-:1:- IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPELLATE JURISDICTION CRIMINAL APPELLATE JURISDICTION CRIMINAL WRIT PETITION NO. 218 OF 2008 CRIMINAL WRIT PETITION NO. 218 OF 2008 CRIMINAL WRIT PETITION NO. 218 OF 2008 Ajay Kisan Auti & others. ..... Petitioner versus State of Maharashtra ...... Respondent. Shri Aabhaykumar Apte for the petitioner. Shri Deepak More APP for Respondent. CORAM; A.P. DESHPANDE, J. CORAM; A.P. DESHPANDE, J. CORAM; A.P. DESHPANDE, J. Dictated on; 27TH FEBRUARY, 2008 Dictated on; 27TH FEBRUARY, 2008 Dictated on; 27TH FEBRUARY, 2008 Pronounced on: 26th MARCH, 2008 Pronounced on: 26th MARCH, 2008 Pronounced on: 26th MARCH, 2008 P.C.; P.C.; P.C.; 1. Rule. Rule made returnable forthwith. By consent of parties taken up for final hearing. 2. The present petitioners are original accused. The petitioners came to be arrested by police on 13-10-2007 and were produced before the Judicial Magistrate, First Class on the same day i.e. 13-10-2007 The petitioners were initially remanded to police custody and thereafter to the Magisterial custody. 90th day from the date of arrest happens to be 10-1-2008. The petitioners were produced on the last day i.e. 90th day before the Magistrate but no -:2:- charge-sheet was filed. Thus the petitioners moved an application before the trial court under section 167(2)(a)(i) of Cr.P.C. The application moved under section 167(2) came to be allowed by the trial court and the petitioners were directed to furnish personal bond of Rs.50,000/- with one solvent surety in the like amount. The order granting bail was passed on 11-01-2008. As the petitioners were not in a position to furnish solvency certificate at that point of time and procuring the same would have consumed sometime, the petitioners moved an application and requested the trial court for their release by depositing cash amount instead of solvent surety. The trial court granted the said application and directed Nazir to accept the amount of Rs. 50,000/- towards cash surety (Rs.50,000/- for each of the accused). The order permitting deposit of cash surety, was passed before 2.35 p.m. on 11-1-2008. Police filed the charge sheet at 2.35 p.m. against the present petitioners/accused. Hence the Magistrate passed the impugned order which is challenged in the present petition. By the impugned order passed at 2.35 p.m. the Magistrate noted that the charge sheet has been filed at 2.35 p.m. and cash surety amount of Rs.50,000/- each has not been deposited till 2.35 p.m. The order further observes that it seems that the accused persons are not ready to furnish bail as -:3:- ordered by the court and therefore it held that the accused nos.1,3 and 4 are not entitled for statutory bail under section 167(2) of Cr.P.C. In otherwords the Magistrate has cancelled the bail immediately on filing of the charge sheet by the police. 3. The trial court has placed reliance on a judgment of the Supreme Court in case of Uday Mohanlal Acharya Uday Mohanlal Acharya Uday Mohanlal Acharya Vs. State of Maharashtra reported in 2001 S.C.C. Vs. State of Maharashtra reported in 2001 S.C.C. Vs. State of Maharashtra reported in 2001 S.C.C. (Criminal) 760. (Criminal) 760. (Criminal) 760. 4. The learned counsel for the petitioners has submitted that the Magistrate cannot authorise detention of the accused for a total period exceeding 90 days, as the offence is under section 302 IPC. The learned counsel for the petitioners has contended that the trial court has erred in cancelling the bail and the judgment relied upon does not in any manner support the view taken by the Magistrate. Per majority, it has been held in Acharya’s case that the accused has an indefeasible right to be released on bail when the investigation is not completed within the specified period. To avail of such right, to be released, the accused is only required to file an application before the Magistrate seeking release on bail alleging that no charge sheet has been filed within the period prescribed and that he is prepared -:4:- to offer bail on being so directed by the Magistrate. In the present case, the accused had availed of the right by moving an appropriate application for bail. According to the petitioners, for furnishing solvent surety the accused would have required sometime, hence immediately they applied for suitable modification of the order and sought permission to deposit cash surety in the sum of Rs. 50,000/- each. According to the learned counsel for the petitioners, the petitioners were very much in readiness to deposit the cash amount and for that purpose they have also approached Nazir. However, before the petitioner could actually deposit the sum with the Nazir, the investigating officer filed charge sheet. In this set of facts,the submission is that accused/petitioners had availed of the right under section 167 (2) of Cr.P.C. The expression "if not already availed of" used by Supreme Court in Sanjay Dutt’s case, has been explained and clarified in case of Uday Acharya. In para 13 of the judgment the Supreme Court has observed thus: "A conspectus of the aforesaid decision 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 -:5:- 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 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 case. The crucial question that arises for consideration, therefore, it what is the true meaning of the expression if already not availed 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 -:6:- 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, in as much 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 -:7:- 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. Vs. Rustom 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 Dutt." 5. Perusal of the above extracted portion would indicate that 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 the right can be availed of by the accused if he is prepared to offer the bail and -:8:- abide by the terms and conditions of the bail. It further holds that the indefeasible right does not survive or remain enforceable on the challan being filed, if already not availed of. According to the judgment in Acharya’s case the expression already not availed of cannot be interpreted so as to mean actually released on bail after furnishing necessary bail. The Supreme Court has concluded the issue by making the following observations: "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 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 -:9:- bail is posted before the court after some length of time, or even if the Magistrate refuses the application erroneously and the accused moves higher forum for getting a formal order, of being released on bail in enforcement of his indefeasible right then filing of the challan at that stage will not take away the right of the accused." 