1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL WRIT PETITION NO.1214 OF 2010 Deepak Sohanlal Pal ..... Petitioner. V/s The State of Maharashtra ..... Respondent. Mr. V.S. Kotwal for the Petitioner. Mrs. P.P. Bhosale, APP for the State. CORAM: V. M. KANADE, J. DATE : 6th May, 2010 P.C.:- 1. Heard the learned Counsel appearing on behalf of the Petitioner and the learned APP appearing on behalf of the State. 2. Petitioner has been arrested in connection with C.R. No.I-384/2009 registered at Mumbra Police Station, District Thane under section 498A, 306, 506 of the Indian Penal Code. Charge-sheet was not filed within 60 days from the date of his arrest and, therefore, application was filed by him seeking bail in view of provisions of section 167 of the Criminal Procedure Code. The learned Magistrate was pleased to allow the said application and by order dated 14/12/2009, the learned Magistrate directed that the 2 Petitioner should be released on bail on his executing P.R. Bond in the sum of Rs 25,000/-. Petitioner could not furnish the single surety in the sum of Rs 25,000/-. He, therefore, applied for modification of the said order and requested the learned Magistrate to permit him to furnish one or two sureties in the sum of Rs 25,000/-. In the meantime, charge- sheet was filed on 23/12/2009. The learned Magistrate was pleased to reject his application for modification by passing a single line order which reads as under:- “Not furnished solvent surety. Hence, filed.” 3. The learned Counsel appearing on behalf of the Petitioner submitted that the learned Magistrate could not have rejected the application of the Petitioner for modification particularly when the Petitioner was released on bail by his earlier order dated 14/12/2009 under section 167(2) of the Cr.P.C. He relied upon the judgment in Uday Mohanlal Acharya v. State of Maharashtra1 4. In my view, there is some substance in the submissions made by the learned Counsel appearing on behalf of the Petitioner. Once the applicant has availed of his right under section 167(2) of being released on bail by filing an application for bail and once the order is passed by the learned Magistrate, the said order could not be modified merely because the applicant was not actually released on 1 2001 SCC (Cri) 760 3 bail since he had failed to furnish the solvent surety and by that time charge sheet was filed. The Apex Court in Uday Mohanlal Acharya (supra) has observed in para 13 as under:- “13. In the Sate of M.P. v. Rustam1 this Court set aside the order of the High Court where the High Court had released the accused on bail, charge- sheet not having been filed within the period stipulated in Section 167(2) of the Code of Criminal Procedure, as by the time the High Court entertained the bail application, challan had already been filed, this Court had observed that the court is required to examine the availability of the right to compulsive bail on the date it is considering the question of bail and not barely on the date of presentation of the petition for bail. This Court came to the conclusion : (SCC p.223, para 4) “On the dates when the High Court entertained the petition for bail and granted it to the accused-respondents, undeniably the challan stood filed in court, and then the right as such was not available. A Conspectus of the aforesaid decisions of this Court unequivocally indicates that an indefeasible right accrues to the accused on the failure of the prosecution to file the challan within the period specified under sub-section (2) of Section 167 and right can be availed of by the accused if he is prepared to offer the bail and abide by the terms and conditions of the bail, necessarily, therefore, an order of the court has to be passed. It is also further clear that the indefeasible right does not survive or remain enforceable on the challan being filed, if already not availed of, as has been held by the Constitution Bench in Sanjay Dutt case2 . The 1 AIR 1995 Supp (3) SCC 221 : 1995 SCC (Cri) 830 2 (1994) 5 SCC 410 : 1994 SCC (Cri) 1433 4 crucial question that arises for consideration, therefore, is what is the true meaning of the expression “if already not aviled of?” Does it mean that an accused files an application for bail and offers his willingness for being released on bail or does it mean that a bail order must be passed, the accused must furnish the bail and get him released on bail? In our considered opinion it would be more in consonance with the legislative mandate to hold that an accused must be held to have availed of his indefeasible right, the moment he files an application for being released on bail and offers to abide by the terms and conditions of bail. To interpret the expression “availed of” to mean actually being released on bail after furnishing the necessary bail required would cause great injustice to the accused and would defeat the very purpose of the proviso to section 167(2) of the Criminal Procedure Code and further would make an illegal custody to be legal, inasmuch as after the expiry of the stipulated period the Magistrate had no further jurisdiction to remand and such custody of the accused is without any valid order of remand. That apart, when an accused files an application for bail indicating his right to be released as no challan had been filed within the specified period, there is no discretion left in the Magistrate and the only thing he is required to find out is whether the specified period under the statute has elapsed or not, and whether a challan has been filed or not. If the expression “availed of” is interpreted to mean that the accused must factually be released on bail, then in a given case where the Magistrate illegally refuses to pass an order notwithstanding the maximum period stipulated in Section 167 had expired, and yet no challan had been filed then the accused could only move to the higher forum and while the matter remains pending in the higher forum for consideration, if the prosecution files a charge-sheet then also the 5 so-called right accruing to the accused because of inaction on the part of the investigating agency would get frustrated. Since the legislature has given its mandate it would be the bounden duty of the court to enforce the same and it would not be in the interest of justice to negate the same by interpreting the expression “if not availed of” in a manner which is capable of being abused by the prosecution. A two-Judge