A) Procedural aspect of recording of evidence in absence of the accused and it's evidential value (Section 299 of the Code of Criminal Procedure)
B) Separation of trial
C)Bail in default as contemplated under Section 167 of the Code of Criminal Procedure.
@1
INTRODUCTION
Speedy trial is the essence of criminal justice and there can be no doubt that delay in trial by itself constitutes denial of justice. In Abdul Rehman Antulay Vrs. R.S. Nayak, AIR 1992 SC 1701, the Hon'ble Apex Court held that, ''right to Speedy Trial flowing from Article 21 encompasses all the stages, namely the stage of investigation, inquiry, trial, appeal, revision and retrial''. The Criminal Procedure Code in sections 167, 209 and 309 has emphasised the importance of expeditious disposal of cases including investigations and trials. The object of section 167 of the Code is to exert pressure on the organs of prosecution, to make every effort to ensure detection and punishment of crime quickly. The aim is to prevent vexatious and belated prosecutions, clearly in consonance with the concept of fairness of trial enshrined in Article 21 of the Constitution. The object of section 299 of the Code is to procure and preserve the evidence to prevent its loss. This provision is based upon the principle of waiver by conduct.
2) The court may separate the trial to achieve goal of speedy justice, if the case is delayed due to reason that co-accused is absconded or for any other reasons.
@2
A] RECORDING OF EVIDENCE IN ABSENCE OF THE ACCUSED
2. As per Section 273 of the Code of Criminal Procedure, except as otherwise expressly provided, all evidence shall be taken in the presence of the accused or when his personal attendance is dispensed with, in the presence of his pleader. It is general rule of recording of evidence in presence of the accused or his pleader. The provision under section 299 of the Code of Criminal Procedure is exception to the said general rule.
3. Section 299 (1) of the Code of Criminal Procedure consists of two parts; the first part speaks of the circumstances under which witnesses
produced by the prosecution may be examined in the absence of the accused and the second part the circumstances when such deposition can be given in evidence against the accused in any inquiry or trial for the offence for which he is charged.
@3
4. First Part :- As per Section 299 (1) of the Code, the Court competent to try or commit for trial may examine witnesses in absence of the accused in following circumstances :-when it is proved that -i) an accused person has absconded and,
ii) there is no immediate prospect of arresting him.
5. Two conditions that the accused has absconded and there is no immediate prospect of arresting him shall be proved before proceeding under Section 299 of the Code.
6. The word “absconded” is not defined in the Code. In Jayendra Vishnu Thakur Vs. State of Maharashtra, (2009) 7 SCC 104, it has been held that,
“ The term `absconding' has been defined in several dictionaries. We may refer to some of them. `Black's Law Dictionary - To depart secretly or suddenly, esp. to avoid arrest, prosecution or service of process. P. Ramanatha Aiyar - primary meaning of word is `to hide'. Oxford English Dictionary - `To bide or sow away'. Words and phrases - `clandestine manner/intent to avoid legal process'.”
@4
7. In case of Manish Kumar Agrawal Vs. C.B.I,
MANU/DE/356/2011, the accused was out of country and process of extradition was in progress. The Hon'ble Delhi High Court held that, “there can be no dispute that the co-accused is absconding as he is avoiding the process.”
8. Second condition is that there is no immediate prospect of arrest of the accused. It is not only sufficient that the accused has absconded but second condition shall also be proved.
9. Thus, if upon considering material before it, which may be report of warrant and proclamation or statements of witnesses recorded by police, it is proved that the accused has absconded and there is no 4 immediate prospect of arresting him, the Court may examine witnesses in absence of the accused.
@5
10. Second Part :- Such depositions may, on the arrest of such person, be given in evidence against the accused in any enquiry or trial for the offence for which he is charged if :-
a) the deponent is dead or,
b) incapable of giving evidence or,
c) cannot be found or,
d) his presence cannot be procured without an amount of delay, expense or inconvenience which, under the circumstances of the case, would be unreasonable.
