IN THE HIGH COURT OF BOMBAY
Criminal Appeal No. 253 of 1999
Decided On: 06.03.1999
Naresh @ Nana Baliram Sonwane
State of Maharashtra
Hon’ble Judges/Coram:R.G. Deshpande, J.
Citations: 2000 (5) BomCR 382, 2000 BomCR Cri, 1999 (3) MhLj 631
1. Rule is made returnable forthwith. On the request of the learned Counsel for the parties, the application is taken up for final hearing.
2. The present nine applicants are facing prosecution for offences punishable under sections 302, 307, 147, 148, 149, 324, 326 and 327 of the Indian Penal Code and sections 4 and 25 of the Arms Act in pursuance of the registration of Crime No. 208 of 1998 at Zilla Peth Police Station, Jalgaon, on the basis of first information report dated 21-10-1998. It is not necessary in the present matter to narrate all the facts in detail. Suffice it would be to say that all the applicants were arrested on 26-10-1998, on one and the same day by the Judicial Magistrate, First Class, Jalgaon.
3. On 24-1-1999 an application under section 167(2) of the Code of Criminal Procedure (for short, hereinafter referred as the “Code”) was filed by the applicant before the Chief Judicial Magistrate, Jalgaon. In this application, the applicants specifically contended that as a matter of fact since the date of their remand to police custody, 90 days were completed on 23-1-1999 which was 4th Saturday of the month. The applicants therefore, filed the application contending that 24th of January 1999, was the 91st day and till that day no charge-sheet was submitted in the case and hence they were entitled to be released on bail forthwith in pursuance of the provisions of sub-section (2) of section 167 of the Code. It is pertinent to note that 24-1-1999 happened to be the Sunday. The learned Magistrate, Jalgaon, who dealt with the application of the applicants on 24-1-1999, passed an order in the margin of the application itself and it is as under :
“Today is holiday i.e. Sunday. Hence, put up before the concerned Court on 25-1-1999.”
In pursuance of this order, the application was put before the concerned Court on the next day i.e. on Monday, the 25th January, 1999. The record indicates that the learned Magistrate was the same who dealt with the matter on Sunday, January 24, 1999. On 25-1-1999 exactly at 12.15 p.m., the learned Magistrate passed the following order on the application which is marked as Exhibit 5 in the record of the case :
“A.P.P. to say. So also concerned A.S. to report as to whether the charge-sheet is filed in the present case or not.”
In view of the above order, the concerned Assistant Superintendent gave the following report on the very same day on the application itself :
“In C.R. No. I 209/1998 charge-sheet is not filed till today at 1.15 pm.
4. From the specific order passed by the learned Magistrate on 25-1-1999 and the specific report given by the concerned officer i.e. Assistant Superintendent on the same day, one thing is very clear and there cannot be even slightest doubt in any manner that till the time the order was passed by the learned Magistrate and the report was given by the Assistant Superintendent of Police, there was no charge sheet filed by the prosecution in the instant matter.
5. In consonance with what has been stated above it is also necessary at this stage to specifically observe that the learned Assistant Public Prosecutor also gave his say on the said application on the reverse of it on the same day and it is to the following effect:
“Necessary order may kindly be passed.”
In view of the specific orders, reports and reply of the Assistant Public Prosecutor, it is clear that at this particular point of time, the applicants were definitely entitled to the benefit of provisions of section 167(2) of the Code and it was in fact the bounden duty of the learned Magistrate to pass an order immediately, which, in the ordinary course, could no other than of releasing the applicants on bail.
6. It is clear from the record and it is also not disputed by either of the parties that on the day i.e. 25-1-1999 charge-sheet came to be filed in the Court of Chief Judicial Magistrate, Jalgaon. The endorsement on the said document reads as under :
“Presented on 25-1-99 at 2-25 pm. The case is made over to 4th Civil Judge, J.D. and J.M.F.C. Jalgaon.”
The above endorsement in an unambiguous way shows that it was for the first time i.e. on 25-1-1999 at 2-25 pm the charge-sheet was submitted in the Court and for the sake of calculations, it was filed on 92nd day from the date of remand of the applicants. It is apparent from the record now that immediately after the charge-sheet was filed the learned Judge took cognizance of the same without making a mention as to whether the learned Judge got himself satisfied as regards due compliance of provisions of section 173 of the Code. Shri S.R. Barlinge, learned Counsel for the applicants, assailed the approach of the learned Judge in taking cognizance of the charge-sheet in a hasty but most casual manner and in the most polite manner Shri Barlinge tried to suggest that it indicated non-application of mind on the part of the learned Magistrate towards the case. According to Shri Barlinge, the hasty action of the learned Judge has prevented the applicants from being released on bail by depriving them of the benefit of provisions of sub-section (2) of the section 167 of the Code.