Bench decision of this Court in State of M.P. V. Rustam1 setting aside the order of grant of bail by the High Court on a conclusion that on the date of the order the prosecution had already submitted a police report and, therefore, the right stood extinguished, in our considered opinion does not express the correct position in law of the expression “if already not availed of”, used by the Constitution Bench in Sanjay Dutt2. We would be failing in our duty if we do not notice the decisions mentioned by the Constitution Bench In sanjay Dust case which decisions according to the learned counsel, appearing for the State clinch the issue. In Makhan Singh Tarsikka v. State of Punjab3 an order of detention had been assailed in a petition filed under Article 32, on the ground that the period of detention could not be indicated in the initial order itself, as under the provisions of the Preventive Detention Act, 1950, it is only when the Advisory Board reports that there is sufficient cause for detention, the appropriate Government may confirm the detention of the detenu for such period, as it thinks fit. On a construction of the relevant provisions of the Preventive Detention Act, as it stood then, this Court accepted the contention and came to hold that the fixing of the period of detention in the initial order was contrary to the scheme of the Act and could not be sustained. We fail to 1 1995 SCC (Cri) 830 2 (1994) 5 SCC 410 3 AIR 1952 SC 27 : 1952 Cri LJ 321 : 1952 SCR 368 6 understand as to how this decision is of any assistance for arriving at a just conclusion on the issue which, we are faced with in the present case. The next decision is the case of Ram Narayan Singh v. Sate of Delhi1. In this case on habeas corpus petition being filed under Article 32, the Court was examining the legality of the detention on the date the Court was considering the matter. From the facts of the case, it transpires that there was no material to establish that there was a valid order of remand of the accused. The Court, therefore, held that even if the earlier order of remand may be held to be a valid one, but the same having expired and no longer being in force and there being no valid order of remand, the detention was invalid. It is in this context, an observation has been made that in a question of habeas corpus, lawfulness or otherwise, custody of the person concerned will have to be examined with reference to the date of the return and not with reference to the institution of the proceedings. There cannot be any dispute with the aforesaid proposition, but in the case in hand, the consequences of default on the part of the investigating officer in not filing the charge- sheet within the prescribed period have been indicated in the provisions of statute itself and the language is of mandatory character, namely the accused shall be released on bail. In view of the aforesaid language of the provision to sub- section (2) of Section 167 and in view of the expression used in Sanjay Dutt case to the effect “if not availed of”, the aforesaid decision will be of no assistance. The third decision referred to in the Sanjay Dutt case is the case of A.K. Gopalan v. Govt of India2. This was also a case for issuance of a writ of habeas corpus, filed under Article 32. In this case the Constitution Bench observed : (SCR p.430 C-D) 1 AIR 1953 SC 277 2 (1966) 2 SCR 427 7 “It is well settled that in dealing with a petition for habeas corpus the court has to see whether the detention on the date on which the application is made to the court is legal, if nothing more has intervened between the date of the application and the date of hearing.” In that case, the detenu was detained by orders passed on 4-3-1965 and the earlier order of detention passed on 29-12-1964 was no longer in force, when the detenu filed the application in the Supreme Court. The Court, therefore, observed that it is not necessary to consider the validity of the detention order made on 29-12-1964 and the Court is only concerned with the validity of the order of detention dated 4-3-1965. The observations made by the court and the principles enunciated referred to earlier would support our conclusion that the rights whether accrued or not to an accused, will have to be considered on the date he filed the application for bail and not with reference to any later point of time. In Abdul Latif Abdul Wahab Shaikh vs. B.K. Jha1 where the final order of detention had been assailed, this Court had observed that in a habeas corpus proceeding it is not a sufficient answer to say that the procedural requirements of the Constitution and the statute have been complied with, before the date of hearing and, therefore, the detention should be upheld. The aforesaid observation had been made when there was no Advisory Board in existence to whom a reference could be made and whose report could be obtained, as required by the Constitution. Further a representation filed by the detenu had not been disposed of within the stipulated period, but an argument had been advanced that by the date of hearing of the Petition, the representation had been disposed of. This Court did not accept 1 (1987) 2 SCC 22 : 1987 SCC (Cri) 244 8 the plea of the State and interfered with the order of detention. In interpreting the expression “if not availed of” in the manner in which we have just interpreted we are conscious of the fact that accused persons in several serious cases would get themselves released on bail, but that is what the law permits, and that is what the legislator wanted an indefeasible right to an accused flowing from any legislative provision ought not to be defeated by a court by giving a strained interpretation of the provisions of the Act. In the aforesaid premises, we are of the considered opinion that an accused must be held to have availed of his right flowing from the legislative mandate engrafted in the proviso to sub-section (2) of section 167 of the Code if he has filed an application after the expiry of the stipulated period alleging that no challan has been filed and he is prepared to offer the bail that is ordered, and it is found as a fact that no challan has been filed within the period prescribed from the date of the arrest of the accused. In our view, such interpretation would subserve the purpose and the object for which the provision in question was brought on to the statute-book. In such a case, therefore, even if the