Bombay High Court
Duryodhan Tukaram Pawar vs The State Of Maharashtra on 18 August, 2021
Bench: Bharati Dangre
Digitally signed by
JAYARAJAN JAYARAJAN
ANJAKULATH ANJAKULATH NAIR
NAIR Date: 2021.08.20
17:00:27 +0530
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
BAIL APPLICATION (ST.) NO.4688 OF 2020
Duryodhan Tukaram Pawar ]
R/at, Village - Taraswadi, Tal. Atpadi, ]
Dist. Sangli. ]
[Presently at Central Jail, Kolhapur.] ] ... Applicant
Versus
The State of Maharashtra ]
[I/O. Atpadi Police Station, Sangli.] ] ... Respondent
...
Mr. Niranjan Mundargi i/b Mr. Raviraj Paramane for the
Applicant.
Mr. A.R. Kapadnis, A.P.P. for the State.
...
CORAM : SMT. BHARATI DANGRE, J.
DATED : 18TH AUGUST, 2021.
P.C:-
1. The Applicant came to be arraigned as an accused in C.R.
No.I-193 of 2019 registered with Atpadi Police Station, Sangli,
invoking offences punishable under Sections 498-A, 306, 323,
504 read with Section 34 of the IPC. On the said C.R. being
registered, he was arrested on 18/08/2019 and produced before
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the Judicial Magistrate, First Class, Atpadi and remanded to the
judicial custody on 18/08/2019. Offences under Sections 302
and 201 of the IPC came to be added in the said crime on
27/08/2019.
2. According to the Applicant, since the 90 days for
completion of investigation in terms of sub-section (2) of Section
167 of the Cr.P.C. ended on 15/11/2019 and the charge-sheet was
not filed till then, on 16/11/2019, the Applicant preferred an
Application before the Judicial Magistrate, First Class, claiming
to be released on bail and undertaking to abide by the conditions,
which may be imposed.
3. The Application was considered by the Judicial Magistrate,
First Class, Atpadi and, on 16/11/2019, it was recorded that the
Applicant was produced before the Court on 18/08/2019 and sent
to jail. Till the order was passed i.e. on 16/11/2019, the charge-
sheet was not filed. After referring to the decisions in the case of
Ravi Prakash Singh @ Arvind Singh v. State of Bihar in
Criminal Appeal No.325 of 2015 dated 20/02/2015 and
Chaganti Satyanarayan & Ors. v. State of Andhra Pradesh
reported in (1986) 3 SCC 141, taking a view that while
computing the period of default bail under Section 167(2) of the
Cr.P.C., the Court has to consider the date of arrest and on
consideration of the decisions in the case of State of Madhya
Pradesh v. Rustam & Ors. reported in 1995 (Supp.) (3) SCC
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221, where the Supreme Court has excluded the day on which
the accused was produced before the Court, the Application
came to be rejected.
4. By the present Application, the Applicant has prayed for
his release on bail in view of the indefeasible right, which has
accrued to him when the charge-sheet was not filed on
completion of investigation on 15/11/2019. The charge-sheet
came to be filed on 16/11/2019 at 5.00 p.m. and the submission
is by filing of the charge-sheet on the 91st day, the indefeasible
right, which has accrued in the Applicant, cannot be taken away
since he was ready and willing to offer the bail bond.
5. Heard Mr. Mundargi, learned counsel appearing for the
Applicant and Mr. Kapadnis, learned A.P.P. for the State.
6. In the wake of the rejection of his Application by the
courts below, the Applicant is before this court. The dates,
which are relevant for adjudication of the Application seeking
default bail are not in dispute. Before the learned Magistrate, the
decision dated 02/08/2020 of the Bombay High Court in the case
of Kapil Wadhvan v. State of Maharashtra in Criminal Bail
Application No.400 of 2020 and the decision in the case of
Ramesh Madhukar Thombare v. State of Maharashtra,
reported in 1999(5) Bom. C.R. 355 were cited on behalf of the
Applicant. Learned A.P.P. has placed reliance of the Apex Court
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judgment in the case of Ravi Prakash v. State of Bihar in
Criminal Appeal No.325 of 2015 dated 20/02/2015. The
Magistrate relied upon the decision in the case of Ravi Prakash
(supra), which held that while computing the period of 90 days,
the day on which the accused was remanded to the judicial
custody should be excluded and the day on which the Challan is
to be filed should be included. The aforesaid decision was the
genesis of the decision of the Additional Judicial Magistrate,
which is upheld by the Sessions Court at Malegon.
