BABURAO Vs. STATE OF MAHARASHTRA

JUDGEMENT

(1.) Both these applications raise a common question as to whether filing of a charge sheet during the pendency of application under proviso (a) to sub-section (2) of section 167 of the Code of Criminal Procedure for release on bail, obliterates the right accrued in favour of the accused.

(2.) This Court has an occasion to deal with such a situation in a case of (Shrawan Hanaji Undirwade and another v. State of Maharshtra) reported in 1976 Maharashtra Law Journal 654. The Division Bench while examining the scheme of sections 167, 173 and 437 of the Code of Criminal Procedure held that a right created under section 167 of the Code could be availed by the accused before the completion of the investigation. Once the charge sheet is filed then the Magistrate can exercise his power only under section 437 of the Code. It thus follows from the ruling that the Magistrate on the completion of the investigation is divested of his authority under section 167 of the Code, to release the accused on bail.

(3.) By an Act No. 45 of 1978 the Legislative has merely amended the provisions by extending the period of sixty days to ninety days. In case of investigation relating to offence punishable either with death or imprisonment for life or imprisonment for a term of not less than ten years. However, the substantive provisions as then contained in the Code of 1973, by this amendment remained unaffected.