Sunil Vitthal Wagh vs The State Of Maharashtra
2024 Latest Caselaw 15506 Bom

Bombay High Court

Sunil Vitthal Wagh vs The State Of Maharashtra on 5 June, 2024

Author: N.J.Jamadar

Bench: N.J.Jamadar

2024:BHC-AS:22752
           SWAROOP Digitally
                   SWAROOP
                             signed by

           SHARAD SHARAD PHADKE
           PHADKE Date:  2024.06.05
                   16:52:36 +0530

                                                                                          ba 2472 of 2022.doc
                               IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                                    CRIMINAL APPELLATE JURISDICTION
                                      BAIL APPLICATION NO.2472 OF 2022

            Sunil Vitthal Wagh                                          ...      Applicant
                   versus
            State of Maharashtra                                        ...        Respondent

            Mr. Aabad H. Ponda, Sr. Advocate with Mr. Sajid Imtiyaz Mahat, Mr. Shailesh
            Kharat, Mr. Sumit Tiwari i/by Mr. Ashish Raghuvanshi, for Applicant.
            Mrs. Veera Shinde, APP for State.
            API Nitin Pawar, EOW Banking, Mumbai.

                                         CORAM:     N.J.JAMADAR, J.

                                         RESERVED ON : 16 APRIL 2024
                                         PRONOUNCED ON : 5 JUNE 2024
            ORDER :

1. The Applicant who is arraigned in C.R.No.244 of 2018 registered with

Pandharpur Police Station for the offences punishable under Sections 120B, 302, 303,

201, 143, 147, 148, 149 of the Indian Penal Code, Section 3 read with Section 25 of the

Arms Act, 1959, Section 135 of the Maharashtra Police Act, 1951 and Sections 3(1)(i)

(ii), 3(2) and 3(4) of the Maharashtra Control of Organized Crime Act, 1999 (MCOC

Act, 1999), has preferred this application to enlarge him on bail on the ground that

there was default in completing the investigation and lodging the chargesheet qua the

applicant within the period stipulated under Section 167(2) of the Code of Criminal

Procedure, 1973 (the Code) in its modified application to the offences punishable

under the MCOC Act, 1999.

2. The gravamen of indictment against the applicant and the co-accused is

ba 2472 of 2022.doc that Gopal Bajirao Ankushrao, accused No.18, is the leader of an organized crime

syndicate, known as 'Sirji' Gang, and in pursuance of a criminal conspiracy on 18

March 2018, 26 accused and a child in conflict with law, who were members of the

said organized crime syndicate committed murder of Sandeep Pawar, the then

Municipal Counsellor, by shooting him and also assaulting him by means of deadly

weapons, at Shriram Bhojnalaya, Station Road, Pandharpur.

3. As the applicant seeks default bail, a detailed reference to the facts may

not be warranted beyond the dates and events which bear upon the entitlement for

default bail. FIR was registered on 19 March 2018. On 15 September 2018,

chargesheet was lodged against the co-accused wherein the applicant was arraigned as

accused No.25 and shown absconding. Chargesheet was purportedly lodged by

invoking the provisions contained in Section 299 of the Code. The applicant came to

be subsequently arrested on 28 August 2021. He was produced before the Special

Court, MCOCA on 29 August 2021. The 180 days period for which the detention

was authorized under the provisions of Section 167(2), as modified by Section 21 of

the MCOC Act, 1999 in its application to the offence under the MCOC Act, 1999, was

over on 24 February 2022.

4. On 28 February 2022, the applicant filed an application for default bail.

Subsequently, on the very day, supplementary chargesheet came to be filed against the

applicant purportedly under Section 173(8) of the Code.

ba 2472 of 2022.doc

5. The learned Special Judge MCOC, Pandharpur, was persuaded to reject

the application by an order dated 11 March 2022 holding, inter alia, that since the

chargesheet was submitted against the applicant and the other co-accused on 15

September 2018 and post arrest of the applicant, only additional evidence came to be

filed in the form of supplementary chargesheet under Section 173(8) of the Code, the

application for default bail was not tenable. It was, inter alia, observed that the

investigation for the offences punishable under the MCOC Act, 1999, was not a new

investigation, but only further investigation in respect of the offences initially

registered while lodging the FIR. Since the chargesheet was already filed on 15

September 2018 and the cognizance of the offences was already taken by the Special

Court (MCOCA), no indefeasible right accrued to the accused under Section 167(2) of

the Code, though the period of 180 days had elapsed since the date of remand of the

applicant, post arrest on 28 August 2021.

6. I have heard Mr. Aabad Ponda, learned Senior Advocate for the

Applicant, and Mrs. Veera Shinde, learned APP for the State at some length.

7. At the outset, Mr. Ponda, submitted that there are two conflicting

decisions, both rendered by the learned Single Judges of this Court. In the case of

Anil Somdatta Nagpal and Lalit V/s. The State of Maharashtra 1, a learned Single

Judge (Hon'ble Mr. Justice S.C.Dharmadhikari) has taken a view that once a

1 2006 Cri.L.J. 1307

ba 2472 of 2022.doc chargesheet is lodged under Section 173(2) of the Code and the cognizance of the

offence has been taken, the subsequent arrest of an accused does not entitle him to

avail the benefit of the proviso to Section 167(2) of the Code. The further report filed

under Section 173(8) of the Code after the arrest and detention of the accused is in the

nature of further investigation and such further investigation can be carried out even

after forwarding report under Section 173(2) of the Code. Such further report under

Section 173(8) of the Code cannot have any bearing on the so called right of the

accused under Section 167(2) of the Code. Once the chargesheet was filed,

indefeasible right to default bail stood extinguished.

