Joymalya Bagchi, J
1. Petitioner has prayed for statutory bail. Such prayer being turned down by the Special Judge he is before this Court.
Prosecution case:-
2. One Biswajit Das, SP, CBI, ACB Kolkata lodged first information report alleging illegal coal mining in ECL leasehold area along with theft of coal
from railway sidings in an organized manner. It was alleged security officials of ECL and CISF in connivance with others allowed one Anup Majhi @
Lala and other private persons to misappropriate national assets entrusted to them. FIR was registered against six named accused persons, namely, Sri
Amit Kumar Dhar, Sri Jayesh Chandra Rai, Sri Tanmay Das, Sri Dhananjay Rai, Sri Debasish Mukherjee and Sri Anup Majhi.
3. During investigation, petitioner was shown arrested on 15.04.2021. By order dated 16.04.2021 he was remanded to police custody for seven days.
4. On 21.04.2021 petitioner made an application seeking bail in view of his serious health condition. Public Prosecutor furnished an interim report with
regard to the health condition of the petitioner. In view of his deteriorating health condition, Special Judge was inclined to grant interim bail for a period
of three weeks on executing PR Bond of Rs. 5,00,000/-. Petitioner was directed to submit further medical report on completion of three weeks. It was
also directed petitioner shall make himself available before the investigating agency subject to his health condition as and when his
presence is required by the investigating agency.
5. On 18.05.2021, interim bail was extended till 17.06.2021. Petitioner was directed to appear before the Court on that date.
6. On 17.06.2021, no medical documents were filed and hearing of the application for confirmation/extension of interim bail was adjourned till
21.06.2021.
7. On 21.06.2021, a medical check up report was filed which advised the petitioner to avoid travel for four weeks. Matter was adjourned till 5.07.2021
to submit medical test reports of the petitioner. In the meantime, liberty was given to interrogate the petitioner through virtual mode or at his residence.
8. On 05.07.2021 no medical documents were filed and the case was remanded till 26.07.2021 for submission of the medical reports.
9. On 26.07.2021, again no medical reports were filed. CBI filed an application praying for cancellation of interim bail. The learned Judge directed the
petitioner to be positively present before the Court along with all medical documents on 04.08.2021 failing which his interim bail shall stand cancelled.
10. On 04.08.2021, petitioner submitted he was ready and willing to cooperate with investigation but had fallen ill and was hospitalised. On the other
hand, CBI prayed for cancellation of bail and custodial interrogation of the petitioner. CBI, however, agreed a last chance may be granted to the
petitioner to appear in person with all medical certificates before the Court. Under such circumstances, the Court fixed date for appearance of the
petitioner on 13.08.2021 and gave liberty to the investigating officer to interrogate him.
11. On 13.08.2021, medical reports were filed on behalf of the petitioner. On perusal of the medical reports petitioner was given two weeks for
appearance before the Court in person as a last chance and the matter was fixed on 26.08.2021.
12. On 26.08.2021, petitioner failed to appear. Matter was adjourned till 18.09.2021 failing which it was directed warrant of arrest would be issued
against him.
13. On 15.09.2021, petitioner appeared in person and date was fixed for hearing of the application for cancellation of interim bail on 04.10.2021.
14. On 05.10.2021, the hearing of the application for cancellation was taken up. Petitioner was not present on the plea he was not medically fit. On his
prayer the matter was adjourned till 08.10.2021.
15. On 08.10.2021, petitioner claimed he had suffered pelvis injury and was being treated at Apollo Hospital and had been advised rest for five days.
On his submission, hearing of cancellation of interim bail was adjourned till 8.11.2021.
16. Again on 08.11.2021, on prayer of petitioner the hearing of the cancellation application was adjourned till 22.11.2021.
17. On 22.11.2021, the case was further adjourned on the prayer of the petitioner till 01.12.2021.
18. By order dated 01.12.2021, prayer for extension of interim bail was made. It may be pertinent to note interim bail which had been granted on
21.04.2021 had been extended till 17.06.2021. Thereafter, no formal order on the application for extension/confirmation of interim bail had been passed
till 01.12.2021. Be that as it may, interim bail was extended till 8.12.2021 and the matter was fixed on 08.12.2021 for passing order on the prayer for
cancellation of bail. Petitioner was directed to appear on that date.
