SUNIL VITTHAL WAGH Vs. STATE OF MAHARASHTRA

JUDGEMENT

(1.) The Hon'ble the Chief Justice has assigned the task of answering a referral order passed by a Single Judge of this Court (Coram: N.J. Jamadar, J), who, having noticed two conflicting decisions rendered by the learned Single Judges of this Court in case of Anil Somdatta Nagpal and Lalit Somdatta Nagpal Vs. The State of Maharashtra 2006 Cri. L.J. 1307 delivered by Hon'ble Mr. Justice Shri S.C. Dharmadhikari (as he then was) and Hon'ble Mr. Justice S. B. Shukre (as he then was) in the case of Pankaj Vs. The State of Maharashtra and others Criminal Writ Petition No.475 of 2016 invoked Rule-8 of Chapter-I of the Bombay High Court (Appellate side) Rules, 1960.

(2.) Justice S.C. Dharmadhikari was of the view that once a charge-sheet is filed under Sec. 173 (2) of the Code of Criminal Procedure (for short 'Code') and the cognizance of the offence thereof has been taken, subsequent arrest of the accused does not entitle him to avail the benefit of default bail as provided in sub-sec. (2) of Sec. 167 of the Code. He was of the view that a further report tendered under Sec. 173 (8) of the Code, post arrest and detention of the accused is, essentially, in the nature of further investigation and as such, investigation can be carried out even after forwarding a report under Sec. 173 (2) of the Code. Such further report under Sec. 173 (8) of the Code would not have any bearing on the so-called right of the accused under Sec. 167 (2) of the Code. The learned Judge concluded that once a charge-sheet has been filed, indefeasible right of default bail stands extinguished.

(3.) On the other hand, Justice S. B. Shukre has taken an altogether different view, albeit without referring to the judgment in the case of Anil Somdatta Nagpal (supra) holding therein that for ascertaining whether the right of default bail is accrued, the date on which charge-sheet is filed after completion of investigation against the accused becomes relevant. In case, further investigation commenced against the accused arrested after filing of the charge-sheet in which he is shown as absconding, completion of investigation shall be declared only by the act of filing of supplementary charge-sheet in view of Sec. 173 (8) of the Code against him. If a supplementary charge-sheet against such an accused is not tendered within the stipulated period as provided under Sec. 167 (2) of the Code, Mr. Shukre held that the accused would get an indefeasible right of default bail.