7. It is pertinent to note, as specifically pointed by the learned Counsel appearing for the applicants and which is not disputed on behalf of the State that it was the same learned Magistrate who dealt with the matter on 24-1-1999 and also on 25-1-1999 rejecting the application of the applicants filed under section 167(2) of the Code. Since the order passed by the learned II Judicial Magistrate, First Class, Jalgaon, rejecting the application of the applicants is illegal, the applicants have approached this Court through the present application under section 482 of the Code.
8. After having noted the facts as above the only point that needs consideration in the present matter is as to whether, are the applicants, in the facts and circumstances of the case and also keeping in mind the date and timing of filing of the charge-sheet in the Court by the police, are entitled to be released on bail in accordance with the provisions of sub-section (2) of section 167 of the Code.
9. Shri S.R. Barlinge, learned Advocate for the applicants, vehemently urged that the very tenor of order passed by the learned Magistrate indicates incorrect appreciation of the facts of the case and law by the learned Magistrate. Not only this, but it shows total mistaken approach of the learned Magistrate towards the relevant provisions of law. Reading the interpretation of provisions of law put forth by the learned Magistrate, according to Shri Barlinge, it is argued that the impugned order is totally erroneous.
10. Shri Kazi, learned Additional Public Prosecutor for the State, to nullify the arguments of Shri Barlinge, argued that no error whatsoever can be found in the impugned order passed by the learned Magistrate. On the contrary, Shri Kazi tried to suggest that the learned Magistrate has in so many words observed that the application filed by the applicants, under section 167(2) of the Code on 24-1-1999 could not be treated to have been filed on 24-1-1999 but it could only be treated to have been filed on 25-1-1999. Shri Kazi further argued that 23rd January was a 4th Saturday and was a holiday, 24th January was Sunday, a regular holiday and though the learned Magistrate was present in the Court on 24-1-1999 he was dealing with the remand matters on that day and therefore, he could not be said to have been present in the Court for the purposes of present case and therefore, according to Shri Kazi, the learned Magistrate ordered that the matter be put up before the concerned Court on 25-1-1999. Shri Kazi further tried to argue that even otherwise, according to the learned Magistrate has observed in his order that there was no practice of entertaining applications on holidays and this was a specific practice in Jalgaon District. This argument of Shri Kazi and observations of the learned Magistrate entertained the application on that day by passing the order to put up the matter before the regular Court on 25-1-1999 and it clearly means that the learned Magistrate acted as a “Court” even for this case on that day also. In such peculiar circumstances, the observations made by the learned Magistrate in his order that for all practical purposes, he treated that application under section 167(2) of the Code to have been filed on 25-1-1999 itself further damages the impugned order and indicates the erroneous approach of the learned Magistrate towards the matter. There was no necessity whatsoever for the learned Magistrate to make such observations and to treat the application filed on 24-1-1999 as filed on 25-1-1999 inspite of the fact that the said application was entertained on 24-1-1999 itself.
11. Another surprising observation made by the learned Judge in his order is that, according to him, the application as well as the charge-sheet came before him simultaneously. This observation of the learned Judge can be proved wrong by his own earlier orders and particularly when the learned Judge himself has specifically mentioned the timing while passing the order asking the other side to give say. Not only this but the Assistant Superintendent also gave a report that no charge-sheet was filed till then and said report is duly signed by the said officer mentioning timing therein. Coupled with this, there was a remark of the learned Assistant Public Prosecutor to pass necessary orders in the matter. In my view that was the right time for the learned Magistrate to exercise the powers under section 167(2) of the Code. The learned Magistrate should not have forgotten that he was dealing with the valuable rights of the applicants and precisely the fundamental right to liberty under Article 21 of the Constitution of India could not have been dealt with so lightly. It was more so when the hands of the learned Magistrate were duly reinforced by the mandatory provisions of law.
