Suvarnamala W/O. Bhagwan Chavan ... vs The State Of Maharashtra
2017 Latest Caselaw 3999 Bom

                                                                  Appln1369-17.odt
             IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                        BENCH AT AURANGABAD
                 CRIMINAL APPLICATION NO.1369  OF 2017
1       Suvarnamala w/o Bhagwan Chavan                   ... Applicants
        Age 40 years, Occu: Business & 
        Household, R/o Sonai Nagar, 
        Taroda (Bdk), Dist. Nanded
2       Bhagwan s/o Shekuji Chavan,
        Age 50 years, Occu: Service,
        R/o As above.
        VERSUS
        The State of Maharashtra,         ... Respondent
        Through P.S.I., Bhagyanagar 
        Police Station, Nanded, District 
        Nanded


Mr. Mr. R. S. Deshmukh, Advocate for the applicant
Mr. K. N. Lokhande,  APP for the State. 

                             CORAM           :  K. L. WADANE, J.

                             RESERVED ON     :      27th June, 2017
                             PRONOUNCED ON   :      5th July, 2017

JUDGMENT:    

1. Heard Mr. Deshmukh, learned counsel for the

applicant and Mr. Lokhande , learned APP for the

State.

2. Crime No. 224/2016 came to be registered with

Bhagyanagar Police Station, Nanded against the present

applicants and another accused Shivkumar Raut, real

brother of applicant No.1, for the offences punishable

under sections 406, 420 read with section 34 of the

Indian Penal Code.

Appln1369-17.odt

3. On 29.11.2016, both the applicants were

arrested and produced before the Judicial Magistrate,

First class at 4.40 p.m. for the first police custody

remand. On 3rd December, 2016, both the applicants

were taken in M.C.R. The concerned Investigating

Officer thereafter added section 3 and 4 of the

M.P.I.D. Act in the above said crime.

4. The Investigating officer failed to submit

charge-sheet before 27.01.2017 which was the 60th day

from the date of arrest and production of the

applicants/accused before the Judicial Magistrate,

First Class for police custody. The applicants have

submitted Application Exh. 3 on 27.01.2017 at 6.00

p.m. for default bail under the provisions of section

167(2)(a)(ii) of the Criminal Procedure Code, 1973. On

28.01.2017, the applicants have submitted another

application for bail at Exh.4 under the same

provision.

5. On 30.01.2017, both the applicants have filed

another application Exh. 5 for bail at 11.30 a.m. for

default bail in the Court of Sessions Judge, Nanded,

as being 63rd day, till then no charge sheet was filed

in the said Court, which is appropriate and competent

Appln1369-17.odt to do so. The learned Special Judge received the

charge-sheet on 30.01.2017

6. During the course of argument, Mr. Deshmukh,

the learned counsel for the applicant pointed out that

last date for submission of the charge-sheet was

27.01.2017. However, the Investigating Officer failed

to produce the charge-sheet within time and therefore,

the applicants are entitled for bail as per the

provisions of section 167(2)(a)(ii) Cr.P.C. In

support of his contention, the learned counsel pointed

out certain endorsements of the Judicial Magistrate,

Nanded. The learned Judicial Magistrate, Nanded made

the following endorsement.

"Charge-sheet received today. 28.01.2017 at 6.15."

Mr. Deshmukh pointed out another endorsement

made by the learned Special Judge which reds as

follows:

"28.01.2017.

Spl. Case (MPAD) No. /2017 Charge sheet submitted by P.C.B. No.---

as MPID Act Nos.2 & 3 are in jail and A.No.1 is on bail 406,420,34 of the IPC & Sec.3 & 4 of MPID Act. Assigned to - DJ-2 sd/- 30/01/2017 Principal District Judge. Nanded"

Appln1369-17.odt

7. From the above endorsements, it appears that

Investigating Officer had initially filed the charge-

sheet in the Court of Judicial Magistrate, First class

on 28.01.2017 that too at 6.15 p.m.

8. The learned APP has relied upon the report

submitted by the concerned Assistant Superintendent

dated 30.01.2017. On perusal of the report, it appears

that the concerned Assistant Superintendent has

reported that the charge-sheet in the matter was filed

on 28.01.2017, and the matter was numbered as Special

Case (MPID)No.01/2017. The learned APP further relied

upon the endorsement of the learned Special Judge,

quoted above. On perusal of the relevant endorsement/

entry, it appears that at the top, date is written as

"28.01.2017", however, below signature the learned

Special Judge/District Judge has put the date as

30.01.2017. Looking to the this endorsement and the

report made by the Assistant Superintendent, it appears

that the correct date is 30.01.2017 , because one

charge sheet cannot be filed in two courts

simultaneously. Probably, by mistake the charge-sheet

was filed before the learned Judicial Magistrate, First

Class and Investigation Officer my have taken back the

charge-sheet and presented it before the Special Judge.

