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2014 Supreme(Bom) 2459
IN THE HIGH COURT OF BOMBAY
M. L. Tahaliyani, J.
SALMAN @ BABA s/o HARUN KHAN – Petitioners
Vs.
STATE OF MAHARASHTRA – Respondents
Cri. W. P. No. 139 of 2014
Decided On : 25-02-2014
Advocate Appeared:
For the Petitioner: R. M. Daga
For the Respondent: Nitin Rao
The right of an accused to be released on bail accrues if the charge-sheet is not filed within the specified period, and the accused is entitled to be released on bail if prepared to furnish the bail as directed by the Magistrate.
Headnote:
Indian Penal Code - Bail - Section 167 (2) of Criminal Procedure Code - 489-B, 489-C, 34 IPC
Fact of the Case:
The petitioners were accused of offences under sections 489-B and 489-C read with Section 34 of the Indian Penal Code. The charge-sheet was not filed within 90 days of their arrest, leading to their release on bail. The court was petitioned for acceptance of surety after the charge-sheet was filed.
Finding of the Court:
The court found that the filing of charge-sheet after the grant of bail and before the processing of surety application does not defeat the right accrued to the petitioners. The order rejecting the surety application was set aside, and the Magistrate was directed to entertain the surety application filed by the petitioners.
Issues: The main issue was whether the filing of charge-sheet after the grant of bail affected the right of the accused to offer surety.
Ratio Decidendi: The court relied on the legal position summarized in the case of Uday Mohanlal Acharya vs. State of Maharashtra, emphasizing that the accused's right to be released on bail accrues if the charge-sheet is not filed within the specified period, and the accused is entitled to be released on bail if prepared to furnish the bail as directed by the Magistrate.
Final Decision: The impugned order rejecting the application for acceptance of surety was set aside, and the Magistrate was directed to entertain the surety application filed by the petitioners.
Heard.
2. ADMIT. Heard finally by consent of the parties.
3. The petitioners are accused for the offences punishable under sections 489-B and 489-C read with Section 34 of the Indian Penal Code in First Information Report No. 218 of 2013. The maximum punishment provided for 489-B of the Indian Penal Code is Life Imprisonment. As such, the respondents were under obligation to file charge-sheet within a period of 90 days from the date of arrest of the petitioners to prevent possibility of petitioners getting bail under section 167 (2) of the Code of Criminal Procedure. Admittedly, charge-sheet was not filed within a period of 90 days. Bail was, therefore, granted to them by order dated 27th November, 2013, which runs as under :
"1. Accused Nos. 1 and 2 are hereby released on their P.R. Bonds of Rs. 25,000/- each with solvent surety of like amount each vide section 167 (2) of Criminal Procedure Code.
2. Issue show cause notice to I.O. of Crime No. 218/2013 of PS Kalmana as to why he has not filed charge-sheet against accused within statutory limit provided under Sec. 167 (2) of Criminal Procedure Code as accused are in Jail since arrest."
4. Charge-sheet was filed on next day i.e. on 28-11-2013. The petitioners moved an application for acceptance of surety pursuant to the order passed by the learned Magistrate on 27th November, 2013. The learned Magistrate, after hearing the learned counsel for the petitioners and the learned Additional Public Prosecutor, took a following view :
"... The present application has been filed on 30-11-2013. The learned counsel for the accused has placed his reliance on verdict of Hon'ble High Court reported in 2012 ALL M.R. (Cri.) 1204 Umaji Shende vs. State. I have gone through the said verdict. Hon'ble High Court has held that the filing of charge-sheet does not affect the indefeasible right to release on bail. However, the Hon'ble High Court, Bombay (Full Bench) in its verdict reported in 2001 (4) Mh.L.J. 582 Rehmankha Kukha vs. State of Maharashtra has held that surety surety of accused cannot be accepted after filing of charge-sheet inconsonance with order passed under Sec. 167 (2) of Criminal Procedure Code. Hon'ble High Court Full Bench has also considered the verdict of Hon'ble Supreme Court reported in 2000 (4) Mh.L.J. 742 = 2001 SCC (Cri.) 760 Uday Mohanlal Acharya vs. State of Maharashtra."
5. In my considered opinion, the learned Magistrate has misdirected himself and has misconstrued the judgment of this Court, reported at 2001 (4) Mh.L.J. 582 in the matter of Rehmankha Kalukha vs. State of Mah. This Court has followed the judgment of the Hon'ble Supreme Court in the matter of Uday Mohanlal Acharya, 2000 (4) Mh.L.J. 742. A portion of the judgment of this Court can be reproduced as under :
"8.By referring to catena of authorities on the point, Supreme Court has summarised the legal position in the case of Uday Mohanlal Acharya vs. State of Maharashtra reported in 2000 (4) Mh.L.J. 742= AIR 2001 SC 1910 as under :
"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 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 indefea
