JUDGMENT
A.A. Desai, J.
1. Both these applications raise a common question as to whether filing of a charge sheet during the pendency of application under proviso (a) to sub-section (2) of section 167 of the Code of Criminal Procedure for release on bail, obliterates the right accrued in favour of the accused.
2. This Court has an occasion to deal with such a situation in a case of Shrawan Hanaji Undirwade and another v. State of Maharshtra, reported in 1976 Maharashtra Law Journal 654. The Division Bench while examining the scheme of sections 167, 173 and 437 of the Code of Criminal Procedure held that a right created under section 167 of the Code could be availed by the accused before the completion of the investigation. Once the charge sheet is filed then the Magistrate can exercise his power only under section 437 of the Code. It thus follows from the ruling that the Magistrate on the completion of the investigation is divested of his authority under section 167 of the Code, to release the accused on bail.
3. By an Act No. 45 of 1978 the Legislative has merely amended the provisions by extending the period of sixty days to ninety days. In case of investigation relating to offence punishable either with death or imprisonment for life or imprisonment for a term of not less than ten years. However, the substantive provisions as then contained in the Code of 1973, by this amendment remained unaffected.
4. Mr. S.A. Bobde, the learned Counsel appearing for the applicants made a submission before me that the right accrued in favour of the accused under the provisions is absolute and it does not get affected even if the charge sheet is filed, when the application based on that right is under consideration before the Magistrate. Mr. Bobde placed reliance on the decision reported in The State of Maharashtra v. Sharad B. Sarda, . His Lordship has observed that the right accrued in favour of the accused after ninety days is absolute, and the said right cannot be permitted to be defeated by resorting to the provisions of section 10 of the General Clauses Act. His Lordship has held in para 14 that “So on merely filing of the charge sheet after the expiry of the period of ninety days or sixty days, as the case may be, the accused is not deprived of a right earned by him to be released on bail.” The learned Judge upheld the contention of the defence that if an accused is released on bail in view of the provisions of section 167(2) of the Code then the prosecution can only ask for cancellation of bail as provided under section 437(5), which lays down that any Court which has released an accused person on bail under sub section (1) or (2) of section 437 shall record in writing his reasons for so doing. The Judgement of the Division Bench cited supra perhaps was not referred to for the perusal, before the learned Single Judge.
5. Mr. Bobde then placed reliance on the decision of the Full Bench of Gujarat High Court in case of Babhubhai Parshottamdas v. State of Gujarath, reported in 1982 Criminal Law Journal 284. The Full Bench has held that the case has to be considered purely in the light of section 167(2) proviso when the period of ninety days is over. Mare subsequent filing of charge sheet will not authorise to take the accused back in custody. The Full Bench was considering the question whether on release of the accused in view of the mandate under section 167, can he be taken back in custody, subsequent of filing of the charge sheet.
6. Mr. Bobde then placed reliance on the decision of the Full Bench of Orissa High Court in case of Bijayaketan Mohanty v. State of Orissa, reported in 1982 Criminal law Journal 1986. The Full Bench was considering a case where the order of release on bail was passed by the magistrate. However, before giving effect, the prosecution filed a charge sheet. The learned Magistrate, therefore, refused to give effect to the order already passed and cancelling the order, remitted the accused back in the custody. The Full Bench has observed that as the provisions of section 437(i), (2) and (5) are applicable to a person who has been released under section 167(2), the mere fact that subsequent to his release a challan has been filed is not sufficient to commit him to custody. The Full Bench relying on the decision of the Supreme Court in Bashir v. State of Haryana, observed that the fact that change sheet has come subsequent to admission to bail in exercise of the power under the proviso, is by itself of no consequence.
Both these authorities have examined the question of impact of filing of charge sheet subsequent of release of accused on bail. They have held mere filing of charge sheet, would not ipso facto entitle the prosecution to cancel the bail. According to me, the situation dealt by the Full Bench of Gujarat and Orissa High Courts are not similar as involved in the instant cases. As such, the ratio laid down therein would not assist to answer the question as posed before me.
7. Mr. Bobde then placed a reliance on the decision in State of Uttar Pradesh v. Lakshmi Brahman and Anr.
, . The Supreme Court has held that after expiry of sixty days from the date of the arrest of the accused, his further detention does not become ipso facto illegal or void.