Appln1369-17.odt

9. The learned Special Judge/District Judge has

put the date 30.01.2017 below his signature which

cannot be doubted. On the contrary, the date put on

the top of endorsement i.e. 28.01.2017 appears to be

doubtful simply because on 28.01.2017, the charge-

sheet was submitted before the learned Judicial

Magistrate First Class. He has put the date as well

time as 28.01.2017 at 6.15 p.m.

10. Admittedly, the first application (Exh.3) for

bail was submitted on 27.01.2017 before expiry of 60

days. However, another application Exh.4 was submitted

on 28.01.2017 and third application (Exh.5) was

submitted on 30.01.2017. So, apparently, it seems that

bail application Exhs. 4 and 5 were filed on

28.01.2017 and 30.01.2017 respectively i.e. after

expiry of sixty days.

11. Mr. Deshmukh, the learned counsel appearing for

the applicants has relied on the following cases:

(1) Rajesh Natwarlal Bangawala Vs. State of

Maharashtra, 2015 ALL MR (Cri) 3440 (Bom), in which it

is observed that the period of ninety days or sixty

days as the case may be, is to be counted from the

first date of production of accused before Magistrate

Appln1369-17.odt whether he has jurisdiction or not to try case.

It has been further observed that the Magistrate

could not have taken away the indefeasible right of the

petitioner by permitting the CBI to file the charge-

sheet and by keeping the application of the petitioner

pending. Once the accused files an application under

section 167(2) Cr.P.C., the same is to be decided by

the Magistrate immediately after its presentation.

Supervening circumstances created later on could not

take away the indefeasible right which had occurred to

the petitioner.

(2) Shivaji Ashruba Jaibhaye V/s State of

Maharashtra, 2010 ALL MR. (Cri) 3794 (Bom), in which

it has been observed that the application for bail

under section 167(2) is maintainable for non-filing of

charge-sheet before period of 90 days. Period of 90

days to be computed from the first day the accused is

produced before the concerned Magistrate.

(3) Rajesh @ Raju Narayan Amin Poojari Vs. State of

Maharashtra 2008 ALL MR (Cri) 1012 (Bom.) in which it

is observed that the application for bail on the

ground that charge-sheet was not filed before the

Special Court within a period of 180 days of arrest and

Appln1369-17.odt first order of remand to police custody. Applicants are

entitled to bail. Mistaken filing of charge-sheet

earlier before the Judicial Magistrate First Class who

had no jurisdiction to try applicants under MCOC Act

can be of no avail.

(4) In Jitendera Maroti Deotare vs. State of

Maharashtra 2008 ALL MR (Cri) 2458 (Bom), it has been

observed about the Right of accused under Section

167(2) of the Criminal Procedure Code after expiry of

90th day on 13.07.2008 i.e. on Sunday.

(5) In Rajubhai @ Jacob Mathew Pinto Vs. State of

Maharashtra 2005 ALL MR (Cri) 290 (Bom.), the accused

were arrested on 22nd July, 2004. The application for

being released on bail filed on 21st October, 2004 at

11.00 a.m. The prosecution filed the charge-sheet on

the same day at about 3.00 p.m. after 90 days. The

applicant was held entitled for bail.

Relying upon the observations in the cases

cited supra, Mr. Deshmukh has submitted that the

charge-sheet was submitted before the Special Court

beyond the statutory period of 60 days and therefore

the applicants are entitled for bail.

Appln1369-17.odt

12. The learned APP has strongly opposed the

application on the ground that charge-sheet was

already filed in the Court on 28.01.2017 at about

3.00 p.m. Some time was required for scrutiny of

the charge-sheet and therefore application Exhs. 4 and

5 were filed by the applicants after filing of the

charge-sheet. I do not agree with the submission of the

learned APP, simply because the charge-sheet was filed

before the Judicial Magistrate, First Class on

28.01.2017 at about 6.15 p.m. Charge-sheet was to be

filed before the Special Court and from the

endorsement,it appears that it was filed on 30.01.2017.

In such circumstance, at least application for bail at

Exh.4 was filed by the petitioner on 61st day i.e.

before filing of the charge-sheet in the Special

Court.

13. In view of the above, I am of the opinion that

the learned Sessions Judge confused about certain

incorrect endorsement and the date. In fact there was

no reason to disbelieve the date and time put by the

learned Judicial Magistrate as well as the Special

Judge Nanded.

14. In view of the above, I am of the opinion that

Appln1369-17.odt the applicants are entitled for bail as per provisions

of section 167(2)(a)(ii) Cr.P.C. Hence following

order:

O R D E R

i. The applicants shall be released on bail on

their furnishing personal bond of Rs.25,000/-

(Rupees twenty five thousand) each with one

solvent surety of like amount.

ii. The applicants shall not tamper with prosecution

evidence in any manner.

15. Criminal application is disposed of.

(K. L. WADANE, J.) JPC