11. It is principle of natural justice that the accused shall get opportunity to cross examine witnesses examined by the prosecution. The accused has statutory right of cross examination. As per provision under Section 299 of the Code, if conditions under first and second part are satisfied, deposition of the witness without cross examination may be given in evidence against the accused. Therefore, strict compliance of preconditions given in said section is necessary.
@6
EVIDENTIAL VALUE OF DEPOSITION U/ S. 299 OF THE CODE
12. The case of the absconding accused should be tried and decided on its own evidence unless the evidence was specially recorded under section 299 of the Code. The evidence recorded under section 299 of the Code would be treated as evidence subject to the conditions specified against the absconding accused, notwithstanding the fact that he had no opportunity to cross-examine the witness at the time the evidence was taken.
13. If upon arrest of the accused, the witnesses are available :- In such circumstances, the deposition under Section 299 of the Code cannot be used against the accused. Entire evidence i.e. examination-in-chief and cross examination, if any of witness shall be recorded. In such situation, deposition recorded under Section 299 of the Code becomes former statement of the witness and that can be used to contradict the witness as per Section 145 of the Evidence Act.
@7
14. In Baban S/O. Rakhmaji Bichkule Vs. State Of Maharashtra,
1998 (5) Bom.C.R. 813, the Hon'ble Bombay High Court held that,
“So, the normal rule is that the evidence must be recorded in the presence of the accused which is fully accepted under section 299 of the Cr.P.C. and only in exceptional circumstances mentioned in the section, evidence which is recorded in the absence of the accused can be used against him. In the present case, no such exceptional circumstances were prevailing. The witnesses were available. The witnesses were called in the Court. It was, therefore, necessary to record the entire evidence of those witnesses, examination in-chief as well as cross-examination, with respect to all matters on which the prosecution wanted to rely upon in the presence of accused Iliyas and then that evidence could have been used against him.”
@8
15. In some cases, the court directs separation of trial and proceed to record evidence without invoking section 299 of the Code. In such cases the prosecution is not called upon, nor it is expected to adduce evidence against the absconding co-accused. In such trial the prosecution cannot be held to have the opportunity or obligation to adduce all evidence against the absconding co-accused. In such cases, evidence cannot be used against 6 absconded accused. The absconded accused cannot be discharged or acquitted on the basis of such evidence though other accused were acquitted. Granting such relief to the absconded accused may give a wrong message to a law abiding citizens. In Inder Singh Bist vs State,
MANU/DE/3778/2012, the Hon'ble Delhi High Court observed that, Merely because some of the accused are acquitted in a trial separately held, the other accused is not entitled to benefit of acquittal order in all cases. It is settled law that where the evidence is inseparable and indivisible and on the same set of evidence the co-accused have been acquitted then the remaining accused need not face trial. However, if the evidence is separable and divisible and there are specific allegations and accusations against the accused who were not there in the case at the time of trial of co-accused who were acquitted, then it would be a subject matter of trial.
@9
16. However, situation would be different, if there is, no incriminating material against absconded accused in the evidence of prosecution witnesses recorded under section 299 of the Code. In such cases the prosecution had an opportunity or obligation to adduce all evidence against the absconding co-accused. None of the prosecution witnesses to the occurrence of incident as well as the victim supported the case of prosecution. They did no depose any incriminating fact against any of the accused. In such eventuality and in peculiar facts & circumstances, the absconded accused can be discharged or acquitted on the basis of evidence
recorded under section 299 of the Code. There is no restriction in section 299 of the Code to use such evidence in favour of the accused. It will save
the precious time of the Court and also avoid inconvenience caused to the witnesses by recalling them. In unreported judgment of the Hon'ble Kerala High Court in case of Sri. Reji, S/o. Kalappurakkal Sudesan Vs State Of Kerala, Crl. M.C No. 487 of 2008, it has been observed that, ''If that is so, the petitioner can very well seek a discharge by filing an appropriate petition before the learned Magistrate. If the petitioner files an application for a discharge within three weeks from today, the learned Magistrate shall consider the same without insisting on the personal appearance of the petitioner and shall pass appropriate orders taking into account the deposition of the first informant de-facto complainant, while examined under Section 299 Cr.P.C.''
