Bombay High Court
Rahul Shivaji Khomane vs The State Of Maharashtra on 30 November, 2021
Author: V. G. Bisht
Bench: V. G. Bisht
BA-2375-2021.odt
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CRIMINAL BAIL APPLICATION NO. 2375 OF 2021
Rahul Shivaji Khomane ... Applicant
Versus
The State of Maharashtra ... Respondent
Mr.Rajiv Patil, Senior Counsel i/b Mr. Shriram S. Choudhary, for the
Applicant.
Mr. H. J. Dedhia, APP, for the State-Respondent.
CORAM : V. G. BISHT, J.
RESERVED ON : 22nd November, 2021.
PRONOUNCED ON : 30th November, 2021.
PC:-
. This application is moved by the applicant (Accused No.8) under
Section 167(2) of the Code of Criminal Procedure ('Cr.P.C.' for short) for
seeking bail during the pendency of the trial in respect of C.R. No. 0736
of 2020 for the offences punishable under Sections 13(1)(b)(e) r/w
13(2) of the Prevention of Corruption Act, 1988 and under Sections 109,
420, 465, 467, 468, 471, 474, 475 and 120B of the Indian Penal Code
registered with the Alankar Police Station, Pune City.
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2 Mr. Patil, learned senior Counsel for the applicant, submits that
the applicant came to be arrested on 24/03/2021 and was produced
before the learned Special Judge, Pune on 25/03/2021. Considering the
offences alleged to have been levelled against the applicant, it was
mandatory on the part of investigating officer to file charge-sheet within
90 days from the first day of remand. Since it was not done, the
applicant moved bail application under Section 167(2) of the Cr.P.C. on
23/06/2021. However, the learned Special Judge rejected the
application on the ground that the first day of remand has to be
excluded. According to learned senior Counsel, there are catena of
decisions which hold that the first day of remand has to be included.
Learned senior Counsel although submitted number of decisions but he
places reliance on the latest order of the Hon'ble Apex Court dated
February 23, 2021 passed in Criminal Appeal Nos. 701-702 of 2020 in
between Enforcement Directorate, Government of India V/s Kapil
Wadhawan and Anr. Etc. According to learned senior Counsel, in view
of above order the learned Special Judge materially erred in law as well
as in facts in coming to the conclusion that first day of remand is to be
excluded after calculating the period and verifying of the charge-sheet
under Section 167(2) of the Cr.P.C.
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3 Mr.Dedhia, learned APP, on the other hand, would justify the
impugned order. According to learned APP, the Special Judge rightly
excluded the day of first remand while calculating the period of
limitation.
4 In view of above submissions, following ponderable question of
law arises for consideration:-
"Whether the day of remand has to be included or
excluded while computing the period of 90 days or 60
days, as contemplated in Section 167(2)(a) of the
Cr.P.C.?"
5 In Enforcement Directorate Government of India V/s Kapil
Wadhawan and Anr. Etc., the Hon'ble Apex Court made following
observations at para 4 and 8:
Para 4:
" The moot question has been considered by this Court in
various matters, but there is divergence of opinion on how
the period available for completing the investigation is to be
computed. Some judgments have favoured the exclusion of
date of remand, while few other cases have taken a contrary
view."
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Para 8:
"Since the earlier position of law was not considered and
the latest decision is of a 3 judges bench, it is necessary for
a bench of appropriate strength to settle the law taking note
of the earlier precedents. Unless the issue is appropriately
determined, the courts across the country may take decision
on the issue depending upon which judgment is brought to
the court's notice or on the courts own understanding of the
law, covering default bail under Section 167(2)(a)II of
Cr.P.C."
6 There is no dispute to the fat that the applicant was produced for
the first time for the purposes of remand before the learned Special
Judge on 25/03/2021. I agree with the learned senior Counsel for the
applicant that the applicant is entitled to get default bail on account of
default of investigating agency.
7 It is also clear from the impugned order that the charge-sheet
came to be filed on 24/06/2021. Learned senior Counsel for applicant is
right when he argues that the applicant is entitled to get default bail on
account of default of the investigating agency to complete the
investigation within 90 days from the date of first remand of the
applicant. In my view, the first day of the remand has to be included
while computing the period of limitation. I am unable to agree with the
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contention of the learned APP that the first day of remand is to be
excluded for the purpose of computation of default bail. Needless to say
the 90 days would start running from the date of first remand. The
application for default bail was moved on 23/06/2021 whereas charge-
sheet came to be filed on 24/06/2021.
8 An indefeasible right accrues to an accused on the failure of the
prosecution to file charge-sheet within the period specified under the
proviso to sub-section (2) of Section 167 of the Cr.P.C. and the said right
can be availed of by an accused if he/she prepared to offer and does
furnish bail. The right to default bail, as has been held by the Hon'ble
Apex Court, are not mere statutory rights under the first proviso to
Section 167(2) of the Code, but is part of the procedure established by
law under Article 21 of the Constitution of India, which is, therefore, a
fundamental right granted to an accused person to be released on bail
once the conditions of the first proviso to Section 167(2) are fulfilled.
9 For the aforesaid reasons, I am inclined to allow the application.
Hence, the following order.
ORDER
(i) Applicant-Rahul Shivaji Khomane is directed to be released on Rekha Patil 5/6 ::: Uploaded on - 30/11/2021 ::: Downloaded on - 01/12/2021 06:44:49 ::: BA-2375-2021.odt bail in connection with C.R. No. 0736 of 2020 registered by Alankar Police Station, Pune City on his executing P.R. bond in the sum of Rs. One Lakh, with one or more sureties in the like amount.
(ii) The applicant shall attend the Alankar Police Station, Pune City every Monday from 12-00 p.m. to 3-00 p.m. till further orders.
(iii) The applicant shall furnish the details of the place of residence and their contact numbers to the Investigating Officer, on being released on bail.
(iv) The applicant shall not leave India without prior permission of the Special Court. The applicant- Rahul Shivaji Khomane shall surrender his passport, if any, to the Alankar Police Station, Pune City.
(v) The applicant shall not directly or indirectly make any inducement, threat or promise to any person acquainted with facts of the case so as to dissuade them from disclosing the facts to Court or any Police Officer and shall not tamper with evidence.
(vi) Bail before the trial Court.
(vi) The application is allowed in the aforesaid terms and stands
disposed of accordingly.
(V. G. BISHT, J.)
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