A Division bench of the Calcutta High Court had passed this judgment dated April 15, 2020. The instant case is an application preferred by the West Bengal Government seeking revocation of the order passed by the learned Chief Judicial Magistrate(CJM), Jalpaiguri, which had granted bail to Mr. Dharam Paswan hereinafter referred to as the Opposite party. On August 20, 2019, the Opposite Party was arrested on the charges of offenses committed under Sections 370/379(B)(2)/201/188/468 and 271 of the India Penal Code 1860 read with Sections 3/4/5/6 of Immoral Trafficking (Prevention) Act, 1956 and Sections 14A/14C of the Foreigners Act, 1946.
The Complaint against the Opposite Party for the above-mentioned offenses was filed by one Ms. Saluja Motey, who was an employee at the restaurant operated by the opposite party and his wife Ms. Fulkumari Paswan. The complainant had also filed a writ petition before the Calcutta HC contending that the Police had forcefully procured the written complaint from her and prayed for a Criminal Investigation Department (CID) investigation into the said matter. The Division bench of the High Court had allowed this petition of the complainant. However, the order was appealed by the State Government, and consequently, the CID investigation stayed. The HC, nevertheless, allowed for investigation by the Special Investigation Team (SIT) but prohibited the SIT from filing the charge sheet in the case until the next date of hearing.
Meanwhile, the bail application of the opposite party was allowed on November 19, 2019, by the Learned CJM, Jalpaiguri, since 90 days had passed from the time of his arrest and the charge-sheet had not been filed by then. Hence the opposite party had become eligible to avail statutory bail under the provisions of Section 167 of Code of Criminal Procedure, 1973.
The Learned Advocate General appearing on behalf of the State of West Bengal had maintained that the charge- sheet was ready for filing on November 15, 2019, i.e. before the lapse of the statutory 90 day period, and that there had been no failure on the part of the Investigating Officer to complete timely investigation in the said case.
However, due to the restraining order passed by the Division Bench of the High Court, the I.O could not proceed with the filing as the application for approval to file charge-sheet was pending before the HC when the bail application was granted by the CJM.
The State of West Bengal, relying on the precedent passed by the Hon’ble. Apex Court in the case of Rambeer Shokeen v. State (NCT of Delhi): (2018) 4 SCC 405 prayed for the revocation of the bail order under Section 439(2) of the Code of Criminal Procedure 1973 on the following grounds:
1. The statutory right of the accused to be granted bail on the expiry of 60 days or 90 days comes into force only in the event of default by the Investigating Officer to file the charge- sheet mentioned under Section 167 Cr. P.C. There being no default in the instant case, the said provision cannot be invoked by the opposite party.
2. Had the Investigating Officer proceeded with the filing of the charge- sheet before the approval for the same by the High Court, it would have amounted to Contempt of Court on his part.
3. The accused/ opposite party does not possess any unbeatable right to be granted bail upon the termination of statutory 60 days or 90 days of custody.
4. The contention that on the expiry of the statutory period, the accused becomes entitled to be enlarged on bail as a matter of an invincible right is not in conformity with the criminal jurisprudence of India.
On the other hand, the counsel appearing on behalf of the Opposite party relying on the precedents of Uday Mohanlal Acharya v. the State of Maharashtra: (2001) 5 SCC 453, Achpal @ Ramswaroop & Anr. v. State of Rajasthan: AIR 2018 SC 4647 as well as X v. State of Telangana & Anr.: (2018) 16 SCC 511 had prayed for the dismissal of the current application on the following grounds:
1. The current application has not been presented under any special statute and is only based on the general law laid down in the Cr. P.C. Due to this, there is no possibility of extending the time for the conclusion of the investigation, and neither can there be an extension on the custody of the accused.
2. Once the bail application is approved, it cannot subsequently be revoked on any grounds apart from those that are compelling in nature and the same needs to be shown in the application for revocation. There are no compelling grounds for invoking revocation of bail in the instant case.
Based on the arguments raised by both the parties, the High Court formulated the following issues for its consideration:
1. Could it be said that the investigation by the I.O in the said case was complete for the purposes of Section 167(2) of the Cr.P.C. on the date of grant of bail so as to deny the benefit to the accused in terms of the said provision?
2. Whether the order of the High Court restraining the SIT from filing charge-sheet until the next hearing be construed as one under which the period for completing the investigation stood extended?
The Hon’ble. High Court, after deliberations on the points of law as well as facts came to the conclusion that on the day of the grant of bail to the opposite party, no charge – sheet was presented before the CJM, and hence the learned CJM was left with no choice but to enlarge the opposite party on bail. Consequently, the application of the State Government was dismissed.
The High Court, by honoring the precedents set by the Supreme Court, has arrived at a decision that upholds the Right of Personal liberty of an accused person as guaranteed to every person in India under Articles 21 and 22 of the Constitution.