Criminal Application No.291 of 2004

15th April, 2004

Petitioner Counsel: Mr. NITIN PRADHAN, Ms. S. D. KHOT
Respondent Counsel: Mr. R. S. DESHPANDE

Cases Cited:
Aslam Babalal Desai Vs. State of Maharashtra, (1992)4 SCC 272 [Para 7,9]
Sanjay Dutt Vs. State through Central Bureau of Investigation Bombay, (1994)5 SCC 410 [Para 8,9]
Afzal Ibrahim Jariwala Vs. State of Maharashtra, 2003 ALL MR (Cri) 227=2003 Mh.L.J. 684 [Para 11]
Uday Mohanlal Acharya Vs. State of Maharashtra, JT 2001(4) SC 262 [Para 13,14]

JUDGMENT

JUDGMENT :- Heard the learned advocate for the applicant and learned A.P.P. for the State.

2. The applicant has preferred this application for bail in C.R. No.19 of 2003 registered at Anti-Narcotic Cell Mumbai. The said case is Special Case No.58 of 2003 which is pending before the learned Special Judge under the N.D.P.S. Act.

3. The present application is being pressed under Section 167(2) of Cr.P.C. as well as on the merits of the case. In respect of the prayer for bail under Section 167(2) of Cr.P.C., few dates would be relevant :

On 11th June, 2003 the applicant was arrested. On 12th June, 2003 the applicant was produced before the Special Judge for the first time and he was remanded to custody. On 11th August, 2003 i.e. on 61st day, the charge-sheet came to be filed. On 6th August, 2003 an application for bail on merits was preferred. On 30th August, 2003 the application for bail was rejected. On 18th September, 2003 an application for bail under Section 167(2) of Cr.P.C. was filed. The said application came to be rejected on 8th October, 2003 by the learned Special Judge.

4. Brief facts of the case are as under :

On 11th June, 2003 an information was received by the Investigating Agency that two persons were to arrive between 12 noon to 1 p.m. below Amar Mahal Bridge on the Eastern Express Highway. The name of one of the persons, was given as Hamja and the description of the person including the clothes he was wearing, was given. It was further stated that said person would be arriving there to sell "Gard" powder to the customers. Pursuant to the said information, two panchas were called and a trap came to be arranged. The applicant came to be apprehended and he was found in possession of 42 gms. of 'diecetylmorphine' i.e. heroin.

5. The learned advocate for the applicant has submitted that in the present case, the applicant was arrested on 11th June, 2003 and produced before the special Court on 12th June, 2003. As such, the charge-sheet ought to have been filed by 10th August, 2003. However, the charge-sheet was filed on 11th August, 2003 i.e. on 61st day from the date of first remand i.e. 12th June, 2003, hence, the applicant is entitled to bail under Section 167(2) of Cr.P.C. and application for bail under Section 167(2) of Cr.P.C. came to be wrongly rejected by the learned Sessions Judge.

6. The application for bail preferred by the applicant on 18th September, 2003 under Section 167(2) of Cr.P.C. came to be rejected by the Special Court by order dated 8th October, 2003.

7. The learned advocate for the applicant has contended that the accused is entitled to be released on bail if the charge-sheet is not filed within the outer limit provided is Section 167(2) of Cr.P.C. In support of his contention, he has placed reliance on the decision of the Apex Court in the case of Aslam Babalal Desai Vs. State of Maharashtra reported in (1992)4 S.C.C. 272.

8. The decision in the case of Aslam Babalal Desai is rendered by a Bench of three Judges. In the latter decision of the Apex Court which is rendered by the Constitution Bench in the case of Sanjay Dutt Vs. State through Central Bureau of Investigation Bombay reported in (1994)5 S.C.C. page 410, the Apex Court has observed thus :

"46. On the other aspect, Shri. Kapil Sibal conceded that the indefeasible right for grant of bail on expiry of the initial period of 180 days for completing the investigation or the extended period prescribed by Section 20(4) (bb) as held in Hitendra Vishnu Thakur is right of the accused which is enforceable only up to the filing of the challan and does not survive for enforcement on the challan being filed in the Court against him. Shri. Sibal submitted that the decision of the Division Bench in Hitendra Vishnu Thakur cannot be read to confer on the accused an indefeasible right to be released on bail under this provision once the challan has been filed if the accused continues in custody. He stated unequivocally that upon filing of the challan, such a right which accrues prior to filing of the challan has no significance and the question of grant of bail to an accused in custody on filing of the challan has to be considered and decided only with reference to the provisions relating to grant of bail applicable after filing of the challan, since Section 167, Cr.P.C. has relevance only to the period of investigation.

47. The learned Additional Solicitor General, in reply, agreed entirely with the above submission of Shri. Sibal and submitted that the principle enunciated by the Division Bench in Hitendra Vishnu Thakur must be so read ......

48. We have no doubt that the common stance before us of the nature of indefeasible right of the accused to be released on bail by virtue of section 20(4)(bb) is based on a correct reading of the principle indicated in that decision. The indefeasible right accruing to the accused in such a situation is enforceable only prior to the filing of the challan and it does not survive or remain enforceable on the challan being filed, if already not availed of. Once the challan has been filed, the question of grant of bail has to be considered and decided only with reference to the merits of the case under the provisions relating to grant of bail to an accused after the filing of the challan. The custody of the accused after the challan has been filed is not governed by Section 167 but different provisions of the Code of Criminal Procedure. If that right had accrued to the accused but it remained unenforced till the filing of the challan, then there is no question of its enforcement thereafter since it is extinguished the moment challan is filed because section 167, Cr.P.C. ceases to apply."

9. The decision in the case of Sanjay Dutt which is latter decision by a larger Bench, would obviously prevail over the decision in case of Aslam Babalal Desai (supra).