7. The decision of the Bombay High Court in Kapil
Wadhwan (supra) takes a view that the first day of remand
cannot be excluded in computing the period of 60 days and the
decision of the Sessions Judge excluding the first day of the
remand was set aside and the filing of the charge-sheet by the
Enforcement Directorate on 13/07/2020 being after 60 days, by
exclusion of the day of remand i.e. 14/05/2020, made the
Applicant entitled for being released on default bail.
8. The said decision came to be delivered by formulating a
precise question to the following effect:
"Whether in computing the period of 90 days or
60 days, as contemplated in Section 167(2)(a)
of the Cr.P.C., the day of remand is to be
included or excluded?"
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9. Reliance was placed on the decision of the Apex Court in
case of Chaganti Satyanarayan & Ors. v. State of Andhra
Pradesh reported in (1986) 3 SCC 141 followed by a decision in
the case of CBI v. Anupam Kulkarni reported in (1992) 3 SCC
141 and a further decision in the case of Pragyna Singh Thakur
v. State of Maharashtra reported in (2011) 10 SCC 445.
Reliance was also placed on the decision of learned Single Judge
of this court in the case of Deepak Satyavan Kudalkar v. State
of Maharashtra in LDVC Bail Application No.197 of 2020. The
Enforcement Directorate, Government of India, through its
learned counsel has relied upon the decisions of the Apex Court
in the case of State of Madhya Pradesh v. Rustam & Ors.
Reported in (1995) Supp. 3 SCC 221 and Ravi Prakash Singh
@ Arvind Singh v. State of Bihar reported in (2015) 8 SCC
340. On consideration of the ratio flowing from the aforesaid
decisions, the day of remand was held to be included in the
period of 60 days or 90 days for determining the limitation
prescribed for filing of the charge-sheet and any default to
adhere to the period, conferred an indefeasible right on the
accused to be released on bail.
10. The said decision was assailed before the Hon'ble Apex
Court in Criminal Appeal No.701-702 of 2020 by the
Enforcement Directorate, Government of India. On 23/02/2021,
the Hon'ble Apex Court by referring to the core issue for
consideration whether while computing the period of 60 days or
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90 days as contemplated in Section 167(2)(a)(ii) of the Cr.P.C,
the day of remand is to be included or excluded, for considering
a claim for default bail, observed as under:
"4. The moot question has been considered by
this Court in various matters, but there is
divergence of opinion on how the period
available for completing the investigation is to
be computed. Some judgements have favoured
the exclusion of date of remand, while few other
cases have taken a contrary view.
5. The appellants rely inter alia on the line of
reasoning in State of M.P. Vs. Rustom & Ors.1,
Ravi Prakash Singh Vs. State of Bihar2 and M.
Ravindran Vs. Intelligence Officer, Director of
Revenue Intelligence where it was held that the
date of remand is to be excluded for computing
the permitted period for completion of
investigation.
6. On the other hand, the Respondents seek to
rely inter alia on Chaganti Satyanarayan Vs.
State of Andhra Pradesh, CBI Vs. Anupam J
Kulkarni, State Vs. Mohd. Ashraft Bhat, State of
Maharashtra Vs. Bharati Chandmal Varma, and
Pragyna Singh Thakur Vs. State of Maharashtra
to contend that the date of remand must be
included for computing the available period
for investigation for determining entitlement to
default bail."
11. In view of the conflicting proposition of law in grant of
default bail, Their Lordships observed that in Chaganti
Satyanarayan (supra), the Court examined the legislative intent
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for expeditious conclusion of investigation and the consequences
of the failure of the prosecution to conclude investigation within
the permitted period. However, the ratio in Chaganti
Satyanarayan (supra) was not brought to the notice of the Three
Judges Bench in M. Ravindran v. Intelligence Officer, Director
of Revenue Intelligence reported in (2020) SCC OnLine SC
867 and the Court took a contrary view in declaring that the date
of remand is to be excluded for computing the period of
investigation. Since the earlier position of law was not
considered and the latest decision in M. Ravindran (supra) is of
Three Judges' Bench, Their Lordships deem it appropriate to
refer the issue to a Bench of appropriate strength to settle the
law. While making the reference, Their Lordships of the Apex
Court also directed that unless the issue is appropriately
determined, the courts across the country may take decision on
the issue depending upon which judgment is brought to the
Court's notice or on the Courts own understanding of the law,
covering default bail under Section 167(2)(a)(ii) of the Cr.P.C.
