Bombay High Court
Sandesh @ Papya Ananta Phadke And Ors vs State Of Maharashtra on 1 September, 2023
Author: M. S. Karnik
Bench: M. S. Karnik
2023:BHC-AS:25247
Darshan Patil BA-1061-23.odt
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
BAIL APPLICATION NO. 1061 OF 2023
1] Sandesh @ Papya Ananta Phadke
2] Sameer Kaluram Kutle
3] Prashant Natha Phadke
4] Satish Ambu Phadke
5] Mahesh Baliram Phadke
6] Sandeep Posha Jale
7] Gurunath Pandharinath Phadke
8] Mangesh Pandharinath Phadke
9] Akshay Revan Phadke
10] Santosh Govind Patil
11] Rajesh Maruti Kathar
12] Vishwas Harishchandra Patil
13] Mangesh Janardhan Kutle ..Applicants
VS.
The State of Maharashtra ..Respondent
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Senior Advocate Amit Desai, Senior Advocate Manoj Mohite
a/w Vishal Bhanushali, Sandeep Patil, Vinay Bhanushali,
Gopalkrishna Shenoy, Pooja Thakur, Sanmit Vaze, Jitesh
Bhanushali, Panchshil Patil, Rutuj Warick for the Applicants.
Senior Advocate Raja Thakare a/w Siddharth Jagushte and
Akash Kavade for the State.
Adv. Shekhar Bhise i/b Adv. Vrushali Patil for the Intervener.
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CORAM : M. S. KARNIK, J.
RESERVED ON : AUGUST 28, 2023
PRONOUNCED ON : SEPTEMBER 1, 2023
ORDER :
1. This is an application for bail filed by the applicants in connection with the C.R. No. 403 of 2022 registered with 1/21 Darshan Patil BA-1061-23.odt the Shivaji Nagar Police Station, Thane, for the offences punishable under Sections 307, 143, 147, 148, 149, 341, 506, 506(2), 427, 120-B of the Indian Penal Code, Sections 3(1)(ii), 3(2) and 3(4) of the Maharashtra Control of Organised Crime Act, 1999 (for short "MCOCA"), Sections 3, 25 of the Arms Act, Sections 37(1) and 135 of Maharashtra Police Act and Section 7 of Criminal Law Amendment Act.
2. The applicants claim that they are entitled to be released on default bail under Section 167(2) of the Code of Criminal Procedure, 1973 (for short "Cr.P.C.") read with Section 21(2)(b) of the MCOCA. The incident is dated 13/11/2022, in respect of which the First Information Report (FIR) was lodged. The complainant was desirous of contesting the election for the post of corporator in the Dombivali-Kalyan Municipal Corporation, Ward No. 42, Adivali-Dhokali. It is alleged that the opposition candidates hatched a conspiracy to kill the complainant in order to try to increase their presence in the ward. At around 03.30- 03.45 P.M., the accused were standing on the road with four guns, three revolvers, two double-barrel guns and one 2/21 Darshan Patil BA-1061-23.odt single-barrel gun. The accused came in front of the complainant's car and threatened the complainant with dire consequences as he was contesting the election. As the complainant drove his car a little ahead, the accused persons fired from their guns, revolvers and barrel guns at the complainant and his friends with the intention of killing them. Thereafter they fled away. It is alleged that the attack on the complainant by the accused persons was with a view to preventing him from contesting in the upcoming Dombivali-Kalyan Municipal Corporation election.
3. There are three sets of accused. The first set of accused comprised accused Nos. 1 to 3, who were arrested and produced before the Judicial Magistrate First Class (for short "JMFC") Court on 14/11/2022. Accused Nos. 1 to 3 came to be released on bail under Section 167(2) of the Cr.P.C. by an order dated 13/06/2023 passed by this Court in Bail Application No. 1136 of 2023.
4. The second set are accused Nos. 4 to 9 (present applicant Nos. 1 to 6) who came to be arrested and produced before the JMFC Court on 17/11/2022. An 3/21 Darshan Patil BA-1061-23.odt application for invoking provisions of MCOCA to the present case was made on 21/11/2022. The third set of accused comprising of accused Nos. 10 to 16 (present applicant Nos. 7 to 13) were arrested and produced in the Special Court on 24/11/2022. Accused Nos. 17 to 29 are shown to be absconding. Then there is one set of accused who are not chargesheeted.
