Bombay High Court
Nandlal Singh S/O. Kesar Singh vs State Of Maharashtra on 24 August, 2022
Author: N. J. Jamadar
Bench: N. J. Jamadar
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
BAIL APPLICATION NO.784 OF 2022
Nandlal Singh Kesar Singh ...Applicant
vs.
The State of Maharashtra ...Respondent
Dr. Uday Warunjikar a/w. Ms. Sana Raees Khan and Mr. Subhash
VISHAL Hulyalkar i/b. Hulyalkar and Associates, for the Applicant.
SUBHASH Mr. A.A. Palkar, APP, for the State.
PAREKAR
Digitally signed by
VISHAL SUBHASH CORAM : N. J. JAMADAR, J.
PAREKAR
Date: 2022.08.25
17:11:02 +0530
ORDER RESERVED ON : JULY 05, 2022
ORDER PRONOUNCED ON : AUGUST 24, 2022
------
P.C.:
1. The applicant, who is arraigned in C.R. No. 308 of 2019
registered with Barshi City police station for the offences
punishable under section 420 read with 34 of Indian Penal Code,
1860 (the Penal Code) and section 3 of Maharashtra Protection of
Interest of Depositors (In Financial Establishments) Act, 1999 (the
MPID Act), has preferred this application for default bail under
section 167(2) of the Code of Criminal Procedure, 1973 (the Code).
2. The indictment against the applicant/accused runs as under:-
a] The applicant Nandlal Singh Kesar Singh (A/1) is the
Chairman of the group comprising of a number of entities namely
Phenomenal Industries Limited, Mumbai, Phenomenal Trading
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Company Private Limited, Mumbai, Phenomenal Health Care,
Phenomenal Health Care Services Limited and Phenomenal Health
Care Maharashtra Private Limited. A branch of Phenomenal Health
Care Private Limited, was made operational at Riddhi Siddhi
Complex, Shivaji College Road, Barshi. A number of investment
schemes were floated and advertised by the said company.
b] Mr. Jayant Burgute (the first informant) lodged report with
Barshi City police station with the allegations that he approached
the Phenomenal Health Care Private Limited, Barshi branch. Mr.
Gautam Mane, the Branch Manager gave information about various
policies floated by the said company. It was represented to the first
informant that if an amount of Rs. 10,500/- was invested under the
Special Economy Membership Plan, the first informant would get
double the said amount of deposit i.e. Rs. 21,000/- after completion
of 9 years and, in the intervening period, the applicant would get
health facilities as well.
c] Based on the representation, the first informant deposited a
sum of Rs. 10,500/- on 30th April, 2010. A certificate was issued to
him. Company did provide health services/facilities till the year
2016. Thereafter, the company stopped extending those facilities.
Thereupon, the first informant demanded the refund of the amount
invested by him. However, the amount was not refunded on the
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pretext that the term of deposit was not over. Eventually, the Barshi
branch of the company as well as the head office at Mumbai were
closed in the year 2017 and 2018, respectively. Despite the deposit
having matured, the maturity amount was not paid to the first
informant. It was further alleged that, like the first informant, 9
other persons were also similarly duped to the tune of Rs.
2,64,500/-. Hence, the first informant lodged the report.
d] During the course of investigation, it transpired that like the
first informant, the applicant and his associates had received
deposits from many investors by making false promise of returning
double the amount of deposit and providing health
facilities/services during the period of such deposit. The applicant
and the co-accused had, thus, defrauded the depositors to the tune
of Rs. 2,02,02,501/-.
3. The applicant came to be arrested on 18th December, 2021. He
was produced before the jurisdictional Court on 19 th December,
2021 and remanded initially to police custody and, later on, judicial
custody. On 18th February, 2022 the applicant preferred an
application purportedly under section 167(2) of the Code asserting
that since the charge-sheet was not lodged against him within 60
days, the applicant was entitled to be released on bail.
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4. Pursuant to the direction of the learned Additional Sessions
Judge, the Superintendent, District Court, Barshi submitted a
report that, on 17th February, 2022 the investigating officer had
lodged charge-sheet in C.R. No. 308 of 2019 against the co-accused
Shilratna Mane and Gautam Mane.
