PRAYER IN CRIMINAL ORIGINAL PETITION
Criminal Original Petition is filed under section 482 of the Criminal Procedure Code, to call for the records pertaining to the impugned order passed in Cr.M.P No.2961 of 2022, dated 10/02/2023 in Crime No.705 of 2022 pending on the file of the Judicial Magistrate No.1, Thanjavur and set aside the same.
2.The facts in brief
The petitioner is arrayed as an accused in Crime No.705 of 2022. The offence alleged against him is that he has stolen 6 kgs of gold and cash Rs.14,92,000/- from the de-facto complainant. He was arrested and remanded to custody. Since final report was not filed within the time stipulated, he moved application under section 167(2) of the Criminal Procedure Code, on 30/11/2022 for granting statutory bail.
3.That was allowed by the trial court, by order, dated 01/12/2022. On the date of presentation of the petition, namely 30/11/2022, the respondent filed final report on the same day itself. Finding that statutory bail cannot be refused to the petitioner, since the period expired, he was granted bail with certain conditions, which reads as follows:-
(a)The petitioner/accused shall execute a bond for a sum of Rs.25,000/- (Rupees Twenty Five thousand only) with two sureties each for a like sum to the satisfaction of this court.
(b)The petitioner/accused shall appear and sign before this court every day from the date of his release, until further orders.
(c)The petitioner/accused shall not tamper any evidence, he shall not make any undue influence upon the witnesses, and he shall not indulge in similar or any offences in future.
But he could not arrange sureties immediately. Later after arrangement of the sureties, he filed the above said 2nd surety application, on 09/02/2023. The right of the petitioner to execute the bond was questioned by the trial court as well as by the prosecution. On that account, the trial court heard both sides. After going through the earlier orders and the order of the coordinate bench of this court in Spurgeon Samuel Vs. Inspector of Police, Nagercoil and another; and the Division Bench order in Crl.OP(MD)No.7736 of 2021, dated 23/12/2021, was of the view that the statutory bail that was granted to the petitioner got extinguished because of his failure to furnish surety. By relying upon the above said order, again, the above said surety application was returned, by order, dated 10/02/2023.
3.Challenging the above said order, this petition has been filed.
5.The history of evaluation of right to default bail under section 167(2) of the Criminal Procedure Code has been extensively stated in the judgment reported in M.Ravindran vs. Intelligence Officer, Directorate of Revenue Intelligence [(2021)2 SCC 485]. I am not going to extract the relevant portion in this order, since the question involved here is different.
6.Now we are dealing with the extinguishment of right.
7.When a right is created, inherently in it are, restrictions, regulations and extinguishments, how the law developed on the point of extinguishment of right is also covered in M.Ravindran’s case.
8.The law developed in this way, in hitendra vishnu [Hitendra Vishnu Thakur Vs. State of Maharashtra – (1994)4 SCC 602]. The issue arose in this way, the scope of section 20(4)(bb) of the Terrorist and Disruptive Activities (Prevention) Act, 1987 r/w 161(2) Cr.P.C came up for consideration. The court was of the view that the accused must make an application and the court must release the accused on bail, if the time limit expired for filing the final report without going into the merits of the case, of course, by giving notice to the Public Prosecutor. Even remand can be refused or declined. It was also noted that it is obligatory on the part of the accused to file application. But later necessity of filing a formal application was diluted, which we are not concerned here.
9.The prosecution was not satisfied with the above said proposition laid. So again issue arose and the decision in Hitendra Vishnu Thakur Vs. State of Maharashtra [(1994)4 SCC 602] was challenged before the Constitution Bench of the Hon’ble Supreme Court in sunjay dutt case – Sanjay Dutt Vs. State [(1994)5 SCC 410] on the same year itself. The question was, whether the above said right is available to the accused, even after filing of the final report, of course, after the expiry of the limitation period. The Constitution Bench settled the issue, in this way,
“…………..”
10.Again, the issue did not settle. Again issue arose to the interpretation of the phrase ‘if not already availed of, that was clarified in the Three Judges Bench in uday mohanlal acharya Uday Mohanlal Acharya Vs. State of Maharashtra [(2001)5 SCC 453].
11.The answer was like this:-
“if not already availed of’ used by this Court in Sanjay Dutt (1994)5 SCC 410 must be understood to mean “when the accused files an application and is prepared to offer bail on being directed.”
12.It was answered that the right will not extinguish, even though such application was not considered, has not indicated the terms and conditions of bail, the accused yet to furnish the bail. Meaning of this, is very clear. Mere filing of the petition is enough to enforce the right to get the default bail. Pendency, date of order and the date of furnishing of the bail bails are not relevant factors. But however, a minority view has also been made in the above said Uday Mohanlal Acharya’s case to the effect that the right can be exercised only on furnishing the bail bonds. The order of right can be enforced only before passing of the order and producing the bail bonds. But however, only majority view will survive, which was also a matter for consideration in the above said M.Ravindran’s case, the danger in adopting the view.
