KARSHANBHAI KAMABHAI HARIJAN Vs. STATE OF GUJARAT

JUDGEMENT

(1.) SHORT but interesting question of law posed for consideration of this court is that in a case where charge-sheet is not submitted within 90 days / 60 days as the case may be and application for default bail is submitted under Section 167 (2) of the Code of Criminal Procedure ('cr. P. C. ' for short) before the learned Magistrate having no jurisdiction to try the case or commit for trial and application has been submitted before another Court and during the pendency of such application, before another Court when another application is submitted by the accused under Section 167 (2) of the Code of Criminal Procedure for default bail before the learned Magistrate having jurisdiction to try the case or commit it for trial and before application for default bail is preferred before the learned magistrate having jurisdiction to try the case or to commit the case, charge-sheet is filed by the police, whether in that case accused is required to be released on default bail ?

(2.) FACTS leading to the present Special criminal Application and chronological events which are necessary for the purpose of determination of Special Criminal Application are as under : a criminal complaint/fir has been lodged against petitioner - original accused on 12. 02. 2008 with Mavsari Police Station being CR No. 1-4 of 2008 for the offences punishable under Section 376 of Indian Penal code. That the petitioner - accused came to be arrested by the Mavsari Police Station on 13. 02. 2008. The petitioner preferred Criminal Misc. Application No. 240 of 2008 under section 439 read with Section 167 (2) of the code of Criminal Procedure before the learned Additional Sessions Judge, Deesa on 13. 05. 2008 for releasing him on bail on merits as well as on default bail by submitting that the charge-sheet has not been filed within 90 days from the date of his arrest. It is the case on behalf of the petitioner that the learned Additional Sessions Judge advised the petitioner's Advocate that they may file application before the learned Magistrate under Section 167 (2) of the Cr. P. C. and therefore, the petitioner submitted application before the concerned Magistrate on 23. 05. 2008 under Section 167 (2) of the cr. P. C. for releasing him on default bail. That the petitioner withdrew Criminal misc. Application No. 240 of 2008 submitted by him before the learned Additional Sessions Judge, Deesa on 06. 06. 2008. Before that Investigating Officer submitted charge-sheet before the learned Magistrate, Vav on 13-5-2008. That thereafter, aforesaid Criminal Misc. Application submitted by the petitioner before the learned Magistrate, Vav being Cr. Misc. Application No. 19 of 2008 came to be heard, decided and disposed by the learned JMFC, Vav, who vide order dated 09. 06. 2008 dismissed the said application by submitting that before filing application by the petitioner before him under Section 167 (2) of the Cr. P. C, Investigating Officer has already filed charge-sheet on 13-5-2008. That being aggrieved and dissatisfied with the order passed by the learned JMFC, Vav dated 9-6-2008 in dismissing the said application and not releasing the petitioner on default bail under Section 167 (2) of the cr. P. C, the petitioner - accused preferred criminal Revision Application No. 34 of 2008 before the learned Additional Sessions judge, Banaskantha who vide his judgment and order dated 26. 06. 2008 dismissed the said Revision Application confirming the order passed by the learned JMFC, Vav. It is required to be noted at this stage and as stated above the petitioner accused submitted application before the learned JMFC, Vav under Section 167 (2) of the Cr. P. C. on 26. 05. 2008 and before that not only charge-sheet was submitted by the Investigating officer in the Court of learned JMFC, Vav on 13. 05. 2008 but even the learned JMFC, vav also committed the case to the learned sessions Court on 23. 05. 2008. Hence, the petitioner has preferred present Special criminal Application to quash and set aside aforesaid two orders passed by both the courts below and to release the petitioner on bail under Section 167 (2) of the Cr. P. C. on the ground that charge-sheet has not been submitted by the Investigating Officer within 90 days from the date of his arrest.

(3.) MR. Y. S. LAKHANI, learned Senior Advocate has appeared on behalf of the petitioner with Mr. Himanshu Padhya, learned Advocate. It is submitted that the petitioner came to be arrested on 12. 02. 2008 and was produced before the learned Magistrate on 13. 02. 2008, therefore. Investigating Officer was required to submit charge-sheet on or before 12. 05. 2008 and thereafter immediately on 13. 05. 2008 the petitioner submitted application before the learned Additional sessions Judge, Deesa for releasing him on default bail under Section 167 (2) of the Cr. P. C. and on the very day after the petitioner submitted application for default bail, Investigating Officer submitted charge-sheet before the learned JMFC, Vav on 13-5-2008. It is submitted that therefore, the petitioner exercised his right accrued in his favour by submitting application under Section 167 (2)of the Cr. P. C. by submitting application before the learned Additional Sessions Judge, deesa before submission of charge-sheet by the Investigating Officer. It is submitted that as observed by the Hon'ble Supreme court in the case of Uday Mohanlal Acharya v. State of Maharashtra reported in 2001 (2) GLR 1148 : 2001 Cri LJ 1832 on expiry of 90 days or 60 days as the case may be an indefeasible right accrues in favour of the accused for being released on bail on account of default by the investigating agency in the completion of the investigation within period prescribed and accused is entitled to be released on bail if he is prepared and furnish the bail as directed by the learned magistrate. It is further submitted relying upon aforesaid decision that as observed by the Hon'ble Supreme Court in the aforesaid decision that when an application for bail is filed by the accused for enforcement of his indefeasible right alleged to have been accrued in his favour on account of default on the part of the Investigating Agency in completion of the investigation within the specified period, the Magistrate / Court must dispose it of forthwith, on being satisfied that in fact the accused has been in custody for the period of 90 days or 60 days, as specified and no charge-sheet has been filed by the Investigating Agency. It is submitted that therefore, in the present case as the petitioner submitted application before the learned Additional Sessions Judge, Deesa under Section 167 (2) of the Cr. P. C. on 13. 05. 2008, before submission of the charge-sheet by the investigating officer it can be said that the petitioner accused has availed his indefeasible right and therefore, the petitioner is entitled to be released on default bail.