Bombay High Court

Shaikh Hussain Alias Lakhan ... vs State Of Maharashtra Thr. Police ... on 19 January, 2018

Bench: V.M. Deshpande

                                          1                                       APL839.17.odt


      IN THE HIGH COURT OF JUDICATURE AT BOMBAY
               : NAGPUR BENCH : NAGPUR.


           CRIMINAL APPLICATION (APL) NO. 839 OF 2017


 APPLICANTS                 : 1] Shaikh Hussain alias Lakhan Shaikh Ibrahim,
                                 Aged 40 years, Occu. Labour,
                                 R/o Chand Khan Plot, June Shahar,
                                 Akola.

                               2] Shaikh Ayyaj alias Bholu Shaikh Shekhaji,
                                  Aged 30 years, Occu. Labour,
                                  R/o Chand Khan Plot, June Shahar,
                                  Akola  ( IN JAIL)

                                               VERSUS

  NON-APPLICANT    :  State of Maharashtra,
                                  through Police Station Officer,
                                  Police Station, Old City, Akola,
                                  Taq. & Dist. Akola.
   ----------------------------------------------------------------------------------------------
             Mr. S. V. Sirpurkar, Advocate for the applicants.
             Mr. T. A. Mirza, A.P.P. for the non-applicant/State
             Mr. Mahesh S. Murugan, Advocate for complainant.
   ----------------------------------------------------------------------------------------------

                      CORAM : V. M. DESHPANDE, J.

                      DATE     : JANUARY 19, 2018.


 ORAL JUDGMENT

Rule. Rule is made returnable forthwith. Heard finally

by consent of the parties.

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2. Criminal Application (APPP) No.29/2018 - For the

reasons stated therein, the criminal application seeking permission to

assist the prosecution filed by the complainant - Mohd. Akhtar

Sheikh Mustaq, is hereby allowed and disposed of.

3. Heard Shri S. V. Sirpurkar, the learned counsel for the

applicant, Shri T. A. Mirza, the learned Additional Public Prosecutor

for the non-applicant - State and Shri Mahesh Murugan, the learned

counsel for the complainant, who has filed the application to assist

the prosecution.

4. By filing this application under Section 482 of the Code

of Criminal Procedure, the applicants are questioning the wisdom of

the learned Additional Sessions Judge, Amravati, invested with the

powers to conduct cases under the Maharashtra Control of Organized

Crime (MCOC) Act, 1999. A common order is passed below Exh.67

in Special MCOC Case No. 317/2016 and Misc. Criminal Application

No.838/2017, by which the learned Additional Sessions Judge,

negatived the contention of the present applicants that they are

entitled for default bail and also rejected their Misc. Criminal

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Application No. 838/2017 for grant of bail on merits, which was filed

under Section 439 of the Code of Criminal Procedure.

5. Mr. Sirpurkar, the learned counsel for the applicants

submitted that the applicants are not claiming bail on evaluation of

the prosecution evidence against them. He submitted that the

applicants are challenging rejection of their application (Exh.67) by

which the learned Additional Sessions Judge has rejected the

application filed on their behalf under Section 167(2) of the Code of

Criminal Procedure, thereby denying the bail which is commonly

known as default bail.

6. Mr. Mirza, the learned Additional Public Prosecutor for

the State has submitted that Crime No.74/2016 was taken up for

investigation by the investigating agency and filed final report

(charge-sheet) on 17.12.2016. In the charge-sheet filed in the Court

on 17.12.2016, the applicants were shown as absconding and the

charge-sheet under Section 299 of the Code of Criminal Procedure is

shown to have been filed against the present applicants.

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7. The applicants were arrested on 23.7.2017. Their police

custody remand was obtained from 24.7.2017 to 02.8.2017.

Subsequently, the applicants were taken in Magisterial custody

remand.

8. On 24.10.2017, the applicants filed an application under

Section 167(2) of the Code of Criminal Procedure, since, from the

date of arrest of the applicants till that date, the charge-sheet was not

filed against them and therefore, they are entitled to be released by

the Court under sub-section 2 of Section 167 of the Cr.P.C. As stated

earlier, this application is at Exh.67 in Special MCOC Case No.

317/2016. No orders were passed by the learned Judge on the said

date on the application (Exh.67). On 28.10.2017, supplementary

charge-sheet is filed by the Investigating Officer in the Court. On

03.11.2017, the application Exh.67 is rejected.

