Criminal Application No.944 of 2013

5th March, 2013

Petitioner Counsel: Mr. RV GORE
Respondent Counsel: Mr. VG SHELKE

Cases Cited:
Uday Mohanlal Acharya Vs. State of Maharashtra, 2001 ALL MR (Cri) 713 (S.C.)=2001 AIR (SC) 1910 [Para 3]
Bipin Shantilal Panchal Vs. State of Gujrath, 1996 AIR (SC) 2897 [Para 3,7]
Sayed Mohd. Ahmed Kazmi Vs. State, GNCTD and Ors., 2013 ALL SCR 947=2012 AIR SCW 6026 [Para 3]
Rehemankhan Kalukha Vs. State of Maharashtra, 2001 ALL MR (Cri) 2237=Criminal Application No. 1490 of 1993, Dt 21/9/2001 [Para 4]
Sanjay Dutt Vs. State Through CBI, Bombay(I), AIR 1994 SCW 3857 [Para 4]
Bapurao Patil Vs. State of Maharashtra, 1993 Mh.L.J. 1299 [Para 4]

JUDGMENT

JUDGMENT :- Heard. By the present Criminal Application, the applicant - Smt. Padmabai has prayed for quashing and setting aside the order dated 3rd January, 2013 below Exhibit-6 in RCC No.2/2013 passed by the learned Judicial Magistrate, First Class, 3rd Court, Paithan. Order:

"In the present case, charge sheet has been filed on 2.1.2013, and today accused is furnishing bail, therefore, in such circumstances, considering legal position, right of accused to furnish bail, has stood forfeited as soon as charge sheet is filed. Hence, following Order; Application stands rejected."

2. The said order was confirmed in Criminal Revision on 11.12.2013.

3. Mr.Gore, while extensively arguing the matter, placed reliance to the judgments of the Hon'ble Supreme Court, in the matter of, a) Uday Mohanlal Acharya Vs. State of Maharashtra - 2001 AIR (SC) 1910 : [2001 ALL MR (Cri) 713 (S.C.)]; b) Bipin Shantilal Panchal Vs. State of Gujrath - 1996 AIR (SC) 2897; and c) Sayed Mohd. Ahmed Kazmi Vs. State, GNCTD and Ors. 2012 AIR SCW 6026 : [2013 ALL SCR 947].

According to learned Counsel, when the application for bail was moved in terms of Section 167(2)(a)(ii) of Cr.P.C., the learned Judge directed release of the applicant on bail. On the same day, the charge sheet has been filed. According to him, since the learned Judge had directed the applicant to be released on bail, his rights for bail are indefeasible in view of the above referred legal position.

4. The Full Bench of this Court in the matter of Rehemankhan Kalukha Vs. State of Maharashtra on 21.9.2001 (Criminal Application No. 1490 of 1993) : [2001 ALL MR (Cri) 2237] analyzed the legal position spelt out in the matter of Uday Mohanlal Acharya; Sanjay Dutt Vs. State Through CBI, Bombay(I) -AIR 1994 SCW 3857; and Bapurao Patil Vs. State of Maharashtra - 1993 Mh.L.J. 1299 and recorded conclusions in paragraph 8, as under :

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 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 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 unauthorized, 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 furnished the same.

5. The Hon'ble Supreme Court in the matter of Sayed Mohd. Ahmed Kazmi, in para 24, recorded, - "It is well-established that if an accused does not exercise his right to grant of statutory bail before charge sheet is filed, he loses his right to such benefit once such charge sheet is filed and can, thereafter, only apply for regular bail."

6. In the case at hand, admittedly, on 2nd January, 2013, when initial order was passed, on the same day, charge sheet was filed. Consequently, even otherwise, the right available to the accused in terms of Section 167(2)(a)(ii) of Cr.P.C. as indefeasible right for default, stand extinguished. This is by mere arithmetics of the date of arrest and submission of final report. That apart, the legal position, indicated in the matter of Sayed Mohd, referred to above, also cannot be obliterated.

7. In the matter of Bipin Shantilal Panchal Vs. State of Gujrath, the Supreme has again explained effect of Section 167(2) of Cr.P.C. And proviso thereof.

Section 167(2)(a)(ii) of Cr.P.C. Has to be read with Explanation-I incorporated by virtue of amendment by Act of 5 of 2009 w.e.f. 31.12.2009. The Explanation provides, - "For the avoidance of doubts, it is hereby declared that, notwithstanding the expiry of the period specified in paragraph (a), the accused shall be detained in custody so long as he does not furnish bail."

8. A conjoint reading of Section 167(2)(a)(ii) with Explanation, explicitly demonstrate that, on the date when the order of bail was extended to the accused, there was already final report/charge sheet tendered by the Investigating Agency. Consequently, on 3rd January, 2013, the learned judge could not exercise powers in favour of the accused/applicant to release him on bail in terms of Section 167 of Cr.P.C. Criminal Application lacks merit, dismissed.

Application dismissed.