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2008 DIGILAW 740 (BOM)

Bandu s/o. Bhimrao Bansod v. State of Maharashtra

2008-06-06

A.P.LAVANDE

body2008
JUDGMENT :- Heard Mr. Mirza, learned counsel for the applicants and Mrs. Wandile, learned A.P.P., for the Respondent. 2. Rule, By consent heard forthwith. 3. This application under Section 482 of the Code of Criminal Procedure (hereinafter referred to as "the Code") raises an interesting question of law as to whether an application for bail filed by an accused arrested for all offences punishable under Section 302 of the Indian Penal Code on 90th day is entitled to be released on bail in terms of Section 167(2) of the Code of Criminal Procedure 1973 if the Charge, sheet is filed on 91st day. 4. By this application, the applicants take exception to the judgment and order dated 6th October, 2007 passed by the Additional Sessions Judge, Amravati in Criminal Revision Application No. 130/2007 dismissing the criminal revision application against an order dated 6-8-2007 passed by Judicial Magistrate First Class, Amravati in Crime No. 149/2007 by which the learned Magistrate dismissed the application filed by the present applicants seeking bail under Section 167(2) of the Code. 5. Pursuant to the F.I.R. dated 4-5-2007 registered at Rajapeth Police Station, Amravati under Sections 307. 302, 452, 147, 148, 149 read with Section 34 of the Indian Penal Code and Sections 4 and 25 of Arms Act, the applicants were arrested on 7-5-2007. They were remanded to the police custody on 8-5-2007 and thereafter to judicial custody. 6. On 5-8-2007 in the afternoon the applicants filed an application purporting to be under Section 167(2) of the Code seeking bail on the ground that they were entitled to be released on bail since no charge-sheet was filed within a period of 90 days. No order was passed on that day. At about 4.00 p.m. on 6-8-2007 charge-sheet came to be filed against several accused including the applicants. Thereafter the application was considered by learned Magistrate and on the same day the Magistrate passed an order rejecting the application on the ground that the same was premature inasmuch as 90 days had not elapsed on the day when the application for bail was filed. The revision preferred to the Sessions Court. Amravati was also dismissed up-holding the order passed by the learned Magistrate. 7. Mr. Mirza. learned counsel for the applicants fairly conceded that the application claiming bail under Section 167(2) of the Code was filed on the 90th day. The revision preferred to the Sessions Court. Amravati was also dismissed up-holding the order passed by the learned Magistrate. 7. Mr. Mirza. learned counsel for the applicants fairly conceded that the application claiming bail under Section 167(2) of the Code was filed on the 90th day. The learned counsel submitted that since on 6-8-2007, 90 days' period had elapsed, the applicants had a statutory right in terms of Section 167(2) of the Code to be released on bail and mere filing of charge-sheet in the afternoon on 6-8-2007 could not defeat the right of the applicants to get statutory bail in terms of Section 167(2) of the Code. According to Mr. Mirza, although the application for bail was not filed after the expiry of 90 days, the fact remains that till 4.00 p.m. on 6-8-2007 charge-sheet was not filed and, therefore, the applicants were entitled to be released on bail in terms of Section 167(2) of the Code since the applicants had availed of their right under Section 167(2) of the Code. Mr. Mirza further submitted that in order to avail right of bail under Section 167(2) of the Code, it was not necessary for the applicants to file an application in writing claiming such right but they could invoke such right even orally before the Magistrate. In support of his submissions, Mr. Mirza relied upon the following authorities:- (i) Gousemohiddin Maradansab Masanakatti Vs. State of Karnataka : 2004 Cri.L.J. 1033: (ii) P.C. Kakar and another Vs. The Director General of Police and others : 1986(1) Crimes 620; and (iii) Narsingh Das Tanadia Vs. Goverdhan Das Partant and another: AIR 2000 SC 2946 : [2001(1) ALL MR 525 (S.C.) : 2001 ALL MR (Cri) 561 (S.C.)]. 8. Per contra, Mrs. Wandile, learned A.P.P. appearing on behalf of the respondent supported the impugned orders and submitted that an accused, who is in custody in connection with an offence punishable under Section 302 of the Indian Penal Code gets right to file an application for bail in terms of Section 167(2) of the Code only after the period of 90 days and if any such application is filed on or before 90 days, such an application is premature and liable to be dismissed as such. Mrs. Mrs. Wandile further submitted that learned Magistrate was absolutely right in holding that the application under Section 167(2) of the Code was premature inasmuch as admittedly application for claiming bail under Section 167(2) of the Code was filed on 90th day. Mrs. Wandile placing reliance upon the judgment of the Apex Court in Uday Mohanlal Acharya Vs. State of Maharashtra ( AIR 2001 S.C. 1910 : [2001 ALL MR (Cri) 713 (S.C.)]) submitted that having regard to the ratio laid down in the said judgment application filed by the applicants seeking ball under Section 167(2) of the Code was premature and the applicants could not have availed of their right to seek bail under Section 167(2) of the Code before expiry of 90 days. She, therefore, submitted that no case has been made out for interference with the impugned orders in exercise of inherent jurisdiction by this Court. 