5. By an order dated 18th February, 2022 the learned Additional
Session Judge was persuaded to reject the application holding, inter
alia, that since charge-sheet was filed on the 60 th day computed
after excluding the day of remand i.e. 19 th February, 2021, the
applicant/accused could not claim default bail. Additionally, it was
opined, the offence punishable under section 409 of the Penal Code,
which entails punishment for imprisonment for life, might also be
attracted.
6. On 25th February, 2022 the applicant again preferred an
application for statutory bail under section 167(2) of the Code
asserting that he had an indefeasible right to be released on bail as
charge-sheet was not lodged despite 60 clear days of the detention
of the applicant.
7. In the interregnum, there was a development which gives rise
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to the dilemma.
8. On 21st February, 2022 the investigating officer filed a report
before the learned Additional Session Judge seeking permission to
amend the charge-sheet filed on 17 th February, 2022. The substance
of the report was that the name of the co-accused Shilratna Mane
was inadvertently mentioned twice as accused in addition to Mr.
Gautam Mane, another co-accused, instead of the applicant Nandlal
Singh Kesar Singh. Therefore, the investigating officer be permitted
to amend the charge-sheet by incorporating the name of the
applicant as the accused, against whom also charge-sheet has been
lodged. On 22nd February, 2022 the learned Additional Session
Judge granted the said prayer by passing an order "Allowed".
9. Second application dated 25th February, 2022 came to be
rejected by the learned Additional Session Judge holding that since
the prayer of the investigating officer to correct the name of the
accused in the charge-sheet came to be allowed by order by 22 nd
February, 2022, there was no substance in the submission on behalf
of the applicant. The applicant has thus approached this Court.
10. I have heard Dr. Uday Warunjikar, learned counsel for the
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applicant and Mr. Palkar, learned APP, for the State at length. With
the assistance of the learned counsel for the parties, I have perused
the material on record.
11. Dr. Warunjikar, learned counsel for the applicant, would
submit that the course adopted by the learned Additional Sessions
Judge in permitting the investigating officer to amend the charge-
sheet, though innocuous it may appear, has caused serious
prejudice to the statutory right of the applicant. Dr. Warunjikar laid
emphasis on the fact that on the day the applicant preferred
application for default bail i.e. on 18 th February, 2022 the
Superintendent of the Court had reported that the charge-sheet was
lodged against only two co-accused Shilratna Mane and Gautam
Mane. Consequently, the attention of the learned Additional
Sessions Judge was specifically invited to the fact that the charge-
sheet was not lodged against the applicant. Yet the application came
to be rejected by order dated 18 th February, 2022 without
embarking upon primary inquiry as to whether the charge-sheet
was lodged against the applicant/accused. Since neither the
prosecution alleged that an offence punishable under section 409 of
the Penal Code was made out nor there is material to show that the
said offence is even remotely attracted to the facts of the case, the
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learned Additional Session Judge misdirected himself in rejecting
the application on the said ground, urged Dr. Warunjikar.
12. Mr. Palkar, learned APP, on the other hand, submitted that
inadvertent mistake in mentioning the name of one and the same
co-accused Shilratna Mane twice, is self-evident. As the
investigation was completed within the stipulated period of 60 days,
the essential condition to authorize further detention can be said to
have been fulfilled. Thus, no prejudice was caused to the applicant
by allowing the investigating officer to make correction in the name
of the accused in the final report under section 173 of the Code.
Therefore, according to learned APP, the applicant is not entitled to
be released on default bail.
13. As the fate of the application hinges upon the determination
of the issue as to whether there is compliance with the mandatory
requirement under section 167(2) of the Code, it may be necessary
to note few dates which bear upon the controversy. It is not in
contest that the applicant was arrested on 18 th December, 2021. He
was produced before the learned Special Judge on 19 th December,
2021 and was remanded to police custody. The date of remand is
thus freezed. The fact that charge-sheet was lodged for the offence
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punishable under section 420 read with 34 of the Penal Code and
and section 3 of the MPID Act by the investigating officer on 17 th
February, 2022 is also rather incontrovertible. In any event, any
controversy as to the date of the lodging of the charge-sheet is put
to rest by the endorsement of the Superintendent, District Court,
Barshi that charge-sheet was lodged on 17 th February, 2022 against
the co-accused Shilratna Mane and Gautam Mane.
