2001 Supreme(SC) 601

2001(3) Supreme 142
Supreme Court of India
(From Bombay High Court)
G.B. Pattanaik, U.C. Banerjee & B.N. Agrawal, JJ.
Uday Mohanlal Acharya —Appellant
versus
State of Maharashtra —Respondent
Criminal Appeal No. 394 of 2001
(Arising out of SLP (Crl.) Appeal No. 3312 of 2000)
Decided on 29-3-2001
Counsel for the Parties :
For the Appellant : K.T.S. Tulsi, Sr. Advocate, Ashok M. Saroagi, Subhash Jha, Vijay Kumar, Ms. Sangeeta Kumar, Sanjay Maan, Ms. Kamlesh Jain, Advocates.
For the Respondents : P. Janardhan, Addl. Advocate General, S.V. Deshpande, Advocates.

Important point
In the facts of the case Majority is of the opinion that right of the accused to be enlarged on bail under the proviso to Section 167(2) of Cr.P.C. 1973 can be said to have been availed by the accused and he may be granted bail differing from High Court. Dissenting opinion agreeing with High Court. But appeal is allowed in view of Majority decision.

Headnote:Indian Penal Code, 1860—Sections 406 and 420—Offences under read with offence under Section 3 of Maharashtra Protection of Interest of Depositors (Financial Establishment) Act, 1999—Accused charged of offence under—Cr.P.C. 1973—Section 167(2)—Right of Bail under proviso to Section 167(2) if a challan is not filed within the period of 60 or 90 days as the case may be stipulated therein—Magistrate holding Section 167(2) not applicable—High Court reversing but still not granting bail—Appeal to Supreme Court—Three Judges Bench differing as the question when can accused be said to have availed of his indefeasible right for being released on bail under the proviso to Section 167(2) Cr.P.C., if a challan is not filed within the period stipulated therein—Majority disagreeing with High Court—Dissenting Judge agreeing—Appeal allowed by Majority—Accused to be released on bail accordingly—Case Law discussed.

       Held (Per Majority) : On the aforesaid premises, we would record our conclusions as follows:-

       1. Under sub-section (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 sub-section 2 of Section 167, the continued custody of the accused even beyond the specified period in paragraph (a) will not be unauthorised, and therefore, if during that period the investigation is complete and charge-sheet is filed then the so-called 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) 5 SCC 410 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 sub-section (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.

       With the aforesaid interpretation of the expression ‘availed of’ if charge-sheet is filed subsequent to the availing of the indefeasible right by the accused then that right would not stand frustrated or extinguished, necessarily therefore, if an accused entitled to be released on bail by application of the proviso to sub-section (2) of Section 167, makes the application before the Magistrate, but the Magistrate erroneously refuses the same and rejects the application and then accused moves the higher forum and while the matter remains pending before the higher forum for consideration a charge-sheet is filed, the so-called indefeasible right of the accused would not stand extinguished thereby, and on the other hand, the accused has to be released on bail. Such an accused, who thus is entitled to be released on bail in enforcement of his indefeasible right will, however, have to be produced before the Magistrate on a charge-sheet being filed in accordance with Section 209 and the Magistrate must deal with him in the matter of remand to custody subject to the provisions of the Code relating to bail and subject to the provisions of cancellation of bail, already granted in accordance with law laid down by this Court in the case of Mohd. Iqbal v. State of Maharashtra (1996) 1 SCC 722. Having indicated the position of law, as above, and applying the same to the facts and circumstances of the present case, it appears that the prescribed period under paragraph (a) of the proviso to sub-section (2) of Section 167 expired on 16.8.2000 and the accused filed an application for being released on bail and offered to furnish the bail on 17.8.2000. The Magistrate, however, erroneously refused the bail prayer on the ground that the proviso to sub-section (2) of Section 167 has no application to case pertaining to MPID Act. The accused then moved the High Court. While the matter was pending before the Division Bench of the High Court, the learned Public Prosecutor took an adjournment and the case was posted to 31st August, 2000 and just the day before the charge-sheet was filed on 30 August, 2000 and thus the indefeasible right of the accused stood frustrated and the High Court refused to release the accused on bail on a conclusion that the accused cannot be said to have availed of his indefeasible right, as held in Sanjay Dutt’s case (supra) since, he has not yet been released on bail. But in view of our conclusion as to when an accused can be said to have availed of his right, in the case in hand, it has to be held that the accused availed of his right on 17th August, 2000 by filing an application for being released on bail and offering therein to furnish the bail in question. This being the position, the High Court was in error in refusing that right of the accused for being released on bail. We, therefore, direct that the accused should be released on bail on such terms and conditions to the satisfaction of the learned Magistrate, and further the Magistrate would be entitled to deal with the accused in accordance with law and observations made by us in this judgment, since the charge-sheet has already been filed. (Paras 13, 14 and 15)