@10
B] SEPARATION OF TRIAL :-
SEPARATION OF TRIAL U/S. 317 OF THE CODE
17. This provision has been designed to facilitate the progress of trial without insistence on the personal appearance of the accused in cases where the same can be dispensed with without prejudice to the accused or the complainant. Section 317 of the Code makes it quite clear that it is competent for a Judge to dispense with the attendance of an accused person, if the Judge is satisfied that the personal attendance of the accused before the court is not necessary in the interest of justice, or that the accused persistently disturbs the proceeding. The court may separate the trial, if the
accused in any such case is not represented by a pleader, or if the court considers his personal attendance necessary.
@11
SEPARATION OF TRIAL OF ABSCONDED ACCUSED
18. Section 317 of the Code of Criminal procedure does not contain entire law in respect separation of trial. Section 317 of the Code is also not exhaustive of all circumstances in which a direction for separation of trial can be made. It only enumerates some circumstances in which separate trial of one or more accused from that of the rest can be ordered. As per Section 218 of the Code, for every distinct offence, of which any person is accused, there shall be a separate charge and every charge shall be tried separately. As per section 223 of the Code, the accused persons as mentioned in clause (a) to (g) may be charged and tried together. The provision under Section 223 of the Code is applicable to case in which there are more than one accused. Thus, it is general rule that the accused persons may be charged separately if they not covered under category mentioned in clause (a) to (g). In said provision the word “may” is used. Therefore, it is discretion of the Court to try the accused persons separately or jointly. The discretion shall be used judiciously considering circumstances in each case. In Shaikh Shakil Shaikh Mohammad Vs. State of Maharashtra and Ors., 2015(1)Bom.C.R. (Cri)532, the learned magistrate rejected the application for separation of trial and observed that 'the case was triable as a Warrant Case and not a Summons Case', and that, therefore, there was no provision for enabling the Court to proceed in absence of the accused and only in presence of his Advocate, as such procedure could be adopted only in summons cases. He further observed that therefore, the provisions of section 317(2) of the Code of Criminal Procedure (hereinafter referred to as "the Code") were not applicable to the instant case. The Hon'ble Bombay High Court set aside the said order and observed that,
@12
6. These observations were strange for at least two reasons. The first is that section 317 does not deal with 'separation of trials' which is what the petitioner wanted; and therefore what made the Magistrate discuss the applicability of section 317 of the Code in the context of the petitioner's Application (Exhibit 43) is difficult to understand. The petitioner had not made any reference to the provisions of section 317(2) of the Code.
9 Moreover, section 317 of the Code, which is found in Chapter XXIV of the Code titled as "General Provisions As To Inquiries and Trials", applies to all the inquires and trials under the Code.
The Hon'ble High Court held that,
8. It may be recalled that the prosecution had no objection for separating the trial of the petitioner. In fact that appeared to be the only solution in the given situation. Part B of Chapter XVII of the Code deals with Joinder of Charges. Section 218 lays down the general rule that for every distinct offence of which any person is accused, there shall be a separate charge and every such charge shall be tried separately. The sections that follow section 218, make a joinder of charges, or of the accused persons, possible. Thus, the normal rule for trials is that there should be a separate trial in respect of each offence and each accused. It is only because of the enabling provisions in the Code that a joinder of charges or of the accused become possible. The law is that a joint trial may be held and not that it must be held. A Court is never obliged to hold a joint trial. Even where it can, it is open to it to hold separate trials for the various offences and offenders. Under the Code, separate trials are held under the general rule and joint trials have only been permitted under certain circumstances.
@13
9. So far as the joinder of accused persons is concerned, section 223 is the only section which deals with the joint trial of more than one person.
The section is merely an enabling provision and does not in any way affect the discretion of the Court. Because of permissive nature of the said provision, the Court retains a discretion to try certain persons either jointly or separately. Needless to say that such discretion should be exercised judicially.
