Bombay High Court
Sanjay Baban Bhujbal vs The State Maharashtra on 16 February, 1998
Equivalent citations: 1998(2)ALT(CRI)13, 1998(5)BOMCR471
ORDER V.R. Datar, J.
1. The petitioner came to be arrested on 8th September, 1997, for offence under section 302 I.P.C. registered at C.R. No. 70/97 at Shikrapur Police Station, District Pune. On 7-12-1997, according to the petitioner, the period of 90 days elapsed from the date of the arrest of the petitioner. As such, on 9-12-1997 the petitioner filed application under section 167(2)(a) Cr.P.C. in the Court of the Judicial Magistrate, First Class, Shirur, District Pune for grant of bail as the charge-sheet was not filed within a period of ninety days from the date of remand. The learned Magistrate then called for the say of the Public Prosecutor and kept the matter on 10th December, 1997. On that day, say was filed as well as the charge-sheet came to be filed against the petitioner and that is how the learned Magistrate rejected the application holding that after filing the charge-sheet he has no jurisdiction to grant bail.
2. The petitioner approached Sessions Court, Pune by filing Criminal Revision Application No. 665 of 1997, but that also came to be rejected on 19-1-1998. That is how the present application has been filed.
3. I have heard Ms. Mohite-Dere for the petitioner and Mr. Mirza, A.PP for the respondent-State.
4. It is now a settled position that the accused gets right to be released on bail when the charge-sheet is not filed within a period of ninety days, or sixty days from the date of remand, as the case may be having regard to the nature of the offence alleged against him. So also if he has not applied for bail before filing of the charge-sheet, he cannot get right to be released on bail after charge-sheet is filed and the grant of bail would be governed by the provisions of section 437 Cr.P.C. However, if the application for bail is made under section 167(2)(a), before filing of the charge-sheet, what is the legal position is the question mainly involved in this petition.
5. Ms. Mohite-Dere has strongly relied upon the decision of the Supreme Court in Mohamed lqbal Madar Sheikh v. State of Maharashtra, . In paragraph 11 of the said judgment, this is what the Supreme Court says:
"So far as the fact of the present case are concerned, appellants 1 to 6 were taken into custody on 16-1-1993. The charge-sheet was submitted on 30-8-1993; obviously beyond the statutory period under section 20(4)(b). There is nothing on record to show that provisions of section 20(4)(bb) were applied in respect of appellants. They had become entitled to be released on bail under proviso (a) to section 167(2) of the Code, read with section 20(4)(b) of the T.A.D.A.. But it is an admitted position that no application for bail on the said ground was made on behalf of the appellants. 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 T.A.D.A., is not under section 167(2) but under other provisions of the Code. This has been specifically considered by a Constitution Bench of this Court in the case of Sanjay Dutt v. State through C.B.I., (II). It was said:"
"The 'indefeasible right' of the accused to be released on bail in accordance with section 20(4)(bb) of the T.A.D.A. Act, read with section 167(2) of the Code of Criminal Procedure, in default of completion of the investigation and filing of the challan within the time allowed, as held in Hitendra Vishnu Thakur, is a right which ensures to, and is enforceable by the accused only from the time of default till the filing of the challan and it does not survive or remain enforceable on the challan being filed, 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 right of the accused to be released on bail after filing of the challan, notwithstanding the default in filing it within the time allowed, is governed from the time of filing of the challan only by the provisions relating to the grant of bail applicable at that stage."
Then in paragraph 12 the Supreme Court has held:
"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."
Further observations are not material.
6. As against this Mr. Mirza has relied upon a Division Bench decision of this Court in the case of Abdul Wahid v. State of Maharashtra, 1992 Cr.L.J. 1900; 1992(2) C.C.R. 1454. Wherein it has been held that the right accrued to accused for being enlarged on bail under proviso(a) to section 167(2) of Cr.P.C. is not an absolute right. It gives only absolute right to be granted bail it the charge-sheet is not filed within the prescribed period, but the detention nonetheless continues to be authorised. Therefore, the right accrued to the accused who is in custody, under the proviso to subsection (2) of section 167, Cr.P. C. can be exercised by him only before the charge-sheet is filed. If, however, he continues to be in custody because no order granting him bail is passed under that proviso, the Magistrate's power of granting bail once the charge-sheet is filed, can be exercised only under section 437 of the Code. In the latter case the right to bail cannot be claimed under the proviso to sub-section (2) of section 167(2) of the Code.
7. To the same effect is the decision in C. Satyanarayana v. State of Andhra Pradesh, .
8. However, after these two decisions, there is the decision of the Supreme Court in Mohamed Iqbal's case (supra) which clearly goes to indicate that the accused gets right to be enlarged on bail forthwith if the charge-sheet is not filed within the specified period under section 167(2) of the Code of Criminal Procedure.
9. An identical question arose in Asif Abdul Gafoor Shaikh v. State of Maharashtra, . In that case also the period of filing of the charge-sheet expired on 4th April, 1994 and that day application for grant of bail was filed which was kept for hearing on 5th April, 1994, on which day, the charge-sheet came to be filed. A similar argument was advanced in that case and the learned Judge of this Court at Aurangabad Bench held that the charge-sheet is admittedly filed after the expiry of 90 days from the arrest of the petitioners-accused in that case and application for bail under section 167 Cr. P.C. being filed on 4-4-1994 was prior to the filing of the charge-sheet which was filed in the Court on 5-4-1994. This being so the filing of the charge-sheet cannot have the consequence of frustrating the present application for bail under section 167, Cr. P.C. This decision is in consonance with the observations of the Supreme Court in Mohamed Iqbal's case (supra). The facts of the present petition being on par with the decision of the learned Single Judge of this Court, I find that in this case the right accrued to the petitioner for grant of bail cannot be defeated by filing of the charge-sheet when the petitioner had applied on 9th itself for grant of bail when the learned Magistrate was bound to pass order forthwith on that day. I am, therefore, of the opinion that the petitioner ought to have been granted bail.
Accordingly, the petitioner is ordered to be released on bail on his furnishing solvent surety to the extent of Rs. 10,000/- (Rupees ten thousand only) and P.R. for like amount.
Bail before the Sessions Court, Pune.
10. Petition allowed.