1 FARAD CONTINUATION SHEET IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT NAGPUR CRIMINAL APPEAL NO. 3142 /2009 (Dinesh Rajendra Chonde vs. State of Maharashtra ) Office Notes, Office Memorandum of Coram appearances, Court's orders of directions & Registrar's orders. Court's or Judges Order Mr J B Kasat, Adv. for applicant Mr D.B.Patel, APP for Respondent *** C ORAM : A.P. BHANGALE, J. DATED : 15 th October, 2 009. 1. Heard. 2. By this application, the applicant prays for grant of bail in connection with Crime No. 14/2009 reported at Shirkehd Police Station Dist. Amravati for offence punishable under section 302 of the Indian Penal Code. It is contended on behalf of the applicant that applicant was in judicial custody during pendency of investigation. Learned Advocate making reference to Section 167 (2) (b) as amended, brought into force by the State of Maharashtra vide Maharashtra Act No. VIII of 2005 with effect from 25.11.2004 on the proviso of paragraph (b) which is couched in the following terms :- (b) No Magistrate shall authorise detention in any custody, of the accused person under this section unless, the accused person is produced before him in person, and for any extension of custody otherwise than the extension in the policy custody, the accused person may be produced either in person or through the medium of electronic video linkage.” Thus, according to learned Advocate for the applicant if the accused is not produced before the Magistrate as contemplated under the said amendment to Section 167 of the Cr.P.C., then the detention of the accused without 2 production of the accused before the Magistrate either physically or through the medium of electronic video linkage would be unauthorized. Therefore, the applicant would be entitled for release on bail. 3. It appears that same contentions were advanced before learned 2nd Additional Sessions Judge, Amravati who, by order below Exh. 1 in Misc. Criminal Application No.486/2009 rejected grant of bail on such ground. It appears that the learned 2nd Addl. Sessions Judge, Amravati considered section 167(2) Cr.P.C. with reference to State amendment as referred to, as also contention of the applicant claiming the relief and observed in paragraph 12 of the order that “the amendment incorporated by the Maharashtra Amendment Act of 2005 was to facilitate the extension of the remand of the accused through the medium of electronic video linkage, It was envisaged as an enabling provision. By the amendment, the intent of legislature was not that unless the accused was produced, there can be no extension judicial custody”. 4. Thus, in the absence of any specific provision to grant statutory bail upon such contingency of non-production physical or through video linkage, the plea for bail was rejected. In the present proceedings, it is not necessary to go into the question of validity or otherwise of detention as, according to prosecution, charge sheet is already filed and so far as the plea for bail is concerned, it is open for the applicant to move the trial Court with prayer for bail on merits, on the basis of material collected during the investigation of which the copy is supplied to the accused. The right to be enlarged on bail pending investigation can only be exercised prior to filing of the charge-sheet. But once charge-sheet is filed the plea for bail can be moved before the trial Court which can be decided on merits in accordance with law. There is no provision u/s 167 that if police report and documents are not supplied to the accused on the date of filing of the charge-sheet, the plea for bail may be made. On the basis of default in filing charge-sheet within statutory limit, such plea is indefeasible. But once charge-sheet is filed such a right also 3 extinguishes leaving the applicant to agitate the plea for bail on merits before the trial Court. For these reasons, I think bail is rightly rejected. Section 167 of the Cr.P.C. is applicable in the case when investigation cannot be completed within stipulated statutory period for investigation; but once investigation has been completed and charge-sheet has been filed in the trial Court, the applicant may move for bail on merits of the case. With these observations, application stands rejected. JUDGE. sahare