JUDGMENT - DESHPANDE M.S., J.:---The learned Single Judge has referred for decision by a Division Bench, the question whether the right accrued to the accused for being enlarged on bail under proviso (a) to section 167(2) of the Code of Criminal Procedure, is such an absolute right that it cannot be divested or obliterated by filing a charge-sheet.

2. Abdul Wahid the applicant was arrested on 8-8-1989 at Morshi in respect of an incident which occurred on 25-4-1989 in which a person was killed. The charge-sheet was filed on the 92nd day from the date of arrest that being also the date on which an application for bail was made to the Sessions Court. The Sessions Court refused bail on 31-1-1991 despite the contention of the applicant that he was entitled to be released on bail under proviso (a) to section 167(2) of the Code of Criminal Procedure, in view of the decision of a Division Bench of this Court in (Shrawan Hanaji Undirwade v. State of Maharashtra)1, 1976 Mh.L.J. 654. The applicant then preferred the present application under section 439 read with section 167 of the Criminal Procedure Code for bail. When the matter came up before the learned Single Judge (H.D. Patel, J.) he found that there was conflict of decisions of Single Judges of this Court. In (Baburao Rajaram Wakhle v. State of Maharashtra)2, 1988(4) Bom.C.R. 558, A.A. Desai, J. took the view that the application seeking relief under the proviso to sub-section (2) of section 167 cannot be entertained and relief thereunder cannot be granted merely because the charge-sheet came to be filed during the pendency of the application seeking relief under the proviso to sub-section (2) of section 167. In his view after the filing of the charge-sheet the question of granting bail can only be dealt with under section 437 of the Criminal Procedure Code, because completion of investigation divests the authority of the Magistrate to release the accused on bail under the provisions of section 167(2), proviso (a). On the other hand Moharir, J. in Criminal Application No. 619 of 1990, (Malkit Singh v. State of Maharashtra)3, decided on September 24, 1990 felt that the decision in Shrawan v. State, 1976 Mh.L.J. 654, cannot be held to be good law in view of the decision of the Supreme Court in (Raghubir Singh v. State of Bihar)4, A.I.R. 1987 S.C. 149 and (Rajnikant v. Intelligence Officer, Narcotic Control Bureau, New Delhi)5, A.I.R. 1990 S.C. 71. H.D. Patel, J. after elaborately discussing the conflicting views felt that a doubt has been created by the view taken by Moharir, J., in Malkit Singh's case and the matter should therefore, be decided by a Division Bench and that is how the matter has come before us.

3. Before we consider the authorities on the subject, it would be expedient to notice the relevant provisions of the Code of Criminal Procedure. Section 167 so far as is relevant, reads as follows:--

"167(1) Whenever any person is arrested and detained in custody, and it appears that the investigation cannot be completed within the period of twenty-four hours fixed by section 57, and there are grounds for believing that the accusation or information is well founded, the officer in charge of the Police Station or the Police Officer making the investigation, if he is not below the rank of sub-inspector shall forthwith transmit to the nearest Judicial Magistrate a copy of the entries in the diary hereinafter prescribed relating to the case, and shall at the same time forward the accused to such Magistrate.

(2) The Magistrate to whom an accused person is forwarded under this section may, whether he has or has not jurisdiction to try the case, from time to time authorise the detention of the accused in such custody as such Magistrate thinks fit, for a term not exceeding fifteen days in the whole; and if he has no jurisdiction to try the case or commit it for trial, and considers further detention unnecessary, he may order the accused to be forwarded to a Magistrate having such jurisd

Click Here to Read the rest of this document