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IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD
S.G. MEHARE, J.
Irfan Moiuddeen Saiyyed And Others – Appellant
Versus
The State Of Maharashtra – Respondent
Bail Application No.712 of 2023 With Appln/1663/2023 In BA/712/2023
Decided on : 03-05-2023
DEFAULT BAIL - Criminal Procedure - Section 167(2)(a)(ii) of the Code of Criminal Procedure - Indian Penal Code, Sections 420, 120-B, 504, 506, 406, 409 read with Section 34 - Maharashtra Protection of Interest of Depositors Act 2002 - The court discussed the application for default bail under Section 167(2)(a)(ii) of the Code of Criminal Procedure and the offenses under various sections of the Indian Penal Code and Maharashtra Protection of Interest of Depositors Act 2002. The court analyzed the legal provisions related to default bail, the extension of remand, and the requirements for filing a charge sheet within the prescribed period.
Fact of the Case:
The applicants sought default bail under Section 167(2)(a)(ii) of the Code of Criminal Procedure for offenses under various sections of the Indian Penal Code and Maharashtra Protection of Interest of Depositors Act 2002. They were arrested and remanded to judicial custody. The police added Sections 406 and 409 of the Indian Penal Code to the charges and sought an extension of time to file the charge sheet. The applicants argued that their detention after 60 days was illegal and they deserved default bail.
Finding of the Court:
The court found that the extension of remand beyond the prescribed period was not justified as the investigating officer failed to produce new material against the accused and did not follow the proper procedure for extending remand. The court held that the applicants deserved default bail as the charge sheet was not filed within sixty days as prescribed under Section 167 of the Cr. P.C.
Issues: The issues involved the legality of the extension of remand, the application for default bail, and the sufficiency of the material to support the added charges.
Ratio Decidendi: The court emphasized that the extension of remand and the application for default bail should be based on the material and evidence presented before the court. It highlighted the requirement for a speaking order and proper justification for extending remand beyond the prescribed period. The court also emphasized the right of the accused to default bail if the charge sheet is not filed within the specified time.
Final Decision: The court allowed the application for default bail and ordered the release of the accused on bail under Section 167(2)(a)(ii) of the Cr. P.C. for the specified offenses.
The legal document discusses the issue of default bail under Section 167(2)(a)(ii) of the Criminal Procedure Code (Cr.P.C.) in the context of a case where the charge sheet was not filed within the prescribed period of 60 days. The core legal principles established are as follows:
Right to Default Bail: When the investigation is not completed and the charge sheet is not filed within 60 days from the date of arrest, the accused has an indefeasible right to be released on bail under Section 167(2)(a)(ii) of the Cr.P.C. (!) .
Conditions for Extension of Remand: The extension of remand beyond the statutory period must be based on proper material and evidence produced before the court. A mere letter or communication requesting extension, without a speaking order or proper justification, is insufficient. The court must examine whether the material collected supports the addition of new charges or sections and whether the investigation justifies an extension (!) (!) .
Procedure for Adding New Sections: When new sections, especially serious ones, are invoked during the investigation, the police must produce fresh remand papers and inform the accused of the new allegations so they can oppose further detention. The court must scrutinize whether the addition of new sections is supported by prima facie evidence and whether the investigation has produced material to justify these charges (!) (!) .
Requirement of a Speaking Order: Any extension of remand beyond the initial period must be accompanied by a speaking order that clearly states the reasons and material justifying the extension. This ensures transparency and adherence to procedural fairness (!) .
Illegal Extension of Remand: If the police fail to produce remand papers or do not pass a speaking order when seeking extension, and if the charge sheet is not filed within the statutory period, the detention of the accused beyond 60 days is illegal, entitling the accused to default bail (!) (!) .
Application of Law to the Facts: In the case discussed, the police did not produce remand papers when adding new sections, and no proper order was passed supporting an extension of remand beyond the statutory limit. Consequently, the court held that the accused were entitled to default bail as their detention beyond 60 days was unlawful (!) (!) .
Order and Conditions of Bail: The court ordered the release of the accused on bail, specifying conditions such as attending police stations when called, submitting passports, and providing address proofs, to ensure their cooperation during the investigation (!) (!) (!) (!) .
In summary, the legal principles emphasize that the extension of remand and the application for default bail must be supported by proper procedural steps, material evidence, and a clear, justified order from the court. Failure to adhere to these requirements renders the detention illegal and entitles the accused to immediate release on bail.