@14
SEPARATE TRIAL OF THE ACCUSED WHO ABSCONDED PRIOR TO FILING OF CHARGE-SHEET :-
(Chapter VI, Para No. 2 of the Criminal Manual)
19. In cases in which some accused are shown absconding in the charge-sheet filed by the police, the available accused is shown in column No.1 and absconding accused in red ink in Column No.2. In such cases, 10 some courts carry the impression that the cases of the absconding accused are also before the Court, while some think that they are not concerned with the case of the absconding accused and that the police would file a separate charge sheet for them. Thus, no uniformity is seen in the trial of the absconding accused. With a view to achieving uniformity in the trial of absconding accused, in Chapter VI of Criminal Manual, the Hon'ble Bombay High Court has given following directions, The Courts need not pass orders in respect of the accused shown as absconding in red ink in column No.2 of the charge-sheet filed by the police, since they are not before the court. However, if such accused are
traced during the pendency of the trial of the accused who is/are sent up to the court, the former should not be tried with the latter, if the prosecution evidence has already commenced. In such cases and in cases where the absconding accused is/are apprehended after the disposal of the trial, separate proceeding should be entered on a supplementary charge-sheet, submitted by the police as per Rule 218(3) of Bombay police Manual, 1959, volume III.
@15
20. In view of above directions it is clear that trial of the accused shown absconded in charge-sheet shall be proceeded separately on supplementary charge-sheet, if the prosecution evidence has already commenced or case is disposed off. The accused who absconded prior to filing charge-sheet may be charged and tried together with other accused, if he is arrested/appeared before commencement of the prosecution evidence.
In Dinesh Dalmia Versus C.B.I, (2007) 8 SCC 770, the Hon'ble Apex Court held that, if the investigating officer finds sufficient evidence even against such an accused who had been absconding, in our opinion, law does not require that filing of the charge sheet must await the arrest of the accused.
@16
C] BAIL IN DEFAULT AS CONTEMPLATED U/S. 167 OF THE CODE
21. The Magistrate may authorize 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 authorize the detention of the accused person in custody 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.
@17
CALCULATION OF PERIOD OF 60 OR 90 DAYS22. In Chaganti Satyanarayana and Ors. Vs. State of Andhra Pradesh, AIR 1986 SC 2130, the Hon'ble Apex Court held that ''the total period of 90 days under Clause (i) and the total period of 60 days under Clause (ii) has to be calculated only from the date of remand and not from the date of arrest''.
23. The computation of period of 60 days or 90 days as contemplated in Section 167(2) has to be from the date of first remand (production before the Magistrate). The day of such production should be excluded and the day of filling of Charge-sheet should be included.
(State of M.P. v/s. Rustam 1995 suppl (3) SCC 221). 12 Interpretation of the expression ''offence punishable with imprisonment for a term of not less than ten years'' occurring in Section 167(2).
24. In Rajeev Chaudhary vs State (N.C.T.) Of Delhi AIR 2001 SC 2369, the Hon'ble Apex court held that ''the expression "not less than" would mean imprisonment should be 10 years or more and would cover only those offences for which punishment could be imprisonment for a clear period of 10 years or more.''
@18
EFFECT OF FILING OF CHARGE-SHEET ON RIGHT OF BAIL25. In Sanjay Dutt Vs. State 1994(5) SCC 410, the Hon'ble Apex Court has held;
“The indefeasible right accruing to the accused in such a situation is enforceable only prior to the filing of the challan and it does not survive or remain enforceable on the challan being filed, if already not availed of. Once the challan has been filed, the question of grant of bail has to be considered and decided only with reference to the merits of the case under the provisions relating to grant of bail to an accused after the filing of the challan. The custody of the accused after the challan has been filed is not governed by Section 167 but different provisions of the Cr.P.C. If that right had accrued to the accused but it remained
unenforced till the filing of the challan, then there is no question of its enforcement thereafter since it is extinguished the moment challan is filed because Section 167 Cr.P.C ceases to apply.”