19. On 08.12.2021, upon consideration of the medical reports and arguments of the parties, the Special Judge observed that the petitioner had willfully
halted the progress of investigation by not co-operating with the investigating agency. He also observed though the petitioner was suffering from
chronic conditions like cirrhosis of liver, his health condition was not so precarious as to avoid incarceration. The Judge also commented on the vague
medical reports of Apollo Hospital submitted by the petitioner to justify his non-appearance. Under such circumstances, he cancelled the interim bail of
the petitioner and issued non-bailable warrant against him.
20. Non-bailable warrant was executed against the petitioner and he was produced before the Chief Judicial Magistrate on 11.12.2021. Learned
Magistrate directed him to be produced before the Special Court on the next day. He remanded the petitioner to judicial custody.
21. On the next day, petitioner was not produced before the Special Judge. On the other hand, he was shifted to Asansol Medical College and
thereafter to Burdwan Medical College and Hospital. CBI prayed for police custody to enable custodial interrogation. Prayer of CBI was kept in
abeyance on the ground that the petitioner had not been produced before the Court. Thereafter, on several dates petitioner was not produced and the
prayer of CBI for custodial interrogation could not be considered. Finally, on expiry of total period of 90 days of detention, petitioner prayed for
statutory bail on 07.03.2022.
22. By the impugned order dated 07.03.2022, the Special Judge declined the prayer for bail, inter alia, on the ground the prayer for interim bail of the
petitioner having been cancelled, petitioner was not entitled to such relief under section 167(2) CrPC.
Issue:-
23. Moot question which falls for decision is whether in the present case the petitioner is entitled to statutory bail under section 167(2) CrPC.
Arguments at the Bar:-
24. Ordinarily, bail applications are disposed of in a day or two. However, in view of the legal issues involved, learned Counsels advanced lengthy and
erudite arguments for a number of days which prolonged the hearing.
25. Learned Counsels for the petitioner has strenuously argued interim bail was granted to the petitioner purely on medical grounds. By order dated
8.12.2021, the interim bail granted on 21.04.2021 was not extended. The expression ‘bail is cancelled’ in the said order must be read in the
aforesaid perspective. Failure to answer questions to the satisfaction of the investigating agency cannot be a ground to deny the petitioner statutory
bail. It was also argued petitioner had complied with the conditions of bail imposed upon him. He had responded to the summons of CBI and attended
the interrogation on 12.08.2021, 06.10.2021 and 07.10.2021. On 6.08.2021, 29.10.2021 and 18.11.2021, he offered himself to be interrogated through
video conferencing. Due to his medical condition he was unable to attend only on 23.07.2021. Hence, petitioner is entitled to statutory bail.
26. In response, learned Counsel for the CBI submitted petitioner had misused his liberty while on interim bail. He pretended to be ill and with active
connivance of medical institutions in the State he got himself admitted in the hospital and evaded police custody. Only one day he could be interrogated
in police custody. Even when he attended the interrogation, he did not cooperate and gave evasive answers. When an accused misuses liberty granted
to him and his bail is cancelled, he is taken into custody in exercise of the powers conferred by the Code under section 437(5) or 439(2) and not
remanded under section 167(2) CrPC. In such cases, grant of bail to the accused is discretionary and depends on the satisfaction of the Court that his
release would not lead to further misuse of liberty and thereby defeat the ends of justice. In the present case, petitioner had in connivance with the
medical institutions of the State avoided custodial interrogation. As a result, his bail was cancelled. Subsequently, he continued to remain in hospital
and evaded police custody. A person who has abused liberty granted to him and subverted the judicial process, cannot be granted the privilege of
statutory bail.