10. It is clear that the indefeasible right accrued to an accused is enforceable only prior to the filing of the charge-sheet and does not survive for enforcement on charge-sheet being filed. Once the charge-sheet has been filed, the question of bail has to be considered and decided only with reference to the merits of the case under the provisions relating to grant of bail after filing of the charge-sheet. Thus, it is clear that there is no question of enforcement of any right once the charge-sheet is filed as the said right is extinguished the moment the charge-sheet is filed.

11. The learned advocate for the applicant has submitted that the applicant had filed an application for bail on 6th August, 2003 before the Special Court. The said application was pending on 11th August, 2003 i.e on the 61st day when the charge-sheet came to be filed. Thus, the learned advocate for the applicant has tried to contend that the applicant had made a move to enforce his right under Section 167(2) of Cr. P.C. even before the charge-sheet was filed. It is an admitted fact that the said application was not for enforcement of right under Section 167(2) of Cr.P.C. but the said application was purely on merits. In my view the applicant cannot make any use of the application which was filed by him on 6-8-2003 before the trial Court for contending that the application for bail was pending at the time when the charge-sheet was not filed and hence, he ought to be released on bail on that ground. I am supported in taking this stand by an earlier decision of this Court in the case of Afzal Ibrahim Jariwala Vs. State of Maharashtra reported in 2003 Maharashtra Law Journal 684 : 2003 ALL MR (Cri) 227.

12. From the above decisions, it is very clear that if the charge-sheet is not filed within the stipulated time, then the accused has to enforce his right which accrues to him under Section 167(2) of Cr.P.C. In the present case, the applicant has tried to enforce his right only on 18th September, 2003 when the application for bail under Section 167(2) of Cr.P.C. came to be filed by him. The earlier application preferred by him on 6th August, 2003 cannot be said to be an application made to enforce his right under Section 167(2), Cr.P.C. Hence, even if the said application was pending on 11th August, 2003 when the charge-sheet came to be filed, it would not amount to an application being pending under Section 167(2) of Cr.P.C. The applicant cannot make any use of the application which was filed by him on 6-8-2003 before the trial Court by contending that the application for bail was pending at the time when the charge-sheet was not filed and hence,he ought to be released on bail on that ground.

13. The learned counsel for the applicant has placed reliance on the decision in the case of Uday Mohanlal Acharya Vs. State of Maharashtra reported in JT 2001(4) SC 262. In the said case, the Apex Court has observed thus :

"On the expiry of the said period of 90 days or 60 days, 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 furnishes the bail as directed by the Magistrate."

14. In the said case, as the charge-sheet was not filed, the accused had preferred an application before the trial Court under Section 167(2) of Cr.P.C. However, the learned trial Judge erroneously rejected the application under Section 167(2) of Cr.P.C. The accused approached the High Court praying for bail under Section 167(2) of Cr.P.C. After filing of the said application, it came to be adjourned and during the pendency of the said application, the charge-sheet came to be filed. In the peculiar facts and circumstances of the said case, the Supreme Court observed that filing of the charge-sheet would not extinguish the right of the applicant to be granted bail under Section 167(2) of Cr.P.C. In the case of Uday Acharya (supra) it is clear that the accused had moved an application for enforcement of his right under Section 167(2) of Cr.P.C. prior to the charge-sheet being filed. However, in the present case, the applicant had preferred an application even before the Special Court much after the charge-sheet was filed.

15. In the present case, the charge-sheet was filed much earlier i.e. on 11th August, 2003 and thereafter on 18th September, 2003 the applicant for the first time tried to enforce his right for bail under Section 167(2) of Cr.P.C., however, on 11th August, 2003 the right of the accused was already extinguished. It is clear that the right accrues in favour of the accused for being released on bail under Section 167(2) of Cr.P.C. and the accused is entitled to be released on bail if he is prepared to and furnishes the bail as directed by the Court. However, an application has to be filed for bail by the accused enforcing his right alleged to have been accrued in his favour on account of default on the part of investigating agency in filing the charge-sheet within the stipulated period. The said application has to be preferred before the filing of the charge-sheet. After filing of charge-sheet the right is extinguished.

16. Looking to the fact that it is only on 18th September, 2003 that for the first time the applicant-accused preferred an application for enforcement of his right to be released on bail under section 167(2) of Cr.P.C. and the charge-sheet was filed much prior to that i.e. on 11th August, 2003, the right which accrued to the applicant has clearly been extinguished. Hence, the applicant is not entitled to bail under Section 167(2) of Cr.P.C. Thus, the application for bail under Section 167(2) of Cr.P.C. is rejected.

17. The present application has been preferred for bail not just under Section 167(2) of Cr.P.C. but also on merits. The applicant earlier had preferred an application for bail before this Court on merits which came to be rejected on 3rd December, 2003 by this Court. In my opinion, the passage of four months time since the said order cannot be a good ground to grant bail.

18. Thereafter, the learned advocate for the applicant has submitted that at the time when the charge-sheet was filed, the C.A. report was not received and as such, there was no material to show that the applicant was involved in a case under N.D.P.S. Act. In the present case, the charge-sheet was filed on 11th August, 2003. The further investigation is not precluded in respect of an offence after the report or challan is sent to the Court. On the basis of material which was there before the Court on 11th August, 2003, it was clear that the applicant was involved in a case under the N.D.P.S. Act. The charge-sheet which was filed before the Court, also revealed that the sample of muddemal involved in the present case was sent to the C.A. and the report in relation thereto was awaited. Thus, there is no merit in this contention. No good ground is made to release the applicant on bail. Hence, the application for bail, is rejected.

Application dismissed.