14. It would be contextually relevant to note that the
investigating officer filed further report on 21st February, 2022
seeking permission to carry out correction in the final report in the
nature of including the name of the applicant in place of co-accused
Shilratna Mane, whose name was mentioned twice. The said prayer
was allowed on 22nd February, 2022. It can thus be safely assumed
that the name of the applicant came to be shown in the charge-sheet
as an accused, who was sent for trial, on 22nd February, 2022, and
not before.
15. At this stage itself it is necessary to note that, prima facie, the
offence punishable under section 409 of the Penal Code, does not
seem to have been made out. Neither the prosecution has alleged
criminal breach of trust. Nor the allegations, even if taken at par
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and construed rather generously, indicate that the accused held
special fiduciary capacity envisaged by section 409 of the Penal
Code. Therefore, the question of entitlement for default bail is
required to be determined on the premise that the case would be
covered by clause (ii) of proviso (a) to sub section (2) of section 167
of the Code.
16. By a catena of decisions, the legal position as regards the right
of an accused to be released on bail, under section 167(2) of the
Code, has been almost crystallized. However, a facet of action or
inaction, which myriad situations throw up, gives rise to the
controversy, in the facts peculiar to a given case. Broad principles,
however, are well neigh settled. Firstly, the right to default bail, as is
evident, accrues on account of the default on the part of the
investigating agency in not completing the investigation within the
period stipulated by section 167 (2) of the Code and, in cases where
an extended period is prescribed by the governing statute, within
the extended period. Secondly, while considering the application for
default bail, the merits of the allegations against the applicant are
not at all germane. Thirdly, once the right of default bail accrues, in
the sense that the accused has 'availed' the said right by filing an
application for release on bail, the subsequent act on the part of the
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investigating agency to lodge the charge-sheet does not deprive the
accused of the said right upon default on the part of investigating
agency, the right is cemented as an indefeasible right. Fourthly,
factors like the Court did not entertain the application or passed a
wrong order also do not defeat the said right.
17. Over a period of time, there has been a significant
development in law. The right to default bail under section 167 (2)
of the Code has increasingly been seen through the prism of right to
life and personal liberty under Article 21 of the Constitution of
India. The right to default bail is construed to be a facet of fair
procedure guaranteed under Article 21 of the Constitution of India.
18. A useful reference, in this context, can be made to a three
Judge Bench judgment of the Supreme Court in the case of M.
Ravindran vs. The Intelligence Officer, Directorate of Revenue
Intelligence1. In the said case, the Supreme Court extensively
adverted to the nature of interplay between the 'right to default
bail' and 'fundamental right to life and personal liberty'. The
observations in paragraph 17 are instructive and hence extracted
below :-
1 (2021) 2 Supreme Court Cases 485.
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17. Before we proceed to expand upon the parameters
of the right to default bail under Section 167(2) as
interpreted by various decisions of this Court, we find
it pertinent to note the observations made by this
Court in Uday Mohanlal Acharya on the fundamental
right to personal liberty of the person and the effect of
deprivation of the same as follows:(SCC p.472 para13)
"13......Personal liberty is one of the cherished
objects of the Indian Constitution and
deprivation of the same can only be in
accordance with law and in conformity with
the provisions thereof, as stipulated under
Article 21 of the Constitution. When the law
provides that the Magistrate could authorise
the detention of the accused in custody up to a
maximum period as indicated in the proviso
to subsection (2) of Section 167, any further
detention beyond the period without filing of a
challan by the investigating agency would be a
subterfuge and would not be in accordance
with law and in conformity with the
provisions of the Criminal Procedure Code,
and as such, could be violative of Article 21 of
the Constitution."
17.1 Article 21 of the Constitution of India provides
that "no person shall be deprived of his life or
personal liberty except according to procedure
established by law". It has been settled by a
Constitution Bench of this Court in Maneka Gandhi v.
Union of India, (1978) 1 SCC 248, that such a
procedure cannot be arbitrary, unfair or
unreasonable. The history of the enactment of Section
167(2), CrPC and the safeguard of 'default bail'
contained in the Proviso thereto is intrinsically linked
to Article 21 and is nothing but a legislative exposition
of the constitutional safeguard that no person shall be
detained except in accordance with rule of law.
