Bombay High Court
Adnan Misbahuddin Khan And Anr vs State Of Maharashtra And Anr on 17 June, 2022
Author: Bharati Dangre
Bench: Bharati Dangre
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
WRIT PETITION NO.994 OF 2022
Adnan Misbahuddin Khan & Anr. .. Petitioners
Versus
The State of Maharashtra & Anr. .. Respondents
...
Ms.Anjali Awasthi for the Petitioners.
Ms.A.A.Takalkar, A.P.P. for the State/Respondent.
Mr.Jigar Agarwal for the Intervenor.
PSI Shri D.S.Salve attached to Mankhurd Police Station,
present.
...
CORAM: BHARATI DANGRE, J.
DATED : 17th JUNE, 2022 P.C:-
1. By the present writ petition, the petitioners have called in question the order passed by the Metropolitan Magistrate, 52nd Court, Kurla, Mumbai in C.C.No.5200525/PW/2022, thereby rejecting the application seeking default bail under Section 167(2) of the Criminal Procedure Code (for short, "the Cr.P.C.") by holding that the charge-sheet is produced before the Court frstly and, thereafter, the bail application was fled and, therefore, it cannot be said that the accused have availed the right available to them, under the provision.
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2. The sequence of events relevant to decide the entitlement of the petitioners for default bail is noted as under:-
The petitioners were arraigned as accused in a crime, invoking Sections 420, 504, 506 read with Section 34 of the IPC and they came to be arrested on 30/12/2021. On the frst remand, which took place on the very same date, they were remanded to judicial custody and continued to remain in the said custody. The petitioners preferred bail application before the Sessions Court, which came to be rejected on 05/02/2022.
The petitioners contend that they fled default bail application on 28/02/2022 before the learned Magistrate, since the prosecution has failed to fle the charge-sheet within the period of 60 days from the date of frst remand, and claimed their entitlement for default bail.
3. The learned counsel Ms.Anjali Awasthi would vehemently submit that on the said date, the Advocate for the petitioners reached the court room to fle the application for default bail at around 10.50 a.m., but was orally instructed to mention the matter before the learned Magistrate. When the matter was mentioned before the learned Magistrate, he directed the application to be placed before him, when it was M.M.Salgaonkar ::: Uploaded on - 22/06/2022 ::: Downloaded on - 27/12/2022 16:02:28 ::: 3/8 29 WP-994-22.doc mentioned at 11.02 a.m.. It is argued that the concerned Advocate waited for his turn and at 11.50 a.m., the Magistrate passed an order on the default bail application, calling say of the Public Prosecutor and Judicial Clerk. At that time, police constable of Mankhurd Police Station went to the offce of the Judicial Clerk and instead of fling say on default bail application, he gave charge-sheet to the Judicial Clerk of Court Room No.57 at 12.30 p.m. The Magistrate was informed that the charge-sheet was already fled. The Court refused to entertain the bail application on the ground that the charge- sheet is fled and this is an erroneous approach is the submission of Advocate Awasthi. By canvassing that indefeasible right is vested in the accused, if the charge-sheet is not fled on expiry of period of 60 days, she would submit that the order passed by the learned Magistrate is invalid.
4. In contrast, the learned A.P.P. Ms.Takalkar and Advocate Jigar Agarwal for the informant, would give a different version. Their argument, is to the effect that the charge-sheet was fled earlier and the application was fled later and, therefore, it cannot be said that the petitioners have availed of the indefeasible right accruing to them, which is enforceable only prior to fling of charge-sheet and it does not survive or M.M.Salgaonkar ::: Uploaded on - 22/06/2022 ::: Downloaded on - 27/12/2022 16:02:28 ::: 4/8 29 WP-994-22.doc remain enforceable on the challan being fled, if it is not already availed of.
