2001 ALL MR (Cri) 2237
IN THE HIGH COURT OF JUDICATURE AT BOMBAY(NAGPUR BENCH)

J.N. PATEL, P.S. BRAHME AND S.K. SHAH, JJ.

Rehemankha Kalukha Vs. The State Of Maharashtra

Criminal Application No.1490 of 1993

21st September, 2001

Petitioner Counsel: Mr. ANIL MARDIKAR
Respondent Counsel: Mrs. DANGRE

Criminal P.C. (1973), S.167(2) - Provision is mandatory - Accused is entitled to be released on bail after expiry of period if no charge sheet is filed - His right is not extinguished if charge-Sheet is filed subsequently.

1993 Mah.L.J. 1299 overruled.

The provision of S.167(2) is mandatory in the sense that the accused shall have to be released on bail, if he is prepared to and does furnish bail on expiry of the period of 90 days or 60 days as the case may be, if the charge sheet is not filed within the said period. [Para 6]

Thus, when the applicant/accused has availed of his right to be released on bail under section 167(2) of the Code of Criminal Procedure, the same could not have been extinguished as a result of subsequent filing of the charge sheet by the Investigating Agency before the learned Magistrate passed an order on the bail application. It was expected of the learned Magistrate to pass an order of bail no sooner the applicant/accused made an application on 91st day when undisputedly no charge sheet was filed against him in the Court by the Investigating Agency. The learned Magistrate could not have frustrated the right accrued to the accused on the failure of the Investigating Agency to file charge sheet within the stipulated period of 90 days or 60 days as the case as the case may be by postponing passing of the order on the application made by the accused for his release on bail.

1993 Mah.L.J. 1299 overruled. [Para 7]

Cases Cited:
Uday Mohanlal Acharya Vs. State of Maharashtra, 2001 SC 1901 [Para 1]
Baburao Patil Vs. State of Maharashtra, 1993 Mah.L.J. 1299 [Para 5]
Uday Mohanlal Acharya Vs. State of Maharashtra, AIR 2001 SC 1921 [Para 8]


JUDGMENT

S.K.SHAH, J. :- In this reference, we are required to answer the issue referred to the Full Bench by the learned Single Judge. The issue referred for consideration of Full Bench is no more res integra and stands squarely covered by the Judgment of the Apex Court rendered in the case of Uday Mohanlal Acharya vs. State of Maharashtra, reported in A.I.R. 2001 Supreme Court 1901.

2. The learned Single Judge made a Reference for answering the issue as under :

"Whether the accused is vested with the right of being released on bail at the expiration of limitation stipulated in Section 167(2) of the Criminal Procedure Code and that the same can not be qualified or stand extinguished as soon as the charge-sheet is filed under Section 173 of the Criminal Procedure Code ?"

3. Brief facts would be necessary to understand the controversy involved and the question referred. The applicant/accused Rahemankha Kalukha came to be arrested by Kholapuri Gate Police Station, Amravati on 7.7.1993 for the offence punishable under section 302 read with section 34 of the Indian Penal Code vide Crime No. 142/93 registered at the Police Station. The application seeking bail filed by the applicant, was earlier rejected. On completion of 90 days i.e. on 91th day i.e. on 6.10.1993, an application was moved by the applicant/accused under section 167(2) of the Criminal Procedure Code for releasing the applicant/accused on bail claiming to be the same to be his indefeasible right under the said provision. Till that time, the Police had not filed the charge sheet in the Court of the Judicial Magistrate, First Class, Amravati. The learned Judicial Magistrate, First Class, Amravati, in stead of ordering the release of the applicant/accused on bail, postponed the hearing of the said application till 7.10.1993 by making endorsement on the application as "Other side to say". On 7.10.1993, the Charge-sheet came to be filed before the Judicial Magistrate, First Class, Amravati. The application filed by the applicant/accused came to be rejected by the learned Judicial Magistrate, First Class, Amravati, on 11.10.1993 on the ground that the applicant/accused was not entitled to be released on bail as at that moment the charge sheet was already filed and, therefore, the accused did not have a right claimed by him under section 167(2) of the Criminal Procedure Code.

Being aggrieved by this, the Criminal Revision came to be filed before the Additional Sessions Judge, Amravati, being Criminal Revision No.209/93 which the learned Additional Sessions Judge, Amravati, rejected and adotped the same reasonings as the learned Magistrate had.

4. Thereupon the applicant/accused filed Criminal Application No. 1490/93 before the learned Single Judge of this Court invoking its jurisdiction under section 482 of the Criminal Procedure Code for allowing the application for bail filed under section 167(2) of the Criminal Procedure Code.

5. Having considered the rival contentions made on behalf of the applicant/accused and the State and after having considered the various authorities, the learned Single Judge felt that the accused had indefeasible right to be released on bail under the provisions of Section 167(2) of the Criminal Procedure Code for want of charge sheet being filed within the stipulated 90 days. However, at that time the decision of the Single Bench of this Court in the case of Baburao Patil vs. State of Maharashtra, reported in 1993 Mah.L.J. 1299 was in the field which had taken different view of the right to be released on bail accrued under section 167 (2) of the Criminal Procedure Code, getting extinguished on the filing of the charge sheet. The learned Single Judge, therefore, felt that the decision of the Division Bench in the case of Baburao Patil (cited supra) needed to be reconsidered and, therefore, made aforesaid reference to the Full Bench.

