Bombay High Court
Ramesh Madhukar Thombre vs State Of Maharashtra on 3 December, 1998
Equivalent citations: 1999(5)BOMCR355
Author: F.I. Rebello
Bench: F.I. Rebello
ORDER F.I. Rebello, J.
1. Admit. Respondents waive service. Heard forthwith.
2. The petitioner was arrested on 23rd December, 1997 in respect of an offence under section 302 of I.P.C. etc. at about 18.15 hours. He was produced before the Court on 24th December, 1997 and was remanded to the police custody. There were also subsequent remands from time to time. The period of 90 days as required under section 167 of Cr.P.C. expired on 23rd March, 1998. The applicant herein on 24th March, 1998 made on application to be released on bail by invoking the provisions of section 167(2) of Cr.P.C. The application moved by the applicant was placed before the learned Magistrate at 11.30 a.m. when there was no charge sheet filed in the case. The charge sheet came to be filed at 3.30 p.m. of the same day. The learned Magistrate on those facts held that as the charge sheet has been filed on the very same day the applicant herein was not entitled to bail. Two other applicants who had applied were also denied bail. Their case, however, is different from that of the present applicant whose custody after remand admittedly expired on 23rd March, 1998, that being the 90th day.
2-A. Learned Counsel for the applicant contents that considering the law laid down by the Apex Court in the case of Mohamed Iqbal Madar Sheikh & others v. State of Maharashtra, and the judgment of Single Judge of this Court in the case of Sanjay Baban Bhujbai v. The State of Maharashtra, 1998(5) Bom.C.R. 472 : 1998 All.M.R. (Cr.) 946 the applicant is entitled to be enlarged on bail under section 167(2) and not under the provisions of section 437 of Cr.P.C.
On behalf of the respondent-State it is contended that the charge sheet has been filed on the very same day. The judgment of the Apex Court in the case of Mohamed Iqbal Madar Sheikh (supra) is sought to be distinguished on the ground that what was under consideration in the said case was filing of charge sheet subsequently and not on the same day as the application under section 167(2). Learned Counsel also placed reliance on the judgment of the Apex Court in the case of Dr. Bipin Shanitlal Panchal v. State of Gujarat, 1996 S.C.C. 718. Learned Counsel thereafter relied on a judgment of Single Judge of the High Court of Punjab and Haryana in the case of State of Punjab v. Sukhminder Singh alias Mundri, 1998 Cri.L.J. 3090 to contend that the moment the charge sheet is filed even if the applicant had a right, this right goes away and the only remedy would be under section 437 of Cr.P.C.
3. Section 167 of the Cr.P.C. is the section which confers power on the Magistrate to grant custody. In the case offence is punishable with death or imprisonment for life or for a term not less than 10 years custody of upto ninety days and any other offences upto sixty days and on the expiry of such period the accused person shall be released on bail if he is prepared to and does furnish bail. In other words no order can be made for further custody of the accused if he is prepared to and agreeable to furnish bail. As such it is clear that within the said period of 90 days if the charge sheet is not filed then the provisions of section 437 of the Cr. P.C. will not be attracted i.e. the release of the applicant-accused under the provisions of the said section.
4. The question that has to considered is whether on the expiry of the period of 90 days if an application is moved by the applicant expressing his desire to be released on bail, will the mere fact that the charge sheet is filed subsequently request in denial of the right, accrued to the applicant under sub-section (2) of section 167 of Cr.P.C. The said question came up for consideration before the Apex Court in the case of Mohamed Iqbal Madar Sheikh (supra). The question was not directly in issue in the said case. It was however, one of the arguments advanced before the Apex Court while the Apex Court has answered in para 12 of the judgment. It would be advisable to reproduce portion of the said paragraph, which is as under :-
"During hearing of the appeal, it was pointed out by the Counsel appearing on behalf of the appellants that some courts in order to defeat the right of the accused to be released on bail under proviso (a) to section 167(2) after expiry of the statutory period for completion of the investigation, keep the applications for bail pending for some days so that in the meantime, charge-sheets are submitted. Any such act on the part of any Court cannot be approved. If an accused charged with any kind of offence becomes entitled to be released on bail under proviso (a) to section 167(2), that statutory right should not be defeated by keeping the applications pending till the charge-sheets are submitted so that the right which had accrued is extinguished and defeated."