Analysis of section 167(2) CrPC:-
27. Section 167(2) CrPC reads as follows:-
“(2) The Magistrate to whom an accused person is forwarded under this section may, whether he has or has not jurisdiction to try the
case, from time to time, authorise the detention of the accused in such custody as such Magistrate thinks fit, for a term not exceeding fifteen
days in the whole; and if he has no jurisdiction to try the case or commit it for trial, and considers further detention unnecessary, he may
order the accused to be forwarded to a Magistrate having such jurisdiction:
Provided that â€
[(a) the Magistrate may authorise 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 authorise the detention of the accused
person in custody under this paragraph 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, and every person released on bail
under this sub- section shall be deemed to be so released under the provisions of Chapter XXXIII for the purposes of that Chapter;]
[(b) no Magistrate shall authorise detention in any custody under this section unless the accused is produced before him;]
(c) no Magistrate of the second class, not specially empowered in this behalf by the High Court, shall authorise detention in the custody of
the police.â€
28. As per the aforesaid provision of law, if an accused is arrested in connection with an investigation under Chapter XII of the Code and such
investigation is not completed within 24 hours, he may be remanded to either police or jail custody during the first 15 days of his detention and for a
total period not exceeding 90 days in the event the offence is punishable with death or imprisonment for life or for a term not less than 10 years or 60
days in other cases.
29. In M. Ravindran vs. Directorate of Revenue Intelligence (2021) 2 SCC 485 the Apex Court enunciated the parameters of ‘default bail’ as
follows:-
“6. In common legal parlance, the right to bail under the proviso to Section 167(2) is commonly referred to as “default bail†or
“compulsive bail†as it is granted on account of the default of the investigating agency in not completing the investigation within the
prescribed time, irrespective of the merits of the case.â€
30. It further held that the aforesaid provision is a legislative exposition of the constitutional safeguards enshrined under Article 21 that no person shall
be detained except in accordance with the procedure established by law.
“17. Before we proceed to expand upon the parameters of the right to default bail under Section 167(2) as interpreted by various
decisions of this Court, we find it pertinent to note the observations made by this Court in Uday Mohanlal Acharya [Uday Mohanlal Acharya
v. State of Maharashtra, (2001) 5 SCC 453] on the fundamental right to personal liberty of the person and the effect of deprivation of the
same as follows:
“13. … Personal liberty is one of the cherished objects of the Indian Constitution and deprivation of the same can only be in accordance
with law and in conformity with the provisions thereof, as stipulated under Article 21 of the Constitution. When the law provides that the
Magistrate could authorise the detention of the accused in custody up to a maximum period as indicated in the proviso to sub-section (2) of
Section 167, any further detention beyond the period without filing of a challan by the investigating agency would be a subterfuge and would
not be in accordance with law and in conformity with the provisions of the Criminal Procedure Code, and as such, could be violative of
Article 21 of the Constitution.â€
17.1. Article 21 of the Constitution of India provides that “no person shall be deprived of his life or personal liberty except according to
procedure established by lawâ€. It has been settled by a Constitution Bench of this Court in Maneka Gandhi v. Union of India [Maneka
Gandhi v. Union of India, (1978) 1 SCC 248] , that such a procedure cannot be arbitrary, unfair or unreasonable. The history of the
enactment of Section 167(2) CrPC and the safeguard of “default bail†contained in the proviso thereto is intrinsically linked to Article
21 and is nothing but a legislative exposition of the constitutional safeguard that no person shall be detained except in accordance with rule
of law.â€
31. Referring to the legislative history of the aforesaid enactment, the Court further held as follows:-
“17.6. It was in this backdrop that Section 167(2) was enacted within the present day CrPC, providing for time-limits on the period of
remand of the accused, proportionate to the seriousness of the offence committed, failing which the accused acquires the indefeasible right
to bail. As is evident from the recommendations of the Law Commission mentioned supra, the intent of the legislature was to balance the
need for sufficient time-limits to complete the investigation with the need to protect the civil liberties of the accused. Section 167(2) provides
for a clear mandate that the investigative agency must collect the required evidence within the prescribed time period, failing which the
accused can no longer be detained. This ensures that the investigating officers are compelled to act swiftly and efficiently without misusing
the prospect of further remand. This also ensures that the court takes cognizance of the case without any undue delay from the date of
giving information of the offence, so that society at large does not lose faith and develop cynicism towards the criminal justice system.