17.2 Under Section 167 of the Code of Criminal
Procedure, 1898 ('1898 Code') which was in force
prior to the enactment of the CrPC, the maximum
period for which an accused could be remanded to
custody, either police or judicial, was 15 days.
However, since it was often unworkable to conclude
complicated investigations within 15 days, a practice
arose wherein investigative officers would file
'preliminary chargesheets' after the expiry of the
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remand period. The State would then request the
magistrate to postpone commencement of the trial
and authorize further remand of the accused under
Section 344 of the 1898 Code till the time the
investigation was completed and the final chargesheet
was filed. The Law Commission of India in Report No.
14 on Reforms of the Judicial Administration (Vol. II,
1948, pages 758760) pointed out that in many cases
the accused were languishing for several months in
custody without any final report being filed before the
Courts. It was also pointed out that there was conflict
in judicial opinion as to whether the magistrate was
bound to release the accused if the police report was
not filed within 15 days.
17.3 Hence the Law Commission in Report No. 14
recommended the need for an appropriate provision
specifically providing for continued remand after the
expiry of 15 days, in a manner that "while meeting
the needs of a full and proper investigation in cases of
serious crime, will still safeguard the liberty of the
person of the individual." Further, that the legislature
should prescribe a maximum time period beyond
which no accused could be detained without filing of
the police report before the magistrate. It was pointed
out that in England, even a person accused of grave
offences such as treason could not be indefinitely
detained in prison till commencement of the trial.
17.4 The suggestion made in Report No. 14 was
reiterated by the Law Commission in Report No. 41 on
The Code of Criminal Procedure, 1898 (Vol. I, 1969,
pages 76-77). The Law Commission re-emphasized the
need to guard against the misuse of Section 344 of the
1898 Code by filing 'preliminary reports' for
remanding the accused beyond the statutory period
prescribed under Section 167. It was pointed out that
this could lead to serious abuse wherein "the arrested
person can in this manner be kept in custody
indefinitely while the investigation can go on in a
leisurely manner." Hence the Commission
recommended fixing of a maximum time limit of 60
days for remand. The Commission considered the
reservation expressed earlier in Report No. 37 that
such an extension may result in the 60 day period
becoming a matter of routine. However, faith was
expressed that proper supervision by the superior
Courts would help circumvent the same.
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17.5 The suggestions made in Report No. 41 were
taken note of and incorporated by the Central
Government while drafting the Code of Criminal
Procedure Bill in 1970. Ultimately, the 1898 Code was
replaced by the present CrPC. The Statement of
Objects and Reasons of the CrPC provides that the
Government took the following important
considerations into account while evaluating the
recommendations of the Law Commission:
"3. The recommendations of the Commission
were examined carefully by the Government,
keeping in view among others, the following
basic considerations:
(i) an accused person should get a fair trial
in accordance with the accepted principles of
natural justice;
(ii) every effort should be made to avoid
delay in investigation and trial which is
harmful not only to the individuals involved
but also to society; and
(iii) the procedure should not be complicated
and should, to the utmost extent possible,
ensure fair deal to the poorer sections of the
community."
17.6 It was in this backdrop that Section 167(2) was
enacted within the present day CrPC, providing for
time limits on the period of remand of the accused,
proportionate to the seriousness of the offence
committed, failing which the accused acquires the
indefeasible right to bail. As is evident from the
recommendations of the Law Commission mentioned
supra, the intent of the legislature was to balance the
need for sufficient time limits to complete the
investigation with the need to protect the civil
liberties of the accused. Section 167(2) provides for a
clear mandate that the investigative agency must
collect the required evidence within the prescribed
time period, failing which the accused can no longer be
detained. This ensures that the investigating officers
are compelled to act swiftly and efficiently without
misusing the prospect of further remand. This also
ensures that the Court takes cognizance of the case
without any undue delay from the date of giving
information of the offence, so that society at large does
not lose faith and develop cynicism towards the
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criminal justice system.
