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 APPLICATION NO. 277 OF 2009 CRIMINAL APPLICATION NO. 277 OF 2009 CRIMINAL APPLICATION NO. 277 OF 2009 Ravindra Shankar Gunjal ...Applicant vs. The State of Maharashtra ...Respondent Mr.A.P. Mundargi, Sr.Counsel i/b. Mr.P.D. Dalvi for the Applicant. Mr.D.P. Adsule, APP for the State. CORAM : V.M. KANADE, J. CORAM : V.M. KANADE, J. CORAM : V.M. KANADE, J. DATED : FEBRUARY 11, 2009 DATED : FEBRUARY 11, 2009 DATED : FEBRUARY 11, 2009 P.C. :- P.C. :- P.C. :- 1. A short question raised in this application is whether the learned Magistrate can cancel his own order granting bail to the applicant under Section 167(2) of the Cr.P.C. on the ground that after the order granting bail was passed by the Magistrate and before surety could be furnished by the applicant, charge-sheet had been filed by the Investigating Officer and therefore, the right which had accrued in favour of the applicant under Section 167 subclause 2 had extinguished. Brief facts of the case are as under :- 2. The applicant was arrested in connection with an offence punishable under Section 307 read with 34 of the - 2 - IPC read with Sections 3 and 25 of the Indian Arms Act on 29.9.2008. It is an admitted position that no charge-sheet was filed within 90 days. Period of 90 days expired on 28.12.2008. An application for bail was filed by the applicant on 29.12.2008 at 11 a.m. in view of the right which had accrued in favour of the applicant under Section 167(2)(a)(i) of the Cr.P.C. The charge-sheet was filed on 29.12.2008 at 12.35 p.m. On 30.12.2008, the Judicial Magistrate, First Class, Ulhasnagar, granted bail to the applicant in the sum of Rs.25,000/- on his executing PR Bond with one solvent surety of like amount. On 31.12.2008, the application was filed by the prosecution for taking the matter on board. Accordingly, the matter was taken on board and an application was made for setting aside the order of bail below Exhibit 20. The application was made by the applicant for accepting the surety on 1.1.2009. On the same day, the trial court refused to accept the surety and held that the right of the accused to be released had extinguished and therefore, passed an order setting its order of granting bail. The applicant filed the application in the Sessions Court. This application was - 3 - also rejected. 3. Shri Mundargi, learned Senior Counsel appearing on behalf of the applicant submitted that the right to be released on bail had accrued in favour of the applicant and the learned Magistrate had granted bail to the accused. Thereafter, it was submitted that the Magistrate could not have recalled his own order either suo motu or even on an application which is filed by the prosecution. In support of the said submission, he relied on the judgment of the Apex Court in the case of Uday Mohanlal Acharya v/s. State of Maharashtra, Uday Mohanlal Acharya v/s. State of Maharashtra, Uday Mohanlal Acharya v/s. State of Maharashtra, reported in AIR 2001 SC 1910. reported in AIR 2001 SC 1910. reported in AIR 2001 SC 1910. He also relied on the Division Bench Judgment of this Court in the case of Jitendra son of Maroti Deotare & Anr. v/s. State of Jitendra son of Maroti Deotare & Anr. v/s. State of Jitendra son of Maroti Deotare & Anr. v/s. State of Maharashtra, reported in 2008 ALL M.R. (Cri) 2458. Maharashtra, reported in 2008 ALL M.R. (Cri) 2458. Maharashtra, reported in 2008 ALL M.R. (Cri) 2458. He also relied on the judgment of the Single Judge of this court in the case of Rajendra Jainarayan Sharma v/s. Rajendra Jainarayan Sharma v/s. Rajendra Jainarayan Sharma v/s. R.P. Patankar, Assistant Collector of Customs, New R.P. Patankar, Assistant Collector of Customs, New R.P. Patankar, Assistant Collector of Customs, New Customs House, Bombay, reported in 1993 Criminal Law Customs House, Bombay, reported in 1993 Criminal Law Customs House, Bombay, reported in 1993 Criminal Law Journal 1550. Journal 1550. Journal 1550. - 4 - 4. The learned APP appearing on behalf of the State invited my attention to the observation made by Justice B.N. Agarwal who had taken minority view in Uday Uday Uday Acharya case (supra) Acharya case (supra) Acharya case (supra) and more particularly, paras 9 and 10 of the said order. 