12. This takes me to the relevant provisions of section 167(2) of the Code and the interpretation thereof by the Apex Court and other High Courts from time to time. Shri Barlinge, learned Counsel for the applicants, brought to my notice four decisions out of which two decisions are of the Apex Court and two of this Court. Firstly, Shri Barlinge, learned Counsel for the applicants, has relied on the decision of the Supreme Court in the case of Mohammed Iqubal Madar Sheikh and others v. State of Maharashtra, MANU/SC/1045/1996 : 1SCR183 . It is a case pertaining to the offences under the Terrorist and Disruptive Activities (Prevention) Act, 1987. Sub-section (4) of section 20 of said Act makes the provisions of section 167 of the Code applicable in respect of the offences under TADA except that the periods prescribed for the authorized detention in respect of such offences during which the investigation should be completed are different. However, the fact remains that in terms of proviso to sub-section (2) of section 167 of the Code, right to get released on bail could not be defeated by any Court if the accused is prepared to furnish bail bond to the satisfaction of the Court. While dealing with the said question, their Lordships of the Supreme Court observed that :
“….. This right cannot be exercised after the charge-sheet has been submitted and cognizance has been taken, because in that event the remand of the accused concerned including one who is alleged to have committed an offence under TADA is not under section 167(2) but under other provisions of the Code…..”
Their Lordships further observed that:
“….. If an accused charged with any kind of offence becomes entitled to be released under proviso (a) to section 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.”
13. In the present case with which this Court is dealing with, it is an admitted fact that before filing of the charge-sheet, an application under section 167(2) of the Code of Criminal Procedure was already filed and pending before the Court for passing appropriate orders. Another aspect to be noted in the case is that in the case of Mohd. Iqbal (cited supra), the application was moved prior to the filing of the charge-sheet and therefore, in that context the observations were made by their Lordships of the Supreme Court that the right cannot be extinguished after charge-sheet has been submitted and cognizance thereof has been taken. Section 167(2) gives a right to be exercised by the accused and if he is diligent enough to exercise it in time he will get the benefit thereof. If he fails to make an application immediately after expiry of 90th day or before filing of the charge-sheet, then on filing of the charge-sheet he loses his right vested in him under section 167(2) of the Code. Another aspect to be noted is even on the date on which the application came up for consideration before the learned Magistrate, three endorsements which were made on the application clearly indicated that till the say was given by the learned Assistant Public Prosecutor to pass appropriate orders because of non-filing of the charge-sheet, the applicants should have been given at that moment the benefit of provisions of section 167(2) of the Code.
14. Shri Barlinge, learned Counsel brought to my notice another judgment of this Court reported in MANU/MH/0499/1998 : 1998(5)BomCR471 in the case of Sanjay Bhujbal v. State of Maharashtra. According to Shri Barlinge, the present case is squarely covered on all counts by the aforesaid judgment. In the case cited supra, the applicant was arrested on 8-9-1997 for an offence punishable under section 302 of the Indian Penal Code, from the date of arrest 90th day was completed on 7-12-1997 and on 9-12-1997 an application under section 167(2)(a) of the Code was moved before the learned Judge. The learned Judge called for the say of Public Prosecutor in that matter and shunted the matter for that purpose on 10-12-1997. On that day the learned Additional Police Prosecutor filed his say and simultaneously charge-sheet also came to be filed in the Court on the same day. Therefore, the learned Magistrate rejected the application observing that since the charge-sheet has been filed, the applicant was not entitled to bail under section 167(2) of the Code. Revision against that order before the Sessions Judge, Pune, also came to be rejected and therefore, the matter came up before this Court at Bombay in Criminal Application No. 147 of 1998. While dealing with this matter the learned Single Judge of this Court, relying on the judgment of the Supreme Court in Mohd. Iqbal’s case (cited supra) and precisely para 11 thereof, reached to the conclusion that the courts below in that case committed an error in rejecting the application of the applicants for bail under section 167(2) of the Code of Criminal Procedure.
15. There is another judgment of this Bench of the Bombay High Court, which is brought to my notice by Shri Barlinge. It is reported in MANU/MH/0698/1994 : 1995(3)BomCR153 in the matter of Asif Abdul Gafoor Shaikh and others v. State of Maharashtra. In that case it is also held that when charge-sheet was admittedly not filed within the stipulated period of 90 days from the date of arrest of the applicants and since application under section 167(2) of the Code was filed on 4-4-1994 i.e. after expiry of 90th day but prior to the filing of the charge-sheet, the learned Judge of this Court specifically observed that filing of the charge-sheet subsequent to the filing of the application under section 167(2) of the Code by the accused cannot frustrate the advantage derived by the accused under section 167(2) of the Code. In fact, in all the three judgments it is specifically observed that the presentation of the charge-sheet in the Court after filing of the application by the applicants and that too beyond the period of 60/90 days, as the case may be, shall not and cannot either frustrate or negate the right derived by the applicants of being released on bail.
