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1. (2024) 7 SCC 147.

P.H. Jayani 12 APL1063.2024 WITH WPST17797.2024.doc Petition are involving a common question of correctness or otherwise of the Orders of bail granted due to default in filing charge-sheet within statutory period of 90 days.

2) The Application and the Petition arose out of the same crime. The Applicants in APL/1063/2024 and Respondent No.3 in WPST/17797/2024 are original Accused Nos.1, 3 and 2 respectively.

Respondent No.2 in APL/1063/2024 and Petitioner in WPST/17797/2024 is the original informant. Hence, the Application and the Petition are being disposed of together. (Hereinafter the parties are being referred to by their said original status in the F.I.R ). 2.1) In APL/1063/2024, the Accused Nos.1 and 3 seek to quash and set-aside the Order dated 31/07/2024 passed by the learned Additional Sessions Judge, Mumbai in Criminal Misc. Application No.1325/2024 and to restore the common Order dated 20/06/2024, passed by the 13th Court of learned Metropolitan Magistrate, Bhoiwada, Dadar thereby allowing their applications for default bail bearing Cril.Appln. Nos.881/BA/2024 and 879/BA/2024. In WPST/17797/2024, the informant seeks to quash and set-aside the same impugned Order dated 31/07/2024 to the extent it confirmed the subsequent Order dated 21/06/2024 passed by the same learned Magistrate thereby allowing the default bail application of Accused No.2 bearing Cril.Appln. No.878/BA/2024.

"1. J.C. to report if chargesheet is still awaited or it is filed.

2. Learned APP to say."

8) Thereafter, the In-charge judicial clerk of the 62nd Court of the learned Magistrate submitted his report dated 19/06/2024 that the charge-sheet was filed by the police on 19/06/2024, at 11:15 AM. The Police Inspector (Crimes) submitted his report before the regular Court on 20/06/2024 that after completion of the investigation in the crime, charge-sheet was filed within 90 days on 19/06/2024, at 11:00 P.H. Jayani 12 APL1063.2024 WITH WPST17797.2024.doc AM. The learned Asstt.P.P. before the Magistrate's Court filed his say that, the said accused were arrested on 21/03/2024 and, excluding the date of their arrest, the 90 days period of the investigation was completed on 19/06/2024. Hence, the bail applications be rejected. 8.1) The learned Advocate on record for the Accused No.2 filed his Affidavit in support of the application of the Accused No.2. In the Affidavit, the learned Advocated contended that he had filed an online application on 19/06/2024, at around 11:07 AM. Then he went to file the bail application physically. When he went to the department to inquire about the process of filing of the bail application and whether the charge-sheet was filed or not, he was told that the bail application will have to be numbered with the filing section and then submit the same with the Interpreter of the Court concerned. At about 11:45 AM, he went to the Filing Section and filed the bail application which was numbered as 878/BA/2024. At that time, the Filing Section informed him that till that time, the charge-sheet was not filed. Then, he went to submit the said application with the Interpreter, where, he was informed that the Karkoon of the RAK Marg Police Station has been informed that the bail application is filed; that, the Karkoon informed the Interpreter that he is filing the charge-sheet in the said matter; that, the charge-sheet was in the Karkoon's possession at that moment; and that, the same was not filed till then. The Advocate P.H. Jayani 12 APL1063.2024 WITH WPST17797.2024.doc stated that, then he went to the filing section and requested to at least mention the time of filing the bail application as the charge- sheet would be filed on that day itself and therefore, it will create confusion as to which filing was done prior. It is stated that, after inquiring with the judicial clerk, the filing clerk informed them that the format does not permit them to mention the time on the register and therefore, cannot do the same, but also informed that the bail applications were filed with the filing section before filing of the charge-sheet. However, the Interpreter informed the Advocate that the bail applications will be taken up before the in-charge Court at 01:30 PM. Yet, the said matter was not taken up at 01:30 PM as the filing of the charge-sheet was not completed. Ultimately, the said bail application was taken up before the in-charge Court at around 01:45 PM along with the charge-sheet. In this background it is contended that the bail application of the Accused No.2 under Section 167 (2) of Cr.P.C. was filed before filing of the charge-sheet.

9) On considering the applications and other material in the light of rival submissions, the learned Metropolitan Magistrate of the 13th Court held that the Accused Nos.1 and 3 were arrested on 21/03/2024. That, on the same date they were produced before the Court and remanded to the police custody. In view of the decision in Kapil Wadhawan (Supra) the date on which the accused was remanded P.H. Jayani 12 APL1063.2024 WITH WPST17797.2024.doc should be computed. Therefore, the investigation officer ought to have filed the charge-sheet on or before 18/06/2024. The charge- sheet was filed 19/06/2024. Hence, the learned Magistrate held that, the Accused Nos.1 and 3 are entitle for the default bail and accordingly, allowed their default bail Applications 881/BA/2024 and 879/BA/2024, by the common Order dated 20/06/2024. 9.1) However, the learned Magistrate confused the Accused No.2 with Accused No.6-Mohd. Sohail Shakil Ahmed Qureshi. The Accused No.6 was arrested on 26/03/2024. Hence, the learned Magistrate held that the charge-sheet was filed within 90 days from 26/03/2024, i.e., the date of 1st remand of the Accused No.6. As a result, by the same common Order dated 20/06/2024, the learned Magistrate rejected the Application 878/BA/2024 (treating the same was filed by the Accused No.6). Therefore, on 21/06/2024 the learned Advocate for Accused No.2 filed an application seeking modification of the common Order on the ground that, the Advocate for Accused No.2 did not mention the accused number in the Application 878/BA/2024. Consequently, the learned Magistrate decided the said application for Accused No.6 and rejected the same. That the Accused No.2 was remanded to the custody on 21/03/2024 and therefore, he was covered within the ambit of Section 167 (2) of the Cr.P.C. Accordingly, it was prayed that the Application 878/BA/2024 be P.H. Jayani 12 APL1063.2024 WITH WPST17797.2024.doc reconsidered and appropriate Order be passed. In this background, the learned Magistrate held that, the said common Order to the extent of the Application 878/BA/2024 was infructuous as the Accused No.6 did not prefer the default bail Application. As a result, the learned Magistrate allowed the said application seeking modification of the common Order. Then, on 21/06/2024 the learned Magistrate passed a fresh Order below the Application 878/BA/2024 and held that, the charge-sheet was not filed within 90 days from the date of arrest and 1st remand of Accused No.2 on 21/03/2024. Accordingly, the learned Magistrate allowed the Application 878/BA/2024.