.11.2021 passed by Chief Judicial Magistrate, Prayagraj is hereby quashed. Application for default bail filed by applicant shall stand allowed. Accordingly, the applicant shall be released on bail on his furnishing a personal bond and two sureties of like amount to the satisfaction of court concerned. However, in the interest of justice following conditions are also imposed.

(i) The applicant shall file an undertaking to the effect that he shall not seek any adjournment on the date fixed for evidence when the witnesses are present in court. In case of default of this condition, it shall be open for the trial court to treat it as abuse of liberty of bail and pass orders in accordance with law.

(ii) The applicant shall remain present before the trial court on each date fixed, either personally or through his counsel. In case of his absence, without sufficient cause, the trial court may proceed against him under section 229-A I.P.C.

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(iii) In case, the applicant misuses the liberty of bail during trial and in order to secure his presence proclamation under section 82 Cr.P.C, may be issued and if applicant fails to appear before the court on the date fixed in such proclamation, then, the trial court shall initiate proceedings against him, in accordance with law, under section 174-A I.P.C.

(iv) The applicant shall remain present, in person, before the trial court on dates fixed for (1) opening of the case, (2) framing of charge and (3) recording of statement under section 313 Cr.P.C. If in the opinion of the trial court absence of the applicant is deliberate or without sufficient cause, then it shall be open for the trial court to treat such default as abuse of liberty of bail and proceed against him in accordance with law.

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