17.10. With respect to the CrPC particularly, the Statement of Objects and Reasons (supra) is an important aid of construction. Section
167(2) has to be interpreted keeping in mind the threefold objectives expressed by the legislature, namely, ensuring a fair trial, expeditious
investigation and trial, and setting down a rationalised procedure that protects the interests of indigent sections of society. These objects are
nothing but subsets of the overarching fundamental right guaranteed under Article 21.â€
32. The aforesaid analysis of the law shows that the right to statutory bail arises when an accused has suffered detention pending investigation for a
period as prescribed under section 167(2) CrPC and the said right once availed of cannot be denied either with reference to the merits of the case or a
subsequent filing of police report.
33. The object of the said provision is to ensure fair trial, expeditious investigation and lay down a just and reasonable procedure to balance the right to
liberty of an individual against the right of the State to investigate a crime.
Whether truncated period may be added to calculate the total period of detention under section 167(2) CrPC:-
34. In Gautam Navlakha vs National Investigation Agency 2021 SCC OnLine SC 384 the aforesaid issue fell for decision:-
“16. *** *** ***
1) *** *** ***
2) *** *** ***
3) *** *** ***
4) *** *** ***
5) *** *** ***
6) *** *** ***
7) Whether broken periods of custody otherwise traceable to Section 167 Cr.P.C. suffice to piece together the total maximum period of
custody permitted beyond which the right to default bail arises or whether the law giver has envisaged only custody which is continuous?â€
35. The Apex Court answered the issue in the following manner:-
“72. One of the contentions raised is that the order passed by the High Court of Delhi, is not one passed under Section 167 of the Cr.P.C.,
for the reason that what the Cr.P.C. contemplates is an order passed by a Magistrate. It, therefore, becomes necessary to consider whether a
Court other than a Magistrate can order remand under Section 167. In the first place, going by the words used in Section 167, what is
contemplated is that Magistrate orders remand under Section 167(2).
73. Let us, however, delve a little more into the issue. Let us take a case where a Magistrate orders a remand under Section 167 and at the
same time, he also rejects the application for bail preferred by the accused. The accused approaches the High Court under Section 439 of
the Cr.P.C. The court reverses the order and grants him bail. The accused who was sent to custody means police custody or judicial custody
is brought out of his custody and is released on bail pursuing to the order of the High Court. This order is challenged before the Apex Court.
The Apex Court reverses the order granting bail. The original order passed by the Magistrate is revived. It is apparent that the accused goes
back to custody. Since assuming that the period of 15 days is over and police custody is not permissible, he is sent back to judicial custody.
Equally if he was already in judicial custody, the order granting judicial custody is revived. Let us assume in the illustration that the
accused was in custody only for a period of 10 days and after the order passed by this Court and the accused who spent another 80 days, he
completes, in other words, a total period of custody of 90 days adding the period of custody, he suffered consequent upon the remand by the
Magistrate. That is by piecing up these broken periods of custody, the statutory period of 90 days entitling the accused to default bail, is
reached. Can it be said that the order of this Court granting custody should not be taken into consideration for calculating the period of 90
days, upon completion of which the accused can set up a case for default bail. We would think that the mere fact is that it is the Apex Court
which exercised the power to remand, which was wrongly appreciated by the High Court in the illustration, would not detract from the
custody being authorized under Section 167.
74. Let us take another example. After ordering remand, initially for a period of 15 days of which 10 days is by way of police custody and 5
days by way of judicial custody, the Magistrate enlarges an accused on bail. The High Court interferes with the order granting bail on the
basis that the bail ought not to have been granted. Resultantly, the person who on the basis of the order of bail, has come out of jail custody,
is put back into the judicial custody or jail custody. The order is one passed by the High Court. The order granting custody by the High Court
cannot be treated as one which is not anchored in Section 167 of the Cr.P.C. Therefore, we would think that though the power is vested with
the Magistrate to order remand by way, of appropriate jurisdiction exercised by the superior Courts, (it would, in fact, include the Court of
Sessions acting under Section 439) the power under Section 167 could also be exercised by Courts which are superior to the Magistrate.
