Thursday 29 August 2013

When accused can not be released on defaul bail u/s 167 of cr pc ?

In   the   matter   of   Bipin   Shantilal   Panchal
Vs. State of Gujrath, the Supreme has again explained
effect   of   Section   167(2)   of   Cr.P.C.   And   proviso
thereof.
 Section 167(2)(a)(ii) of Cr.P.C. Has to be
read   with   Explanation­I   incorporated   by   virtue   of
amendment by Act of 5 of 2009 w.e.f. 31.12.2009. The
Explanation provides, ­"For the avoidance of doubts,
it   is   hereby   declared   that,   notwithstanding   the
expiry of the period specified in paragraph (a), the
accused   shall   be   detained   in   custody   so   long   as   he
does not furnish bail."
8) A conjoint reading of Section 167(2)(a)(ii)
with Explanation, explicitly demonstrate that, on the
date   when   the   order   of   bail   was   extended   to   the
accused, there was already final report/charge sheet
tendered by the Investigating Agency.   Consequently,
on   3rd  January,   2013,   the   learned   judge   could   not
exercise powers in favour of the accused/applicant to
release   him   on   bail   in   terms   of   Section   167   of
Cr.P.C.  
IN THE HIGH COURT OF JUDICATURE OF BOMBAY
BENCH AT AURANGABAD
CRIMINAL APPLICATION NO.944/2013. 

Padmabai Dattatraya Bhojne      ­The State of Maharashtra   

­­­­­
CORAM :  K.U.CHANDIWAL,J.

DATE  : 5 th MARCH,2013.


1) Heard. By the present Criminal Application,
the applicant – Smt. Padmabai has prayed for quashing
and   setting   aside   the   order   dated   3rd  January,   2013
below   Exhibit­6   in   RCC   No.2/2013   passed   by   the
learned   Judicial   Magistrate,   First   Class,   3rd  Court,
Paithan. Order:
" In   the   present   case,   charge   sheet
has   been   filed   on   2.1.2013,   and   today
accused   is   furnishing   bail,   therefore,
in such circumstances, considering legal
position,   right   of   accused   to   furnish
bail,   has   stood   forfeited   as   soon   as
charge sheet is filed. Hence, following
Order; Application stands rejected."
2) The   said   order   was   confirmed   in   Criminal

Revision on 11.12.2013.
3) Mr.Gore,   while   extensively   arguing   the
matter,   placed   reliance   to   the   judgments   of   the
Hon'ble   Supreme   Court,   in   the   matter   of,   ­  a)   Uday

Mohanlal Acharya Vs. State of Maharashtra – 2001 AIR
(SC)   1910;   b)   Bipin   Shantilal   Panchal   Vs.   State   of
Gujrath   –   1996   AIR   (SC)   2897;   and   c)   Sayed   Mohd.
Ahmed Kazmi Vs. State, GNCTD and Ors. ­ 2012 AIR SCW
6026.
. According   to   learned   Counsel,   when   the
application   for   bail   was   moved   in   terms   of   Section
167(2)(a)(ii) of Cr.P.C., the learned Judge directed
release of the applicant on bail. On the same day, the
charge sheet has been filed.  According to him, since
the   learned   Judge   had   directed   the   applicant   to   be
released on bail, his rights for bail are indefeasible
in view of the above referred legal position.
4) The Full Bench of this Court in the matter
of  Rehemankhan   Kalukha   Vs.   State   of   Maharashtra   on
21.9.2001   (Criminal   Application   No.   1490   of   1993)
analyzed the legal position spelt out in the matter of
Uday Mohanlal Acharya; Sanjay Dutt Vs. State Through
CBI, Bombay(I) ­AIR 1994 SCW 3857; and Bapurao Patil
Vs.   State   of   Maharashtra   –   1993   Mh.L.J.   1299  and
recorded conclusions in paragraph 8, as under :
1. Under Sub­section (2) of Section 167,
a Magistrate before whom an accused is
produced   while   the   police   is
investigating   into   the   offence   can
authorise   detention   of   the   accused   in
such   custody   as   the   Magistrate   thinks
fit for a term not exceeding 15 days in
the whole.
2. Under the proviso to aforesaid Sub­
section   (2)   of   Section   167,   the
Magistrate   may   authorise   detention   of
the  accused  otherwise   than   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   furnish   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   it   of   forthwith,   on   being
satisfied that in fact the accused has
been   in   custody   for   the   period   of   90
days   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
bail,   as   directed   by   the   Magistrate,
then the conjoint reading of Explanation
I   and   proviso   to   Sub­section   (2)   of
Section   167,   the   continued   custody   of
the   accused   even   beyond   the   specified
period   in   paragraph   (a)   will   not   be
unauthorized,   and   therefore,   if   during

that   period   the   investigation   is
complete and charge sheet is filed then
the so­called indefeasible right of the
accused would stand extinguished.
6.   The   expression   'if   not   already
availed of used by this Court in Sanjay
Dutt's   case   (1994   AIR   SCW   3857   :   1995
Cri LJ 477 (supra) must be understood to
mean   when   the   accused   files   an
application   and   is   prepared   to   offer
bail on being directed. In other words,
on   expiry   of   the   period   specified   in
paragraph (a) of proviso to Sub­section
(2) of Section 167 if the accused files
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.
5) The Hon'ble Supreme Court in the matter of
Sayed Mohd. Ahmed Kazmi, in para 24, recorded, ­ " It
is   well­established   that   if   an   accused   does   not
exercise his right to grant of statutory bail before
charge   sheet   is   filed,   he   loses   his   right   to   such
benefit   once   such   charge   sheet   is   filed   and   can,
thereafter, only apply for regular bail."
6) In   the   case   at   hand,   admittedly,   on   2nd
January, 2013, when initial order was passed, on the
same day, charge sheet was filed.  Consequently, even
otherwise,   the   right   available   to   the   accused   in
terms   of   Section   167(2)(a)(ii)   of   Cr.P.C.   as
indefeasible   right   for   default,   stand   extinguished.
This is by mere arithmetics of the date of arrest and
submission   of   final   report.   That   apart,   the   legal

position,   indicated   in   the   matter   of   Sayed   Mohd,
referred to above, also cannot be obliterated.  
7) In   the   matter   of   Bipin   Shantilal   Panchal
Vs. State of Gujrath, the Supreme has again explained
effect   of   Section   167(2)   of   Cr.P.C.   And   proviso
thereof.
. Section 167(2)(a)(ii) of Cr.P.C. Has to be
read   with   Explanation­I   incorporated   by   virtue   of
amendment by Act of 5 of 2009 w.e.f. 31.12.2009. The
Explanation provides, ­"For the avoidance of doubts,
it   is   hereby   declared   that,   notwithstanding   the
expiry of the period specified in paragraph (a), the
accused   shall   be   detained   in   custody   so   long   as   he
does not furnish bail."
8) A conjoint reading of Section 167(2)(a)(ii)
with Explanation, explicitly demonstrate that, on the
date   when   the   order   of   bail   was   extended   to   the
accused, there was already final report/charge sheet
tendered by the Investigating Agency.   Consequently,
on   3rd  January,   2013,   the   learned   judge   could   not
exercise powers in favour of the accused/applicant to
release   him   on   bail   in   terms   of   Section   167   of
Cr.P.C.  Criminal Application lacks merit, dismissed.
(K.U.CHANDIWAL)

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