       But held (as per dissenting opinion) : It is settled by series of judgments of this Court in the last 25 years that framers of the Code conceived and desired that after expiry of the period prescribed in proviso to Section 167(2) of the Code, an accused has to be released on bail if no challan is filed because after the expiry of the statutory period prescribed therein, there is no power in Magistrate to remand for further custody, but the same proviso prescribes in clause (a)(ii) that ‘the accused person shall be released on bail if he is prepared to and does furnish bail’. To be released on bail because of the default of submission of challan within the statutory period is a valuable right of the accused, but the framers of the Code have prescribed a condition in that very proviso referred to above that this right to be released on bail can be exercised only on furnishing of bail. Clause (a)(ii) of proviso to Section 167(2) of the Code not only says that the accused ‘is prepared to’, but also says that the ‘accused does furnish bail’ and Explanation I to Section 167(2) of the Code clearly mandates 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". Just to test the scheme of the said provision, can it be conceived that if the accused is prepared to furnish bail but does not furnish the same, even in that eventuality the court concerned shall direct his release from custody only on the ground that the statutory period of filing the challan has expired? Therefore, in my view, for release from custody both the conditions aforesaid, read with the Explanation referred to above, must be fulfilled. (Para 21)

       In the background, the expression ‘availed of’ does not mean mere filing of the application for bail expressing thereunder willingness to furnish bail bond, but the stage for actual furnishing of bail bond must reach. If challan is filed before that, then there is no question of enforcing the right, howsoever valuable or indefeasible it may be, after filing of the challan because thereafter the right under default clause cannot be exercised. In case the court concerned has adopted any dilatory tactics or an attitude to defeat the right of the accused to be released on bail on the ground of default, the accused should immediately move the superior court for appropriate direction. But if the delay is bona fide and unintentional and in the meantime challan is filed then in view of the aforesaid judgments of this Court, such a petition has to be dismissed and it cannot be said that the accused has already availed of the right accruing under proviso to Section 167 of the Code. It need not be repeated that the right accruing under proviso to Section 167(2) of the Code on the expiry of the statutory period of sixty days cannot be said to have been availed of by mere making of an application for bail expressing therein willingness to furnish bail, but on furnishing bail bond as required under clause (a)(ii) of proviso read with Explanation I to Section 167(2) of the Code. If because of any bona fide view or procedure adopted by the court concerned some delay is caused and in the meantime challan is filed, the Court has no power to direct release under proviso to Section 167(2) of the Code. The present case, where the prosecution was for an offence under the MPID Act, being a case of first impression, the Court concerned was of bona fide opinion that the provisions of Section 167(2) of the Code were not applicable. That view of the Special Judge was reversed by the High Court, but before it could fully apply its mind, the challan was filed. In this background, I am clearly of the opinion that the right of the accused to be enlarged on bail under proviso to Section 167(2) of the Code cannot be said to have been ‘availed of’ in the present case. This being the position, I have no option but to hold that the High Court has not committed any error in passing the impugned order so as to be interfered with by this Court. (Paras 31 to 34)

       Held finally : In accordance with the majority view, the appeal stands allowed. (Para 36)