5. According to the investigating agency, the period of 90 days to complete the investigation was to come to an end on 13/02/2023. The Special Public Prosecutor (for short "Special P.P.") made an application on 01/02/2023 to the Special Judge for extension of time to file a chargesheet by 60 days. The advocate for the accused No. 1 to 16 filed a say on 03/02/2023 to the said application for extension of time to file a chargesheet opposing extension. By the order dated 06/02/2023 the learned Special Judge granted an extension of 20 days to file the chargesheet.
6. The present applicants (accused Nos. 4 to 16) as well as accused Nos. 1 to 3 made a common application for default bail under Section 167(2) of Cr.P.C. on 04/03/2023. 4/21
Darshan Patil BA-1061-23.odt The chargesheet was filed thereafter on the same day i.e. 04/03/2023. The say was filed by the prosecution opposing the default bail application on 06/03/2023. By order dated 06/03/2023, the Special Judge, Thane, rejected the default bail.
7. I have heard Shri Amit Desai, learned senior advocate appearing for the applicants and Shri Raja Thakare, learned senior advocate for the respondent/State.
8. Section 167(2) of Cr.P.C. is relevant which reads thus:
"(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-
(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;5/21
Darshan Patil BA-1061-23.odt
(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 of the accused in custody of the police under this section unless the accused is produced before him in person for the first time and subsequently every time till the accused remains in the custody of the police, but the Magistrate may extend further detention in judicial custody on production of the accused either in person or through the medium of electronic video linkage.]
(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.
[Explanation I.-For the avoidance of doubts, it is hereby declared that notwithstanding the expiry of the period specified in paragraph (a), the accused shall be detained in custody so long as he does not furnish bail.] [Explanation II.-If any question arises whether an accused person was produced before the Magistrate as required under clause (b), the production of the accused person may be proved by his signature on the order authorising detention or by the order certified by the Magistrate as to production of the accused person through the medium of electronic video linkage, as the case may be:] [Provided further that in case of woman under eighteen years of age, detention shall be authorised to be in the custody of a remand home of recognised social institution.]"
9. Relevant to the decision in the present case is also Section 21(2) of the MCOCA, which reads thus: 6/21
Darshan Patil BA-1061-23.odt "(2) Section 167 of the Code shall apply in relation to a case involving an offence punishable under this Act subject to the modifications that, in sub-section (2),-
(a) the references to "fifteen days," and "sixty days,"
wherever they occur, shall be construed as references to "thirty days" and "ninety days", respectively;
(b) after the proviso, the following proviso shall be inserted, namely:-
Provided further that if it is not possible to complete the investigation within the said period of ninety days, the Special Court shall extend the said period upto one hundred and eighty days, on the report of the Public Prosecutor indicating the progress of the investigation and the specific reasons for the detention of the accused beyond the said period of ninety days."
10. Before I consider the rival submissions, a profitable reference needs to be made to the decision of the Hon'ble Supreme Court in the case of Rakesh Kumar Paul Vs. State of Assam1, paragraph Nos. 37 to 41 read thus:
"37. This Court had occasion to review the entire case law on the subject in a Union of India v. Nirala Yadav. In that decision, reference was made to Uday Mohanlal Acharya v. State of Maharashtra and the conclusions arrived at in that decision. We are concerned with Conclusion (3) which reads as follows: (Nirala Yadav case, SCC p. 472, para 24) "13.(3) On the expiry of the said period of 90 days or 60 days, as b the case may be, an indefeasible right accrues in favour of the accused for being released on bail on account of default by the investigating agency in the completion of the investigation within the period prescribed and the accused is entitled to 1 (2017) 15 SCC 67 7/21 Darshan Patil BA-1061-23.odt be released on bail, if he is prepared to and furnishes the bail as directed by the Magistrate.' ( Uday Mohanlal case, SCC p. 473, para 13)"
38. This Court also dealt with the decision rendered in Sanjay Dutt and noted that the principle laid down by the Constitution Bench is to the effect that if the charge-sheet is not filed and the right for "default bail" has ripened into the status of indefeasibility, it cannot be frustrated by the prosecution on any pretext. The accused can avail his liberty by filing an application stating that the statutory period for filing the charge-sheet or challan has expired and the same has not yet been filed and therefore the indefeasible right has accrued in his or her favour and further the accused is prepared to furnish the bail bond.