ORDER :
1. The applicants are seeking default bail under Section 167(2) (a)(ii) of the Code of Criminal Procedure. The learned Additional Sessions Judge-5, Jalna (Designated Court for M.P.I.D cases), recording its reasons, declined bail to the applicant under Section 167(2)(a)(ii) of the Code of Criminal Procedure by its order dated 12.04.2023.
2. Heard the learned Senior counsel Mr. Dhorde for the applicant and the learned A.P.P for the respondent/State.
3. Though the learned counsel Mr. A.B. Ghule, filed an application to assist the public prosecutor and intervene. However, he did not appear.
4. The brief facts necessary for appreciating the prayers in the application is:-
Crime No. 28/2023 registered with Taluka Jalna Police Station, Dist. Jalna for the offences under Sections 420, 120-B, 504, 506, 406, 409 read with Section 34 of the Indian Penal Code and Sections 3, 4 and 5 of Maharashtra Protection of Interest of Depositors Act 2002. The complainant alleged in the report that one Mr. Kiran Kharat and Dipti Kharat induced him to invest the money in Global Digital Crypto Currency for attractive returns. They represented the complainant that the Global Digital Crypto Currency was under their management and control, which was likely to introduce in December 2022 and allured him to invest the amount in it with a promise of hefty returns. The complainant invested a huge amount, but the crypto currency's price was far lower than expected, as assured by the said Kharat family.
5. The applicants were also arraigned as accused. The Police arrested the accused on 03.02.2023 and produced them before the Court. They were remanded to police custody till 17th February 2023. Since then, they have been in judicial custody. Their bail applications were rejected on 4.4.2023, and their remand was extended regularly after every 15 days. However, when a few days remained to complete 60 days to file the charge sheet, the Police, on 27th March 2023, wrote a letter addressed to the learned Sessions Court, informing that Sections 406 and 409 of the Indian Penal Code have been added in the crime. The learned Judge passed an order thereon as "seen". Thereafter, on 31st March 2023, the investigating officer submitted a letter addressed to the learned Additional Sessions Judge, seeking time to extend further 30 days to submit the investigation completing report under Section 173 of the Cr.P.C. (charge sheet). The learned Additional Sessions Judge, Jalna, passed an order thereon "seen and filed at 5.40 p.m. Considering Sections applied, Investigating Officer, do needful as per laws".
6. It has been vehemently argued on behalf of the applicants that without submitting any remand papers, barely a letter was submitted to the learned Additional Sessions Judge, Jalna, regarding adding Sections 406 and 409 of the Indian Penal Code against the applicants without their knowledge. Before adding the sections, no judicial remand was extended, and no fresh statements of the witnesses or material were produced, showing prima facie the ingredients of Sections 406 and 409 of the Indian Penal Code. Merely adding sections in such a way would not sustain or authorize the police officer to claim that time to file the investigation completion report is extended from 60 days to 90 days. The learned Additional Sessions Judge, Jalna, did not pass a speaking order on the said letter. As per the charges levelled against the applicants in the First Information Report, the charge sheet was to be submitted to the Court within 60 days. However, there was no prayer or request to extend the remand after the statutory period of 60 days. Therefore, detention of the applicants after 60 days is illegal, and they deserve bail as they had applied for default bail on 05.04.2023. To bolster the arguments, the Senior learned counsel Mr Dhorde relied on the cases of:-
(ii) Rajkumar Bhagchand Jain Vs. Union of India an
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(1) Default bail – Period of 90 days is stated to be counted when investigation for fresh offence(s) is started and not from date of lodging of FIR.(2) Default bail – Right to seek default/statutory ....
The right to default bail under Section 167(2) of the Cr.P.C. is absolute and arises when the charge-sheet is not filed within the stipulated time, and this right is not extinguished by the subsequen....
Default bail – While considering application by Investigating Agency for extension of time for completing investigation beyond period prescribed under Section 167(2) of Cr.P.C. accused is to be given....
(1) Default bail – Once period of detention expired, sans charge-sheet having been lodged and accused manifested intent to avail right by making application, no subterfuge to defeat indefeasible righ....
The right to default bail under Section 167(2) Cr.P.C. is extinguished once a charge-sheet is filed; extensions beyond 90 days must follow proper procedures and be conducted by appropriate judicial a....
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