@19
26. In Uday Mohanlal Acharya vs. State of Maharashtra, AIR 2001 SC 1910, the Hon'ble Apex Court has held:
The expression ‘if not already availed of’ used by this Court in Sanjay Dutt’s case (supra) must be understood to mean when the accused files an application and is prepared to offer bail on being directed. In other words, on expiry of the period specified in paragraph (a) of proviso to sub-section (2) of Section 167 if the accused files an application for bail and offers also to furnish the bail, on being directed, then it has to be held that the accused has availed of his indefeasible right even though 13 the Court has not considered the said application and has not indicated the terms and conditions of bail, and the accused has not furnished the same. With the aforesaid interpretation of the expression ‘availed of’ if charge-sheet is filed subsequent to the availing of the indefeasible right by the accused, then that right would not stand frustrated or extinguished, necessarily therefore, if an accused entitled to be released on bail by application of the proviso to sub-section (2) of Section 167, makes the application before the Magistrate, but the Magistrate erroneously refuses the same and rejects the application and then accused moves the higher forum and while the matter remains pending before the higher forum for consideration a charge-sheet is filed, the so called indefeasible right of the accused would not stand extinguished thereby, and on the other hand, the accused has to be released on bail.
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 law.
@20
27. In Pragyna Singh Thakur v. State of Maharashtra, 2012 Bom.C.R(Cri) 752, the Hon'ble Apex Court has held;
“The right under Section 167(2) of Code of Criminal Procedure to be released on bail on default if charge sheet is not filed within 90 days from the date of first remand is not an absolute or indefeasible right Even if an application for bail is filed on the ground that charge sheet was not filed
within 90 days, that application has to be decided on merits if charge sheet is subsequently filed”.
28. However, in CBI Vs. Nirala Yadav, 2014 Cr. L.J. 3952 the Hon'ble Apex Court has held;
“On a careful reading of the aforesaid two paragraphs, we think, the two-Judge Bench in Pragyna Singh Thakur's case has somewhat in a similar matter stated the same. As long as the majority view occupies the field it is a binding precedent. That apart, it has been followed by a three-Judge Bench in Sayed Mohd. Ahmad Kazmi's case. Keeping in view 14 the principle stated in Sayed Mohd. Ahmad Kazmi's case which has based on three-Judge Bench decision in Uday Mohanlal Acharya's case, we are obliged to conclude and hold the principle laid down in Paragraph 54 and 58 of Pragyna Singh Thakur's case (which have been underlined by us) do not state the correct principle of law. It can clearly be stated that in view of the subsequent decision of a larger Bench that cannot be treated to be a good law. Our view finds support from the
decision in Union of India and Ors. v. Arviva Industries India Limited and Ors. (2014) 3 SCC 159”.
29. The Apex Court ultimately held that the if after filing of application by the accused the prosecution files application for extension of time, the right of default bail can not be defeated.
@21
CHARGE-SHEET AFTER APPLICATION FOR BAIL
30. In Jitendra S/o Maroti Deotare and Ors.Vs. State of Maharashtra, MANU/MH/1258/2008, the accused moved application for bail on 14-7-2008 at 11 a.m., whereas the investigating officer filed the
charge-sheet at 12.30 p.m. on the same day. The Hon'ble Bombay High court has held that the accused entitled to be released on bail.