16. Shri Barlinge, learned Counsel for the applicants, while canvassing on behalf of the applicants, went a step further and argued that in fact the view taken by this Court is that when the charge-sheet is not filed within 90 days, then an absolute right is vested in the accused to get released on bail even if he does not file an application for that purpose. In support of this contention Shri Barlinge, learned Counsel has relied on the decision of this Court in MANU/MH/0586/1991 : 1992(2)BomCR198 in the case of Bhujangrao P. Jadhav v. State of Maharashtra. However, in view of the judgment of the Apex Court in MANU/SC/0807/1994 : (1994)5SCC402 in the case of Sanjay Dutt v. The State through C.B.I., Mumbai, and Mohd. Iqbal’s case (cited supra) that question does not arise and much water has flown thereafter. However, the fact remains that the application is moved under section 167(2) of the Code immediately after expiry of the prescribed period of 90th day and before filing of the charge-sheet and if it is found that application was shunted to enable the prosecution to present the charge-sheet then in such a case the indefeasible right of the accused of being released on bail cannot be frustrated by such methods.
17. Shri Kazi, learned Counsel appearing for the State, also tried to rely on one unreported judgment in Criminal Application No. 215 of 1997. On the basis of said judgment Shri Kazi tried to suggest that the moment charge-sheet is filed, then the accused is not entitled to the benefit of section 167(2) of the Code even if there is an order earlier passed under section 167(2) and it is open to the accused to apply for bail under section 437 of the Code. According to him, the detention of the accused even after expiry of 60/90 days but before filing of the charge-sheet, the said period of detention cannot be said to be unauthorised as, in that case, according to him, the remedy open to the accused is only to move an application for regular bail under section 437 of the Code. In support of his contention Shri Kazi relied on the aforesaid unreported judgment of this Court. With all curiosity and with the assistance of the learned Counsel for the both parties, I have gone through the aforesaid unreported judgment. There is a basic difference between the aforesaid matter and present case. In that case the charge-sheet was admittedly filed within the period of 90 days from the date of arrest of the accused, whereas, in the present case, admittedly the charge-sheet was filed after expiry of 90th day. This difference is bound to affect the ultimate conclusions in the matter. This Court, therefore, is of the opinion that the aforesaid unreported judgment cannot be of any assistance to the learned Additional Public Prosecutor.
18. Shri Kazi further argued that right to get released on bail under section 167(2) of the Code vested in the accused is not an absolute and unfettered right. According to him, before passing any order on the application under section 167(2) of the Code cannot be considered and the applicants have to adopt the procedure provided under some other section of the Code. Probably he wants to suggest the remedy of section 437 of the Code. I am not inclined to accept this argument for the purpose of facts and circumstances of the case in hand.
19. Shri Kazi tried to suggest that filing of the charge-sheet by the prosecution on 25-1-1999 cannot be termed as an attempt on the part of the prosecution to infringe the rights of the accused. According to Shri Kazi, merely because there was delay in filing the charge-sheet should not be look from such a serious view because, according to Shri Kazi, charge-sheet was required to be filed on 25-1-1999 as 23rd and 24th January, 1999 were the holidays. In short, he wanted to suggest that the period of 90 days of limitation is automatically extended because of the holidays. In short, he wanted to further suggest that the Limitation Act can be said to be applicable in such a case and filing of the charge-sheet on 25-1-1999 should be treated as filed within limitation. Though the argument of Shri Kazi is appealing, but the same cannot be accepted. Unless and until there is a specific provision for extending the period in the Code itself, it would be very difficult for this Court to accept the arguments of Shri Kazi in that behalf. The learned Additional Public Prosecutor was not in a position to show any of the provisions in the Code to indicate that if the last day happens to be holiday or non-working day of the Court, then charge sheet could be filed on the reopening day and the same should be treated to be within 90 days. The courts cannot forget that the accused has to face penal consequences and hence as per the principles of interpretation, the provisions of Criminal law are to be strictly interpreted and the courts cannot substitute anything in the same irrespective of its result.