13.The issue before the Hon’be Supreme Court in M.Ravindran’s case arose in this way; the accused in that case, on the expiry of the statutory of 180 days, filed bail application on 01/02/2019 at about 10.30 am. Arguments were heard and at about 4.25 pm, on the same day, challan was filed by the prosecution. The court was requested to dismiss the application. But the trial court allowed the bail application as it happened in this matter also.
14.It was taken on appeal by the prosecution. This High Court set aside the order of the trial court on the ground that since additional complaint was filed on 01/02/2019 and the application was not disposed till the presentation of the challen, the right automatically extinguished. It was taken to the Hon’ble Supreme Court. The argument of the Government is that the date of disposal of the bail application is the deciding factor to see whether the right extinguished or not. This argument was answered by the Hon’ble Supreme Court in this way,
“18.7. ……….”
15.The above said point was answered by concluding that right will not extinguish because of the pendency of the bail application or bail or delay in furnishing the bail bonds.
16.The secondary question, which was answered by the Hon’ble Supreme Court in the above said M.Ravindran’s case is, the real meaning of the explanation to proviso to 167(2) Cr.P.C., which is not relevant for reconsideration here.
17.Para 19.1 is relevant for extraction:-
“19.1…………..”
consequently the argument of the Government was rejected. So this fixes the entire issue, now under the discussion in this matter.
18.So the right will extinguish, if the accused fails to furnish the bail bond within the time stipulated or when there is violation of the conditions imposed. Here arises the difficulty. As mentioned above, the trial court has not imposed any condition to furnish the bail bonds. It was kept pending for furnishing bail bonds. In the meantime, revision was preferred by the accused, it was withdrawn, later first surety application was presented, it was returned. Again another surety application was filed and that was also returned by making the above said observation, based upon the judgement of the coordinate bench of this court in Spurgeon Samuel’s case as well as the order of the Division Bench Judge in Kannan @ Senthil @ Kumar @ Minnal’s case.
19.But whether any time limit was imposed by the trial court is not clear on record, so far as the Spurgeon Samuel’s case is concerned. More-over before furnishing of the surety bond, the bail was cancelled on the basis of the order passed in Crl.MP No.531 of 2022. More-over, no occasion has arisen in the above said matter as to whether the right will extinguish on failure to furnish the bail bond immediately or within a reasonable time, since no time limit imposed. Similarly, in Kannan @ Senthil @ Kumar @ Minnal’s case, the right was exercised to execute the bond after four years from the date of the order. In the meantime, crime was altered and much water has flown. But in the above said order, no time limit was imposed by the trial court, that was sought to be taken advantage by the accused and contended before the Division Bench that he can exercise the right at any time at his Will and Wish. But that was not accepted by the Division Bench of this court.
20.When the Hon’ble Supreme Court is of the considered view that right will extinguish on failure to comply the condition in furnishing the bail bond within the time stipulated. No occasion has arisen before the Hon’ble Supreme Court as to what will be the result if no time limit is imposed by the trial courts.
21.No doubt that if no time limit is prescribed by the court, it means that it must be performed either immediately or within a reasonable time. What is the reasonable time cannot be defined and it depends upon the facts and circumstances as well as the position of the accused.
22.As has been stated here, according to the pettioner, the delay occurred due to his inability to arrange sureties since he belongs to northern India. Of course, it is a genuine reason. The question which arises for consideration is, whether even if genuine reason is available to the accused, the right which already accrued, should and will extinguish. But I am of the considered view that it should not. If such a course is adopted, as pointed out by the Hon’ble Supreme Court in number of judgments, it will defeat the very purpose, reason and import of the statutory provisions under section 167(2) Cr.P.C.
23.Now, we have to answer another issue also, whether the accused can be given free hand to exercise the right at his will and convenience. The answer should be NO. Similarly, he should not also be denied the bail due to his inability to furnish the sureties either immediately or within a reasonable time if no time is stipulated, if genuine, true and valid reasons are available.
24.To over come this sort of difficulties, it is always advisable that reasonable time limit is imposed by the trial courts, while granting bail under section 167(2) Cr.P.C.
26.So by following the Ravindran’s case, this criminal original petition is liable to be allowed and accordingly, it is allowed and the return order passed by the trial court is set aside. The trial court is directed to restore the above said surety petition on its file and decide the same in the light of the above direction.
PARTY: Punaekkar Seetharaman Dikule vs. The State rep. by The Inspector of Police, Town West Police Station, Thanjavur, (Crime No.705 of 2022) – Crl.OP(MD)No.4432 of 2023 – 21/03/2023 – THE HON’BLE MR JUSTICE G.ILANGOVAN
https://www.mhc.tn.gov.in/judis/index.php/casestatus/viewpdf/872803