75. Therefore, while ordinarily, the Magistrate is the original Court which would exercise power to remand under Section 167, the exercise
of power by the superior Courts which would result in custody being ordered ordinarily (police or judicial custody) by the superior Courts
which includes the High Court, would indeed be the custody for the purpose of calculating the period within which the charge sheet must be
filed, failing with the accused acquires the statutory right to default bail. We have also noticed the observations of this Court in AIR 1962 SC
1506 (supra). In such circumstances broken periods of custody can be counted whether custody is suffered by the order of the Magistrate or
superior courts, if investigation remains incomplete after the custody, whether continuous or broken periods pieced together reaches the
requisite period; default bail becomes the right of the detained person.
76. Equally when an order in bail application is put in issue, orders passed resulting in detaining the accused would if passed by a superior
court be under Section 167.†(emphasis supplied)
Whether cancellation of bail in the present case affects the statutory right to bail under section 167(2) CrPC:-
36. In view of the ratio in Gautam Navlakha (supra) it appears if bail is set aside/cancelled by a superior Court, the accused may be remanded under
section 167(2) CrPC and would be entitled to statutory bail by adding the truncated periods of detention suffered by him. Learned Counsel for the CBI
argued the present case relates to cancellation of bail due to supervening circumstances, that is, non-cooperation of the petitioner with the investigating
agency by pretending to be ill and avoiding custodial interrogation.
37. Cancellation of bail can be for myriad reasons. Bail order may be set aside by a superior Court in exercise of its inherent powers if the same is
perverse. (see Puran vs Ram Bilas (2001) 6 SCC 338)
38. It can also be cancelled for supervening circumstances like interference with investigation, tampering/destruction of evidence, intimidating of
witnesses, abscondence or committing further crimes etc.
39. It is argued where bail is cancelled due to supervening circumstances under section 437(5) or 439(2) CrPC, power to arrest and remand the
accused to custody would be traceable to the aforesaid provisions and not section 167(2) CrPC.
40. Section 437(5) reads as follows:-
“(5) 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.â€
41. The aforesaid provision empowers a Court to direct arrest and taking into custody of an accused whose bail is cancelled. In a catena of decisions
eg. Raghubir Singh v. State of Bihar (1986) 4 SCC 481 and Aslam Babalal Desai vs State of Maharashtra (1992) 4 SCC 272 the Apex Court held
even statutory bail may be cancelled under supervening circumstances. In such a situation, the accused would be remanded to custody by exercise of
powers which are incidental to the substantive power of cancellation under section 437(5) or 439(2) CrPC and not under section 167(2) CrPC. Under
such circumstances, the accused cannot seek to be released on statutory bail for the second time with reference to section 167(2) CrPC as held in
Nishil vs The Station House Officer And Anr 2007 SCC OnLine Ker 128.
42. However, the situation is slightly different in the present case. Petitioner was remanded to police custody for seven days on 16.04.2021. After
expiry of five days, he was released on interim bail on medical grounds. His bail came to be cancelled on the ground he did not cooperate with
investigation. Thereafter, he was re-arrested and the investigating agency prayed for police remand. Conduct of the investigating agency to pray for
police remand clearly evinces its intention to seek remand of the accused under section 167(2) CrPC for the purpose of investigation. Power to
remand an accused to police custody is unique to section 167(2) CrPC. It cannot be traced to any other provision under the Code. Due to the plea of
the petitioner that he was unwell and hospitalized, prayer for police custody of the investigating agency was deferred. The agency did not assail the
order before the superior Court and the first 15 days of detention expired.
43. Investigation is a matter of moment. Law permits police custody of an accused during the first fifteen days of remand [CBI vs. Anupam J.