5. I have considered the respective submissions and perused the impugned order. In paragraph 13 of the order, the learned Magistrate has recorded the events, which occurred in his Court in the following words :-
"13. In this case the Learned Counsel for the accused went to the Registry (Clerk of the Court) of this Court at 11.00 a.m. on 28.02.2022, for presentation of bail application under section 167 of the Criminal Procedure Code. However, the concerned clerk told the Learned Counsel for the applicant to present the application directly before the Court. Thereafter, Learned Counsel for the accused appeared before the Court for fling his bail application under provisions of section 167 of the Criminal Procedure Code. However, at 11.00 a.m. daily board of ready and unready cases was called and the Learned Counsel for the accused could not submit his application before the Court directly. However, he was present before the Court at the time of calling of daily board. The concerned Police Constable of Mankhurd Police Station submitted charge-sheet for signature of the Court. This Court put signature on the charge-sheet and sent it for registration. Thereafter, the Learned Counsel for the accused submitted his bail application. Therefore, the bail application and charge-sheet both were submitted before this Court at the same time. If, this fact is considered, then the charge-sheet is fled before the Court before fling of bail application by the Learned Counsel of the accused. However, it is the fact that the Learned Counsel for the accused was present before the Court registry of this M.M.Salgaonkar ::: Uploaded on - 22/06/2022 ::: Downloaded on - 27/12/2022 16:02:28 ::: 5/8 29 WP-994-22.doc Court at 11.00 a.m. for fling of his bail application. His application was not accepted by the concerned clerk and he was directed to present the bail application directly before the Court. Therefore, Learned Counsel for the accused presented the bail application at 12.20 p.m. before the Court. The charge-sheet was fled at 12.00 p.m."
6. It is further recorded in the order that after fling of the application, the Court called say of the Judicial Clerk and the A.P.P. and the Judicial Clerk fled his/her say that the charge- sheet is already fled before the Court and, therefore, the learned Magistrate recorded as under :-
"Therefore, it is clear that charge-sheet was fled frstly and thereafter, the Learned Counsel for the accused fled the bail application before the Court."
7. The learned counsel for the accused fled the bail application at 12.20 p.m. whereas the charge-sheet is fled at 12.00 a.m. and after fling of the charge-sheet, the right of default bail of the accused is extinguished, is the fnding recorded by the learned Magistrate.
There is no reason to disbelieve the learned Magistrate, who has clearly recorded the sequence of events in the impugned order. I have also perused the record which would M.M.Salgaonkar ::: Uploaded on - 22/06/2022 ::: Downloaded on - 27/12/2022 16:02:28 ::: 6/8 29 WP-994-22.doc reveal that on the application seeking default bail, the learned Magistrate had called for say of the Judicial Clerk and the A.P.P., who had clearly endorsed as under :-
"On perusal of record it seems that the Judicial Clerk fled charge-sheet today and the accused has fled bail application under Section 167 of Cr.P.C., but already charge-sheet is fled and the offence in non-bailable and the amount involved in the matter is huge and, therefore, the application is not tenable as there is no ground to consider default bail and, therefore, application be kindly rejected."
8. The law on Default Bail is crystallized in the latest judgment of the Hon'ble Supreme Court in the case of M.Ravindran Vs. Intelligence Offcer, Directorate of Revenue Intelligence1 and while construing the scope of Section 167(2) of the Cr.P.C. and recognising the indefeasible right to default bail under Section 167(2), Their Lordships have considered the said right as an integral part of right to personal liberty under Article 21 of the Constitution. By deliberating upon the earlier pronouncements, it has been reiterated that once the accused fles the application for bail under the proviso of Section 167(2), he is deemed to have "availed of" or enforced 1 (2021) 2 SCC 485 M.M.Salgaonkar ::: Uploaded on - 22/06/2022 ::: Downloaded on - 27/12/2022 16:02:28 ::: 7/8 29 WP-994-22.doc his right to be released on default bail, accruing after expiry of the stipulated time limit for investigation. The right to be released on default bail continues to remain enforceable if the accused has applied for such bail notwithstanding pendency of the bail application; or subsequent fling of the charge-sheet or a report seeking extension of time by the prosecution before the Court; or fling of the charge-sheet during the interregnum when challenge to the rejection of the bail application is pending before a higher Court. It is categorically held that the accused is deemed to have exercised his right to default bail under Section 167(2) of the Cr.P.C., the moment he fles the application for bail and offers to abide by the terms and conditions of the bail.
The law, being crystallized to the above effect, has to be applied, considering the facts involved.
9. In the present case, it is noticed by the learned Magistrate that the application for default bail has been fled subsequent to the fling of the charge-sheet, and, since the disputed question of fact cannot be gone into, the fnding rendered by the learned Magistrate on the factual aspect not being shown to be perverse, does not warrant any interference.
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Accordingly, the impugned order is upheld, and the writ petition is rejected.
( SMT. BHARATI DANGRE, J.) M.M.Salgaonkar ::: Uploaded on - 22/06/2022 ::: Downloaded on - 27/12/2022 16:02:28 :::