5. In my view, the order passed by the Magistrate refusing to accept surety and recalling its own order granting bail is clearly a legal error committed by the learned Magistrate. The said order will have to be set aside. The legal position in this respect is quite well settled. Once the prosecution fails to file the charge-sheet within the stipulated period as laid down in Section 167(2), an indefeasible right accrues in favour of the applicant and once an application is made before the charge-sheet is filed by the prosecution on completion of the period of 90 days, the Court has no other option but to release the accused on bail without taking into consideration the gravity of the offence or taking into consideration any other factor. The majority view of the Apex Court in Uday Acharya case Uday Acharya case Uday Acharya case (supra) (supra) (supra) clearly lays down this position in para 8 of the - 5 - said order which reads as under :- 8. In this case, the accused had not made application for enforcement of his right accruing under proviso to S. 167(2) of the Code. But raised the contention only in the Supreme Court. This Court, therefore, formulated the question thus - Whether the accused who was entitled to be released on bail under proviso to sub-section (2) of S.167 of the Code, not having made an application when such right had accrued can exercise that right at a later stage of the proceeding, and answered in the negative. . In yet another case Mohamed Iqbal Madar Sheikh V. State of Maharashtra (1996) 1 SCC 722, three Judge Bench considered again Proviso (a) to sub-section (2) of S.167 of the Code and it was held:- . "It need not be pointed out or impressed that in view of a series of judgements of this Court, this right cannot be defeated by any Court, if the accused concerned is prepared and does furnish bail bonds to the satisfaction of the Court concerned. Any accused released on bail under Proviso (a) to S.167(2) of the Code read with S. 20(4)(b) or S.20(4)(bb), because of the default on the part of the investigating agency to conclude the investigation, within the period prescribed, in view of proviso (a) to S. 167(2) itself, shall be deemed to have been so released under the provisions of Chapter XXXIII of the Code. It cannot be held that an accused charged of any offence, including offences under TADA, if released on bail because of the default in completion of the investigation, then no sooner the charge-sheet is filed, the order granting bail to such accused is to be cancelled. The bail of such accused who has been released, because of the default on the part of the Investigating Officer to complete the investigation, can be cancelled, but not - 6 - only on the ground that after the release, charge-sheet has been submitted against such accused for an offence under TADA. For cancelling the bail, the well settled principles in respect of cancellation of bail have to be made out. In this connection, reference may be made to the case of Aslam Babalal Desai Vs. State of Maharashtra (1992 AIR SCW 2621 : AIR 1993 SC 1 : 1992 Cri LJ 3712). The majority judgment has held that in view of deeming provision under Proviso (a) to S. 167(2), the order granting bail shall be deemed to be one under S. 437(1) or sub-section (2) or S.439(1) and that order can be cancelled, when a case for cancellation is made out under Ss. 437(5) and 439(2) of the Code. But for that, the sole ground should not be that after the release of such accused the charge-sheet has been submitted. The same view was expressed by this Court in the case of Raghubir Singh V. State of Bihar (AIR 1987 SC 149 : 1987 Cri LJ 157)" . In that particular case even though charge-sheet had not been submitted within the prescribed period and was submitted later and the Court observed that the accused had become entitled to be released on bail under the Proviso(a) to sub-section (2) of S. 167 of the Code, but since no application for bail on the said ground had been made by the accused and the charge-sheet in the meantime, having been filed and cognizance having been taken, the said right cannot be exercised. In paragraph 12 of the said judgment, however, an observation has been made by this Court to the effect: . "If an accused charged with any kind of offence becomes entitled to be released on bail under Proviso(a) to S. 167(2), that statutory right should not be defeated by keeping the applications pending till the charge-sheets are submitted so that the right which had accrued is extinguished and defeated." - 7 - . The Court further came to the conclusion that the accused/appellants have forfeited their right to be released on bail under Proviso (a) to S. 167(2) as they are in custody on the basis of orders for remand passed under other provisions of the Code. . In State of M.P. Vs. Rustam, 1995 Supp (3) SCC 221, this Court set aside the order of the High Court where the High Court has released the accused on bail, charge-sheet not having been filed within the period stipulated in S. 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 "on the date when the High Court entertained the petition for bail and granted it to the accused/respondent, 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 S. 167 and that 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 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’s case (1994 AIR SCW 3857 : 1995 Cri LJ 477 (supra). The crucial question that arises for consideration, therefore, is what is the true meaning of the expression’ if already not availed of? Does it mean that an accused files - 8 - 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 filed 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 S. 