Arvind Ramesh Bagul v. The State Of Maharashtra

Dond

IN THE HIGH COURT OF JUDICATURE AT BOMBAY

CRIMINAL APPELLATE JURISDICTION BAIL APPLICATION NO. 1849 OF 2017 Arvind Ramesh Bagul ... Applicant V/s.

The State of Maharashtra ... Respondent ----- Mr. Santosh Deshpande for Applicant.

Mr. S.H. Yadav, APP for the Respondent/State. ---- CORAM : A.S.GADKARI, J.

DATE : 6th DECEMBER 2017 P.C.:

1] This is an application under Section 167(2) of Cr. P.C. for indefault bail.

2] The facts giving rise to filing of the present application can briefly be stated as under:- F.I.R bearing No.I-6 of 2017 with Khandeshwar Police Station, Navi Mumbai is lodged on 8th January 2017 under Sections 394, 341, 342, 412, 120(B) r/w 34 of the Indian Penal Code. Applicant (accused No.3) came to be arrested on 28.3.2017 in the said crime. The applicant was produced before the Court of Judicial Magistrate First Class, Vashi on 1/8

29.3.2017 for the first time for remand . During the course of investigation of the present crime, it was revealed that the said crime is committed by an Organized Crime Syndicate and therefore the provisions of the Maharashtra Control of Organised Crime Act ( for short "MCOC Act") are applied to the present crime on 26.4.2017 after getting prior approval from the Competent Authority in that behalf. It is contended by the prosecution that, the applicant was again rearrested under the provisions of MCOC Act on 24.5.2017 and was produced before the Special Court (Under MCOC Act) on 25.5.2017. The period of 90 days to file chargesheet expired on 26.6.2017. The Investigating Agency filed an application for extension of time to file chargesheet under the MCOC Act for the first time on 1.7.2017 and the same was kept on 4.7.

2017 for the reply of the applicant (accused). The learned Judge of the Special Court allowed the said application of the Investigating Agency and rejected the application of the applicant for bail by its Order dated 5th July 2017. In the premise the present application under Section 167(2) of the Cr.P.C. is filed for in-default bail. 3] The record clearly indicates that the applicant is arrested on 28.3.2017 in the aforestated crime and was first produced before the learned Magistrate on 29.3.2017.

90 days for filing of chargesheet/final report would therefore be reckoned from the date of the first production of the applicant before the Court of competent jurisdiction i.e. from 29.3.2017 and the application under the provisions of MCOC Act and computation of period thereafter will have no relevance while counting the period of 90 days under Section 167(2) of Cr. P.C.

4] A useful reference at this stage can be made to a decision of the Supreme Court in the case of State of Maharashtra Vs. Mrs. Bharati Chandmal Varma @ Ayesha Khan reported in 2002 ALL MR (Cri) 1215 (S.C.). Para No.11 of the said decision reads as under: 11 For the application of the proviso to Section 167(2) of the Code there is no necessity to consider when the investigation could legally have commenced. That proviso is intended only for keeping an arrested person under detention for the purpose of investigation and the legislature has provided a maximum period for such detention. On the expiry of the said period the further custody becomes unauthorised and hence it is mandated that the arrested person shall be released on bail if he is prepared to and does furnish bail. It may be a different position 3/8

if the same accused was found to have involved in some other offence disconnected from the offence for which he was arrested. In such an eventuality the officer investigating such second offence can exercise the power of arresting him in connection with the second case. But if the investigation into the offence for which he was arrested initially had revealed other ramifications associated therewith, any further investigation would continue to relate to the same arrest and hence the period envisaged in the proviso to Section 167(2) would remain unextentable".

