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.
IN THE HIGH COURT OF JUDICATURE OF BOMBAY
BENCH AT AURANGABAD
CRIMINAL APPLICATION NO.944/2013.
Padmabai Dattatraya Bhojne APPLICANT
VERSUS
The State of Maharashtra RESPONDENT
DATE : 5
th MARCH,2013.
1) Heard. By the present Criminal Application,
the applicant – Smt. Padmabai has prayed for quashing
and setting aside the order dated 3rd January, 2013
below Exhibit6 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; 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.
. 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)
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 Subsection (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 Subsection (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 socalled 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 Subsection
(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 wellestablished 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
::: Downloaded on - 20/04/2013 18:37:08 :::Bombay High Court
5 CRI.APPLN.944/2013
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 ExplanationI 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.
sd/
(K.U.CHANDIWAL)
JUDGE
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