39. This Court also noted that apart from the possibility of the prosecution frustrating the indefeasible right, there are occasions when even the court frustrates the indefeasible right. Reference was made to Mohd. Iqbal Madar Sheikh v. State of Maharashtra wherein it was observed that some courts keep the application for "default bail" pending for some days so that in the meantime a charge- sheet is submitted. While such a practice both on the part of the prosecution as well as some courts must be very strongly and vehemently discouraged, we reiterate that no subterfuge should be resorted to, to defeat the indefeasible right of the accused for "default bail" during the interregnum when the statutory period for filing the charge-sheet or challan expires and the submission of the charge-sheet or challan in court.
Procedure for obtaining default bail
40. In the present case, it was also argued by the learned counsel for the State that the petitioner did not apply for "default bail" on or after 4-1-2017 till 24-1-2017 on which date his indefeasible right got extinguished on the filing of the charge-sheet. Strictly speaking, this is correct since the petitioner applied for regular bail on 11-1-2017 in the Gauhati High Court - he made no specific application for grant 8/21 Darshan Patil BA-1061-23.odt of "default bail". However, the application for regular bail filed by the accused on 11-1-2017 did advert to the statutory period for filing a charge-sheet having expired and that perhaps no charge-sheet had in fact being filed. In any event, this issue was argued by the learned counsel for the petitioner in the High Court and it was considered but not accepted by the High Court. The High Court did not reject the submission on the ground of maintainability but on merits. Therefore it is not as if the petitioner did not make any application for default bail-such an application was definitely made (if not in writing) then at least orally before the High Court. In our opinion, in matters of personal liberty, we cannot and should not be too technical and must lean in favour of personal liberty. Consequently, whether the accused makes a written application for "default bail"
or an oral application for "default bail" is of no consequence. The court concerned must deal with such an application by considering the statutory requirements, namely, whether the statutory period for filing a charge-sheet or challan has expired, whether the charge-sheet or challan has been filed and whether the accused is prepared to and does furnish bail.
41. We take this view keeping in mind that in matters of personal liberty and Article 21 of the Constitution, it is not always advisable to be formalistic or technical. The history of the personal liberty jurisprudence of this Court and other constitutional courts includes petitions for a writ of habeas corpus and for other writs being entertained even on the basis of a letter addressed to the Chief Justice or the Court."
11. Bearing the relevant statutory provisions in mind and seeking guidance from the principles laid down by Their Lordships, I proceed to consider the rival submissions. 9/21
Darshan Patil BA-1061-23.odt
12. Shri Desai, learned senior advocate, mounted a challenge to the order dated 06/02/2023 passed by the Special Judge granting extension of 20 days for filing the chargesheet. Learned senior advocate submitted that hardly any cogent and valid grounds are spelt out in the application made by the Special P.P. for extension of time to complete the investigation. Learned senior advocate submitted that the extension was sought for the sake of it and not for any justifiable reasons. It is further submitted that the report of the Special P.P. indicating the progress of the investigation falls foul of the proviso to Section 21(2)(b) of MCOCA. It is submitted that there is hardly any application of mind by the Special P.P. It is submitted that the reasons would go to show that there is no independent application of mind and there is no satisfaction recorded that there is actually a need for extension of time to file the chargesheet. I don't find any force in this submission of the learned senior advocate. Having perused the report, I am in agreement with the submission of the Shri Raja Thakare, learned senior advocate for the respondent, that the report 10/21 Darshan Patil BA-1061-23.odt of the Special P.P. demonstrates proper application of mind and that he has recorded his own satisfaction after considering the materials. The perusal of the report indicates that there is proper compliance of Section 21(2)
(b) of the MCOCA. Since I am satisfied that the report meets the requirement of law for the for the purpose of extension, I refrained from considering the objection of Shri Raja Thakare that it is not open for the applicants to question the report in this application as the order passed by the Special Judge has not only been acted upon but the same has attained finality as the applicants did not challenge the order granting extension by way of an appeal under Section 12 of MCOCA.
13. Let me now consider the next submission of Shri Desai. Sixteen accused were arrested on different dates and produced before the learned JMFC. The accused Nos. 1 to 3 were produced on 14/11/2022. The second and third set of accused viz. the present applicants (original accused Nos. 4 to 16), were produced before the Court on different dates viz. 16/11/2022 and on 23/11/2022. The report of the 11/21 Darshan Patil BA-1061-23.odt Special P.P. indicates that the investigating agency needed 60 days to complete the investigation from 13/02/2023, on which date the period of 90 days to file the chargesheet, was to come to an end according to the investigating agency.
