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PETITIONER: RAJNIKANT JIVANLAL PATEL & ANOTHER

       Vs.

RESPONDENT: INTELLIGENCE OFFICER NARCOTIC CONTROL BUREAUNEW DELHI.

DATE OF JUDGMENT26/06/1989

BENCH: SHETTY, K.J. (J) BENCH: SHETTY, K.J. (J)

CITATION:  1990 AIR   71            1989 SCR  (3) 377  1989 SCC  (3) 532        JT 1989 (3)    67  1989 SCALE  (1)1586

ACT:     Criminal   Procedure   Code,   1973:  Sections    167(2) proviso  (a),  437, 439 and 482--Accused  remanded  to  jail custody--Charge  sheet filed after  ninety  days--Magistrate releasing  accused on bail-High Court ordering re-arrest  of accused by cancelling bail--Validity of High Court order.     Narcotics  Drugs  &  Pyschotroic  Substance  Act,  1985: Sections  21, 23 and 29--Accused released on bail by  Magis- trate  on  ground  charge-sheet  not  filed  within   ninety days--High  Court cancelling bail and ordering re-arrest  of accused--Validity of High Court order.

HEADNOTE:     The  petitioners  were arrested on March  23,  1988  and produced  before  the  Chief  Metropolitan  Magistrate,  who remanded them to jail custody. During the pendency of  peti- tioner’s   application  for  bail,  the  prosecution   filed charge-sheet on June 23, 1988 for offences under Section 21, 23 and 29 of the Narcotic Drugs and Psychotropic  Substances Act.  1985. Thereafter, on the petitioners’ application  for bail  under  Section 167(2) Cr.P.C. on the ground  that  the charge-sheet  was filed after the expiry of ninety  days  of their arrest, the Magistrate enlarged them on bail.     On  an application, under sec. 439(2) read with  Section 482  of the Cr.P.C., filed by the prosecution for  cancella- tion of the bail, stating that since two of the accused were earlier absconding, the investigation in the case could  not be completed within the time frame, the High court cancelled the bail order. Hence, the special leave applications by the petitioners.     On the question: whether the discretion exercised by the High  Court was legally sustainable and whether the  accused had  a special right to remain on bail merely  because  they had been enlarged under Proviso (a) to Section 167(2) of the Code, 378 Dismissing the Special Leave Petitions,     HELD: An order for release on bail under proviso (a)  to Section 167(2) of the Code of Civil Procedure may  appropri- ately  be  termed as on order-on-default. Indeed,  it  is  a release on bail on the default of the prosecution in  filing charge-sheet within the prescribed period. The right to bail

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under the provision is absolute. It is a legislative command and not Court’s discretion. If the investing agency fails to file  chargesheet  before the expiry of 90/60 days,  as  the case  may be, the accused in custody should be  released  on bail. At that stage, merits of the case are not to be  exam- ined.  In  fact,  the Magistrate has no power  to  remand  a person  beyond the stipulated period of 90/60 days. He  must pass  an order of bail and communicate the same to  the  ac- cused to furnish the requisite bail bonds. [381E-G]     The accused cannot claim any special right to remain  on bail.  If  the investigation reveals that  the  accused  has committed  a serious offence and charge-sheet is filed,  the bail  granted under proviso (a) to Section 167(2)  could  be cancelled  under  Sections  437(5) or 439(2)  of  the  Code. [381H]     In the instant case, the offences alleged are of serious nature  and the discretion exercised by the High Court  does not call for any interference. [382A] Raghubir Singh v. State of Bihar, [1986] 3 SCR 802, referred to.

JUDGMENT:     CRIMINAL  APPELLATE JURISDICTION: Petitions for  Special Leave to Appeal (Criminal) Nos. 1090-91 of 1989.     From the Judgment and Order dated 8.5.1989 of the  Delhi High Court in Misc. Appln. No. 106/89 & 107/1989. U.R. Lalit, Tushar Shah and B .V. Desai for the Petitioners. J.S. Arora and Satish Agarwala for the Respondent. The Judgment of the Court was delivered by     K.  JAGANNATHA SHETTY, J- The petitioners were  released on  bail  by  the Enquiry Magistrate under  proviso  (a)  to Section  167(2)  of the Code of  Criminal  Procedure.  After filing of the charge-sheet the High Court ordered their  re- arrest by cancelling the bail. The order of 379 the High Court is now under challenge.     I  do not find any merit in these petitions. But  before dismissing,  I  wish,  however, to draw  attention  to  some aspects of the question raised. The facts:     On  23  March,  1988 the petitioners  were  arrested  in Bombay by officers of the Narcotic Control Bureau. They were ordered  to be produced before the competent  Magistrate  at New  Delhi. They were accordingly produced before the  Addi- tional  Chief  Metropolitan  Magistrate, New  Delhi.  On  29 March,  1988  they  were remanded to jail  custody  till  12 April, 1988. The remand order was subsequently renewed  from time  to  time. On 10 May, 1988 the  petitioners  moved  the Chief  Metropolitan Magistrate for bail. When that  petition was   pending  consideration,  the   prosecution   submitted charge-sheet.  The charge-sheet was filed on 23  June,  1988 for  offences under Sections 21, 23 and 29 of  the  Narcotic Drugs  and  Psychotropic Substances Act, 1985. On  July  22, 1988  the  petitioners filed an application for  bail  under Section 167(2) Cr. P.C. on the ground that the  charge-sheet was filed after the expiry of 90 days of their arrest. On 29 July, 1988 learned Magistrate enlarged them on bail on their furnishing  self bonds in the sum of Rupees two  lakhs  each with two surety bonds in the sum of Rs. 1 lakh each.     The  efforts  of the prosecution to have the  bail  can- celled could not succeed before learned Magistrate. So  they moved  the Delhi High Court under Section 439(2)  read  with section  482 of the Cr.P.C. In that application, the  nature

