Full Judgment Text
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CASE NO.:
Appeal (crl.) 1227 of 2001
PETITIONER:
STATE OF MAHARASHTRA
Vs.
RESPONDENT:
MRS. BHARATI CHANDMAL VARMA @ AYESHA KHAN
DATE OF JUDGMENT: 04/12/2001
BENCH:
K.T. Thomas & S.N. Phukan
JUDGMENT:
THOMAS, J.
Leave granted.
A huge quantity of counterfeit notes of Rs.500 digit
has been intercepted by the authorities and a case was
registered by the Thane Police, Maharashtra. A number of
persons were arrested in connection with the said racket.
We are now concerned only with the arrest of a lady by name
Ayesha Khan (also called Smt. Bharati Chandmal Varma) the
respondent in this case. After the arrest she was produced
before the Metropolitan Magistrate who remanded her to
custody. As a charge sheet was not laid within 90 days
thereof she applied for being released on bail as per the
proviso to Section 167(2) of the Code of Criminal Procedure
(for short the Code). Though the Metropolitan Magistrate
disallowed her prayer a single Judge of the High Court of
Bombay allowed her to be released on bail solely on the
aforesaid ground. The said order of the High Court is now
being challenged by the State of Maharashtra.
The main contention of the State is that the period of
90 days envisaged in Section 167(2) of the Code should be
reckoned from the date when the police started
investigation into the offences under the Maharashtra
Control of Organised Crime Act, 1999 (its acronym is MCOC).
For considering the aforesaid contention more details
of the facts are necessary. Respondent was arrested on
1.4.2001 for the offences under Sections 489A 489B, 489C
120B and 420 of the Indian Penal Code. She was produced
before the Metropolitan Magistrate on 2.4.2001 and he
remanded the respondent to police custody first and later
to judicial custody. During the investigation police
discovered that organised crimes under MCOC Act had also
been committed and the respondent was one of the links
connected with foreign collaborators in pumping such
counterfeit currency notes into India. The investigating
agency sought sanction of the authorities under the MCOC
Act for conducting investigation under the said Act. Such
sanction was granted on 21.4.2001 and thenceforth
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investigation was conducted into the offences under the
MCOC Act also. Finally the charge-sheet was laid on
12.7.2001.
Respondent moved for bail principally on the ground
that charge sheet was not laid within 90 days. If the
period of 90 days is to be reckoned from 2.4.2001 there is
no doubt that respondent is entitled to bail under the
proviso to Section 167(2) of the Code. Sub-section (1) of
Section 167 of the Code enjoins that the arrested person
shall be produced before a magistrate if his detention is
required for a period beyond 24 hours and any further
custody of that person can be made only if the magistrate
authorises to do so. Sub-section (2) empowers the
magistrate to authorise the arrested person to be detained
in custody for a term not exceeding 15 days and a
magistrate having jurisdiction to try the case or commit
the case for trial is empowered to authorise detention of
the accused person even beyond the period of 15 days, if
the magistrate is satisfied that there are adequate grounds
for doing so. Nonetheless, such magistrate cannot
authorise detention for a total period exceeding 90 days
where the investigation relates to an offence punishable
with imprisonment for a term of not less than 10 years. As
the proviso to Section 167(2) is the hub of the plea made
by the respondent we find it necessary to extract it here.
It reads thus:
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 so, but no Magistrate shall authorise
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 less 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.
{Sub clauses (b) and (c) of the proviso are not relevant
now and hence they are omitted}.
If the position remained under the said proviso the
respondent has no difficulty to have the impugned order
sustained because the appellant State cannot, by any
stretch of imagination, show that charge-sheet was laid
within 90 days from the date she was remanded to the
custody at the first instance. But the endeavour of the
State was to show that the said proviso can now be read
only subject to the modifications made by the MCOC Act.
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Section 21 of the MCOC Act made modifications of the
application of Section 167(2) of the Code. It is useful to
extract Section 21 of that Act. It reads thus:
21. Modified application of certain
provisions of the Code.
(1) Notwithstanding anything contained in
the Code or in any other law, every
offence punishable under this Act,
shall be deemed to be a cognizable
offence within the meaning of clause
(c) of section 2 of the Code and
cognizable case as defined in that
clause shall be construed accordingly.
(2) Section 167 of the Code shall apply in
relation to a case involving an offence
punishable under this Act subject to
the modifications that, in sub-section
(2),--
(a) the reference to fifteen days
and sixty days wherever they occur,
shall be construed as references to
thirty days and ninety days
respectively.
(b) after the proviso, the following
proviso shall be inserted, namely:-
Provided further that if it is not
possible to complete the investigation
within the said period of ninety days,
the Special Court shall extend the said
period upto one hundred and eighty
days, on the report of the Public
Prosecutor indicating the progress of
the investigation and the specific
reasons for the detention of the
accused beyond the said period of
ninety days.
(3) Nothing in section 438 of the Code
shall apply in relation to any case
involving the arrest of any person on
an accusation of having committed an
offence punishable under this Act.
