1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPLICATION NO. 3241 OF 2008 Arvind @ Aarya Dinkar Lokhande ..... Applicant. V/s State of Maharashtra ..... Respondent Mr. A.D. Kamkhedkar for the applicant. Mr. Rajesh More, APP for the State. CORAM : V.M. KANADE, J. DATE : 1st April, 2009 P.C:- 1. Heard the learned Counsel appearing on behalf of the applicant and the learned APP appearing on behalf of the State. 2. This is an application for bail filed by the applicant primarily on the ground that he is entitled to get bail under section 167(2) of the Criminal Procedure Code since extension of time was granted by the Special Court without giving notice of such extension to him. 3. Brief facts are as under:- 4. Applicant was arrested on 18/12/2007. Thereafter, provisions of MCOC Act were invoked against the applicant. Prosecution, thereafter, filed Criminal Misc. Application No. 5 2 of 2008 and extension of time of 45 days was granted for filing charge- sheet which was done by order dated 13/03/2008. Thereafter, another application was filed by the prosecution being Criminal Misc. Application No.9 of 2008 for further extension of time which was granted for a period of three weeks by the Special Court for investigation. This order was passed on 22/04/2008. 5. Counsel appearing on behalf of the applicant submitted that the applicant came to know for the first time about the extension of time after the say was filed by the prosecution in the application which was filed by the applicant under section 167(2) of the Criminal Procedure Code. It is submitted that no notice was given before granting extension of time and, therefore, the applicant is entitled to get bail under section 167(2). Counsel for the applicant placed reliance on judgments in cases of Hitendra Vishnu Thakur and Others Vs. State of Maharashtra and Ors., reported in 1994 SCC (Cri) 1087, State of Maharashtra Vs. Bharati Chandmal Varma alias Ayesha Khan, reported in 2002 Bom.C.R. (Cri.) 1 SC and Uday Acharya Vs. State of Maharashtra, reported in 2001 (5) Bom.C.R. 577 – SC. 6. In the present case, it is an admitted position that the application for grant of bail under section 167(2) came to be registered on 21/04/2008. Initially, extension was granted by the Special Court on 13/03/2008 for 45 days and, thereafter, for a period of three weeks on 22/04/2008 and 3 the admitted position is that the charge- sheet was filed on 12/05/2008 before completion of the extended period. The submission made by the Counsel for the applicant that since no notice was given, the applicant is entitled to be released on bail, cannot be accepted. It is no doubt true that the Apex Court in Hitendra Thakur's case (supra) has observed that one of the requirements which is to be followed by the Court before granting extension is to give notice to the accused in order to enable him to argue before the court why extension should not be granted. However, that does not mean that if the notice is not given, the extension which is granted becomes per se illegal. It has to be noted that the requirement of law under section 167(2) is that the charge- sheet should be filed within 60 or 90 days or within the extended period, if MCOC Act is applicable. In the present case, charge- sheet has been filed within the aforesaid period. In fact, when the second extension was granted on 22/04/2008, applicant had already made an application for bail on 21/04/2008. In fact on 07/04/2008, applicant had made an application in C.R. No.3152 of 2007 before the learned Special Court, seeking copies of the applications for extension preferred by the prosecution and the copies were supplied to him on 12/04/2008. The Apex Court in Hitendra Thakur's case (supra) in para 28 has made the following observations:- “ 28. In conclusion, we may (even at the cost of repetition) say that an accused 4 person seeking bail under Section 20(4) has to make an application to the Court for grant of bail on grounds of the 'default' of the prosecution and the Court shall release the accused on bail after notice to the public prosecutor uninfluenced by the gravity of the offence or the merits of the prosecution case since Section 20(8) does not control the grant of bail under Section 20(4) of TADA and both the provisions operate in separate and independent fields. It is, however, permissible for the public prosecutor to resist the grant of bail by seeking an extension under clause (bb) by filing a report for the purpose before the Court. However, no extension shall be granted by the Court without notice to an accused to have his say regarding the prayer for grant of extension under clause (bb). In this view of the matter, it is immaterial whether the application for bail on ground of 'default' under Section 20(4) is filed first or the report as envisaged by clause (bb) is filed by the public prosecutor first so long as both are considered while granting or refusing 5 bail. If the period prescribed by clause (b) of Section 20(4) has expired and the Court does not grant an extension on the report of the public prosecutor made under clause (bb), the Court shall release the accused on bail as it would be an indefeasible right of the accused to be so released. Even where the Court grants an extension under clause (bb) but the charge- sheet is not filed within the extended period, the Court shall have no option but to release the accused on bail, if he seeks it and is prepared to furnish the bail as directed by the Court. Moreover, no extension under clause (bb) can be granted by the Designated Court except on a report of the public prosecutor nor can extension be granted for reasons other than those specifically contained in clause (bb), which must be strictly construed.” In the present case, necessary copies of extension applications were supplied to the applicant on 12/04/2008. Even if it is true that when the first extension was granted, copy of the said application for extension was not served on the accused, yet, at that time, no application for bail has 6 been filed by him under section 167(2) and, therefore, as laid down in cases of Uday Acharya (supra) and Hintendra Thakur (supra), applicant would not have been entitled to get bail under section 167(2) since application for bail was not filed. When application for second extension was, filed copies were served on the applicant on 12/4/2008. No submission was also made at the time when the extension was applied for as to how the extension was not necessary and what prejudice would be caused to the accused if the extension is granted. Reliance is also placed on the judgment of this court in the case of Mr. Bhagyesh @ Bablu Nitin Shah Vs. The State of Maharashtra in Criminal Application No.64 of 2009. In the said case, apart from the fact that the notice was not given, requirement of section 20 (4)(bb) of the TADA Act which was the satisfaction of the Public Prosecutor about need for extension and a report by him to the Court had not been complied with and, therefore, it was held that the extension which was given itself was not proper. Ratio of the said case will not apply to the facts of the present case. Plea raised by the applicant, therefore, is technical in nature and, on that ground, the order passed by the Sessions Court is not liable to be set aside. 7. Accordingly, the application is rejected. (V.M. KANADE, J.)