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 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 S. 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 so-called right accruing to the accused because of inaction on the part of the investigating agency would get frustrated. Since the legislative have given its mandate it would be the bounden duty of the Court to - 9 - 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. Two-Judge Bench decision of this Court in State of M.P. V. Rustam (1995 Supp(3) SCC 221 (supra) 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 (1994 AIR SCW 3857: 1995 Cri LJ 477 (supra). We would be failing in our duty, if we do not notice the decisions mentioned by the Constitution Bench in Sanjay Dutt’s case, which decisions according to the learned counsel, appearing for the State, clinches the issue. In Makhan Singh Tarsikka Vs. State of Punjab, 1952 SCR 368 : (AIR 1952 SC 27 : 1952 Cri LJ 321), an order of detention had been assailed in a petition filed under Art.32, on the ground that the period of detention could not be indicated in the initial order itself, as under the provisions of 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 order and continue 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 cannot be sustained. We fail to understand as to how this decision is of any assistance for arriving at a just conclusion on the issue, which we are faced in the present case. The next decision is the case of Ram Narayan Singh Vs. State of Delhi 1952 SCR 652: - 10 - (AIR 1953 SC 277 : 1953 Cri LJ 1177). In this case on a habeas corpus petition being filed under Art.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, 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 the 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 proviso to sub-section (2) of S. 167 and in view of the expression used in Sanjay Dutt’s case to the effect "if not availed of", the aforesaid decision will be of no assistance. The third decision referred to in Sanjay Dutt’s case (1994 AIR SCW 3857 : 1995 Cri LJ 477) is the case of A.K. Gopalan Vs. Govt. of India (1996) 2 SCR 427: (AIR 1966 SC 816 : 1966 Cri LJ 602). This was also a case for issuance of a writ of habeas corpus, filed under Art. 32. In this case the Constitution Bench observed - "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 - 11 - that case, the detenu was detained by orders passed on March 4, 1965 and the earlier order of detention passed on 29th December, 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 29th December, 1964 and the Court is only concerned with the validity of the order of detention dated 4th March, 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 Sheikh vs. B.K. Jha (1987) 2 SCC 22 : (AIR 1987 SC 725 : 1987 Cri LJ 700), 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 the 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 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 legislature wanted and an indefeasible right to an accused flowing from any legislative - 12 - 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 beheld to have availed of his right flowing from the legislative mandate engrafted in the proviso to sub-section (2) of S. 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 formal order of being released on bail in enforcement of his indefeasible right, then filing of challan at that 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 be only in accordance with law and in conformity with the provisions thereof, as stipulated under Art. 21 of the Constitution. When the law provides that the Magistrate could authorise the detention of the accused in custody up to a maximum period as indicated in the proviso to sub-section (2) of S. 167, any further detention beyond the period without filing of challan by the Investigating Agency would be a subterfuge and would not be in accordance with law and in conformity with the provisions of the Criminal Procedure Code, and as such, could be violative of Art. 21 of the Constitution. There is no provision in the Criminal Procedure Code authorising detention of an accused in - 13 - custody after the expiry of the period indicated in the proviso to sub-section (2) of S. 167 excepting the contingency indicated in Explanation I, 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 accused stood extinguished. But so long as the accused filed 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 oft chance of Magistrate not being available and the matter not being moved, or that the Magistrate erroneously refuses 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 challan within the specified period and the interest of the society, at large, in lawfully preventing an accused for being released on bail on account of inaction on the part of the prosecuting agency. On the aforesaid premises, we would record our conclusions as follows:- 1. Under sub-section (2) of S. 167,