Kulkarni, (1992) 3 SCC 141 [see para 9]; Budh Singh vs. State of Punjab, (2000) 9 SCC 266]. Petitioner was initially remanded to police custody for
seven days. But he was released on interim bail after five days. Thereafter, his bail was cancelled and further police remand was prayed. As the
petitioner was hospitalized and not produced before the Special Judge, the prayer for police custody was deferred. It was incumbent on the
investigating agency to assail the said order by demonstrating the deceitful stance of the petitioner and obtain police custody for interrogation. They
failed to do so and the valuable right to police remand got extinguished. These circumstances though unfortunate would not give right to the
investigating agency to change its stance and claim that the accused had not been remanded under section 167(2) CrPC upon cancellation of bail. Plea
of the investigating agency with regard to the remand of the accused dehors section 167(2) CrPC is legally untenable. Interim bail of the accused was
cancelled to aid the purpose of investigation. After the cancellation, his remand to custody was to ensure custodial interrogation. This exercise is
intrinsically connected with the power of remand under section 167(2) CrPC. If that was not the case it would not have been possible for the agency
to seek police remand after re-arrest, as aforesaid.
44. Authorities cited on behalf of CBI are factually distinguishable. In none of the cited cases the investigating agency had sought for police custody
after cancellation of bail. In Ashrom P.M. vs State of Kerala 2022 SCC OnLine Ker 3612 bail was cancelled as the accused while on bail committed
new offences. The High Court held, release of the accused under section 167(2) CrPC would defeat the purpose of cancellation, that is, commission
of further offences. In the present case remand of the petitioner after cancellation was for the purposes of investigation and not to prevent
commission of further offences.
45. Similarly, in Rajubai Bhalubhai Bharvad (Mevada) vs. State of Gujarat 2018 SCC OnLine Guj 2704 the High Court cancelled bail on the ground
the accused had failed to comply with a condition to deposit money which would be paid to the victims. Without commenting on the legality of such
condition, it appears that the purpose of cancellation was not for continuity of investigation but to provide restitution to victims.
46. In State of Manipur vs Laishram Surjit Singh 2021 SCC OnLine Mani 104 bail granted to the accused on medical ground was cancelled as he had
relied on fake certificates. His prayer for statutory bail was primarily rejected as his bail prayer on merits was pending before the Court. This runs
counter to the view of the Supreme Court in Rakesh Kumar Paul vs. State of Assam (2017) 15 SCC 67 (see para 40 and 41) wherein the Apex
Court, inter alia, held even an oral prayer for statutory bail may be made while considering an application for bail on merits. A hyper-technical
approach to liberty ought not to be taken.
47. Dismissal of the SLPs against the above cited cases were in limine and do not declare any binding precedent of universal application.
48. It is argued an accused whose bail is cancelled due to his own conduct cannot be treated on par with one who is in continued detention. Such
argument, though attractive on the first blush, suffers from sound legal justification. Indolent conduct of the accused while on bail would visit him with
the penalty of cancellation. Re-arrest of the accused and committing him to custody after cancellation is to obviate the supervening circumstance
which prompted the cancellation. In the present case, purpose of cancellation was to ensure effective investigation through custodial interrogation. To
meet such end, CBI prayed for police custody. This clearly establishes the remand of the accused after cancellation had been sought for the purposes
of investigation under section 167(2) CrPC. Failure to obtain police custody, under such circumstances required to have been addressed through
appropriate legal remedies which were not availed of. This lapse on the part of CBI cannot be masked by subjecting the petitioner to double jeopardy
of refusal to grant statutory bail.
49. Faced with this dilemma learned Counsel resorted to purposive interpretation of the right to default bail under section 167(2) CrPC. He submitted
if an accused by his own conduct obstructed the course of investigation he cannot demand statutory bail whose avowed objective is speedy and
effective investigation. In M. Ravindran (supra) the Apex Court quoted the 14th Law Commission Report with regard to the object of the enactment
in the following words:-
“17.3. …“while meeting the needs of a full and proper investigation in cases of serious crime, will still safeguard the liberty of the
person of the individualâ€.â€
50. Section 167(2) CrPC was enacted to strike a balance between the aforesaid computing rights by ensuring a mandatory right to bail, irrespective of
the gravity of the offence if investigation is not completed within a stipulated time. If non-cooperation of accused while in custody is treated as a
ground to deny him default bail, it would amount to re-writing the provision and rendering the indefeasible right to a discretionary one. Avoidance of
police custody or any other investigational process by an accused requires to be addressed through appropriate legal remedies but cannot be a ground
to deny statutory bail. A distinction is sought to be drawn between an accused whose bail is cancelled and has been taken into custody for the purpose
of investigation with one who is in continued detention. Such distinction, in my estimation, is an artificial one as the investigating agency in both cases
has the custody of the accused for a total period as prescribed in law.