6. Placing reliance on the observations made hereinabove, the learned counsel for the petitioner has strenuously contended that in the facts of the present case, the accused/petitioners had availed of the right to be released on bail. The application filed by the accused for grant of bail was allowed, in the first instance, when they were directed to furnish P.R.bond and one solvent surety. The accused immediately applaied for modification of the order by offering to deposit cash amount, as procuring surety would have consumed some time and the trial court permitted such cash deposit. At this point of time the accused availed of the right, as bail was already granted and the accused were in readiness to deposit the cash. What remained to be done was only deposit of the amount with the Nazir and get themself released. Filing of charge sheet after the second order was passed does not defeat the right already -:10:- availed of. What remained to be done was only mechanical compliance of the order. Filing of the charge sheet at a point subsequent to the petitioner’s availing of the right would be wholly irrelevant for the purpose of releasing the accused under section 167. 7. Per contra the learned APP has relied upon certain observations made in that very judgment and I deem it appropriate to reproduce the same. "There is no provision in the Criminal Procedure Code authorising 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 1, namely if the accused does not furnish the bail. It is in this 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 -:11:- accused stood extinguished." 8. In the facts of the present case, not only the accused were granted bail but they were in readiness to comply with the order passed by the Magistrate, to deposit a sum of Rs. 50,000/- each. The learned APP has further placed reliance on para 48 and 53 (2)(b) in Sanjay Datt’s case reported in 1994 SCC (Cri.) Sanjay Datt’s case reported in 1994 SCC (Cri.) Sanjay Datt’s case reported in 1994 SCC (Cri.) 1433. 1433. 1433. The phraseology used in para 48 in Sanjay Dutta’s case "if already not availed of" has been considered and explained in the later judgment by the Supreme Court in Uday Acharya’s case. 9. As held by the Supreme Court in Acharya’s case, once the accused avail of the right to be released on bail, the subsequent filing of the charge sheet will not defeat the right of the accused to be released on bail. 10. Thus the ratio laid down in Uday Acharya’s case is that indefeasible right accrues to the accused on failure of the prosecution to file challan within the period prescribed under section 167 and the said right can be availed of by the accused if he is prepared to offer bail and abide by the terms of the bail. So the question of fact would be as to whether in the present case the accused have availed of right to be released -:12:- or not. With a risk of repetition it is stated that the trial court granted bail by order dated 11-1-08 subject to furnishing of Personal Bond of Rs. 50,000/- each with one solvent surety each in the like amount. Immediately after passing of the said order by the Magistrate the present petitioners moved an application informing the court that the accused are not in position to obtain solvency certificate immediately and therefore prayed for 15 days time to file solvency certificate and in the meantime sought orders for their release on depositing cash amount. The said application is indicative of the fact that the accused were not in a position to comply with the condition of furnishing solvent surety. However, they were in a position to deposit cash amount. The said application was allowed on the same day and the Nazir was directed to accept amount of Rs. 1,50,000/- (Rs. 50,000/- from each of the accused). If this be the position it can be safely concluded that the accused had availed of right of being released under section 167 as the prosecution did not file challan within the stipulated period and the petitioners were also very much in position to abide by altered condition for release on bail, i.e. deposit of cash amount. It so happened that by the time the petitioners could deposit the amount with Nazir the investigating officer filed charge sheet at about 2.35 p.m. on the -:13:- same day. The trial court observed while passing the third order that cash surety of Rs. 50,000/- each has not been deposited in the court till 2.35 p.m. In the above set of facts I have no hesitation to conclude that the accused had availed of the right to be released and charge sheet having been filed thereafter the same is of no consequence. It cannot defeat the accrued right. The trial court has misread the judgment of Supreme Court in Uday Acharya’s case. Hence the last order passed by the trial court cancelling the bail already granted, on the ground that challan came to be filed at 2.35 p.m., is wholly unsustainable in law and needs to be quashed and set aside. In the result writ petition is allowed. Impugned order passed by the trial court at 2.35 p.m. on 11-1-2008 holding that the accused nos. 1,3 and 4 are not entitled for statutory bail under section 167(2) of Code of Criminal Procedure on account of filing of charge sheet at 2.35 p.m. is illegal and hence quashed and set aside. Needless to mention that the earlier two orders shall continue to hold the field and thus the petitioners would be entitled to be released on bail. The applicant/saccused shall attend Narayangaon Police station once in a week on every Saturday between 5.00 p.m. to 7.00 p.m. Petitioners shall attend the trial court on each and every date and shall not tamper with the prosecution witnesses. -:14:- Rule made absolute in the above terms. xxx