BIJU VARGHESE Vs. STATE OF MAHARASHTRA

JUDGEMENT

(1.) AN issue of considerable interest and irnportance has been canvassed in this proceeding which I arn surnrnarizing below: In a case where the accused is arrested on a charge of having cornrnitted a non-bailable offence and a charge-sheet is filed within the period prescribed under the Code of Criminal Procedure, 1973, but it is pointed out that apart frorn such physical cornpliance that the learned Magistrate has not taken any cognizance of the proceedings and had rnerely adjourned the sarne thereafter, (a) whether the accused would be entitled to bail on this ground, and (b) whether it is essential that cognizance in the legal sense of the term is required to be taken within the period of 90 days and, if this is not done, whether a right accrues in favour of the accused that he be released on bail.

(2.) THE three accused before rne, along with certain others, are facing a charge under section 302 of the Indian Penal Code. They had applied for bail earlier to the Court of Session and the learned Additional Sessions Judge rejected the application on 12. 8. 1992 on the ground that sufficient rnaterial existed to connect these accused with the offence. Thereafter, they filed Crirninal Application No. 2883 of 1992 in this Court and rny brother Dudhat, J. by an order dated 20. 10. 1992 observed that the accused are not entitled to bail on merits. Within less than a month on 26. 11. 1992, the present application has filed and the contention adopted is that the grounds pleaded in this application had not been urged before the learned single Judge earlier.

(3.) SHRI Ponda, learned Counsel appearing on behalf of the applicants, submitted that in a number of similar proceedings, various single Judges of this Court have observed that mere mechanical filing of the charge-sheet in the Court with in the period prescribed by the Code of Criminal Procedure is not sufficient because it must also be demonstrated that the Court has taken cognizance and, if the latter is not so, that the accused in entitled to bail. Admittedly, in the present case, the charge-sheet was filed on the 87th day, that is to say, within the prescribed timelimit. Shri Ponda has relied on a certified copy of the rozanama of the proceedings before the learned Metropolitan Magistrate, 22nd Court, Andheri, being Case No. 1428/p of 1992, and he has pointed out to me that even though copies of the charge-sheet were furnished to the accused that the only order passed is: Adjourned to 9. 9. 1992. There are similar orders adjourning proceedings on that date as also on 22. 9. 1992, 6. 10. 1992, 19. 10. 1992, 2. 11. 1992, 16. 11. 1992.