17.7 Therefore, as mentioned supra, Section 167(2) is
integrally linked to the constitutional commitment
under Article 21 promising protection of life and
personal liberty against unlawful and arbitrary
detention, and must be interpreted in a manner which
serves this purpose. In this regard we find it useful to
refer to the decision of the three Judge Bench of this
Court in Rakesh Kumar Paul v. State of Assam, (2017)
15 SCC 67, which laid down certain seminal principles
as to the interpretation of Section 167(2), CrPC
though the questions of law involved were somewhat
different from the present case. The questions before
the three Judge Bench in Rakesh Kumar Paul were
whether, firstly, the 90 day remand extension under
Section 167(2)(a)(i) would be applicable in respect of
offences where the maximum period of imprisonment
was 10 years, though the minimum period was less
than 10 years. Secondly, whether the application for
bail filed by the accused could be construed as an
application for default bail, even though the expiry of
the statutory period under Section 167(2) had not
been specifically pleaded as a ground for bail. The
majority opinion held that the 90 day limit is only
available in respect of offences where a minimum ten
year imprisonment period is stipulated, and that the
oral arguments for default bail made by the counsel
for the accused before the High Court would suffice in
lieu of a written application. This was based on the
reasoning that the Court should not be too technical in
matters of personal liberty. Madan B. Lokur, J. in his
majority opinion, pertinently observed as follows:(SCC
pp.95-96 & 99, paras 29, 32 & 41)
"29. Notwithstanding this, the basic
legislative intent of completing
investigations within twenty four hours and
also within an otherwise time bound period
remains unchanged, even though that
period has been extended over the years.
This is an indication that in addition to
giving adequate time to complete
investigations, the legislature has also and
always put a premium on personal liberty
and has always felt that it would be unfair to
an accused to remain in custody for a
prolonged or indefinite period. It is for this
reason and also to hold the investigating
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agency accountable that time limits have
been laid down by the legislature....
32. ......Such views and opinions over a
prolonged period have prompted the
legislature for more than a century to
ensure expeditious conclusion of
investigations so that an accused person is
not unnecessarily deprived of his or her
personal liberty by remaining in prolonged
custody for an offence that he or she might
not even have committed. In our opinion,
the entire debate before us must also be
looked at from the point of view of
expeditious conclusion of investigations and
from the angle of personal liberty and not
from a purely dictionary or textual
perspective as canvassed by the learned
counsel for the State.
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." (emphasis
supplied).
Therefore, the Courts cannot adopt a
rigid or formalistic approach whilst
considering any issue that touches upon the
rights contained in Article 21.
17.8 We may also refer with benefit to the recent
judgement of this Court in S. Kasi v. State Through
The Inspector of Police Samaynallur Police Station
Madurai District (Criminal Appeal No. 452 of 2020
dated 19 th June, 2020), 2020 SCC OnLine SC 529,
wherein it was observed that the indefeasible right to
default bail under Section 167(2) is an integral part of
the right to personal liberty under Article 21, and the
said right to bail cannot be suspended even during a
pandemic situation as is prevailing currently. It was
emphasized that the right of the accused to be set at
liberty takes precedence over the right of the State to
carry on the investigation and submit a charge-sheet.
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17.9 Additionally, it is well settled that in case of any
ambiguity in the construction of a penal statute, the
Courts must favour the interpretation which leans
towards protecting the rights of the accused, given the
ubiquitous power disparity between the individual
accused and the State machinery. This is applicable
not only in the case of substantive penal statutes but
also in the case of procedures providing for the
curtailment of the liberty of the accused.
17.10 With respect to the CrPC particularly, the
Statement of Objects and Reasons (supra) is an
important aid of construction. Section 167(2) has to
be interpreted keeping in mind the three fold
objectives expressed by the legislature namely
ensuring a fair trial, expeditious investigation and
trial, and setting down a rationalized procedure that
protects the interests of indigent sections of society.
These objects are nothing but subsets of the
overarching fundamental right guaranteed under
Article 21.
17.11 Hence, it is from the perspective of upholding
the fundamental right to life and personal liberty
under Article 21 that we shall clarify and reconcile
the various judicial interpretations of Section 167(2)
for the purpose of resolving the dilemma that has
arisen in the present case.
(emphasis supplied)
19. The aforesaid exposition indicates that the Supreme Court,
construing the right to default bail as a manifestation of the
constitutional guarantee under Article 21, has, in terms, observed
that section 167(2) of the Code is nothing but a legislative
exposition of the constitutional safeguard that, no person shall be
detained except in accordance with rule of law.