6. For considering the controversy, it would be necessary to consider the relevant provisions of Section 167(2) of the Code of Criminal Procedure. They are as under :

"(2). The Magistrate to whom an accused person is forwarded under this section may, whether he has or has no jurisdiction to try the case, from time to time, authorise the detention of the accused in such custody as such Magistrate thinks fit, for a term not exceeding fifteen days in the whole, and if he has no jurisdiction to try the case or commit it for trial and considers further detention unnecessary, he may order the accused to be forwarded to a Magistrate having such jurisdiction.

Provided that -

(a) the Magistrate may authorise the detention of the accused person, otherwise than in the custody of the police, beyond the period of fifteen days, if he is satisfied that adequate grounds exist for doing so, but no Magistrate shall authorise the detention of the accused person in custody under this paragraph for a total period exceeding-

(i) ninety days, where the investigation relates to an offence punishable with death, imprisonment for life or imprisonment for a term of not less than ten years;

(ii) sixty days, where the investigation relates to any other offence.

and, on the expiry of the said period of ninety days, or sixty days, as the case may be, the accused person shall be released on bail if he is prepared to and does furnish bail, and every person released on bail under this sub section shall be deemed to be so released under the provisions of Chapter XXXIII for the purposes of that Chapter.

On the bare reading of the aforesaid provision, it would be clear that the provision is mandatory in the sense that the accused shall have to be released on bail, if he is prepared to and does furnish bail on expiry of the period of 90 days or 60 days as the case may be, if the charge sheet is not filed within the said period.

7. In the present case, the applicant/accused had filed an application seeking his release on bail on the 91th day i.e. on 6.10.1993. Therefore, it was incumbent on the learned Maistrate to pass an order directing the release of the accused on furnishing bail in the terms which the Magistrate may have put as he may have found suitable. The only thing which the learned Magistrate could have done, was to get himself satisfied that no charge sheet was filed against the applicant/accused in 90 days and that the accused was in custody for the period of 90 days. The very fact that the applicant/accused had made an application seeking his release on bail would indicate that he was prepared to furnish bail. There could be no contingency for applicant/accused of furnishing bail till the Magistrate passed an order on the application. Therefore, the Magistrate by postponing the passing of the order of bail, could not have defeated the right accrued to the applicant/accused of being released on bail which he had availed of by making an application therefore. Thus, when the applicant /accused has availed of his right to be released on bail under section 167(2) of the Code of Criminal Procedure, the same could not have been extinguished as a result of subsequent filing of the charge sheet by the Investigating Agency before the learned Magistrate passed an order on the bail application. It was expected of the learned Magistrate to pass an order of bail no sooner the applicant/accused made an application on 91st day when undisputedly no charge sheet was filed against him in the Court by the Investigating Agency. The learned Magistrate could not have frustrated the right accrued to the accused on the failure of the Investigating Agency to file charge sheet within the stipulated period of 90 days or 60 days as the case as the case may be by postponing passing of the order on the application made by the accused for his release on bail.

8. By referring to catena of authorities on the point, Supreme Court has summarised the legal position in the case of Uday Mohanlal Acharya vs. State of Maharashtra, reported A.I.R. 2001 Supreme Court 1921 as under :

"On the aforesaid premises, we would record our conclusions as follows :

1. Under sub-section (2) of Section 167, a Magistrate before whom an accused is produced while the police is investigating into the offence can authorise detention of the accused in such custody as the Magistrate thinks fit for a term not exceeding 15 days in the whole.

2. Under the proviso to aforesaid sub-section (2) of Section 167, the Magistrate may authorise detention of the accused otherwise than the custody of police for a total period not exceeding 90 days where the Investigation relates to offence punishable with death, imprisonment for life or imprisonment for a term of not less than 10 years, and 60 days where the investigation relates to any other offence.

3. On the expiry of the said period of 90 days or 60 dyas, as the case may be, an indefeasible right accrues in favour of the accused for being released on bail on account of default by the Investigating Agency in the completion of the investigation within the period prescribed and the accused is entitled to be released on bail, if he is prepared to and furnish the bail, as directed by the Magistrate.

4. When an application for bail is filed by an accused for enforcement of his indefeasible right alleged to have been accrued in his favour on account of default on the part of the investigating agency in completion of the investigation within the specified period, the Magistrate/Court must dispose it of forthwith, on being satisfied that in fact the accused has been in custody for the period of 90 days or 60 days, as specified and no charge sheet has been filed by the Investigating Agency. Such prompt action on the part of the Magistrate/Court will not enable the prosecution to frustrate the object of the Act and the legislative mandate of an accused being released on bail on account of the default on the part of the Investigating Agency in completing the investigation within the period stipulated.

5. If the accused is unable to furnish bail, as directed by the Magistrate, then the conjoint reading of Explanation I and proviso to sub-section (2) of Section 167, the continued custody of the accused even beyond the specified period in paragraph (a) will not be unauthorised, and therefore, if during that period the investigation is complete and charge sheet is filed then the so-called indefeasible right of the accused would stand extinguished.

6. The expression 'if not already availed of used by this Court in Sanjay Dutt's case (1994 AIR SCW 3857 : 1995 Cri LJ 477) (supra) must be understood to mean when the accused files an application and is prepared to offer bail on being directed. In other words, on expiry of the period specified in paragraph (a) of proviso to sub-section (2) of Section 167 if the accused files an application for bail and offers also to furnish the bail, on being directed, then it has to be held that the accused has availed of his indefeasible right even though the Court has not considered the said application and has not indicated the terms and conditions of bail, and the accused has not furnishes the same."

Therefore, the controversy raised before us now stands settled, any contrary decision of this Court stand overruled. The Reference, therefore, stands answered accordingly.