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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR.
CRIMINAL WRIT PETITION No. 423 OF 2008.
1.Jitendra s/o Maroti Deotare,
Aged About 24 years, Occ - Labour;
2.Madhukar s/o Vitthal Patle,
Aged about 42 years, Occ - Service,
Both residents of Village Khat, Tahsil Mouda,
District - Nagpur. ....PETITIONERS.
VERSUS
The State of Maharashtra,
through P.S.O. Mouda,
District - Nagpur. ....RESPONDENT.
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Shri R.M. Daga, Advocate for Petitioners.
Shri Y.B. Mandpe, A.P.P. for Respondent.
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CORAM : K.J. ROHEE &
B.P. DHARMADHIKARI, JJ.
DATED : JULY 31, 2008.
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ORAL JUDGEMENT. (Per K.J. ROHEE, J.)
1. Rule returnable forthwith. Heard finally by consent of
parties.
2. The petitioners were arrested on 13.04.2008 in connection
with Crime No. 73/2008 under sections 302, 201 read with Section 34
of Indian Penal code alleged to have taken place on 10.04.2008. The
petitioners were produced before the concerned Magistrate on
14.04.2008. Initially the Magistrate granted P.C.R. till 19.04.2008.
From 19.04.2008 M.C.R. came to be extended from time to time. The
last application for M.C.R. was moved on 30.06.2008 praying for grant
of M.C.R. till 15.07.2008. However the Magistrate granted M.C.R. only
till 14.07.2008.
3. It is undisputed that 90 days expired on 13.07.2008, which
happened to be a Sunday. On the next day i.e. on Monday 14th July,
2008 the petitioners moved application under section 167[2] of the
Code of Criminal Procedure for grant of bail in default of filing of the
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charge sheet. The said application was filed by the petitioners at 11
a.m. The learned Magistrate directed the A.P.P. to give his say. The
endorsement made on the said application by the A.P.P. shows that he
received copy of the application at 2.30 p.m. and sought time to file
say. However, it seems that on the same day (though the date is
wrongly written as 14.08.2008), he filed say strongly opposing the
application.
4. On the same day the learned Magistrate passed a detailed
order rejecting the application by observing that since the charge sheet
was filed on 14.07.2008 itself, it cannot be said that there was default
on the part of the prosecution to file charge sheet within 90 days so as
to entitle the petitioners to be released on bail under section 167[2] of
the Code of Criminal Procedure. The said order is under challenge.
5. We have heard Shri R.M. Daga, Advocate for the petitioners
and Shri Y.B. Mandpe, A.P.P. for respondent / State. They have cited
the following cases.
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1. AIR 1957 SC 271
([H.H.Raja] Harinder Singh .vrs. S. Karnail Singh
and others)
2. 1985 Cri.L.J. 939
(N.Sureya Reddy and another .vrs. State of Orissa).
3. 1986 (3) Crimes, 577
(Powell Nawawa Ogechi .vrs. The State
(Delhi Administration)
4. 1999 (2) Mh.L.J. 555
(Ramesh Madhukar Thombre .vrs. State of Maharashtra)
5.
1999 (3) Mh.L.J. 631
(Naresh @ Nana Baliram Sonwane .vrs.
State of Maharashtra)
6. 2001 Cri.L.J. 1832
(Uday Mohanlal Acharya .vrs. State of Maharashtra)
7. 2005 All M.R. (Cri) 291
(Mahaya Chaitya Ozare .vrs. State of Maharashtra)
8. 2006 All M.R. (Cri) 3110
(Nijamuddin Mohammad Bashirkhan .vrs. State
of Maharashtra.
6. We have carefully gone through the above rulings. The
order of the learned Magistrate itself shows that the petitioners moved
application for bail on 14.07.2008 at 11 a.m., whereas the
investigating officer filed the charge sheet at 12.30 p.m. on the same
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day. It is thus apparent that the right which accrued to the petitioners
to be released on bail in default in filing of charge sheet was exercised
by them at 11 a.m. when no charge sheet was filed. It was tried to be
urged by the learned A.P.P. that the investigation was already
completed and as such the petitioners are not entitled to be released
on bail for default. However, we cannot forget that though the
investigation might have been completed, no charge sheet came to be
filed immediately on completion of the investigation.
7. Infact in the case of Najamuddin .vrs. State of Maharashtra
(supra), Division Bench of this Court held that it is the duty of the
Magistrate on expiry of 90 days to tell the accused or to inform the
accused about his right to be released for default in filing of the charge
sheet.
8. It was urged by the learned A.P.P. that at the time when the
learned Magistrate decided the application, charge sheet was filed.
