ABOUT THE AUTHOR
The author of this case analysis is Alexy Joy, student from Govt Law college Thrissur. She’s also an editor of LJRF VOICE.
FACTS OF THE CASE
The Serious Fraud Investigation Office-appellant had assailed the order of the Punjab and Haryana High Court granting bail to Respondents 1 and 2. An investigation was directed to be conducted into the affairs of Adarsh Group of Companies and LLPs by the Central Government in exercise of the powers conferred under Section 212(1)(c) of the Companies Act, 2013 and subsections (2) and (3)(c)(i) of Section 43 of the Limited Liability Partnership Act, 2008 which led to the arrest of respondents 1 and 2.
Respondents 1 and 2 were remanded to 14 days’ judicial custody on 05-04-2019 which was extended to 16-05-2019 and further till 30-05-2019. Noticeably, the Sessions Judge had dismissed the respondents’ applications for statutory bail under Section 167(2) of the CrPC on the ground that the complaint under Section 439(2) of the Companies Act, 2013 was filed on 18.05.2019, i.e., before the expiry of the 60-day period prescribed in proviso (a) to Section 167(2) of the CrPC. However, the High Court considered the regular bail applications of the respondents and directed their release on the ground that they were entitled to statutory bail. The sole reason given for grant of bail by the High Court was that the Trial Court had not taken cognizance of the complaint before the expiry of the 60-day period, which entitled the respondents to statutory bail, as a matter of indefeasible right.
ISSUE
Whether an accused is entitled for statutory bail under Section 167(2), CrPC on the ground that cognizance has not been taken before the expiry of 60 days or 90 days, as the case may be, from the date of remand?
CASES INVOLVED
1.Suresh Kumar Bhikamchand Jain v. Stateof Maharashtra, (2013) 3 SCC 77
The Court further relied on the judgment in Suresh Kumar Bhikamchand Jain v. State of Maharashtra & Anr. to hold that the scheme of CrPC is such that once the investigation stage is completed, the court proceeds to the next stage, which is th taking of cognizance and trial.It added that during the period of investigation, the accused is under the custody of the Magistrate before whom he or she is first produced, with such Magistrate being vested with power to remand the accused to police custody and/or judicial custody, up to a maximum period as prescribed under Section 167(2).
2. Mohamed Iqbal Madar Sheikh v. State of Maharashtra, (1996) 1 SCC 722
In this case,the “indefeasible right” of the accused to be released on bail in accordance with Section 20(4)(bb) of the TADA Act read with Section 167(2) of the Code of Criminal Procedure in default of completion of the investigation and filing of the challan within the time allowed, as held in Hitendra Vishnu Thakur is a right which enures to, and is enforceable by the accused only from the lime of default till the filing of the challan and it does not survive or remain enforceable on the challan being filed. If the accused applies for bail under this provision on expiry of the period of 180 days or the extended period, as the case may be, then he has to be released on bail forthwith. The accused, so released on bail may be arrested and committed to custody according to the provisions of the Code of Criminal Procedure. The right of the accused to be released on bail alter tiling of the challan, notwithstanding the default in filing it within the time allowed, is governed from the time of filing of the challan only by the provisions relating to the grant of bail applicable at that stage.
3.Sanjay Dutt v. State, (1994) 5 SCC 410
In this case court had taken a view that an accused can invoke his right for statutory bail if the court has not taken cognizance of the complaint before the expiry of the statutory period from the date of remand.
OBSERVATIONS OF THE COURT
1.The complaint under Section 439(2) of the Companies Act, 2013 was filed before the expiry of the 60-day period from the date of the remand.
2.The applications filed for statutory bail were dismissed by the Special Court on the ground that the charge-sheet was filed before the expiry of 60 days.
3.Respondents did not argue before the Special Court that they were entitled for statutory bail, even after filing of the charge-sheet before the expiry of the 60-day period, as cognizance had not been taken.
Hence, the Bench opined that the High Court had failed to consider the order passed by the Trial Court dismissing the applications seeking statutory bail.The Bench noted that reference to a larger bench pertains to the issue of exclusion or inclusion of the date of remand for computation of the period prescribed under Section 167, therefore differentiating the same the Bench applied the law as laid down in Bhikamchand Jain’s case to hold that the conclusion of the High Court that the accused cannot be remanded beyond the period of 60 days under Section 167 and that further remand could only be at the post-cognizance stage, was not correct. Accordingly, the impugned order was set aside.
ANALYSIS OF CASE
Observing that the scheme of the provisions relating to remand of an accused first during the stage of investigation and thereafter, after cognizance is taken, indicates that the legislature intended investigation of certain crimes to be completed within the period prescribed therein, the Bench stated that once the chargesheet is filed within the stipulated period, the right of the accused to statutory bail come to an end and the accused would be entitled to pray for regular bail on merits.Clarifying that the two stages are different, with one following the other so as to maintain continuity of the custody of the accused with a court, the Supreme Court in Bhikamchand Jain’s case had held that in the event of investigation not being completed by the investigating authorities within the prescribed period, the accused acquires an indefeasible right to be granted bail, if he offers to furnish bail and the court has no option but to release the accused on bail. However, on filing of the charge-sheet within the stipulated period, the accused continues to remain in the custody of the Magistrate till such time as cognizance is taken by the court, when the said court assumes custody of the accused for purposes of remand during the trial in terms of Section 309, CrPC.On the issue as to whether the Court had taken a different view in the cases relied on by the intervenor, the Bench observed that in Sanjay Dutt (supra), the Court held that the custody of the accused after the challan has been filed is not governed by Section 167(2) but different provisions of the CrPC while in Madar Sheikh, it was held that the right conferred on an accused under Section 167(2) cannot be exercised after the charge-sheet has been submitted and cognizance has been taken.Pertinently, filing of charge-sheet is sufficient compliance with the provisions of proviso (a) to Section 167(2), CrPC and that taking of cognizance is not material to Section 167.