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of  the offence committed, the part played by  the  accused, the  gravity of the offence etc., were all set out.  1t  was also  stated  that  since two of the  accused  were  earlier absconding,  the  investigation  in the case  could  not  be completed within the time frame.     The  High Court by following the decision of this  Court in  Raghubir Singh v. State of Bihar, [1986] 3 SCR  802  and after considering the material on record cancelled the  bail order. The High Court said:               "In  the present cases, no doubt an order  was               passed granting bail because the charge  sheet               was  not filed within the statutory period  of               90 days but it was filed on 92 days.               380               There is no doubt that the charge against  the               respondents is very serious in nature  because               they  are alleged to have entered into a  con-               spiracy  to  export heroin out of  India.  The               minimum punishment prescribed in such  offence               is  a sentence of 10 years rigorous  imprison-               ment,  and  a fine of Rupees one lakh.  I  am,               therefore, of the view that the authority  re-               ferred above is fully applicable to the  facts               of  the present case. Respondents are  further               alleged to have procured services of one  H.S.               Gala  and a lady carrier Manjula Ben who  car-               ried 3 Kg. heroin from India to USA in  Novem-               ber 1987. Therefore it was on the basis of the               statements  made by those persons in USA  that               the respondents were arrested in India.                           I am, therefore, of the view  that               it is a fit case where order of bail should be               cancelled."     The question is whether the discretion exercised by  the High Court is legally sustainable? Whether the accused  have a  special right to remain on bail merely because they  have been  enlarged  under proviso (a) to Section 167(2)  of  the Code?     It  is not disputed and indeed cannot be  disputed  that when  an accused is granted bail, whether under proviso  (a) to Section 167(2) or under the general provisions of Chapter XXXIII,  the only method by which the bail may be  cancelled is  to proceed under Section 437(5) or Section 439(2).  That is because the person released on bail under the proviso  to Section  167(2) shall be deemed to be so released under  the provisions of Chapter XXXIII of the Code. Sub-section (5) of Section 437 provides:               "Any Court which has released a person on bail               under sub-section (1) or sub-section (2)  may,               if it considers it necessary so to do,  direct               that such person be arrested and commit him to               custody." Sub-section (2) of Section 439 provides:               "A  High Court or Court of Session may  direct               that any person who has been released on  bail               under this Chapter be arrested and commit  him               to custody." 381     Under  sub-section (5) of Section 437, the Court  if  it considers  it necessary, direct that the person on  bail  be arrested and committed to custody. The bail may be cancelled by  the Court if it comes to the conclusion that  there  are sufficient  grounds  that the accused has committed  a  non- bailable offence and that it is necessary that he should  be

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arrested  and committed to custody. This is what this  Court observed  in Raghubir Singh v. State of Bihar, [1986] 3  SCR 802. It was said (at 826):               "Where bail has been granted under the proviso               to  section  167(2)  for the  default  of  the               prosecution  in not completing the  investiga-               tion in sixty days, after the defect is  cured               by the filing of a charge-sheet, the  prosecu-               tion  may seek to have the bail  cancelled  on               the  ground that the accused has  committed  a               non-bailable offence and that it is  necessary               to  arrest him and commit him to  custody.  In               the last mentioned case, one would expect very               strong grounds indeed."               And said:               "The  order  for release on bail  was  not  an               order  on merits but was what one may call  an               order-on-default,  and  order  that  could  be               rectified for special reasons after the defect               was cured."     An  order for release on bail under proviso (a) to  Sec- tion  167(2)  may appropriately be termed  as  an  order-on- default.  Indeed, it is a release on bail on the default  of the prosecution in filing charge-sheet within the prescribed period.  The right to bail under Section 167(2) proviso  (a) thereto  is  absolute. It is a legislative command  and  not Court’s  discretion.  If the investigating agency  fails  to file  charge-sheet before the expiry of 90/60 days,  as  the case  may be, the accused in custody should he  released  on bail.  But at that stage, merits of the case are not  to  be examined.  Not at all. In fact, the Magistrate has no  power to  remand  a person beyond the stipulated period  of  90/60 days. He must pass an order of bail and communicate the same to the accused to -furnish the requisite bail bonds.     The  accused cannot, therefore, claim any special  right to  remain  on bail. If the investigation reveals  that  the accused has committed a serious offence and charge-sheet  is filed, the bail granted under proviso (a) to Section  167(2) could be cancelled. 382     I examined the material on record. The offences  alleged are of serious nature. I am of the opinion that the  discre- tion  exercised  by  the High Court does not  call  for  any interference. The Petitions, are, therefore, rejected. N.P.V.                                       Petitions  dis- missed. 383