However, in our view the time which is crucial or material is not when
the Magistrate considers the application for bail and passes order, but
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what is important is the time when the application was filed and the
time when the charge sheet was filed. In the case of Najamuddin
(supra), this Court has held that the Magistrate has to pass orders
forthwith so as not to enable the prosecution to frustrate the object of
the legislature. It may be pointed out here that the Hon’ble Apex
Court in the case of Uday Mohanlal (supra), in paragraph no.8 has
observed that an accused like the present petitioners must be held to
have availed of his right flowing from the legislative mandate, if he
files application after the expiry of stipulated period mentioning that
no challan or charge sheet has been filed and he is prepared to offer
bail that would be ordered. If it is found that, as a matter of fact that
no such challan was filed within the period prescribed from the date
of arrest, such applicant/accused must be held to have exercised the
said right, even if, such application is posted for consideration or for
orders before the court after some time or even after 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. Filing of challan at subsequent
stage will not take away the right of the accused. The Hon’ble Apex
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Court has held that such an interpretation would sub-serve the
purpose and the object for which the provision in the shape of proviso
to sub-section [2] of section 167 of Criminal Procedure Code has been
made. Hon’ble Apex Court has observed that the personal liberty is
one of the cherished objects of the Indian Constitution and deprivation
of the same can be only in accordance with law and in conformity
with the provision thereof, as stipulated in Article 21 of the
Constitution of India. It is, therefore, not possible for us to accept the
contentions of the learned A.P.P. that when the application of present
petitioners came up for consideration before the Magistrate, as the
charge sheet was already filed the application had become
infructuous.
9. It is also necessary to point out here that reliance upon the
Division Bench judgment of Orissa High Court in the case of N.
Sureya Reddy (supra), by the learned A.P.P. is equally misconceived.
In view of the comments upon the said judgment and on provisions of
Section 10 of the General Clauses Act by the Division Bench of the
Delhi High Court in judgment in the case of Powell Ogechi (supra), it
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is not necessary for us to delve more in this controversy. Suffice it to
mention that Section 167 [2] of Criminal Procedure Code does not bar
investigation after 60 or 90 days and also does not bar filing of charge
sheet/ challan after 60/90 days. Thus it does not prescribe any time
limit either for completion of investigation or for filing of charge sheet
and hence Section 10 of the General Clauses Act is not at all attracted.
The Delhi High Court has relied upon the judgment of this Court in
the case of State of Maharashtra .vrs. Sharad Sarda (1983 [1] BCR
578 or 1983 [2] Cri. Law Cases 18). Various judgments cited before
us as also the plain language of Section 167[2] of Criminal Procedure
Code reveal that it puts embargo on the power of the Court to further
permit detention of any accused person after expiry of 60 days or 90
days if such accused is ready and willing to furnish bail. The provision
has been made to curtail the deprivation of liberty of an individual
who is presumed innocent at that stage. It, therefore, has got nothing
to do with the date on which the prosecution completes investigation
or files charge sheet. The investigation can take place even on
holidays and detention of such accused person also continues on
holidays. Therefore, the argument that 60th day or 90th day was a
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public holiday and therefore, the prosecution could not file charge
sheet on that date and had filed the same immediately on the next
working day, has hardly got any relevance if the purpose of the said
provision is looked into. In any case in the present facts, the charge
sheet itself is dated 14.07.2008 and as such it is apparent that it could
not have been filed on 13.07.2008 which was the 90th day. It is not
the case of the prosecution that after expiry of 90th day it had made
the present petitioners aware of their indefeasible right and thereafter
it choose to file charge sheet on next working day. The contention of
learned A.P.P. that no investigation was carried out in the matter after
9.7.2008 is not borne out from record. Therefore, the stance to
distinguish between the completion of investigation and filing of
charge sheet as to distinct and unrelated events need not be examined
in the present matter.
10. It is also to be noted that on 30.06.2008 when J.M.F.C.
granted remand it was upto 14.07.2008 i.e. upto 91st day. The
prosecution has sought remand upto 15.07.2008 but then the
Magistrate granted it only upto 14.07.2008. It is apparent that when
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the period of 90 days was to expire on a public holiday, looking to the
mandate of the provisions the Magistrate ought to have granted
remand till the next working day available immediately before such
public holiday. 13.07.2008 was Sunday and 12.07.2008 was also a
holiday for Courts being second Saturday. In these circumstances, the
Magistrate ought to have granted remand only upto Friday i.e.
11.07.2008 or then, if he was inclined to grant it beyond 11.07.2008,
the Magistrate ought to have informed the present petitioners of their
right which accrues after expiry of 90th day. Here the right had
already accrued on 13.07.2008 i.e. on Sunday itself and on the next
day the accused/present petitioners were produced before the learned
Magistrate. The petitioners themselves have moved application at 11
a.m. on 91st day, as such the learned Magistrate was not justified in
rejecting the application for bail. The said order therefore, needs to be
quashed and set aside. We, therefore, pass the following order :-
Criminal Writ Petition is allowed. The impugned order
dated 14.07.2008 is quashed and set aside. The petitioners are
directed to be released on their executing P.R. in the sum of
Rs.25,000/- each with one surety in the like amount.
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11. Rule is made absolute in the aforesaid terms.
JUDGE JUDGE
Rgd.
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