Rule. Rule made returnable forthwith. By consent of parties, heard for final disposal.

2. The present proceeding is filed to challenge the order made by JMFC, Beed in Cr.No.35/12 on application made for granting bail on the ground of default. The order made by Sessions Judge, Beed in Criminal Revision Application No.48/13 which was filed to challenge the order made by JMFC is also under challenge.

3. One Rahul Arjun Dubale applied for permission to intervene the matter. Criminal Application Stamp No.2419/13 to intervene is allowed. His Advocate Shri S.S. Jadhavar was allowed to assist learned A.P.P.

4. Crime at Cr.No.35/12 was registered in Beed Rural police station for offences punishable u/s 302, 332, 353, 363, 149, 324 etc. of IPC, against the petitioner and four other persons. The petitioner came to be arrested in this crime on 29/1/13. The petitioner applied for bail on the ground of default on 1/4/13 as till that date, charge sheet was not filed by police. After hearing both sides, the JMFC rejected the application on 2/4/13. The JMFC held that the crime was registered for offence u/s 302 of IPC and so, there was time of 90 days with the police to file charge sheet. The Sessions Court has made similar observations for dismissing the revision application.

5. Present petition came to be filed on 24/4/13. It was submitted that on 25/4/13, police filed charge sheet against the petitioner and others for offences punishable u/s 363, 149, 324 etc. of IPC. It was submitted that the charge sheet is not filed for offence punishable u/s 302 of IPC. The submissions made show that the medical evidence is not in favour of the case of murder as the cause of death is different.

6. The learned counsel for petitioner took this Court to various documents which include copy of affidavit filed by investigating officer in High Court on 10/12/12. Even submission was made for investigating agency that case for offence punishable u/s 302 of IPC is not made out and soit is deleted from the crime. It appears that the written submission was also made before JMFC in this regard by concerned police station prior to that date. Now, the charge sheet shows that it is not filed for offence punishable u/s 302 of IPC. Thus, on 10/12/12, as per the affidavit of the investigating 'officer, the investigation was being made for main offence punishable u/s 363 of IPC which is triable by Court of Magistrate and it is punishable with imprisonment of 7 years.

7. It was submitted for the State that as the crime was registered for offence u/s 302 of IPC, there was time of 90 days with police to file charge sheet and the affidavit filed by investigating officer cannot be considered in this regard. This Court holds that this submission is not at all acceptable. Before filing of the affidavit, investigating agency was certain that it was not the case of murder though initially crime was registered u/s 302 of IPC. Thus, it can be said that on 29/1/13, if the petitioner was arrested in aforesaid crime, his arrest was for offence u/s 363 of IPC. As the charge sheet is also filed for offence u/s 363 of IPC and not for u/s 302 of IPC, it cannot be said that the charge sheet could have been filed within 90 days from the date of the first remand order made against the petitioner. The orders made by JMFC and Sessions Court show that it was not brought to the notice of these 2 Courts that police had no intention to file charge sheet for offence punishable u/s 302 of IPC. It appears that only because crime was registered for offence punishable u/s 302 of IPC also, two Courts held that the time of 90 days was available u/s 167 of Cr.P.C.

8. The aforesaid facts and circumstances show that both the Courts have committed error in holding that there was time of 90 days with police to file charge sheet. The learned counsel for petitioner placed reliance on 2 cases reported as [1] (2001) 5 Supreme Court Cases 453; [2001 ALLMR (Cri) 713 (S.C.)] [Uday Mohanlal Acharya V/s State of Mahar