Thus it is clear that, the Supreme Court has held that, it cannot be said that a new period of 90 days would commence from the date when approval was accorded under Section 23 of the MCOC Act for initiating investigation for any offence under the said Act. It is further held that, for the application of the proviso to Section 167(2), there is no necessity to consider when the investigation could legally have commenced. That proviso is intended only for keeping an arrested person under detention for the purpose of investigation and the legislature has provided a maximum period for such detention. That on the expiry of the said period the further 4/8

custody becomes unauthorised and hence it is mandated that the arrested person shall be released on bail if he is prepared to and does furnish bail. The Supreme Court has further held that, if the investigation into the offence for which he was arrested initially had revealed other ramifications associated therewith, any further investigation would continue to relate to the same arrest and hence the period envisaged in the proviso to Section 167(2) would remain unextendable.

In view of the above, it is clear that, on 26.6.2017 an indefeasible right for release on bail had accrued in favour of the applicant and the Trial Court after giving proper intimation to the applicant in that behalf ought to have released him on bail.

5] This leads me to consider another aspect of the present crime. The Supreme Court in the case of Hussainara Khatoon & Ors. Vs. Home Secretary, State of Bihar reported in (1980) 1 SCC 108 and particularly in para-3 has held as under:

"3 We find that ......................................................................... We are also very doubtful whether on the expiry of 90 days or 60 days, as the case may be, from the date of arrest, the attention of the undertrial prisoners was drawn to the fact that 5/8

they were entitled to be released on bail under proviso (a) of sub-section (2) of Section 167. When an undertrial prisoner is produced before a Magistrate and he has been in detention for 90 days or 60 days, as the case may be, the Magistrate must, before making an order of further remand to judicial custody, point out to the undertrial prisoner that he is entitled to be released on bail.

The State Government must also provide at its own cost a lawyer to the undertrial prisoner with a view to enabling him to apply for bail in exercise of his right under proviso (a) to sub-section (2) of Section 167 and the Magistrate must take care to see that the right of the undertrial prisoner to the assistance of a lawyer provided at State cost is secured to him and he must deal with the application for bail in accordance with the guidelines laid down by us in our Order dated February 12, 1979. We hope and trust that every Magistrate in the country and every State Government will act in accordance with this mandate of the Court.

out, there will be considerable improvement in the situation in regard to undertrial prisoners and there will be proper observance of the rule of law".

6] It is thus clear that, it was for the Magistrate to apprise the applicant about the indefeasible right accrued in favour of the applicant and it was also incumbent on the part of the Investigating Agency to produce the applicant before Magistrate after expiry of 90 days for exercising the said indefeasible right which had accrued in favour of the applicant/accused on that particular date. As has been held by the Supreme Court in the case of Hussainara Khatoon & Ors.(supra), it is the obligation of the State Government and the Magistrate to follow the dictum laid down by the Supreme Court in its strict sense. The Investigating Agency cannot be permitted to raise a specious plea that on the 90th day, there was no date of remand and accused was already remanded for further period under Section 309 of Cr. P.C by the Court.

7] The Supreme Court in catena of judgments has held that, it is the indefeasible right of an accused person which accrues in favour of an accused on the date of happening of a particular event i.e. non filing of chargesheet on or before 60 days or 90 days as the case may be, as per the 7/8

mandate under Section 167(2) of Cr. P.C. In the present case, as noted earlier, on 90th day the Investigating Agency failed to file chargesheet and/or to get an extension from the Court of competent jurisdiction for filing it on that particular date i.e. on 26.6.2017 and therefore an indefeasible right had accrued in favour of the applicant on that date. In view of the above, the applicant deserves to be released on bail.

Hence, the following Order:

(i) The applicant be released on bail in CR No.I-6 of 2017 registered with Khandeshwar Police Station, Navi Mumbai on his furnishing PR bond of Rs.25,000/- with one or two solvent local sureties in the like amount.

(ii) After his release from jail, the applicant shall attend the Investigating Officer on every 1st Monday of the month between 10.00 a.m to 1.00 p.m.

(iii) Applicant shall not tamper with the evidence and/or influence the prosecution witnesses.

8] Application is allowed in the aforesaid terms. (A.S.GADKARI, J.) 8/8