ABDUL WAHID Vs. STATE OF MAHARASHTRA

JUDGEMENT

(1.) THE learned Single Judge has referred for decision by a Division Bench, the question whether the right accrued to the accused for being enlarged on bail under proviso (a) to S. 167(2) of the Code of Criminal Procedure, is such an absolute right that it cannot be divested or obliterated by filing a charge -sheet.

(2.) ABDUL Wahid the applicant was arrested on 8 -8 -1989 at Morshi in respect of an incident which occurred on 25 -4 -1989 in which a person was killed. The charge -sheet was filed on the 92nd day from the date of arrest that being also the date on which an application for bail was made to the Sessions Court. The Sessions Court refused bail on 31 -1 -1991 despite the contention of the applicant that he was entitled to be released on bail under proviso (a) to S. 167(2) of the Code of Criminal Procedure, in view of the decision of a Division Bench of this Court in Shrwan Hanaji Undirwade v. State of Maharashtra :, 1976 M LJ 654. The applicant then preferred the present application under S. 439 read with S. 167 of the Criminal Procedure Code for bail. When the matter came up before the learned Single Judge (H. D. Patel, J.) he found that there was conflict of decisions of Single Judges of this Court. In Baburao Rajaram Wakhle v. State of Maharashtra, 1989 M LJ 1027, A. A. Desai, J. took the view that the application seeking relief under the proviso to sub -s. (2) of S. 167 cannot be entertained and relief thereunder cannot be granted merely because the charge -sheet came to be filed during the pendency of the application seeking relief under the proviso to sub -s. (2) of S. 167. In his view after the filing of the charge -sheet the question of granting bail can only be dealt with under S. 437 of the Criminal Procedure Code, because completion of investigation divests the authority of the Magistrate to release the accused on bail under the provisions of S. 167(2), proviso (a). On the other hand Moharir, J. in Criminal Appln. No. 619 of 1990 Malkit Singh v. State of Maharashtra; decided on September 24, 1990 felt that the decision in Shrawan v. State, 1976 Mah LJ 654 cannot be held to be good law in view of the decision of the Supreme Court in Raghubir Singh v. : 1987CriLJ157 and Rajnikant v. : 1990CriLJ62 . H. D. Patel J. after elaborately discussing the conflicting views felt that a doubt has been created by the view taken by Moharir J. in Malkit Singh's case and the matter should, therefore, be decided by a Division Bench and that is how the matter has come before us.

(3.) IN Hussainara Khatoon v. : 1979CriLJ1052 it was observed that when an undertrial prisoner is produced before a Magistrate and he has been in detention of 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 enable him to apply for bail in exercise of his right under proviso (a) to sub -section (2) of S. 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 costs is secured to him. In Lakshmi Brahman's case, : 1983CriLJ839 the admitted position was that the respondents did not apply to the Magistrate for being released on bail on the expiry of 60 days from the date of arrest and so their continued detention would not be illegal or without authority of law. In Raghubir Singh v. : 1987CriLJ157 after considering the effect of proviso (a) to S. 167(2) of the Code, it was stated : 1987CriLJ157