2010 ALL MR (Cri) 3794
IN THE HIGH COURT OF JUDICATURE AT BOMBAY(AURANGABAD BENCH)
A.V. POTDAR, J.
Shivaji S/O. Ashruba Jaibhaye Vs. State Of Maharashtra
Criminal Application No.642 of 2010
23rd February, 2010
Petitioner Counsel: Mr. S. J. SALUNKE
Respondent Counsel: Mrs. Y. M. KSHIRSAGAR
Criminal P.C. (1973), S.167(2)(b) - Application for bail - Non-filing of charge-sheet before period of 90 days - Period of 90 days to be computed from the first day the accused is produced alongwith remand report before the concerned Magistrate. AIR 1992 SC 1768 (1) - Rel. on.(Paras 3, 5)
Chaganti Satyanarayan Vs. State of A.P., AIR 1986 SC 2130 [Para 3]
CBI Vs. A. J. Kulkarni, AIR 1992 SC 1768 (1) [Para 3]
Ramesh Madhukar Thombre Vs. State of Maharashtra, 1999(2) Mh.L.J. 554 [Para 4]
JUDGMENT :- This is an application by which the applicant has prayed to release him on bail in connection with CR No.105/2009 registered with Mantha police station for an offence punishable under sections 457, 394, 376(2)(g) of Indian Penal Code.
2. The present application is not moved on merits, but on technical grounds. The applicant is arrested, in connection with the offence dated 10.09.2009, on 02.10.2009 and produced before the Magistrate along with remand report on 03.10.2009. Considering the serious nature of offence, the charge-sheet ought to have been filed within a period of 90 days, which came to be over on 31.12.2009. Accordingly, an application was moved by the applicant before the JMFC, Mantha, who rejected the same and hence revision was filed before the Additional Sessions Judge, Jalna who also rejected the said revision vide order dated 12.01.2010, by holding that the period of 90 days to be computed by excluding the first day of remand when the accused is produced before the Magistrate along with remand report.
3. How to compute the period of 90 days, is made clear by the Apex Court in AIR 1986 SC 2130 in the matter of Chaganti Satyanarayan Vs. State of A.P. and AIR 1992 SC 1768 (1) in the matter of CBI Vs. A. J. Kulkarni. It is observed in the said judgments that the period to be computed from the first day the accused is produced along with the remand report before the concerned Magistrate. In this view of the matter, the period of 90 days counted from 03.10.2009 and the period of 90 days shall expire on 31.12.2009. Admittedly, on 91st day the applicant had filed application for bail u/s.167(2)(b) of the Criminal Procedure Code. On the said application order "other side to say" was passed. At that time, say was filed that now the charge-sheet has been filed and offence is serious and hence the application be rejected. Accordingly, the application was rejected. As stated earlier, on the same ground the revision was also rejected and hence the present application.
6. No person can be detained otherwise than by following the due process of law. Article 21 of the Constitution, therefore, requires that no person can be denied his right to life and liberty without due process of law. In the course of an investigation the power to detain a person is under section 167 of Criminal Procedure Code. In other words, custody is pursuant to this due procedure and it is only following this due procedure that a person can be kept in custody. The power of the Magistrate under this section is fettered. An accused is entitled to apply for bail in some cases on expiry of 90 days and in other cases on the expiry of 60 days. On the expiry of the aforesaid period the Magistrate has no power to remand the applicant/accused to further custody. What, therefore, follows is that any further detention of the applicant accused would be without due process of law under section 167 of Criminal Procedure Code. In the event he exercises his right to be released on bail other than due procedure will be under section 437 of the Criminal Procedure Code. It is in that context that the section has provided that if a person applies to be enlarged on bail after the period of remand is over the Court then must release him on bail. By a process of interpretation including the judgment of the Apex Court in case of Dr. Bipin Shantilal Panchal the Apex Court has held that if the applicant accused does not exercise his right before the charge-sheet is filed then such accused-applicant cannot take benefit of section 167 of Criminal Procedure Code. I may once again advert to the judgment of the Apex Court in the case of Mohamed Iqbal Madar Shaikh, wherein it is observed as under :-
'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 TADA, is not under section 167(2) but under other provisions of the Code.'
The indefeasible right of the applicant has been explained by the Supreme Court in the case of Sanjay Dutt Vs. State Through CBI, Bombay, (II) (1994)5 SCC 410. Before dealing with the proposition the following observation in para 48 can be referred to :
'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 above observations of the Apex Court makes it clear that if the accused makes an application for bail then he has to be released on bail forthwith. To my mind, the said observation of the Apex Court leaves no manner of doubt that what is to be considered is the application by the applicant and not the filing of the charge-sheet. If such application is moved before a charge sheet is filed and mere fact that the Court does not take up the matter or that there is no Presiding Officer available cannot act to the detriment of the applicant."
6. In the result, the application is allowed. The applicant be released on bail on his furnishing solvent surety in the sum of ' 20,000/- and on executing PR bond in the like amount. Applicant not to contact the prosecution witnesses.