9. Mr. Sirpurkar, the learned counsel for the applicants

invited my attention to a reported case, which considers the question

involved in the present case, in 2017 All M.R. (Cri.) 564 in the case

of Pankaj Sundarlal Yadav .vs. State of Maharashtra and another

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and submitted that the case of the applicants is identical and

therefore, in view of the law laid down by this Court in the said

reported case, the applicants are entitled to be released on default

bail.

10. The learned Additional Public Prosecutor for the State

fairly submitted that in view of the law laid down in Pankaj Yadav's

case cited supra, the application of the present applicants has to be

considered in the light of the laid down in the said case.

11. Paragraph 21 of Pankaj Yadav's case cited supra reads thus :

21. Now, it is clear to us that for ascertaining whether or not the right of default bail has been made available to the applicant, the date on which that charge-sheet is filed which marks the completion of investigation against the accused, is relevant. If further investigation is started against an accused arrested after filing of first charge-sheet in which he is shown as absconding accused, competition of investigation would be declared only by the act of filing of supplementary charge-sheet against him. If the supplementary charge-sheet against such an accused is not filed within 90 days or 60 days, as contemplated under

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sections 167(2)(a)(i) and (ii) of the Code of Criminal Procedure, the accused would get the right of default bail, which he can assert anytime thereafter but before filing of the supplementary charge-sheet subsequently. The period of 90 days or 60 days so contemplated under section 167(2)(a) is essentially the period for which the Magistrate may authorise the detention of the accused. In other words, a police officer must complete the investigation within the period of 90 days or 60 days, as the case may be, or otherwise, it would not be possible for the Magistrate to authorise detention pending investigation. Therefore, any charge-sheet which marks completion of an investigation against the accused under detention would have to be filed within such stipulated period computed from the date of arrest of the accused against whom it is filed. In the instant case, although, the first charge-sheet was filed on 06/11/2015, it was filed by showing this applicant as absconding accused. This applicant came to be arrested by the order of the learned Additional Sessions Judge passed on 06/02/2016, when he surrendered on that date before that Court and on that very day, this applicant was remanded to police custody till 12/02/2016. On 12/02/2016, the Investigating Officer made an application for extension of his police custody remand, but that was rejected and the applicant was remanded to magisterial custody till 17/02/2016.

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The supplementary charge-sheet came to be filed in the afternoon of 06/05/2016. The application asserting the right of default bail was filed by the applicant at 11:00 a.m. of 06/05/2016. During the period of detention of the applicant, initially in the policy custody and later on in the magisterial custody, between 12/02/2016 and 17/02/2016 and also thereafter, although no order extending custody remand was passed, police indeed made further investigation. These are all admitted facts and it is clear from them that when the first charge-sheet was filed on 06/11/2015, investigation as against this applicant was not completed and it came to concluded only on 06/05/2016, when the supplementary charge-sheet was filed in the afternoon. The 6th day of May, 2016 was the 91st day from the date of arrest of the applicant i.e. 06/02/2016, and the supplementary charge-sheet came to be filed after this applicant had already asserted his right of default bail by filing an application on the same day but at 11:00 a.m. much before filing of the supplementary charge-sheet in the afternoon. Therefore, the learned Additional Sessions Judge did not have any option but to release the applicant on bail by making him available his indefeasible right of default bail under the law. As it was not done by the learned Additional Sessions Judge, now this Court would have to step in and allow the applicant to realise his such right. Accordingly, I find that the applicant

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is entitled to be released on bail in view of his right arising under section 167(2) of the Code of Criminal Procedure."

12. Since, admittedly, the applicants were arrested on

23.7.2017 and the charge-sheet was filed beyond the stipulated

period on 28.10.2017, in my view, the applicants are entitled for the

bail as prayed by them and as per the law laid down by this Court.

Consequently, I pass the following order :

13. The criminal application is allowed.

(i) The impugned order below Exh.67 in Special MCOC

Case No.317/2016 is hereby set aside.

(ii) The applicants - (1) Shaikh Hussain @ Lakhan

Shaikh Ibrahim and (2) Shaikh Ayyaj @ Bholu Shaikh Shekhaji , are

directed to be released on bail in this case on they executing PR bond

of Rs.50,000/- each with two solvent sureties of the like amount by