12. The position of law qua the issue as regards whether the
day of remand is to be included or excluded, while computing
the period of 60 days or 90 days while seeking default bail is
thus pending consideration of the larger Bench in terms of the
Reference Order dated 23/02/2021.
13. Section 167 of the Cr.P.C. sets out the procedure when the
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investigation cannot be completed in 24 hours and, the relevant
portion of the said Section, reads as under:
"167. Procedure when investigation cannot be
completed in twenty-four hours. - (1) Whenever
any person is arrested and detained in custody,
and it appears that the investigation cannot be
completed within the period of twenty-four hours
fixed by section 57, and there are grounds for
believing that the accusation or information is
wellfounded, the officer in charge of the police
station or the police officer making the
investigation, if he is not below the rank of sub-
inspector, shall forthwith transmit to the nearest
Judicial Magistrate a copy of the entries in the
diary hereinafter prescribed relating to the case,
and shall at the same time forward the accused to
such Magistrate.
(2) The Magistrate to whom an accused person
is forwarded under this section may, whether he
has or has not jurisdiction to try the case, from
time to time, authorise the detention of the
accused in such custody as such Magistrate thinks
fit, for a term not exceeding fifteen days in the
whole; and if he has no jurisdiction to try the case
or commit it for trial, and considers further
detention unnecessary, he may order the accused
to be forwarded to a Magistrate having such
jurisdiction:
Provided that--
(a) the Magistrate may authorise the detention
of the accused person, otherwise than in custody
of the police, beyond the period of fifteen days, if
he is satisfied that adequate grounds exist for
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doing so, but no Magistrate shall authorise the
detention of the accused person in custody under
this paragraph for a total period exceeding
(i) ninety days, where the investigation relates
to an offence punishable with death, imprisonment
for life or imprisonment for a term of not less than
ten years;
(ii) sixty days, where the investigation relates
to any other offence,
and, on the expiry of the said period of ninety
days, or sixty days, as the case may be, the
accused person shall be released on bail if he is
prepared to and does furnish bail, and every
person released on bail under this sub-section
shall be deemed to be so released under the
provisions of Chapter XXXIII for the purposes of
that Chapter;]"
14. Section 57 of the Cr.P.C. puts an embargo of the power of
the Police Officer to detain in custody a person arrested without
warrant and Section 57 of the Cr.P.C., whcih reads as under:
"57. Person arrested not to be detained more
than twenty-four hours. - No police officer shall
detain in custody a person arrested without
warrant for a longer period than under all the
circumstances of the case is reasonable, and such
period shall not, in the absence of a special order
of a Magistrate under section 167, exceed twenty-
four hours exclusive of the time necessary for the
journey from the place of arrest to the
Magistrate's Court".
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15. Construing the said two provisions, the Hon'ble Apex
Court in the case of Chaganti Satyanarayana (supra), has
clearly interpreted its purport in the following words:
"On a reading of the sub-sections (1) and (2) it
may be seen that sub-section (1) is a mandatory
provision governing what a police officer should do
when a person is arrested and detained in
custody and it appears that the investigation cannot
be completed within the period of 24 hours
fixed by Section 57. Sub-section (2) on the other
hand pertains to the powers of remand available to
a Magistrate and the manner in which such powers
should be exercised. The terms of sub-section (1)
of Section 167 have to be read in conjunction with
Section 57. Section 57 interdicts a police officer
from keeping in custody a person without warrant
for a longer period than 24 hours without
production before a Magistrate, subject to the
exception that the time taken for performing the
journey from the place of arrest to the Magistrate's
Court can be excluded from the prescribed
period of 24 hours. Since sub-section (1) provides
that if that investigation cannot be completed
within the period of 24 hours fixed by Section 57
the accused has to be forwarded to the Magistrate
along with the entries in the Diary, it follows that a
police officer is entitled to keep an arrested
person in custody for a maximum period of 24
hours for purposes of investigation. The resultant
position is that the initial period of custody of an
arrested person till he is produced before a
Magistrate is neither referable to nor in pursuance
of an order of remand passed by a Magistrate. In
fact the powers of remand given to a Magistrate
become execisable only after an accused is
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produced before him in terms of sub-section (1) of
Section 167."