A learned Single Judge of this Court has followed this judgment and has explained the same relying on an earlier judgment of this Court in the case of Sanjay Baban Bhujbal, (1998(5) Bom.C.R. 472)(supra).
5. The judgment of the Apex Court and of the Single Judge of this Court are sought to be distinguished on the ground that the application under section 167(2) was not on the same day as the filing of the charge sheet but on a subsequent date. The learned A. P. P. for the respondents for that purpose places reliance on a judgment of learned Single Judge of the Punjab & Haryana High Court in the case of State of Punjab (supra).
6. No person can be detained otherwise than by following the due process of law. Article 21 of the Constitution, therefore, requires that no person can be denied his right to life and liberty without due process of law. In the course of an investigation the power to detain a person is under section 167 of Cr. P.C. In other words custody is pursuant to this due procedure and it is only following this due procedure that a person can be kept in custody. The power of the Magistrate under this section is fettered. An accused is entitled to apply for bail in some cases on the expiry of 90 days and in other cases on the expiry of 60 days. On the expiry of the aforesaid period the Magistrate has no power to remand the applicant/accused to further custody. What, therefore, follows is that any further detention of the applicant-accused would be without due process of law under section 167 of Cr. P.C. In the event he exercises his right to be released on bail other than due procedure will be under section 437 of the Cr. P.C. It is in that context that the section has provided that if a person applies to be enlarged on bail after the period of remand is over the Court then must release him on bail. By a process of interpretation including the judgment of the Apex Court in the case of Dr. Bipin Shantilal Panchal (supra), the Apex Court has held that if the applicant accused does not exercise his right before the charge sheet is filed then such accused-applicant cannot take benefit of section 167 of Cr.P.C. I may once again advert to the judgment of the Apex Court in the case of Mohamed Iqbal Madar Sheikh (supra) wherein it is observed as under :-
"Unless applications had been made on behalf of the appellants, there was no question of their being released on ground of default in completion of the investigation within the statutory period. It is now settled that this right cannot be exercised after the charge sheet has been submitted and cognizance has been taken, because in that event the remand of the accused concerned including one who is alleged to have committed an offence under TADA, is not under section 167(2) but under other provisions of the Code."
The indefeasible right of the applicant has been explained by the Supreme Court in the case of Sanjay Dutt v. State through C.B.I. Bombay-11, 1995(1) Bom.C.R. 186(S.C.) : 1994(5) Supreme Court Cases 410. Before dealing with the proposition the following observation in para. 48 can be referred to :-
"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 above observations of the Apex Court makes it clear that if the accused makes an application for bail then he has to be released on bail forthwith. To my mind the said observation of the Apex Court leaves no manner of doubt that what is to be considered is the application by the applicant and not the filing of the charge sheet. If such application is moved before a charge sheet is filed the mere fact that the Court does not take up the matter or that there is no Presiding Officer available cannot act to the detriment of the applicant.
7. It is true that learned Single Judge of the Punjab and Haryana High Court has taken the view which is sought to be argued on behalf of the respondent herein. In my respectful submission considering the judgment of the Apex Court in the case of Mohamed Iqbal Madar Sheikh (supra) I am unable to agree with the reasoning and the view adopted by the learned Single Judge of the Punjab & Haryana High Court. On the contrary the learned Single Judge of this Court in the case of Sanjay Baban Bhujbal, (1998(5) Bom.C.R. 472) (supra) as explained earlier accepted the right of the applicant to be released on bail if such application is moved before the charge sheet is filed. I am in respectful agreement with the reasoning followed by the learned Single Judge of this Court considering the language of section 147 of Cr.P.C. In the light of that the following order :-
(i) Application allowed in terms of prayer Clause (b). The applicant to furnish bond in an amount of Rs. 5,000/- with two sureties in the like amount to the satisfaction of the Additional Sessions Court, Palghar.
(ii) The applicant to report on 2nd and 4th Mondays of every month before Nalasopara Police Station. Thane, between 10.00 a.m. and 1.00 p.m.
8. Application allowed.