14. The report of the Special P.P. makes a reference to the fact that the 16 accused have been arrested and some of the accused are absconding. The application filed by the investigating agency for extension was a common application. The time period requested for completing the investigation was common. A specific reference is made in the report to the date of arrest and remand. The investigating agency requested for 60 days extension to complete the investigation with reference to the date 13/02/2023, on which date, the period of 90 days would be over. The Special Judge granted a shorter period of 20 days to complete the investigation. The report filed by the Special P.P. is common for accused Nos. 1 to 16. The investigating agency proceeded with common investigation for all the accused. The investigating agency did not seek 12/21 Darshan Patil BA-1061-23.odt different time periods or separate dates with reference to their date of arrest for filing the chargesheet against different accused. The application of mind by the Special P.P. was with reference to a particular date i.e. 13/02/2023 on which date the period of 90 days was to be over, and therefore, a request made was for an extension of time to complete the investigation which was a common investigation. The reading of the order dated 06/02/2023 passed by the Special Judge reveals that the Special Judge was satisfied that the grounds mentioned in the report of the Special P.P. are exceptional and warrant some extension of time. The Special Judge, therefore, granted extended time of 20 days for filing of the chargesheet. The chargesheet that was filed was common in respect of the 16 accused, which includes the present applicants as well as accused Nos. 1 to 3. Accused Nos. 1 to 3 are already granted the facility of default bail by an order of this Court.
15. Neither the report of the Special P.P. nor the order of the Special Judge granting an extension of time for filing of the chargesheet is indicative of different time periods or 13/21 Darshan Patil BA-1061-23.odt separate dates for the filing of the chargesheet against different accused. The arrest of the accused Nos. 1 to 16 may have been on different dates, but the application for extension made was with reference to the date '13/02/2023', with respect to which the extension of 20 days for completing the investigation was granted. The starting point, therefore, for the purpose of completion of the investigation will have to be regarded as the date of the arrest in respect of the accused Nos. 1 to 3 and the extension of 20 days period to complete the investigation will have to be regarded from the date the period of 90 days is over with reference to the accused Nos. 1 to 3. The investigating agency sought extension of 60 days to complete the investigation, however, for the shorter period of 20 days extension that was granted by the Special Judge, it will have to be regarded for all the accused in respect of whom the said application was made. In the case of a common investigation for all accused, there is no concept of filing separate chargesheet for different accused based on the date of arrest. The chargesheet is filed once the 14/21 Darshan Patil BA-1061-23.odt investigation is complete and therefore, the entire investigation had to be completed within the extended period or else the investigation would suffer the consequences of not completing the investigation. In the case of the accused who is in custody, consequently, a right would be created in favour of the accused to seek default bail.
16. A reading of the proviso of Section 21(2)(b) of the MCOCA reveals that if it is not possible to complete the investigation within the said period of 90 days, the Special Court shall extend the said period up to 180 days, on the report of the public prosecutor indicating progress of the investigation and the specific reasons for the detention of the accused beyond the said period of 90 days. The first part of the proviso demonstrates that the same is with reference to the completion of the investigation. The proviso envisages a common extension. In the present case, in my opinion, the investigation being common for all accused, the application for extension being common, it is obvious that the extension sought by the investigating 15/21 Darshan Patil BA-1061-23.odt agency was for completing the investigation within the extended period with reference to the date as 13/02/2023 on which date the 90 days period came to an end. As indicated earlier, the application of mind by the Special P.P. was from the point of view of the extension of time to complete the investigation with reference to a particular date, and there is nothing to indicate that the investigating agency was applying for different extensions depending on the date of the arrest of the accused. The application for extension clearly reveals the investigating agency needed 60 more days to complete the investigation in respect of all the accused and therefore, if a shorter period of 20 days is granted by the Special Court, it must be for all.
17. According to me, the Special Court in the order dated 06/03/2023 while rejecting the application for default bail, erred in observing that "the case of the accused Nos. 1 to 3 stands apart from the rest of the applicants, as they were arrested much prior to the second and third sets of accused, who were arrested after the accused Nos. 1 to 3". The Special Court ought not to have read something which is 16/21 Darshan Patil BA-1061-23.odt not a part of the order dated 06/02/2023 granting the extension of 20 days while rejecting the application for default bail. The order granting extension by the Special Judge was with reference to the application made for extension of time to complete the investigation. The order passed by the trial court granting extension makes no reference to different dates of arrest or separate dates of filing chargesheet against different accused. In my opinion, the Special Judge could not have gone behind the order dated 06/02/2023 granting an extension of 20 days for filing the chargesheet. The order dated 06/02/2023 should have been construed as it stands.
