Bombay High Court
Habibulla Saudagar vs State Of Maharashtra on 28 October, 1987
Equivalent citations: 1988(1)BOMCR11
JUDGMENT V.P. Tipnis, J.
1. Rule, Shri Vyas, the learned Public Prosecutor for the State, waives service of the rule. By consent, rule heard forthwith.
2. This is an application for releasing the petitioner on bail. The petitioner was arrested on 12th July, 1987, in connection with an offence registered at the Dahanu Police Station at C.R. No. 145/87 under sections 302, 307, 147, 148, 149 and 323 of the Indian Penal Code. The F.I.R. on the basis of which the crime was registered was filed by one Pralhad Shriniwas Kamat on 11th July, 1987 alleging that his elder brother Balu alias Ramchandra Kamat was assaulted by a mob of about 70 to 80 Muslims near the shop of one Intwala Tailor and that said Balu succumbed to the injuries sustained in the said concerted attack.
3. As mentioned earlier, the petitioner was arrested on 12th July, 1987. Ninety days of his detention were completed on 10th October, 1987, which was a second Saturday, 11th October was Sunday. On 12th October, 1987, which was Monday, the petitioner preferred on application to the learned Magistrate, Dahanu, for bail on the ground that the police had not filed charge-sheet till then and, therefore, under the provisions of section 167(2) of the Code of Criminal Procedure, he is entitled to be released on bail. The petitioner expressed his readiness and willingness to furnish sureties and abide by all the conditions that may be imposed upon him.
4. It is pertinent to note that this application for bail was made at about 11 o' clock. Even till then, the charge-sheet was not filed. It appears that the learned Magistrate waited for the whole day and it is alleged that in the evening the charge-sheet was filed and, thereafter the learned Magistrate passed the order rejecting the application for bail. The learned Magistrate accepted the submissions made by the Assistant Police Prosecutor and relying upon a decision of the Madras High Court in Pandi v. State, 1979 Cri.L.R. 1503 rejected the bail application.
5. Shri Ovalekar, the learned Counsel appearing for the petitioner, submitted that in the case of Pandi v. State, 1979 Cri.L.J. 1503 the learned Judge of the Madras High Court has relied upon a decision of the Gujarat High Court but the Full Bench of the Gujarat High Court itself has subsequently overruled the earlier judgment of the said High Court. Shri Ovalekar also brought to my notice a judgment of this Court which takes a contrary view.
6. Shri Vyas, the learned Public Prosecutor submitted that in view of the fact that charge-sheet was filed before the learned Magistrate considered the application for bail, the learned Magistrate had no power to release the accused on bail. I do not find it possible to accept this submission of the learned Public Prosecutor.
7. As held by this Court in State of Maharashtra v. Sharad, , an absolute right accrued to the accused on the expiry of 90 days which cannot be defeated by merely filing the charge-sheet after the expiry of 90 days. It is further held in the said decision that the right accrues the moment 90 days are over, whether the 90th day falls on a holiday or not. The Full Bench of the Gujarat High Court in Babubhai Parshottamdas v. State of Gujarat, 1982 Cri.L.J. 284 has observed:---
"Thus, it is clear that if it is not possible to complete the investigation within a period of ninety days, even in serious and ghastly types of crimes, the accused will be entitled to be released on bail. Any reference to the provision relating to bail occurring in section 167(2) proviso is merely with a view to enable the prosecution if necessary to apply that the person released on bail under section 167(2), proviso (a) be taken in custody."
In view of the decision of this Court in Sharad's case and the decision of the Full Bench of the Gujarat High Court in Babubhai Parshottamdas's case it is clear that the petitioner/accused in the present case was entitled, as a matter of right, to be released on bail 12th October, 1987, under the provisions of section 167(2) of the Code of Criminal Procedure.
8. In the circumstances, the revision application is allowed. The rule is made absolute. The petitioner is released on bail in the amount. The petitioner to report to Dahanu Police Station once a week with one surety in the like amount of Rs. 5,000/-. I make it clear that the present application is decided only on the basis of the provisions of section 167(2) of the Code of Criminal Procedure and I have not dealt with the merits of the matter at all. It will be open to the proution to make an application for cancellation of the bail under the provisions of the Code of Criminal Procedure and it will be open to the petitioner accused to defend that application on merits, in accordance with law.