Monday, 5 October 2015

Whether period of 60 Days for 90 Days for Bail as per S 167 of crpc can be counted from date of first remand before Magistrate who has no jurisdiction to try said case?

The learned Addl. Solicitor General Mr. Anil Singh has submitted that the first date of remand before the Magistrate, having jurisdiction to try the case, is to be considered for the purpose of counting sixty days or ninety days, as the case may be. It is submitted that the remand granted by the Virpur Magistrate was a transit remand and the said period cannot be counted for the purposes of counting the statutory period of ninety days or sixty days as the case may be.
6 Admittedly the charge-sheet was filed on 3 rd of January, 2015. If the ninety days period is counted from 7th of October, 2014, the charge-sheet could have been filed anytime before 5th of January, 2015. However, if the ninety days period is counted from the first date of remand i.e. from 5 th of October, 2014, the charge-sheet was obviously required to be filed on or before 3 rdWP112.15 of January, 2015. In my view, the period of ninety days or sixty days, as the case may be, is to be counted from the first date of production of the accused before the Magistrate, whether he has jurisdiction or not to try the case. Therefore, in the present case the time limit will have to be counted from 5 th October, 2014 and not from 7th October, 2014.1
Bombay High Court
Rajesh Natwarlal Bangawala vs The State Of Maharashtra And Anr on 3 February, 2015
Bench: M.L. Tahaliyani
Citation; 2015 ALLMR(cri)3449
The petitioner Rajesh Natwarlal Bangawala was arrested in connection with Crime No. RC/BSM/2014/E0002 dt.
8.3.14 U/ss. 201,409,420,468,471 r/w 120-B of IPC as well as S.13(2) r/w 13(1)(d) of P.C. Act, 1988 and was produced before the WP112.15 Judicial Magistrate, First Class, Virpur, Rajkot, Gujarat, on 5 th of October, 2014. He was remanded to CBI custody till 7 th of October, 2014. He was produced before the Special Judge at Mumbai, on 7 th of October, 2014.
2 The issue involved in the present writ petition is as to whether the ninety days statutory period as envisaged u/s 167(2) is to be counted from the first date of remand granted by the judicial Magistrate of Virpur, Gujarat or the same is to be counted from the first date of remand passed by the Special Judge at Mumbai.
3 Heard Mr. Pradhan, the learned counsel for the petitioner. Heard Mr. Singh, the learned Addl. Solicitor General for the respondent - CBI. Heard the learned Additional Public Prosecutor Mr. Deshmukh, for the respondent - State of Maharashtra.
4 It was submitted by Mr. Pradhan on behalf of the petitioner that the accused arrested by the police is required to be produced before the nearest Judicial Magistrate whether he has power to try the case or otherwise. It was submitted by Mr. Pradhan that the said Magistrate has all powers u/s 167 of Cr. P.C.
 Therefore, it cannot be said that the applicant was first produced before the Court on 7th of October, 2014. According to him the petitioner was produced in the Court on 5 th of October, 2014 and, therefore, ninety days period is to be counted from 5 th of October, 2014.
5 The learned Addl. Solicitor General Mr. Anil Singh has submitted that the first date of remand before the Magistrate, having jurisdiction to try the case, is to be considered for the purpose of counting sixty days or ninety days, as the case may be. It is submitted that the remand granted by the Virpur Magistrate was a transit remand and the said period cannot be counted for the purposes of counting the statutory period of ninety days or sixty days as the case may be.
6 Admittedly the charge-sheet was filed on 3 rd of January, 2015. If the ninety days period is counted from 7th of October, 2014, the charge-sheet could have been filed anytime before 5th of January, 2015. However, if the ninety days period is counted from the first date of remand i.e. from 5 th of October, 2014, the charge-sheet was obviously required to be filed on or before 3 rd of January, 2015. In my view, the period of ninety days or sixty days, as the case may be, is to be counted from the first date of production of the accused before the Magistrate, whether he has jurisdiction or not to try the case. Therefore, in the present case the time limit will have to be counted from 5 th October, 2014 and not from 7th October, 2014.
The charge-sheet was filed on 3rd of January, 2015.
However, the bail application was filed by the applicant before filing of the charge-sheet. The bail application was not decided by the learned Magistrate immediately after presentation thereof. He kept the bail application pending and allowed CBI to file charge-
sheet. The application was, therefore, decided after filing of the charge-sheet. In my view, that was not the correct procedure to be adopted by the Magistrate. The Magistrate should have decided the bail application u/s 167(2) of Cr. P.C., as soon as it was presented before him. The Magistrate could not have taken away the indefeasible right of the petitioner by permitting the CBI to file the charge-sheet and by keeping the application of the petitioner pending. Once the accused files an application u/s 167(2) of Cr. P.C., the same is to be decided by the Magistrate immediately after its presentation. Supervening circumstances created later on could not take away the indefeasible right which had accrued to the petitioner.
8 In my opinion, by keeping the application of the petitioner pending, the Magistrate has defeated the right of the petitioner for no fault of him. The petitioner was entitled to be released on bail immediately after he showed his intention to be released on bail. Hence I pass the following order:
i) The writ petition is allowed.
ii) The order passed by the learned Special Judge (CBI) Greater Mumbai in Bail Application No. 1 of 2015 in remand case No.RC/BSM/2014/E0002, is set aside.
iii) The petitioner be released on bail in the sum of Rs.5,00,000/- (Rupees Five Lac) with one solvent surety in the like amount or cash deposit of Rs.7,00,000/- (Rupees Seven Lac) in lieu of solvent surety of Rs.5,00,000/- (Rupees WP112.15 Five Lac).
iv) The petitioner shall attend the office of the investigating officer at Mumbai once in a fortnight i.e. on 1st and 15th day of every month, until further orders of the Court and also as and when required by the CBI on 24 hours prior notice.
v) The petitioner shall surrender his passport to the investigating officer immediately after his release from the prison.
(JUDGE)
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