20. The Supreme Court has exposited in a clear terms that
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section 167(2) has to be interpreted by keeping in mind the three-
fold objectives expressed by the legislature namely ensuring a fair
trial, expeditious investigation and trial, and setting down a
rationalized procedure that protects the interests of indigent
sections of society. Those objects are subsets of the overarching
fundamental right guaranteed under Article 21.
21. What is of salience is the enunciation by the Supreme Court
that the practical application of the mandate contained in section
167(2) of the Code, in a given case, should be informed by the spirit
of imperativeness of upholding the fundamental right to life and
personal liberty under Article 21.
22. In the case at hand, the central issue that come to the fore is
whether the action of the investigating officer of including the name
of the applicant as an accused, who is sent for trial, by seeking
correction in the charge-sheet beyond the stipulated period of 60
days, constitutes an endevour to defeat the statutory right to bail.
Since this endevour of the investigating officer had the imprimatur
of the learned Special Judge, the question of the correctness of the
said approach also warrants consideration.
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23. It has been judicially recognized that once the period of
detention expired, sans charge-sheet having been lodged, and the
accused manifested the intent to avail the right by making an
application, no subterfuge to defeat the indefeasible right can be
countenanced. The factors like the bail application was not decided
or wrongly decided or subsequently charge-sheet came to be filed or
a report seeking extension of period of detention came to be filed
and allowed, are of no significance. Such attempts of defeating the
indefeasible right have been consistently repelled by the Courts.
24. A profitable reference, in this context, can be made to a three
Judge Bench judgment of the Supreme Court in the case of
Mohamed Iqbal Madar Sheikh and Others vs. State of Maharashtra 2
wherein the Supreme Court directed that the 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. The following observations of the
Supreme Court are material and, hence, extracted below:
12. 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,
2 (1996) 1 Supreme Court Cases 722.
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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) lo Section 167(2)
that statutory right should not be defeated by keeping
the applications pending till she charge-sheets are
submitted, so that the right which had accrued is
extinguished and defeated. ..... ......
(emphasis supplied)
25. Recently, in the case of Bikramjit Singh vs. State of Punjab 3
the legal position was reiterated in the following words:-
36. A conspectus of the aforesaid decisions
would show that so long as an application for
grant of default bail is made on expiry of the
period of 90 days (which application need not
even be in writing) before a charge sheet is
filed, the right to default bail becomes complete.
It is of no moment that the Criminal Court in
question either does not dispose of such
application before the charge sheet is filed or
disposes of such application wrongly before
such charge sheet is filed. So long as an
application has been made for default bail on
expiry of the stated period before time is
further extended to the maximum period of
180 days, default bail, being an indefeasible
right of the accused under the first proviso to
Section 167(2), kicks in and must be granted.
(emphasis supplied)
26. In the light of the aforesaid enunciation of law, especially in
the cases of M. Ravindran (supra) and Bikramjit Singh (supra),
once the twin conditions of default in filing the charge-sheet within
the prescribed period and the action on the part of the accused to
avail the right are satisfied, the statutory right under section
3 (2020) 10 Supreme Court Cases 616.
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167(2) of the Code catapults into a fundamental right as the further
detention falls foul of the personal liberty guaranteed under Article
21 of the Constitution of India.
27. Reverting to the facts of the case, keeping in view the
aforesaid legal conspectus, the thrust of the submission on behalf of
the prosecution seems that it was a bonafide mistake on the part of
the investigating officer in not including the name of the applicant
while lodging the charge-sheet. Inadvertence is writ large as the
name of the co-accused Shilratna Mane, was twice mentioned
instead that of the applicant. Since the investigation was complete
within the stipulated period, in no case, right to default bail would
accrue.
28. I would deal with the submission of bonafide mistake a little
later. I am, however, not impelled to accede to the submission on
behalf of the prosecution that the factum of completion of
investigation within the statutory period, by itself, obviates the
application of the proviso to sub section 167(2) of the Code and the
detention becomes authorized. To say so, the litmus test of
completion of investigation and thereby sustain further detention of
an accused beyond the prescribed period is the act of lodging of the
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charge-sheet. Mere completion of investigation, without a positive
manifestation thereof in the nature of the lodging the final report
under section 173 of the Code, is of no consequence. Moreover, the
charge-sheet is also required to be lodged in a Court which is
competent to take cognizance of the offences. Filing of charge-sheet
in a Court, which is not otherwise competent to take cognizance of
the offence, cannot be construed to be a curable irregularity and
thereby dis-entitle the accused from the right to default bail.
