Nitin Khandelwal vs State of M. P. - 2021 Supreme(MP) 366

Judicial Analysis Court Copy Headnote Facts Arguments Court observation

2021 Supreme(MP) 366

IN THE HIGH COURT OF MADHYA PRADESH
Subodh Abhyankar, J.
Nitin Khandelwal & Another v. State of M. P.
Miscellaneous Criminal CasesNo. 15570 of 2021 and 16430 of 2020 (Indore) : against the order dated10.3.2021 passed by the
II Additional Sessions Judge, Indore in Criminal Revision No.4/2021; Decided on 23.4.2021

Advocates:
K.K. Manan with Prateek Maheshwari, and Abhijeet Dube
for respective petitioners; Pushyamitra Bhargava, Additional Advocate General with Hemant Sharma, Government Advocate for respondent/State.

Headnote:
(1) Criminal P.C. 1973 -- Ss. 173 and 167 (2) (a) (ii) -- Penal Code, 1860 -- S.467-- period for filing chargesheet -- offence punishable with life imprisonment and any lower sentence -- period would be ninety days -- where minimum sentence isless than 10 years but maximum sentence is not death or life imprisonment -- period would be 60 days. (2017) 15 SCC 67, (2006) 6 SCC 277, (2020) 10 SCC 616, (2001) 5 SCC 34, Criminal Appeal No. 319 of 2021 decided on 15.3.2021 (SC), 2012 (1) Crimes 123, 2020 (4) Crimes 470 (Del.) and 1997 Cr.L.J. 2974 referred to. 2019 SCC Online MP 4459 and 2019 SCC Online 22 distinguished. [Para 13]
(2) Criminal P.C. 1973 -- S. 167 (2)(a)(ii) -- default bail -- whether filing separate application necessary -- charge sheet filed 124 days after arrest -- dispute regarding default bail already pending before revisional Court when charge sheet filed -- final order passed thereafter -- even if no oral prayer was made regarding entitlement to benefit of S. 167 (2) of CrPC, it has to be presumed that applicants were already willing and ready to furnish default bail -- revisional Court was duty bound to pass order of default bail. 2021 (1) JLJ 62 and (2017) 15 SCC 67 referred to. [Para 20]
¼1½ naM çfØ;k lafgrk] 1973 & èkkjk 173 rFkk 167¼2½¼d½ ¼2½ & naM lafgrk] 1860 èkkjk 467 & vkj¨ii= Qkby djus d¢ fy, vofèk & vijkèk vkthou dkjkokl v©j vU; U;wurj naMkns'k ls naMuh; & vofèk uCcs fnu dh g¨xh & tgk¡ U;wure naMkns'k 10 o"kZ ls de gS ijarq vfèkdre naMkns'k e`R;q ;k vkthou dkjkokl ugha & vofèk 60 fnu dh g¨xhA ¼2017½ 15 ,l lh lh 67] ¼2006½ 6 ,l lh lh 277] ¼2020½ 10 ,l lh lh 616] ¼2001½ 5 ,l lh lh 34] nkafMd vihy Øekad 319 lu~ 2021 fu.kÊr fnukad 15-3-2021 ¼mPpre U;k;ky;½] 2012 ¼1½ ØkbEl 123] 2020 ¼4½ ØkbEl 470 ¼fnYyh½ rFkk 1997 lhvkj ,y ts 2974 fufnZ"VA 2019 ,l lh lh vkWuykbu ,e ih 4459 rFkk 2019 ,l lh lh vkWuykbu NÙkhlx<+ 22 çÒsfnrA ¼iSjk 13½
¼2½ naM çfØ;k lafgrk] 1973 & èkkjk 167¼2½¼d½ ¼2½ & O;frØe tekur & i`Fkd~ vkosnu Qkby djuk vko';d ;k ugha & fxjrkjh d¢ 124 fnu i'pkr~ vkj¨ii= Qkby & vkj¨ii= Qkby fd;k x;k rc iqujh{k.k U;k;ky; d¢ le{k O;frØe tekur d¢ lacaèk esa fookn igys ls yafcr & vafre vkns'k rRi'pkr~ ikfjr & naM çfØ;k lafgrk dh èkkjk 167¼2½ d¢ Qk;ns dh gdnkjh d¢ ckjs esa e©f[kd çkFkZuk ugha dh xÃ g¨ rc Òh mièkkj.kk dh tkuk g¨rh gS fd vkosndx.k O;frØe tekur is'k djus d¢ fy, igys ls jtkean v©j rS;kj Fks & iqujh{k.k U;k;ky; O;frØe tekur dk vkns'k ikfjr djus d¢ fy, drZO;kc) FkkA 2021 ts ,y ts 62 rFkk ¼2017½ 15 ,l lh lh 67 fufnZ"VA ¼iSjk 20½