16. The earlier period when the accused is in custody of the
police officer in exercise of his power under Section 57 of the
Cr.P.C. has been held as not constituting the detention, pursuant
to authorization issued by the Magistrate. The powers of the
remand given to the Magistrate becomes exercisable only after
an accused is produced before him in terms of Section 167(1) of
the Cr.P.C. Construing proviso (a) either in conjunction with
sub-section (2) of Section 167 or as an independent paragraph, it
is clear that the total period of 90 days under clause (I) and the
total period of 60 days under clause (II) has to be calculated only
from the date of remand and not from the date of arrest. The
ratio of Chaganti Satyanarayana (supra) is enunciated in
paragraph 25 of the judgment.
17. The earlier decisions cited before the Apex Court have
been exhaustively dealt with, including the decision in the case
of Mohd. Shafi v. State reported in 1997 Cr. L.J. 1309 and
duly considered and put to rest by the following observations.
"31. Some of the decisions cited on either
side have been rendered prior to the amendment
of proviso (a) by Act 45 of 1978 and some have
been rendered after the amendment. Mr. Ram
Reddy sought to make a distinction of the earlier
decisions by contending that they ceased to have
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relevance because of the amendment to proviso
(a) making it an independent paragraph all by
itself. Since we have held that in whichever way
proviso (a) is construed i.e. with reference to
Section 167(2) or without reference to it the
periods of 90 days and 60 days prescribed by the
Legislature can be reckoned only from the date
of remand the distinction sought to be made
between the decisions rendered prior to
Amendment Act 45 of 1978 and subsequent to it
does not have much of significance."
18. The position of law flowing from Chaganti
Satyanarayana (supra) clearly leads to a conclusion that the
Magistrate can authorize the detention of the accused for a
maximum period of 15 days from the date of remand and place
the accused either in police custody or in judicial custody during
the period of 15 days' remand. However, if an accused is
remanded to police custody, the maximum period during which
he can be placed in police custody is only 15 days. Beyond that
period, no Magistrate can authorize the detention of the accused
in police custody, which can be granted pursuant to a single
order of remand or more than one order, when the remand is
restricted on each occasion to a lesser number of days. The
historical background of the proviso to Section 167(2) was also
highlighted in Chaganti Satyanarayana (supra) and the
underlying object considered while interpreting the proviso to
Section 167(2) being to safeguard the liberty of the citizens but
also to safeguard the interests of the State or in other words the
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public. This decision is followed in Anupam Kulkarni (supra),
where it has been held that Section 167 is supplementary to
Section 57 of the Cr.P.C. and expects the investigation to be
completed in the first instance within 24 hours and, if not, the
arrested person should be brought by the police before a
Magistrate as provided under Section 167. While doing so, the
police should transmit a copy of the entries in the diary relating
to the case so as to afford an opportunity to the Magistrate to
arrive at a decision whether the accused should be detained in
the custody further or not. It is open to the Magistrate to release
him on bail, if an application is made in that behalf and if he is
satisfied that there are no grounds to remand him to custody, but
if he is satisfied that further remand is necessary then he should
act in terms of Section 167. The Judicial Magistrate can
authorize detention of the accused either in police or judicial
custody from time to time, but the total period of detention shall
not exceed 15 days in the whole and the custody can be altered
from judicial custody to police custody or vice-versa. After the
expiry of the first period of fifteen days, the accused could only
be in judicial custody or any other custody as ordered by the
Magistrate but not in police custody. In Anupam Kulkarni
(supra), it has been held that the police custody even if
necessary, can be ordered only during the first period of 15 days.
If further interrogation is necessary even after the expiry of the
period of first fifteen days, there is no bar for interrogating the
accused, who is transmitted to judicial custody for a period of 90
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days or 60 days. I am unable to accept this contention. There
cannot be any detention in police custody after expiry of first 15
days even in a case where the offence is serious in nature. The
power of the Magistrate to authorize detention, however, is
limited by prescription of period of 90 days or 60 days and if the
investigation is not completed within the said period, the accused
has to be released on bail in terms of proviso to Section 167(2)
of the Cr.P.C. Paragraph 13 of the judgment in Anupam
Kulkarni (supra) clarifies the position of law in the following
words:
"After the expiry of the first period of fifteen
days the further remand during the period of
investigation can only be in judicial custody.
There cannot be any detention in the police
custody after the expiry of first fifteen days
even in a case where some more offences
either serious or otherwise committed by him
in the same transaction come to light at a later
stage. But this bar does not apply if the same
arrested accused is involved in a different case
arising out of a different transaction. Even if
he is in judicial custody in connection with the
investigation of the earlier case he can
formally be arrested regarding his involvement
in the different case and associate him with the
investigation of that other case and the
Magistrate can act as provided under Section
167(2) and the proviso and can remand him to
such custody as mentioned therein during the
first period of fifteen days and thereafter in
accordance with the proviso as discussed
above. If the investigation is not completed
within the period of ninety days or sixty days
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then the accused has to be released on bail as
provided under the proviso to Section 167(2).
