SAJID BASIR SHAIKH Vs. STATE OF MAHARASHTRA

JUDGEMENT

(1.) In this Application for Bail under Section 439 of the Code of Criminal procedure, 1973 (hereinafter referred to as 'the said Code') , the advocate appearing for the applicant has raised interesting questions.

(2.) F. I. R. has been registered against the applicant and other coaccused for the offences punishable under Sections 395, 397, 324, 34 of the Indian Penal Code read with Sections 3 and 25 of the Arms Act. It is not in dispute that a co-accused was enlarged on bail under the orders of the learned Metropolitan Magistrate. The said co-accused is dhananjay Shantaram Keer. By order dated 6th October, 2004 the said co-accused was enlarged on compulsory bail under the provisions of Sub-section (2) of Section 167 of the said Code on the ground that the chargesheet was not filed within the period of ninety days. The applicant herein was arrested on 7th July, 2004 and the said coaccused dhananjay Keer was arrested on 8th July, 2004. It appears that the applicant submitted an Application in person on 3rd november, 2004 before the learned Metropolitan Magistrate praying for compulsory bail under Sub-section (2) of Section 167 of the said code. The said Application was rejected on the very day by the learned magistrate by observing that the chargesheet was filed on 20th october, 2004 and therefore, after filing of the chargesheet the applicant has no right to apply for mandatory bail. An Application made by applicant before the Sessions Court for bail has been rejected by order dated 7th March, 2005.

(3.) The learned Counsel appearing for the applicant submitted that though the Application for bail was not moved by the applicant before the learned Magistrate before filing of the chargesheet, he was entitled to relief of compulsory bail as the learned Magistrate did not perform his obligation of bringing it to the notice of the applicant that in case he is prepared to furnish bail, he has a right to be enlarged on bail. He submitted that as the applicant was not made aware about his right to apply for and obtain bail, he could not apply for the relief before the chargesheet was filed. He submitted that as the applicant could not apply for compulsory bail only on account of default on the part of the learned Magistrate, even today he is entitled to claim bail under section 167 (2) of the said Code. He has placed reliance on various decisions the Apex Court, a reference to which will be made at a later stage. Secondly, he submitted that as co-accused has been enlarged on bail, he is entitled to claim parity. He pointed out that the Accused who has been enlarged on bail has played the major role in the alleged offence of robbery and even according to the prosecution case, the applicant was only driving the vehicle which was used by the Accused for committing the offence. He, therefore, submitted that the applicant is entitled to bail on the ground of parity. He submitted that bail granted under Section 167 (2) of the said Code is a bail granted on merits and therefore, on the basis of such order granting bail, the applicant is entitled to claim parity.