8. Mr. Bobde placed a reliance on the decision in case of Raghubir Singh and others v. State of Bihar, . The Supreme Court has been held that where bail has been granted under the proviso to section 167(2) for the default of the prosecution in not completing the investigation within sixty days, after the defect is cured by the filing of a charge sheet, the prosecution may seek to have the bail cancelled on the ground that there are reasonable grounds to believe that the accused has committed a non bailable offence and that it is necessary to arrest him and commit him to custody. The submission as canvassed is that the cancellation can be resorted under section 437(5) after filing the charge sheet.
9. Section 173 emphasises the investigating Agency to complete the investigation without unnecessary delay. Section 167 provides that the Magistrate cannot authorise the detention of an accused in case of incomplete investigation beyond the period of ninety days in a crime of serious nature. Consequently the accused is entitled to be released on bail under the said provisions. Such release shall deemed to be under Chapter XXXIII of the Code for all purposes. These provisions intends to prevent prelonging and unnecessary delay in the investigation. It is pertinent that these provisions under Chapter XII, does not, however, specifically enacted for enlarging of accused on bail. The Code has made specific provisions in this behalf under Chapter XXXIII.
10. Default on the part of the investigating agency to complete the investigation within a specified period of ninety days does confer the right on the accused to get enlarged on bail after furnishing a requisite bond. However, the question before me as raised is whether the rights so accrued remains absolute even if the charge sheet is filed during the pendency of such application for grant of bail.
11. Section 167 prevents misuse of the authority of the investigating agency, and checks the consequent harassment to the accused. The Magistrate has to exercise his jurisdiction while investigation is pending. However, the moment charge sheet is filed under section 173, investigation comes to an end. It extinguishes the right so accrued in favour of the accused. The applications seeking reliefs under proviso to sub-section (2) of section 167, therefore, cannot be entertained. The Court can assume jurisdiction only under section 437 of the Code. Completion of investigation divest the authority of the magistrate to release the accused on bail under the relevant provisions.
12. The applicant in both the cases are, therefore, not entitled to be released on bail under the relevant provisions contained in section 167 of the Code of Criminal Procedure. I, therefore, propose to deal with the application for grant of bail under section 439 of the Code of Criminal Procedure.
13. In Criminal Application No. 55 of 1988, the applicants are charged for an offence punishable under sections 147, 148, 307, 302 read with section 34 of the Indian Penal Code for the incident occurred on 22nd October, 1987, resulting in death of Manjitsing and causing injuries to one Manjitsing. They were arrested on 22nd October, 1987 and charge sheet was filed on 33rd January, 1988. There are eye-witnesses who have involved the applicant in the incident of assault.
14. The prosecution has pointed out that the co-accused of the applicants are absconding since and their application for anticipatory bail has been rejected. The State has further pointed out that the applicants are not permanent residents of the City and they belonged to State of Punjab. It is also pointed out that they do not have any moveable or immoveable property at Nagpur. It is apprehended that the applicant may abscond any may also try to tamper with the prosecution witnesses. Considering this aspect I am not inclined to release him on bail. Criminal Application No. 55 of 1988 is, therefore, rejected.
15. In Criminal Application No. 928 of 1987 the applicants Baburao Wakle has been charged for an offence punishable under sections 302, 342, 498. A read with section 34 of the Indian Penal Code in connection with the incident occurred on 26th September, 1987. The applicant was arrested on 27th September, 1987. He initially moved the learned Sessions Judge for grant of bail. However, the learned Sessions judge granted the bail to the parents of the applicant by the order 18th November, 1987. The application of the applicant came to be rejected. The learned Sessions Judge has observed that the witnesses have seen the applicant No. 1 beating his wife Kanta. It is also observed that they have seen applicant with a pipe in his hand. According to the learned Sessions Judge, there is sufficient material to implicate the accused in a crime of ghastly murder of his wife Kanta. The post mortem report Sessions injuries on the person and probable cause of death is due to beating. I agree with the learned Sessions Judge and not inclined to release the applicant on bail. The application for grant of bail is, therefore, rejected.