18. Learned senior advocate Shri Raja Thakare tried his best to persuade me that having regard to the different dates of arrest of the three sets of accused would have the effect of enlarging the time to file the chargesheet, disentitling the present applicants to claim default bail. However, I am not inclined to be persuaded with this submission, though at the first blush, the said submission did seem attractive. Learned senior advocate then made an 17/21 Darshan Patil BA-1061-23.odt attempt to submit that the learned Single Judge of this Court while allowing the application for default bail of the accused Nos. 1 to 3 should have considered the date on which the chargesheet was actually presented and not the date on which it is actually numbered, the next day being a holiday. In my view, the said contention could have very well been taken when the learned Single Judge decided the application for default bail in respect of accused Nos. 1 to 3. As this court has enlarged accused Nos. 1 to 3 on bail and as the applicants are similarly placed as accused Nos. 1 to 3, I refrain from considering this submission of Shri Raja Thakare, learned senior advocate.
19. It is pertinent to note that the Special Judge had rejected the application for default bail of accused Nos. 1 to 16 which includes the present applicants. However, the accused Nos. 1 to 3 approached this court for default bail vide Bail Application No. 1136 of 2023. This court by order dated 13/06/2023 allowed the application of the accused Nos. 1 to 3 after considering the law laid down by the Supreme Court in Enforcement Directorate, 18/21 Darshan Patil BA-1061-23.odt Government of India Vs. Kapil Wadhawan2 and in view of the law laid down by this court, in the case of Deepak Satyavan Kudalkar Vs. The State of Maharashtra 3. This court observed that the accused Nos. 1 to 3 exercised their right to ask for a default bail on 04/03/2023 after the period for filing the chargesheet even after the extension expired on 03/03/2023.
20. Coming to the present case, the applicants herein filed a common application for default bail alongwith accused Nos.1 to 3. After the extended period of filing the charge- sheet expired on 03/03/2023, the applicants exercised their indefeasible right to ask for default bail on 04/03/2023, whereafter, on the very same day, the chargesheet came to be filed. The case of the applicants for the purpose of default bail cannot be differentiated from the accused Nos. 1 to 3 only on the date of arrest. Considering that what was sought by the investigating agency was an extension of time to complete the investigation in respect of all the accused within the extended period of 60 days which was 2 Criminal Appeal No. 701-702 of 2020, dated 27/03/2023 3 LD/VC Criminal Bail Application No. 137 of 2020 dated 09/07/2020 19/21 Darshan Patil BA-1061-23.odt curtailed by the special judge to 20 days, the starting point of the extension will be common and same for all the accused Nos. 1 to 16. Consequently, the present application deserves to be allowed. Hence, the following order:
ORDER
(a) The application is allowed.
(b) The applicants- Sandesh @ Papya Ananta Phadke, Sameer Kaluram Kutle, Prashant Natha Phadke, Satish Ambu Phadke, Mahesh Baliram Phadke, Sandeep Posha Jale, Gurunath Pandharinath Phadke, Mangesh Pandharinath Phadke, Akshay Revan Phadke, Santosh Govind Patil, Rajesh Maruti Kathar, Vishwas Harishchandra Patil, Mangesh Janardhan Kutle in connection with C.R. No.403 of 2022 registered with Shivaji Nagar Police Station shall be released on bail on their furnishing P.R. Bond of Rs.50,000/- each with one or more sureties each in the like amount.
(c) The applicants shall attend the Investigating Officer of the Shivaji Nagar police station once in a month every first Monday of the month between 11.00 a.m. and 1.00 p.m. 20/21 Darshan Patil BA-1061-23.odt
(d) The applicants shall not leave the jurisdiction of Thane District without intimation to the investigating officer.
(e) The applicants shall not directly or indirectly make any inducement, threat or promise to any person acquainted with the facts of the case so as to dissuade him from disclosing the facts to Court or any Police Officer. The applicants shall not tamper with evidence.
(f) On being released on bail, the applicants shall furnish their contact numbers and residential addresses to the Investigating Officer and shall keep him updated, in case there is any change.
(g) The applicants shall attend the trial regularly.
(h) The prosecution is at liberty to file an application for cancellation of bail if any of the conditions imposed by this Court is breached.
21. The application is disposed of.
(M. S. KARNIK, J.) 21/21 Signed by: Darshan Patil Designation: PA To Honourable Judge Date: 01/09/2023 20:57:48