51. Purpose of section 167(2) CrPC is to inject speed and efficiency in investigation. This necessitates prompt response on the part of the investigating
agency to pre-empt any effort to derail the investigation. If an accused seeks to avoid police custody through deceitful means, the investigating agency
requires to take immediate corrective measures failing which its power to get police custody would be lost forever. Even a purposive interpretation
denying statutory bail to a recalcitrant accused would not put the hands of the clock back and empower the agency to take the accused into police
custody which is permissible only during the first 15 days of detention. In the present case, investigating agency singularly failed to assail the orders
which permitted the accused to remain in hospital and scuttled its right to get police remand.
52. Failure of the investigating agency to seek prompt and appropriate remedy cannot be treated to be an ambiguity or legal absurdity which would call
for purposive interpretation. It may not be out of place to reiterate in the matter of liberty if two views are possible one which leans in favour of liberty
is to be adopted. Authorities relied by learned Counsel for CBI in aid of purposive interpretation are, therefore, clearly misplaced.
53. Furthermore, having slept over its right, the agency has belatedly made a volte face and has sought to deny statutory right to bail to the petitioner
on the ground he had not been remanded to custody under section 167(2) CrPC for the purposes of investigation after cancellation of bail.
54. As discussed earlier, after cancellation remand of the accused to custody was for the purpose of investigation under Chapter XII of the Code.
Such remand is traceable only to section 167(2) CrPC and not to any other provisions of the Code.
55. In view of the aforesaid discussion, I hold that the petitioner upon his re-arrest was remanded to custody for the purposes of investigation under
section 167(2) CrPC. After having suffered detention for a total period of 90 days he prayed for statutory bail. Admittedly, no police report had been
filed by them. Such prayer was denied by the Special Judge which has been assailed before this Court. Subsequent filing of police report does not take
away the right of the petitioner which had already crystalised in the view of Uday Mohanlal Acharya vs. State of Maharashtra (2001) 5 SCC 453.
Conclusion:-
56. Hence, in the facts of the case, I am inclined to hold the petitioner is entitled to statutory bail.
57. Accordingly, I direct the petitioner shall be released on bail upon furnishing a bond of Rs.5,00,000/- (Rupees Five Lakhs) with five sureties of
Rs.1,00,000/- (Rupees One Lakh) each, two of whom shall be local to the satisfaction of the trial Court or learned Sessions Judge-in-Charge, Paschim
Bardhaman on the following conditions:-
i) He shall deposit his passport, if any, before his release. If he does not have a passport he shall submit an affidavit to that effect before the said
Court;
ii) He shall not tamper with evidence or intimidate witnesses in any manner whatsoever;
iii) He shall remain within the municipal limits of Kolkata except for the purposes of investigation, attending court proceedings and medical treatment;
iv) In the event he has to go out of Kolkata for medical treatment, he shall before leaving the city intimate his itinerary and other particulars including
the medical institution where he shall be treated and the duration of his stay to the investigating agency and the trial Court;
v) He shall provide the address where he shall reside to the investigating agency and the trial Court;
vi) He shall report to the investigating agency once in a week until further orders;
vii) He shall make himself available for interrogation by the investigating agency as and when required;
viii) He shall not avoid interrogation in any manner whatsoever including medical grounds except on the certificate of unfitness by a medical
officer/board constituted by the investigating agency;
ix) He shall appear before the trial Court on every date of hearing.
58. In the event petitioner violates any of the aforesaid conditions, it shall be open to the investigating agency to seek cancellation of his bail in
accordance with law.
59. The application for bail, thus, stands allowed.