20. As against the arguments of Shri Kazi, Shri Barlinge, learned Counsel for the applicants, vehemently urged that right of being released on bail under section 167(2) of the Code of Criminal Procedure was accrued to the applicants immediately after expiry of 90 days. Shri Barlinge further argued that applicants with all diligence moved an application before the learned Magistrate on 24th January, 1999. He argued that fortunately for the applicants the learned Judge also happened to be the same who dealt with the application of the applicants for bail on the next day. Shri Barlinge, therefore, argued that the learned Judge on the same day should have sought say of the learned Additional Police Prosecutor and should have passed appropriate orders. The matter was, however, shunted by the learned Judge simply observing that the matter be put up on the next day before the regular Court and it could not to be said that it was a judicious exercise of powers by the learned Judge. Shri Barlinge further assault the conduct of the learned Judge saying even on the next day say of the concerned Police Officer and the learned Additional Police Prosecutor was obtained, but no special order was passed although no charge-sheet was filed in the Court till then i.e. till 1.15 pm. dated 25-1-1999. The learned Additional Police Prosecutor who appeared in the matter before the learned Judge also made a remark that “…Necessary orders may be passed”. Inspite of this much material being before him, the learned Judge waited till the filing of the charge-sheet in the afternoon at about 2.25 pm. and therefore, Shri Barlinge argued that this practice needs to be deprecated and in the appropriate cases to be nipped in the bud. For this purpose Shri Barlinge relies on certain observations of the Apex Court in Mohd. Iqbal’s case (cited supra) that “statutory right under section 167(2) should not be defeated by keeping the application for bail pending till the charge-sheet is submitted so that the right which had accrued is extinguished and defeated.” No doubt, these observations can strongly be relied on, in the instant matter. This Court strongly condemns the attitude of the learned Magistrate since there was no reason for the learned Magistrate to shunt the application when the application itself was before the learned Magistrate on the previous day i.e. on 24-1-1999 itself.
21. This Court is also surprised to note the observations made by the learned Judge in his order when he observed that it is a practice in Jalgaon district that the charge-sheets are not accepted on holidays. The said observations of the learned Magistrate has no foundation at all. In fact, by such observations, the learned Magistrate, has virtually tried to carve out his own district as a separate one for the purposes of application of law and of administration of justice. Unless and until there is a provision in the Code itself or unless and until there are rules to that effect, it was not open for the learned Judge to make such observations. It at all he wanted to make such an observation he should have supported the same by pointing out a specific provision of law on the rules. When the learned Magistrate was hearing remand matters on 24-1-1999, he should have passed appropriate order instead of shunting the matter to next day and that too by observing that the matter be put up before the regular Court on the next day.
22. Even on the next day the learned Judge without giving due weight to the rights of the applicants of being released on bail, has again shunted the matter for obtaining say of the Additional Police Prosecutor and Assistant Superintendent of Police. Even till then no charge-sheet was filed by the police. There was factually no reason for the learned Judge not to pass the order immediately after taking say of the Additional Public Prosecutor and the Assistant Superintendent of Police. Waiting till 2.25 p.m. by the learned Judge, no doubt, can be looked at seriously saying that the learned Magistrate has thereby definitely defeated the rights of the applicants to get released on bail under proviso to clause (a) of sub-section (2) of section 167 of the Code. It was, therefore, necessary for the learned Magistrate to have considered the provisions of law in proper perspective so as to reach to the just conclusion.
23. Shri Kazi, learned Additional Public Prosecutor for State, as a last resort argued that the charge-sheet is already filed and now it would not be open to invoke the provisions of section 167(2) of the Code by passing the order of granting bail to the applicants today. Shri Kazi submit that the applicants will have to move an application for regular bail under section 437 of the Code. No doubt, this argument of Shri Kazi also does not have any merit, as this Court is to deal with the right of the applicants accrued to them on 24-1-1999 i.e. before filing of the charge-sheet. This Court cannot look at the matter saying that the right of the applicants are to be decided and that too on the facts as they stand today. The position that stood on 24-1-1999 has to be seen and the applicants have to be given the benefits of their right accrued to them on 24-1-1999.
24. Right to liberty of the applicants enshrined in Article 21 of the Constitution of India cannot be curtailed so lightly. This is not a case where the applicants are convicts but it is only suspected that they are involved in the Crime. When the Code itself has made specific provisions, which virtually result into an absolute right in the applicants of being released on bail in certain circumstances and in certain contingencies, then the courts cannot either deny or frustrate their rights, even in a slightest manner.
25. In the result, the application is allowed. The applicants be released on bail in Crime No. 209 of 1998 registered with Zilla Peth Police Station, Jalgaon, on their furnishing PR bond of Rs. 10,000/- each with one surety each in the like amount. Needless to mention that the applicants shall report to the concerned police station once in a fortnight i.e. on every 2nd and 4th Wednesday of the month between 3.30 to 6.30 pm. In case there is any contravention of any of the terms and conditions of this order, the respondent State is at liberty to apply for cancellation of bail in accordance with the appropriate provisions of the Code.
26. Rule is accordingly made absolute.
27. Application allowed.