KHIMBHADHUR PALSHIRAM THAPA Vs. STATE OF MAHARASHTRA

JUDGEMENT

(1.) This is an application for bail in the two cases bearing C.R. No 257 of 1988 and C.R. No 422 of 1988. In the first case, the petitioner has been charged under Sections. 302, 149, 143, 147 and 148 of Indian Penal Code and under Sections 25 and 27 of the Arms Act In die other case, namely, C.R. No 422 of 1988 the Petitioner has been charged under Section 307 read with Sections 149, 332 read with 149, Section 224 read with 149 Section 333 read with 149, Section 341 read with 149, Sections 143, 147 and 148 of Indian Penal Code and under Sections 25 and 27 of Arms Act. The Petitioner surrendered to the Police on 18-10-88. The Petitioner was produced before the learned Magistrate on 19-10-88 and he was remanded to the police custody. On 5-1-89, which was the 79th day of his being in custody the learned Magistrate remanded the Petitioner to the judicial custody till 19-1-89, which would be the 93rd day. Mr. Ponda says that that order remanding the Petitioner to the custody beyond 90th day is illegal.

(2.) However, on the 9th of January 1989, a charge-sheet was filed in the Court of the. Metropolitan Magistrate27th Court, Mulund Bombay. The learned Magistrate on that day took note of the fact that the petitioner-Accused was absent and the learned Magistrate adjourned the case to 19-1-1989. On 17th January 1989, which was the 91st day of the Petitioner being in custody an application was made before the learned Magistrate under Section 167 of Criminal Procedure Code for the purpose of releasing him on bail on such terms and conditions as the learned Magistrate thought proper. This was opposed to by the prosecution and the learned Magistrate by his order dated 19th January, 1989 rejected the application for bail. In that order, the learned Magistrate observed that even though charge-sheet was filed on 9th of January 1989 nothing was done with respect to the case till that date. The learned Magistrate proceeded on the assumption that mere filing of the charge-sheet within 90 days was sufficient to remand the Accused to the further custody.

(3.) As against that, the Petitioner filed an application before the Sessions Court of Greater Bombay. The learned Sessions Judge by his order dated 30th January 1989 rejected the application made by the Petitioner. The learned Sessions Judge proceeded on the assumption that Section 167, sub-section (2) of the Code of Criminal Procedure would not be attracted if there are more than two or three cases as against the accused. He also opined relying on the decisions of the Patna High Court one in the case of Rabindra Raj v. State, 1984 Cri. L.J. P. 1412 and the other one in the case of Shamoba Nath Singh v. State of Bihar, 1987 Cri. L.J. 810 wherein there a reference to a Supreme Court decision in the case of State of U.P. v. Lakshmi Brahman, 1983 Cri. L.J. 839 and held that mere filing of a charge-sheet within 90 days would amount to taking cognizance of the offence by the learned Magistrate and on that basis it was open to the learned Magistrate to remand the accused to further custody.