ORDER

1. This order shall also govern the disposal of MCrC No.16430/2021, as both these petitions under section 482 of the Code of Criminal Procedure, 1973 have arisen out of an order dated 10.3.2021 passed by 2nd Additional Sessions Judge, Indore, District Indore (MP) in Criminal Revision No.04/2021.

2. The aforesaid criminal revision was filed by the respondent / State of Madhya Pradesh against the order dated 29.1.2021 passed by Judicial Magistrate First Class, Dr. Ambedkar Nagar, District Indore (MP) in Criminal Case No. 266/2020 whereby the learned Judicial Magistrate has granted the “default bail” to the petitioners under section 167 (2)(a)(ii) of the Cr.P.C. on the ground that the charge sheet has not been filed within the prescribed period of 60 days.

3. Dehors the unnecessary details, the brief facts of the case are that the petitioners were initially arrested on 2.11.2020 in connection with an offence under sections 420 and 120-B/34 of the Indian Penal Code, 1860 read with section 3/4 of the MP Public Gambling Act, 1976, but as the investigation ensued, it was found that the offence also involved sections 467, 468 and 471 of IPC and sections 66-C and 66-D of Information Technology Act, 2000. Thus, a formal memo of arrest was also prepared on 4.11.2020 wherein the aforesaid sections were also included. Petitioner Nikhil Halabhavi was arrested on 24.11.2020 and was remanded on 28.11.2020. However, as the charge sheet was not filed even after a period of sixty days from the date of arrest of the petitioners, seperate applications under section 167 (2) of the CrPC was preferred by them claiming “default bail” on the ground of non-filing of the charge sheet within sixty days’ time. The aforesaid application was decided by the learned Judicial Magistrate vide its order dated 29.1.2021 relying upon the decisions in the case of Nitin Nikhra v. State of MP reported as 2019 SCC Online MP 4459, Shalini Verma and another v. State of Chhatisgarh reported as 2019 SCC Online Chhatisgarh 22 and in the case of Rakesh Kumar Paul v. State of Assam reported as (2017)15 SCC 67, holding that as per the aforesaid decisions, the sections under which the petitioners have been implicated, a sentence up to ten years can also be imposed, as it is not neces6 sary under section 467 of IPC that a minimum sentence of ten years be imposed.

4. Being aggrieved of the aforesaid order dated 29.1.2021 , the State of M.P. preferred a criminal revision under S. 397 of the CrPC before the 2nd Additional Sessions Judge, Dr. Ambedkar Nagar District Indore (MP) whereby the learned Judge, vide its order dated 10.3.2021, has reversed the order passed by the JMFC on the ground that since u/s. 467 of IPC, sentence imposable is imprisonment for life, inter alia, hence the period to file the charge sheet has to be considered as 90 (ninety) days instead of 60 (sixty) days.

5. Shri Manan, learned Senior Counsel has made two fold arguments. It is submitted that the learned Judge of the Revisional Court has not considered the decision rendered by this Court in the case of Nitin Nikhra (supra) as also the decision in the case of Shalini Verma (supra), by the Chhatisgarh High Court, as in both these cases the offences involved section 467 of IPC, inter alia and wherein it is held that the accused persons are entitled to “default bail” after expiry of sixty days, if the charge sheet is not filed within the said period of sixty days from the date of arrest; and has relied upon a decision rendered by the Supreme Court in the case of Bhupinder Singh and others v. Jarnail Singh and another reported as (2006) 6 SCC 277 despite the fact that it has already been overruled by the Supreme Court in the case of Rakesh Kumar Paul (supra).

6. Alternatively, Shri Manan has also submitted that even assuming that in the present case the period of ninety days is applicable for filing the charge sheet, in that case also, the petitioners were initially arrested on 2.11.2020 and after inclusio