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2013 DIGILAW 928 (BOM)

Deelip s/o. Dnyanoba Gore v. State of Maharashtra

2013-05-02

T.V.NALAWADE

body2013
JUDGMENT Rule. Rule made returnable forthwith. By consent of parties, heard for final disposal. 2. The present proceeding is filed to challenge the order made by JMFC, Beed in Cr.No.35/12 on application made for granting bail on the ground of default. The order made by Sessions Judge, Beed in Criminal Revision Application No.48/13 which was filed to challenge the order made by JMFC is also under challenge. 3. One Rahul Arjun Dubale applied for permission to intervene the matter. Criminal Application Stamp No.2419/13 to intervene is allowed. His Advocate Shri S.S. Jadhavar was allowed to assist learned A.P.P. 4. Crime at Cr.No.35/12 was registered in Beed Rural police station for offences punishable u/s 302, 332, 353, 363, 149, 324 etc. of IPC, against the petitioner and four other persons. The petitioner came to be arrested in this crime on 29/1/13. The petitioner applied for bail on the ground of default on 1/4/13 as till that date, charge sheet was not filed by police. After hearing both sides, the JMFC rejected the application on 2/4/13. The JMFC held that the crime was registered for offence u/s 302 of IPC and so, there was time of 90 days with the police to file charge sheet. The Sessions Court has made similar observations for dismissing the revision application. 5. Present petition came to be filed on 24/4/13. It was submitted that on 25/4/13, police filed charge sheet against the petitioner and others for offences punishable u/s 363, 149, 324 etc. of IPC. It was submitted that the charge sheet is not filed for offence punishable u/s 302 of IPC. The submissions made show that the medical evidence is not in favour of the case of murder as the cause of death is different. 6. The learned counsel for petitioner took this Court to various documents which include copy of affidavit filed by investigating officer in High Court on 10/12/12. Even submission was made for investigating agency that case for offence punishable u/s 302 of IPC is not made out and soit is deleted from the crime. It appears that the written submission was also made before JMFC in this regard by concerned police station prior to that date. Now, the charge sheet shows that it is not filed for offence punishable u/s 302 of IPC. It appears that the written submission was also made before JMFC in this regard by concerned police station prior to that date. Now, the charge sheet shows that it is not filed for offence punishable u/s 302 of IPC. Thus, on 10/12/12, as per the affidavit of the investigating 'officer, the investigation was being made for main offence punishable u/s 363 of IPC which is triable by Court of Magistrate and it is punishable with imprisonment of 7 years. 7. It was submitted for the State that as the crime was registered for offence u/s 302 of IPC, there was time of 90 days with police to file charge sheet and the affidavit filed by investigating officer cannot be considered in this regard. This Court holds that this submission is not at all acceptable. Before filing of the affidavit, investigating agency was certain that it was not the case of murder though initially crime was registered u/s 302 of IPC. Thus, it can be said that on 29/1/13, if the petitioner was arrested in aforesaid crime, his arrest was for offence u/s 363 of IPC. As the charge sheet is also filed for offence u/s 363 of IPC and not for u/s 302 of IPC, it cannot be said that the charge sheet could have been filed within 90 days from the date of the first remand order made against the petitioner. The orders made by JMFC and Sessions Court show that it was not brought to the notice of these 2 Courts that police had no intention to file charge sheet for offence punishable u/s 302 of IPC. It appears that only because crime was registered for offence punishable u/s 302 of IPC also, two Courts held that the time of 90 days was available u/s 167 of Cr.P.C. 8. The aforesaid facts and circumstances show that both the Courts have committed error in holding that there was time of 90 days with police to file charge sheet. The learned counsel for petitioner placed reliance on 2 cases reported as [1] (2001) 5 Supreme Court Cases 453; [2001 ALLMR (Cri) 713 (S.C.)] [Uday Mohanlal Acharya V/s State of Maharashtra] and [2] 2002 Bom.C.R.[Cri] 608 : [2002 ALL MR (Cri) 1502] Nagpur Bench [Pralhad Vithal Giri and another V/s State of Maharashtra]. The learned counsel for petitioner placed reliance on 2 cases reported as [1] (2001) 5 Supreme Court Cases 453; [2001 ALLMR (Cri) 713 (S.C.)] [Uday Mohanlal Acharya V/s State of Maharashtra] and [2] 2002 Bom.C.R.[Cri] 608 : [2002 ALL MR (Cri) 1502] Nagpur Bench [Pralhad Vithal Giri and another V/s State of Maharashtra]. The copy of order made by Apex Court in Criminal Appeal No.1695/12 [between Syed Mohd and State] was produced. The two cases decided by Apex Court were decided by 3 Judges of the Hon'ble Apex Court. The learned APP placed reliance on case reported as (2011) S.C.C. 445 [Pragyna Singh Thakur V/s State of Maharashtra]. This case was decided by 2 Judges of Hon'ble Apex Court. The facts of this case were different and the charge sheet was filed on 89th day. 9. In the case of Uday Acharya, decided by 3 Judges of Hon'ble Apex Court. The Apex court has discussed the right of the accused. The Apex Court has held that the detention of the accused beyond the permitted limit would amount to violation of Article 21 of the Indian Constitution. It is observed that the Courts should give effective mandate of Cr.P.C. Section 167 (2) proviso. 10. In view of the observations made by Apex Court, this Court holds that the right of the accused given in aforesaid proviso cannot be allowed to be defeated even if there is mistake committed by Criminal Court on facts. At the time of consideration of application filed on the ground of default also the Courts are required to consider as to which Section will be applicable to the case though the crime is registered for more serious offences. The Court is required to go through the relevant papers in this regard. This was not done by the Courts below and that is why, error is committed by the Courts below. This Court holds that the orders made by JMFC and Sessions Court cannot sustain in law. In the result, following order: 11. Writ Petition is allowed. The order made by JMFC Beed dated 2/4/13 in Cr.No.35/12 registered in Beed rural police station and the order made by Sessions Judge, Beed in Criminal Revision Application no.48/13 are hereby set aside. 12. Application filed for bail on default ground by the petitioner is hereby allowed. In the result, following order: 11. Writ Petition is allowed. The order made by JMFC Beed dated 2/4/13 in Cr.No.35/12 registered in Beed rural police station and the order made by Sessions Judge, Beed in Criminal Revision Application no.48/13 are hereby set aside. 12. Application filed for bail on default ground by the petitioner is hereby allowed. The applicant is to be released on bail on his furnishing PR and SB of Rs.15,000/-. The applicant is not to tamper with prosecution witnesses. The applicant is not to enter Beed city until further orders. Hamdast is allowed. Rule made absolute in aforesaid terms. Petition allowed.