RAMESH MADHUKAR THOMBRE Vs. STATE OF MAHARASHTRA

JUDGEMENT

(1.) ADMIT. Respondents waive service. Heard forthwith.

(2.) THE petitioner was arrested on 23rd December, 1997 in respect of an offence under section 302 of I. P. C. etc. at about 18. 15 hours. He was produced before the Court on 24th December, 1997 and was remanded to the police custody. There were also subsequent remands from time to time. The period of 90 days as required under section 167 of Cr. P. C. expired on 23rd March, 1998. The applicant herein on 24th March, 1998 made on application to be released on bail by invoking the provisions of section 167 (2) of Cr. P. C. The application moved by the applicant was placed before the learned Magistrate at 11. 30 a. m. when there was no charge sheet filed in the case. The charge sheet came to be filed at 3. 30 p. m. of the same day. The learned Magistrate on those facts held that as the charge sheet has been filed on the very same day the applicant herein was not entitled to bail. Two other applicants who had applied were also denied bail. Their case, however, is different from that of the present applicant whose custody after remand admittedly expired on 23rd March, 1998, that being the 90th day. 2-A. Learned Counsel for the applicant contents that considering the law laid down by the Apex Court in the case of (Mohamed Iqbal Madar Sheikh and others v. State of Maharashtra), 1996 (1) S. C. C. 722 and the judgment of Single Judge of this Court in the case of (Sanjay Baban Bhujbai v. The State of Maharashtra), 1998 (5) Bom. C. R. 472 : 1998 All. M. R. (Cr.) 946 the applicant is entitled to be enlarged on bail under section 167 (2) and not under the provisions of section 437 of Cr. P. C. On behalf of the respondent-State it is contended that the charge sheet has been filed on the very same day. The judgment of the Apex Court in the case of Mohamed Iqbal Madar Sheikh (supra) is sought to be distinguished on the ground that what was under consideration in the said case was filing of charge sheet subsequently and not on the same day as the application under section 167 (2 ). Learned Counsel also placed reliance on the judgment of the Apex Court in the case of (Dr. Bipin Shantilal Panchal v. State of Gujarat), 1996 S. C. C. 718. Learned Counsel thereafter relied on a judgment of Single Judge of the High Court of Punjab and Haryana in the case of (State of Punjab v. Sukhminder Singh alias Mundri), 1998 Cri. L. J. 3090 to contend that the moment the charge sheet is filed even if the applicant had a right, this right goes away and the only remedy would be under section 437 of Cr. P. C.

(3.) SECTION 167 of the Cr. P. C. is the section which confers power on the Magistrate to grant custody. In the case offence is punishable with death or imprisonment for life or for a term not less than 10 years custody of upto ninety days and any other offences upto sixty days and on the expiry of such period the accused person shall be released on bail if he is prepared to and does furnish bail. In other words no order can be made for further custody of the accused if he is prepared to and agreeable to furnish bail. As such it is clear that within the said period of 90 days if the charge sheet is not filed then the provisions of section 437 of the Cr. P. C. will not be attracted i. e. the release of the applicant-accused under the provisions of the said section.