The period of ninety days or sixty days has to
be computed from the date of detention as per
the orders of the Magistrate and not from the
date of arrest by the police. Consequently the
first period of fifteen days mentioned in
Section 167(2) has to be computed from the
date of such detention and after the expiry of
the period of first fifteen days it should be only
judicial custody."
19. My attention is invited to the Division Bench decision of
this court in the case of Nijamuddin Mohammad Bashir Khan
v. State of Maharashtra reported in 2006 (5) Mh.L.J. 690. It
has taken a view that the right of the accused to be released on
bail in default, on completion of investigation within the
prescribed period, the computation of the statutory period of 60
days or 90 days must be started from the date of the first remand
by the Magistrate. The Division Bench has relied upon the
decision in the case of Chaganti Satyanarayana (supra) before
reaching the said conclusion.
20. Another decision of the learned Single Judge in the case of
Deepak Satyavan Kudalkar (supra) is also brought to my
notice, which takes a similar view. I am party to the decision in
the case of Kapil Wadhawan (supra), wherein relying the ratio
laid down in Chaganti Satyanarayana (supra), the period of
remand has been counted in calculating the outer limit of 60 days
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or 90 days for completion of investigation.
21. Other sets of decisions are also brought to my notice since
the decision in case of Ravi Prakash Singh (supra) and Rustam
(supra), which have taken a view that date of remand is to be
excluded for computing the period permitted for completion of
investigation, did not consider the ratio laid down in Chaganti
Satyanarayana (supra) and since I am of the considered opinion
that the scheme of the Code of Cr.P.C. does not permit a face
where the accused remains without being in custody, which
would make his detention unauthorized, the exclusion of the date
of remand would run contrary to the spirit of the Cr.P.C., which
controls the movement of the suspect when he is arrested and
made an accused by making it imperative for the police officer to
bring him before the nearest Magistrate within a period of 24
hours, who will then authorize the detention of the accused in
such custody as the Magistrate may think fit for a term not
exceeding 15 days in the whole and, thereafter, further authorize
his detention otherwise than in police custody beyond the period
of 15 days, but not exceeding the period of 90 days or 60 days as
the case may be and, on expiry of the said period, the accused
person is entitled to be released on bail, if he is prepared to and
does furnish bail bond and such a release shall be deemed to be a
release under Chapter XXXIII. The aforesaid understanding of
the provisions to claim default bail, in my considered opinion,
entitles the present Applicant to be released on bail by including
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the date of remand.
22. In the present case, the accused was arrested on
18/08/2019 and the charge-sheet was not filed till 15/11/2019.
The period of 90 days came to an end on 15/11/2019 and on
expiry of 90 days, the Applicant filed an Application under
Section 167(2) of the Cr.P.C. for being released on default bail
on 16/11/2019 and the charge-sheet came to be filed subsequent
to the filing of the Application, where the Applicant showed his
preparation to furnish bail. The subsequent filing of the charge-
sheet on the 91st day will not deprive him of the right, which has
already accrued to him when the charge-sheet was not filed
within 90 days on completion of investigation. The Applicant is,
therefore, entitled to be released on bail, which is an indefeasible
right, which vests in him on 16/11/2019 i.e. the 91 st day. The
Applicant is, therefore, entitled to be released on bail on default
bail under Section 167(2) of the Cr.P.C. subject to the following
condition.
ORDER
(a) The Applicant - Duryodhan Tukaram Pawar
shall be released on bail in C.R. No.I-193 of 2019
registered with the Atpadi Police Station, District
Sangli, on furnishing P.R. bond to the extent of
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Rs.25,000/- with one or two sureties of the like
amount.
(b) The Applicant shall not directly or indirectly make
any inducement, threat or promise to any person
acquainted with facts of case so as to dissuade him
from disclosing the facts to Court or any Police
Officer and the Applicant should not tamper with
evidence.
(d) The Applicant shall attend to the Atpadi Police
Station, District Sangli as and when called by the
Investigating Officer.
23. The Application is allowed in the aforestated terms.
24. All parties are directed to act on the downloaded copy of
the order supplied by the Advocate under his seal and signature.
[SMT. BHARATI DANGRE, J.]
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