9. There is no dispute that the application seeking bail under Section 167(2) of the Code was filed by the applicant on 90th day from the date of remand. In Chaganti Satyanarayana and others Vs. State of Andhra Pradesh ( AIR 1986 SC 2130 ) the Apex Court has held that period of 90 days or 60 days envisaged by proviso to sub-section (2) of Section 167 of the Code begins from the date of order of remand and not from earlier date when the accused was arrested. Therefore, in the present case the period of 90 days has to be computed from the date of remand i.e. 8-5-2007. Therefore, the period of 90 days expired on 5-8-2007. The application, therefore, was filed on 90th day. It is also an admitted position that the charge-sheet came to be filed in the afternoon on 6-8-2007 and the application for bail filed by the applicants was thereafter considered and rejected by learned Magistrate. 10. The question, therefore, which arises for consideration is whether the application tiled by the applicants seeking bail was maintainable under Section 167(2) of the Code. At this stage, it would be appropriate to refer to the judgment of the Apex Court in Uday Mohanlal Acharya's case [2001 ALL MR (Cri) 713 (S.C.)] (supra). 10. The question, therefore, which arises for consideration is whether the application tiled by the applicants seeking bail was maintainable under Section 167(2) of the Code. At this stage, it would be appropriate to refer to the judgment of the Apex Court in Uday Mohanlal Acharya's case [2001 ALL MR (Cri) 713 (S.C.)] (supra). After considering the law on the subject, the Apex Court has summarized the conclusion in paragraph 8, which are as follows:- "1.Under sub-section (2) of S.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 subsection (2) of S.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 investigation within the specified period, the Magistrate/Court must dispose it of forth with, 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. 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 S.167, the continued custody of the accused even beyond the specified period in paragraph (a) will not be unauthorised, and, therefore, it 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.L.J. 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 S.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." 11. From a bare perusal of the above conclusions, it is clear that in case the charge-sheet is not filed within a period of 60 or 90 days as the case may be, the accused gets indefeasible right to be released on bail for not filing the charge-sheet provided he files the application after the period of 60 or 90 days as the case may be. The right to seek bail under Section 167(2) of the Code upon expiry of 60 or 90 days accrues only after expiry of 60 or 90 days. Till 90th day an accused involved in an offence under Section 302 of the Indian Penal Code is entitled to seek bail on merits by filing an application for bail before the Sessions Court. In the present case the applicants were accused of having committed offences punishable under Sections 302 and 307 of the Indian Penal code and other offences. Till 90th day an accused involved in an offence under Section 302 of the Indian Penal Code is entitled to seek bail on merits by filing an application for bail before the Sessions Court. In the present case the applicants were accused of having committed offences punishable under Sections 302 and 307 of the Indian Penal code and other offences. The offences under Sections 302 and 307 of the Indian Penal Code are punishable with life imprisonment and as such till the expiry of 90 days the Magistrate had no jurisdiction to grant bail to the applicants. An accused is entitled to statutory bail under Section 167(2) of the Code only if he avails his right upon expiry of 90 days. In the present case the application seeking bail under Section 167(2) of the Code was filed on the 90th day. It is also an admitted position that the application was taken up by the Magistrate only after filing of the charge-sheet. Therefore, the ratio laid down in Uday Mohanlal Acharya's case is squarely applicable in the present case. The application filed by the applicants under Section 167(2) of the Code was premature. Therefore, no fault can be found with the order passed by the Magistrate and also the order passed by the Revisional Court dismissing the revision application. 12. I shall now deal with the authorities relied upon by learned counsel for the applicant. In Gousemohiddin Masanakatti's case (supra) the learned Single Judge of Karnataka High Court has held that when an application for bail under Section 167(2) of the Code is filed earlier in point of time than charge-sheet the accused is entitled to be released on bail under Section 167(2) of the Code since he has availed his right. In this case the application for bail was filed by the accused after 90 days. Hence, the ratio of this judgment does not advance the case of the applicant. 13. In P. C. Kakar's case (supra) the facts were entirely different and as such this judgment also does not advance the case of the applicant. 14. In Narsingh Das Tapadia's case [2001(1) ALL MR 525 (S.C.) : 2001 ALL MR (Cri) 561 (S.C.)] (supra) the Apex Court has held that the complaint filed for dishonour of cheque before expiry of notice period contemplated by section 138(c) of the Negotiable Instruments Act 1881 cannot be dismissed as premature. 14. In Narsingh Das Tapadia's case [2001(1) ALL MR 525 (S.C.) : 2001 ALL MR (Cri) 561 (S.C.)] (supra) the Apex Court has held that the complaint filed for dishonour of cheque before expiry of notice period contemplated by section 138(c) of the Negotiable Instruments Act 1881 cannot be dismissed as premature. Obviously, the ratio laid down in this judgment is of no help to the applicant. 15. As stated above, the ratio laid down in Uday Mohanlal Acharya's case is squarely applicable in the present case. Therefore, there is no merit in the present application. 16. For the reasons aforesaid, the application is dismissed. Rule is discharged. There shall be no order as to costs. Application dismissed.