29. In the case at hand, what is of critical significance is the fact
that on 18th February, 2022, the 61st day of the detention of the
applicant, the applicant professed to avail the right to default bail
asserting that charge-sheet was not lodged against him. As noted
above, the Superintendent of the Court made an endorsement on
the application that charge-sheet was lodged on 17 th February, 2022
against two of the co-accused only. On that day, indisputably the
applicant was not the person who was sent for trial.
30. The learned Additional Session Judge, it seems, did not advert
to the aforesaid aspect of the matter. The application was rejected
on the premise that charge-sheet was within the statutory period. It
is not the case that till the rejection of the first application on 18 th
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February, 2022, the investigating officer had moved for inclusion of
the name of the applicant. Such application came to be preferred on
21st February, 2022, before which the learned Additional Sessions
Judge had already negatived the prayer of the applicant for default
bail.
31. Had the applicant not professed to avail the right to be
released on bail on 61 st day of the detention and the name of the
applicant came to be included in the charge-sheet, by way of
correction or otherwise, and subsequent thereto, the applicant had
applied for default bail, different considerations would have come
into play. Evidently, on the 61 st day, when the applicant sought to
enforce his statutory right to bail, there was no charge-sheet
against him. Rejection of the application at that moment by the
learned Additional Session Judge appeared to be without justifiable
reason.
32. The prosecution's stand based on a bonafide error, deserves to
be appreciated in the light of the hard and incontrovertible fact that
on the date of the rejection of the application, there was no charge-
sheet against the applicant. That brings in the element of the
approach to be adopted.
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33. In my considered view, it would be taking a formalistic view of
the matter, if the Court were to construe, the act of seeking
correction in the charge-sheet by incorporating the name of the
applicant as a bonafide error and relate the same back to the date
of the lodging of the charge-sheet. Such a view would trample upon
the indefeasible right, which accrued to the applicant, in the
intervening period, and which he had promptly availed on the 61 st
day of the detention.
34. To put it in other words, the submission on behalf of the
prosecution that incorporating the name of one and the same co-
accused twice was apparently a bonafide and inadvertent mistake,
at the first blush, appears alluring. However, the said submission, if
considered through the perspective of constitutional guarantee,
does not merit countenance. The said submission can only be
accepted by consciously ignoring the facts that on 61 st day no
charge-sheet was lodged against the applicant, the applicant availed
the right to default bail by filing an application and the learned
Additional Session Judge incorrectly negatived such prayer. In my
view, it would be legally impermissible to do so.
35. The upshot of the aforesaid discussion and consideration is
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that the applicant deserves to be released on bail.
Hence, the following order.
ORDER
1] The application stands allowed. 2] The applicant Nandlal Singh Kesar Singh be released on bail
in connection with C.R. No. 308 of 2019 registered with Barshi City police station, Solapur on furnishing a P.R. Bond in the sum of Rs. 50,000/- (Fifty Thousand) with one or two sureties in the like amount, to the satisfaction of learned Additional Sessions Judge, Barshi.
3] The applicant shall remain within the jurisdiction of learned Sessions Judge, Barshi and shall not leave the area without prior permission of the learned Sessions Judge, for a period of six months from the date of his release.
4] The applicant shall attend Barshi City police station on first Monday of every month in between 10 am to 12 noon for a period of six months and thereafter once in a three months i.e. first Monday of January, April, July and October of each year till the conclusion of the trial.
5] The applicant shall give the details of his address where he would stay during the period of first six months after his release Vishal Parekar ...24 ba-784-2022.doc and the place at which he would reside after the said period, to the Police Inspector, Barshi City police station. 6] The applicant shall surrender his passport before the learned Additional Sessions Judge, Barshi. If the applicant does not hold the passport, he shall file affidavit to that effect before the learned Additional Sessions Judge.
7] The applicant shall not tamper with the prosecution evidence and/or give threat or inducement to any of the prosecution witnesses and shall not try to establish communication with any of the co-accused.
8] The applicant shall regularly attend the proceedings before the jurisdictional Court.
All the parties to act on an authenticated copy of this order.
(N. J. JAMADAR, J.)
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