application for consideration of an order of being released on bail is posted before the court after some length of time, or even if the Magistrate refuses the application erroneously and the accused moves the higher forum for getting a formal order of being released on bail in enforcement of his indefeasible right, then filing of challan at the stage will not take away the right of the accused. Personal liberty is one of the cherished object of the Indian Constitution and deprivation of the same can only be in accordance with law and in conformity with the provisions thereof, as stipulated under Article 21 of the Constitution. When the law provides that the Magistrate 9 could authorize the detention of the accused in custody up to a maximum period as indicated in the proviso to sub-section 2 of section 167, any further detention beyond the period without filing of a challan by the investigating agency would be subterfuge and would not be in accordance with law and in conformity with the provisions of the Criminal Procedure Code, and such as, could be violative of Article 21 of the Constitution. There is no provision in the Criminal Procedure Code authorizing detention of an accused in custody after the expiry of the period indicated in proviso to sub-section (2) of section 167 excepting the contingency indicated in Explanation I, namely, if the accused does not furnish the bail. It is in the sense it can be stated that if after expiry of the period, an application for being released on bail is filed, and the accused offers to furnish the bail and thereby avail of his indefeasible right and then an order of bail is passed on certain terms and conditions but the accused fails to furnish the bail, and at that point of time a challan is filed, then possibly it can be said that the right of the accused stood extinguished. But so long as the accused files an application and indicates in the application to offer bail on being released by appropriate orders of the court then the right of the accused on being released on bail cannot be frustrated on the off chance of the Magistrate not being available and the matter not being moved, or that the Magistrate erroneously refused to pass an order and the matter is moved to the higher forum and a challan is filed in interregnum. This is the only way how a balance can be struck between the so-called indefeasible right of the accused on failure on the part of the prosecution to file a challan within the specified period and the interest of the society at large in lawfully preventing an accused from being released on bail on account of inaction on the part of the 10 prosecuting agency. On the aforesaid premises we would record our conclusions as follows: 1. Under sub-section (2) of section 167, a Magistrate before whom an accused is produced while the police is investigating into the offence can authorize detention of the accused in such custody as the Magistrate thinks fit for a term not exceeding 15 days on the whole. 2. Under the proviso to the aforesaid sub- section (2) of section 167, the Magistrate may authorize detention of the accused otherwise than in 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 furnishes 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 the investigation within the specified period, the Magistrate/court must dispose of it forthwith, on being satisfied that, in fact, the accused has been in custody for the period of 90 days 11 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. If the accused is unable to furnish the bail as directed by the Magistrate then on a conjoint reading of an Explanation I and the proviso to sub-section (2) of section 167 the continued custody of the accused even beyond the specified period in para (a) will not be unauthorized and, therefore, if during that period the investigation is complete and the 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 case must be understood to mean when the accused filed an application and is prepared to offer bail on being directed. In other words, on expiry of the period specified in para (a) of the proviso to sub-section (2) of section 167 if the accused filed 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. With the aforesaid interpretation of the expression “availed of” if the charge sheet is filed subsequent to the availing of the 12 indefeasible right by the accused then that right would not stand frustrated or extinguished, necessarily therefore, if an accused entitled to be released on bail by an application of the proviso to sub-section (2) of section 167, makes the application before the Magistrate but the Magistrate erroneously refuses the same and rejects the application and then the accused moves the higher forum and while the matter remains pending before the higher forum for consideration a charge sheet is filed, the so- called indefeasible right of the accused would not stand extinguished thereby, and on the other hand, the accused has to be released on bail. Such an accused who thus is entitled to be released on bail in enforcement of his indefeasible right will, however, have to be produced before the Magistrate on a charge sheet being filed in accordance with section 209 and the Magistrate must deal with him in the matter of remand to custody subject to the provisions of the Code relating to the bail and subject to the provisions of cancellation of bail, already granted in accordance with the law laid down by this Court in the case of Mohd. Iqbal Vs. State of Maharashtra1 In view of the observations made by the Apex Court in the said judgment the law on this point is quite well settled and the learned Magistrate, therefore, could not have rejected the application of the Petitioner for modification. Secondly, in the case of Motiram2 the Apex Court has further observed that while granting bail, Court should not impose such conditions which are impossible to perform. 1 (1996) 1 SCC 722 : 1996 SCC (Cri) 202 2 1979 1 SCR 335 13 5 In view of the aforesaid two judgments of the Apex Court, Petitioner deserves to be released on bail. The earlier order dated 14/12/2009 passed by the learned Magistrate is confirmed with a modification that the Petitioner shall be released on bail on execution of P.R. Bond in the sum of Rs 15,000/- with one or two sureties in the like amount. He shall report to the concerned Police Station once in a month. 6. Petition is accordingly disposed of. (V.M. KANADE, J.) 14