Whether the Accused ought to be Confined or not, must be decided by the Magistrate and not by the Police

IN THE COURT OF Dr. KAMINI LAU: ADDITIONAL SESSIONS
JUDGE­II (CENTRAL DISTRICT): TIS HAZARI COURTS:
DELHI

Criminal Appeal No. 23/2019
Filing No. 2779/2019
Registration No. 327/2019

Manoj Kumar
S/o Sh. Rajesh Kumar
R/o 527­A, SST Nagar,Patiala, Punjab…….. Appellant

Versus

The State……. Respondent

Date of Institution: 15.05.2019
Judgment Reserved on: 23.05.2019
Judgment Pronounced on: 23.05.2019

JUDGMENT:
(1) This criminal appeal impugns the order dated 02.05.2019 passed by the Ld. CMM, Delhi in Bail application under Section 167 (2)(a)(ii) of Cr.P.C. filed by the appellant for grant of default bail in case FIR No.201/2018, PS EOW Delhi, under Sections 419/420/467/ 468/471 IPC.

(2) It is averred by the appellant that he had subscribed the loan account form and also gave his photographs to the bank employees Gurvinder and Sukhdeep at a make shift stall organized by ICICI Bank at Patiala. However, the appellant was informed by the said bank employees that his loan application has been rejected but the photographs of the appellant were misused and when he came to know that the police officials are searching for him, he had surrendered before the concerned Magistrate on 28.02.2019 and after police remand the appellant was sent to Judicial Custody. It is further averred that no charge­sheet was filed by the Investigating Agency within 60 days and the appellant became entitled to be released on bail as per the provisions of Section 167 (2)(a)(ii) of Cr.P.C. According to the appellant, he had moved the bail application before the Ld. CMM for grant of default bail which application was dismissed by the Ld. CMCM vide order dated 02.05.2019.

(3) The short ground on which the impugned order dated 02.05.2019 has been challenged is that the Ld. CMM has very seriously erred in placing his reliance on the judgment of Delhi High Court in the case of Ashwani Lochan Aggarwal vs. State which according to the Ld. Counsel for the appellant has been over­ruled. It is submitted that the Hon’ble Supreme Court has in the case of Achpal @ Ramswaroop & Anr. vs. State of Rajasthan has very specifically held that the issue relating to the custody of the accused ought to be dealt with by the Magistrate on the basis of the investigations. It is further submitted that no record has been collected by the Investigating Officer till date to show the commission of offence under Section 467 IPC by the appellant and the Ld. CMM has wrongly dismissed the bail application stating that since the provisions of Section 467 IPC have been invoked, the charge­ sheet can be filed within 90 days.

(4) Pursuant to the filing of the appeal, a notice was issued to the Respondent/ state. Ld. Addl. PP for the State has submitted that he does not wish to file any reply to the appeal and has argued that there is no error in the order of the Ld. CMM in as much as the provisions of Section 467 IPC has been invoked at the very inception of the recording of FIR and according to the Investigating Officer the various officials of the bank have identified the accused/ appellant as the person who had submitted the account opening forms.

(5) I have considered the rival contentions and also perused the Trial Court Record. Without going into the merits and expressing any opinion at this stage with regard to the evidence collected so far, the short ground on which I am inclined to intervene is that according to the Ld. Counsel for the appellant he has placed his reliance on the case of Achpal @ Ramswaroop vs The State of Rajasthan, reported in 2018 AIR SC 4647 but the Ld. CMM has failed to take a note of it. It is argued that the Hon’ble Supreme Court in the case of Achpal @ Ramswaroop vs The State of Rajasthan had specifically observed that the stage of investigation ought to be confined to 90 or 60 days, as the case may be, and thereafter the issue relating to the custody of the accused ought to be dealt with by the Magistrate on the basis of the investigation, which observations are reproduced as under:

“……. The provision has a definite purpose in that; on the basis of the material relating to investigation, the Magistrate ought to be in a position to proceed with the matter. It is thus clearly indicated that the stage of investigation ought to be confined to 90 or 60 days, as the case may be and thereafter the issue relating to the custody of the accused ought to be delat with by the Magistrate on the basis of the investigation. Matter and issues relating to liberty and whether the person accused of a charge ought to be confined or not, must be decided by the Magistrate and not by the police…”

(6) It is also argued that the Ld. Trial Court has relied upon the over­ruled judgment in the case of Ashwani Lochan Aggarwal vs. State. However, I may observe that the argument of the Ld. Counsel for the appellant on the aspect that the judgment of Delhi High Court in the case of Ashwani Lochan Aggarwal vs. State has been over­ruled, Ld. Counsel for the appellant has failed to pointed out a specific over­ruling of the same. However, be that as the case may be, the latest judgment of the Hon’ble Supreme Court in the case of Achpal @ Ramswaroop & Anr. vs. State of Rajasthan (Supra) is certainly required to be looked into. I hereby set aside the impugned order dated 02.05.2019 and remand the case back to the Ld. CMM so as to enable him to take a note of the observations of the Hon’ble Supreme Court in the case of Achpal @ Ramswaroop & Anr. vs. State of Rajasthan (Supra). However, it shall be open to the Ld. CMM to look into the observations of the various High Courts in the case of State vs Hargyan in Crl. Rev. Petition No. 770/2015 & Crl. M.A. No.17403/2015, Crl. M.A. No.17404/2015, decided on 13.06.2016; Sharadchandra Vinayak Dongre V. State Of Maharashtra reported in 1991 CriLJ 3329 and Sri Sukhrai Debbarma vs Superintendent of Central Bureau, in Bail Application No. 101/2018 decided on 21.12.2018.

(7) Appeal is accordingly Allowed. Trial Court Record be sent back along with the copy of this Judgment. Parties are directed to appear before the Ld. CMM on 27.05.2019 at 2:00 PM.

(8) Appeal file be consigned to Record Room.

Announced in the open Court
(Dr. KAMINI LAU)
Addl. Sessions Judge­II, (Central)
Tis Hazari Courts, Delhi
Dated: 23.05.2019

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