(4) Notwithstanding anything contained in
the Code, no person accused of an
offence punishable under this Act
shall, if in custody, be released on
bail or on his own bond, unless-
(a) the Public Prosecutor has been given
an opportunity to oppose the
application of such release; and
(b) where the Public Prosecutor opposes
the application, the Court is
satisfied that there are reasonable
grounds for believing that he is not
guilty of such offence and that he is
not likely to commit any offence
while on bail.
(5) Notwithstanding anything contained in
the Code, the accused shall not be
granted bail if it is noticed by the
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Court that he was on bail in an offence
under this Act, or under any other Act,
on the date of the offence in question.
(6) The limitations on granting of bail
specified in sub-section (4) are in
addition to the limitations under the
Code or any other law for the time
being in force on the granting of bail.
(7) The police officer seeking the custody
of any person for pre-indictment or
pre-trial interrogation from the
judicial custody shall file a written
statement explaining the reason for
seeking such custody and also for the
delay, if any in seeking the police
custody.
It is admitted by the learned senior counsel for the
State of Maharashtra that the Public Prosecutor has not
filed any report before the Special Court showing reasons
for the detention of the respondent beyond 90 days from the
date of the first remand order. Hence they are disabled
from contending that the proviso to Section 21(2) of the
MCOC Act would enable the investigating agency to have the
pre-trial custody of the respondent extended beyond 90
days. In order to circumvent the said hurdle learned
counsel adopted a two-fold contention. First is that the
period of 90 days can be reckoned from 21.4.2001 (the date
when the investigation was allowed to be conducted for the
offence under the MCOC Act). Second is that the provision
regarding bail under the said Act is very stringent as
quoted above and the High Court did not consider it from
the said angle.
The second limb of the said contention need not bother
us at the present stage as that would become germane only
when any motion for bail is made de hors Section 167(2) of
the Code. For that purpose we may refer to the decision of
a three Judge Bench of this Court in Uday Mohanlal Acharya
vs. State of Maharashtra{2001 (5) SCC 453}. Pattanaik J.,
who spoke for the majority view, pointed out that even in
cases where the accused who is entitled to be released on
bail under the proviso to Section 167(2) of the Code can be
dealt with by the magistrate concerned by remanding into
custody subject to all the provisions of the Code relating
to bail etc. This is what the learned Judges have stated on
that aspect.
Such an accused, who thus is entitled to be
released on bail in enforcement of his
indefeasible right will, however, have to be
produced before the Magistrate on a charge-
sheet being filed in accordance with Section
209 and the Magistrate must deal with him in
the matter of remand to custody subject to
the provisions of the Code relating to bail
and subject to the provisions of
cancellation of bail, already granted in
accordance with the law laid down by this
Court in the case of Mohd. Iqbal v. State of
Maharashtra{1996 (1) SCC 722}.
So we leave the second limb of the contention without
expressing any opinion on the merits since it is open to
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the court concerned to consider that aspect when any motion
is made in that behalf.
Dealing with the first limb of the contention learned
counsel elaborated it by reference to Section 23(1) of the
MCOC Act, which contains an embargo that notwithstanding
anything contained in the Code no information about the
commission of an offence of organised crime under this Act,
shall be recorded by a police officer without the prior
approval of the police officer not below the rank of the
Deputy Inspector General of Police. Hence it was
submitted that investigation was impermissible until the
approval has been accorded and its corollary is that the
period for completion of investigation could be counted
only from the date when investigation could legally be
commenced.
For the application of the proviso to Section 167(2)
of the Code there is no necessity to consider when the
investigation could legally have commenced. That proviso
is intended only for keeping an arrested person under
detention for the purpose of investigation and the
legislature has provided a maximum period for such
detention. On the expiry of the said period the further
custody becomes unauthorized and hence it is mandated that
the arrested person shall be released on bail if he is
prepared to and does furnish bail. It may be a different
position if the same accused was found to have involved in
some other offence disconnected from the offence for which
he was arrested. In such an eventuality the officer
investigating such second offence can exercise the power of
arresting him in connection with the second case. But if
the investigation into the offence for which he was
arrested initially had revealed other ramifications
associated therewith, any further investigation would
continue to relate to the same arrest and hence the period
envisaged in the proviso to Section 167(2) would remain
unextendable.
We are, therefore, unable to agree with the contention
of the learned counsel for the State of Maharashtra that a
new period of 90 days would commence from the date when
approval was accorded under Section 23 of the MCOC Act for
initiating investigation for any offence under the said
Act. In the present case, accused would be entitled to
bail, not on the merits of the case, but on account of the
default of the investigating agency to complete the
investigation within 90 days from the date of the first
remand of the respondent.
We, therefore, dismiss this appeal without prejudice
to the right of the prosecution to move for cancellation of
the bail in the manner indicated by this Court in Uday
Mohanlal Acharya vs. State of Maharashtra (supra), the
relevant portion of which has been extracted above.
As the respondent has been taken back to jail when the
impugned order was suspended we direct the jail authorities
to release her on the strength of the bail bond which she
had executed pursuant to the order of the High Court. Such
bail bond would thus revive and could be enforced as and
when necessary. The appeal is thus dismissed.
J
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[ K.T. Thomas ]
J
[ S.N. Phukan ]
December 4, 2001.