@22
CHARGE-SHEET BEFORE FURNISHING SURETY
31. In Sunil D. Thaware Vs. State of Maharashtra,
MANU/MH/0009/2010, the Magistrate allowed the application on the same day and directed release of the applicant on bail on his executing P.R. Bond of Rs. 50,000/ and furnishing two solvent sureties each of Rs. 50,000/. The applicant was unable to furnish two solvent sureties till 25th September 2009. On 25th September 2009, the applicant approached the Magistrate with two sureties and prayed that the sureties be accepted and he be released on bail. In the meanwhile, the charge-sheet was filed by the police 15 on 16th July 2009. The learned Magistrate held that the right which had accrued to the applicant for being released on bail under Section 167(2) of the Cr.P.C. was extinguished on the filing of the charge-sheet on 16th July 2009 and, therefore, refused to accept the sureties and release the applicant on bail. The Hon'ble Bombay High court has held,In the present case, the indefeasible right for being released on bail accrued to the applicant on 31st May 2009 when the period of 90 days from his arrest expired. The applicant did not exercise the right forthwith but filed the application for bail only on 14th July 2009. On the same day, the Magistrate passed the order directing his release on bail. The applicant however was unable to furnish bail. The applicant was not ready and willing to furnish the bail forthwith. The applicant showed his readiness and willingness to furnish the bail only on 25th September 2009 when he approached the Magistrate along with two sureties. Before that, the charge-sheet had already been filed on 16th July 2009. Thus, the so called indefeasible right of the applicant which had accrued to him by virtue of the order dated 14th July 2009 passed by the Magistrate stood extinguished on account of his unwillingness or inability to furnish the bail. The Magistrate was therefore right in holding that the so called indefeasible right of the applicant of being released on bail had been extinguished.
@23
32. In Umaji Raghunath Shende And Others V/S State Of Maharashtra, 2012 All.M.R. (Cri) 1204, the charge-sheet was filed on the same day after order of bail but before furnishing surety. The Hon'ble Bombay High court has held ''this is the case where not only the accused availed of his right, but order for his release on bail was passed by the learned Magistrate. That being so, the learned Magistrate as well as the learned Additional Sessions Judge committed serious error in refusing to enlarge the accused on bail''.
@24
16 CHARGE-SHEET ON HOLIDAY
33. In Naresh @ Nana v/s State of Mah. 1999 (3) Mh.L.J. 631, it is held that, if last day is holiday and charge sheet is filed on opening day, then right of bail u/sec. 167 (2) is not defeated.
REFUSAL OF BAIL IF SERIOUS OFFENCE IS PRIMA FACIE MADE OUT, ALTHOUGH NOT MENTIONED IN REMAND PAPERS
34. In State of Gujrat Vs. Girish Radhakrishnan Varde – 2014 ALL MR (Cri) 34 (S.C.) the Hon'ble Apex Court has held that in case upon a police report, the correct stage for addition or subtraction of Sections would be the stage when a charge is to be framed and it was not permissible for the Magistrate to consider alteration of the charge while taking cognizance of the charge sheet by observing that the prosecution would be at liberty to raise all contentions relating to addition of the sections on the basis of the first information report at the time of framing of the charge.
Relying on this judgment, the Hon'ble Bombay High Court in Anandkumar Shivram Prajapati Vs. The State of Maharashtra, Criminal Application (BA) No. 683 of 2014, observed that while considering bail application u/s 167(2) of the Code the sections charged by the police, is to be consider and magistrate can not add the section on the basis of material.
@25
DUTY OF THE COURT
35. In Nijamuddin Mohammad Bashir Khan Vs. State Of Maharashtra, 2006 Cri. L.J. 4266, the Hon'ble Bombay High Court held that, 17 Insofar as proviso (a) is concerned, it casts duty upon the Magistrate because of the mandatory terms of the proviso as held in the case of Hussainara v. Stale of Bihar that (1) when an under trial prisoner is produced before a Magistrate and the prisoner has already been in detention for 90 days or 60 days (as the case may be), - (a) The Magistrate must, before making an order for further remand to judicial custody, point out to the accused that he is entitled to be released on bail,
(b) In view, of Article 39A, read with Article 21, the State Government must also provide at its own cost a lawyer to the undertrial prisoner with a view to enable him to apply for bail in exercise of his right under this Proviso, (c) The Magistrate must take care to see that the right of the undertrial prisoner to the assistance of a lawyer at State cost is secured to him, even without his asking for it. (2) In view of the foregoing duty of the Magistrate, no formal or written application for bail need be filed on behalf of the prisoner, and an oral application would suffice. It is now well settled by a catena of decisions that the accused has an indefeasible right to be released on bail when investigation is not completed within the specified period. Therefore, when an application for bail is filed by an accused for enforcement of his indefeasible right alleged to have been accrued in his favour on account of default on the part of the investigating agency in completion of the investigation within the specified period, the Magistrate/Court must dispose of it forthwith, on being satisfied that in fact the accused has been in custody for the period of 90 days or 60 days, as specified and no charge-sheet has been filed by the investigating agency. Such prompt action on the part of the Magistrate/Court will not enable the prosecution to frustrate the object of the Act and the legislative mandate of an accused being released on bail on account of the default on the part of the investigating agency in completing the investigation within the period stipulated........''
