1 WP 174.11.sxw JPP IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE SIDE JURISDICTION CRIMINAL WRIT PETITION NO. 174 OF 2011 Mr. Sushant Baban Kamble. ... Petitioner. (Orig. Accused) V/s. The State of Maharashtra. ... Respondent. Mr. Rahul Kulkarni for the Petitioner. Mrs. M.M. Deshmukh, APP for the State. CORAM : K.U. CHANDIWAL, J. DATED : 22nd SEPTEMBER 2011. P.C. :- Heard. 2. The Accused/Applicant was directed to be released on bail by the learned J.M.F.C. by order dated 16.7.2010 as charge-sheet was not filed within the prescribed period provided thereunder in terms of Section 167(2)(a)(ii) of Cr.P.C. 3. The matter in question revolves infraction of Section 376 of I.P.C. which informs that punishment under Section 376(1) of I.P.C. would be seven years or more and may extend to life or for a term which may extend to 10 years and shall also be liable to fine. In the case at hand, the accused was produced before the Court on 11.5.2010. Thereafter, he was in police custody and the learned Judge felt that within the span of 60 2 WP 174.11.sxw days from 11.5.2010, the final report should have been filed by the Investigator and non-filing of the same provided an indefeasible right to the Accused to be released on bail. Basically the computation of period by the learned Judge to 60 days is based on erroneous presumption of law as Section 376(1) of I.P.C. is specified hereinbefore. The period of filing final report (charge-sheet) in such cases would be 90 days and by no stretch, it would be 60 days. 4. Based on this mistake as stated earlier, he released the Accused on bail of Rs.25,000/-. The accused did not comply the same and within 3 days charge-sheet was filed by the Investigator. Challenge by the Accused in Criminal Revision No.210 of 2010 did not yield any result as the learned Additional Sessions Judge – 3, Kolhapur recorded that he did not find any illegality in the impugned order. He relied on the Judgment in the matter of Uday Mohanlal Acharya V/s. State of Maharashtra (2001) SCC (Cri.) 760 and also the Full Bench Judgment of this Court in the matter of Rehmankha Kalukha V/s. State of Maharashtra reported in (2001) All M.R. (Cri.) 2237. 5. In paragraph 8 of the Judgment in Rehmankha, Full Bench has drawn conclusions and clause 5 there of reads as under :- “5. If the accused is unable to furnish bail, as directed by the Magistrate, then the conjoint reading of 3 WP 174.11.sxw 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 unauthorised, 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. In the light of this legal position, the refusal to entertain the bail granted, need not be questioned as charge-sheet was filed indeed within the specified period as mandated under Section 167(2) of Cr.P.C. The Petition lacks merit. Dismissed. 7. The accused may apply for fresh bail to the learned Judge which he will consider on its own merit. (K.U. CHANDIWAL,J.)