@26
36. In Bhulabai w/o. Barkaji Matre V/s. Shankar Barkaji Matre and others 1999 (3) Mh.L.J.227, it has been held that,
A duty is casted on the Investigating Officer to satisfy the Magistrate as to why he could not file the charge-sheet within the prescribed time, by filing his explanation, giving special reasons supported by an affidavit 18 and case diary on or before last date of the prescribed period and on the date charge-sheet is filed beyond the prescribed period to enable the Magistrate to satisfy himself that in the facts and circumstances brought before him such investigation could not have been completed within prescribed period for justifiable reasons. If the Magistrate is satisfied that the explanation so given is reasonable, he may record so which will result in absolving the Investigating Officer and his obligation under law and committing the default. If the Magistrate finds that there is no justifiable reason for not filing the charge-sheet within prescribed time then he should record so and then it will be the duty of the learned Public Prosecutor to submit his report to the Disciplinary authority of the Investigating Officer for appropriate action, against the investigating officer for such default in performing the duty. Thereafter the disciplinary authority is expected to proceed in the matter and submit his action taken report to the concerned Magistrate, through their prosecuting agency. This procedure will provide safeguard to the misuse of authority by investigating agency and also serve the interest of justice by promoting
the mandate as enshrined in Articles 21 and 22 of the Constitution of India.
@27
37. Procedure to be followed by the Court :i. On receipt of the application for bail u/s.167 of the Code and chargesheet, it is necessary to mention time and date of filing of such application and charge-sheet.
ii. Premature application should be disposed off on the same day.
iii. Report of concern official of the court ''whether charge-sheet is filed or not'' should be called.
iv. After hearing the accused and prosecution, the application should be decided forthwith.
v. Quantum of surety amount should be reasonable.
vi. If the charge-sheet is not filed within time, issue notice to investigating officer and call explanation.
@28
38. In view of ratio and observations in judicial pronouncements, the law in respect of default bail can be summarized as follows:
1. Period of 90 or 60 days has to be calculated from the date of remand.
2. The day of production should be excluded and the day of filling of Charge-sheet should be included.
3. The Court should inform the accused about his right to be released on bail under Section 167 of the Code.
4. The Court must dispose of the application for bail forthwith.
5. The right to bail is enforceable only prior to the filing of the chargesheet, if already not availed of.
6. The accused is entitled to bail, if ready and willing to furnish surety though charge-sheet is filed on the same day after application for bail.
7. Right stood extinguished after filing the charge-sheet, on account of unwillingness or inability of the accused to furnish the bail on the same day or before any time of filing of charge-sheet.
@29
CONCLUSION:
39. In Babu Singh And Ors vs The State Of U.P, 1978 SCR (2) 777, the Hon'ble Justice Krishna Iyer while dealing with the bail petition observed that, ''Our justice, system, even in grave cases, suffers from slow motion syndrome which is lethal to "fair trial"., whatever the ultimate decision' Speedy justice is a component of social justice since the community, as a whole, is concerned in the criminal being condignly and finaly punished within a reasonable and the innocent being absolved from the incordinate ordeal of criminal proceedings.'' The right to speedy trial is not a fact or fiction but a “Constitutional reality” and it has to be given its due respect. The courts and the legislature have already accepted it as one of the medium of reducing the increasing workloads on the courts.
************
Comments
Post a Comment