8. Another learned Single Judge (Hon'ble Mr. Justice S.B.Shukre) in the

case of Pankaj V/s. The State of Maharashtra and Ors.2 has taken a different view.

It was held that for ascertaining whether the right to default bail is accrued, the date on

which charagesheet is filed post completion of investigation against the accused

becomes relevant. If further investigation is started against the accused arrested after

filing of the chargesheet in which he is shown as absconding accused, completion of

investigation would be declared only by the act of filing of supplementary chargesheet

against him. If the supplementary chargesheet against such an accused is not filed

within the stipulated period under Section 167(2) of the Code, the accused would get

right of default bail.

2 2017 ALL MR (Cri) 564

ba 2472 of 2022.doc

9. Mr. Ponda made an endeavour to urge that the subsequent decision in

the case of Pankaj (supra), promotes the object of the provisions contained in Section

167 of the Code. The earlier decision in the case of Anil Somdatta Nagpal (Supra),

has been dissented from by the Madhya Pradesh High Court in the case of Dinesh s/o

Rajaram Korku and Anr. V/s. The State of Madhya Pradesh and Anr. 3 In any

event, according to Mr. Ponda, filing of the chargesheet while showing an accused as

absconding, purportedly under Section 299 of the Code, is legally impermissible.

When the chargesheet was lodged on 15 September 2018, it cannot be said that the

applicant was in the frame. Therefore, the remand of the applicant post arrest on 28

August 2021 could not have been under the provisions of Section 309 of the Code. In

fact, the remand report indicates that it was filed under Section 167 and not under

Section 309 of the Code. If the applicant was remanded under Section 167 of the

Code, then the applicant cannot be deprived of the right to default bail, urged Mr.

Ponda.

10. To bolster up this submission, Mr. Ponda placed a very strong reliance

on the decision of the Supreme Court in the case of State through CBI V/s. Dawood

Ibrahim Kaskar and Ors.4 Reliance was also placed on the decision of the Supreme

Court in the case of Pradeep Ram V/s. State of Jharkhand and Anr. 5 wherein the

decision in the case of CBI V/s. Dawood (Supra), was followed.

3 Criminal Appeal No.5380 of 2022 4 (2000) 10 SCC 438 5 (2019) 17 SCC 326

ba 2472 of 2022.doc

11. Mr. Ponda further urged that the right to default bail is not only a

statutory right but a facet of fundamental right guaranteed under Article 21 of the

Constitution of India. Attention of the Court was invited to the order of the Supreme

Court in the case of Fakhrey Alam V/s. The State of Uttar Pradesh 6. Mr. Ponda

would urge that, the latter decision in the case of Pankaj V/s. State of Maharashtra

(Supra), deserves to be followed and the applicant deserves to be enlarged on bail. In

the alternative, the conflict needs to be resolved by making a reference to a larger

bench as the decisions in the cases of Anil Somdatta Nagpal (Supra), and Pankaj

V/s. State of Maharashtra (supra), have been rendered by the benches of co-equal

strength.

12. Mrs. Shinde, learned APP, supported the impugned order. It was urged

that the issue sought to be raised by the applicant is no longer res integra. It is covered

by two decisions of this Court in the cases of Amit Madhukar Bhogale V/s. The

State of Maharashtra7 and Suraj Arun Pote V/s. State of Maharashtra8. Mrs.

Shinde would urge that further investigation under Section 173(8) of the Code cannot

be equated with the initial investigation which results in lodging of the chargesheet

under Section 173(2) of the Code. Once the chargesheet is lodged and the cognizance

of the offences has been taken by the jurisdictional Court, the mere fact that an

accused has been subsequently arrested does not entitle him to claim the benefit of the

6 Criminal Appeal No.319 of 2021 decided on 15 March 2021 7 BA 1543 of 2023 dated 22 December 2023 8 BA 19 of 2022 dated 9 February 2022

ba 2472 of 2022.doc proviso to Section 167(2) of the Code on the premise that the supplementary

chargesheet has not been lodged against him within the stipulated period.

13. Mrs. Shinde commended the Court to the decision in the case of Anil

Somdatta Nagpal (Supra), as laying down a correct position in law. Special

emphasis was laid on the fact that in the case of Anil Somdatta Nagpal (Supra), this

Court has pointed out an essential distinction between the final report lodged under

Section 173(2) of the Code and a report filed, post further investigation, under Section

173(8) of the Code. Therefore, the application deserves to be rejected, submitted Mrs.

Shinde.

14. As the true import of the provisions contained in Section 167(2) of the

Code arises for consideration, it may be expedient to extract relevant part of Section

167(2) of the Code :

"167. Procedure when investigation cannot be completed in twenty-four hours -

(1).......

(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 the custody of the police, beyond the period of fifteen

ba 2472 of 2022.doc days, if he is satisfied that adequate grounds exist for 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;"

15. Relevant part of Section 21 of the MCOC Act, 1999 providing for

modified application of the provisions contained in the Code, reads as under :

"21. Modified application of certain provisions of the Code (1) ...........

(2)Section 167 of the Code shall apply in relation to a case involving an offence punishable under this Act subject to the modifications that, in sub-section (2), -

(a) the references to "fifteen days," and "sixty days,"

wherever they occur, shall be construed as references to "thirty days" and "ninety days", respectively;

(b) after the proviso, the following proviso shall be inserted, namely : -

Provided further that if it is not possible to complete the investigation within the said period of ninety days, the Special Court shall extend the said period upto one hundred and eighty days, on the report of the Public Prosecutor indicating the progress

ba 2472 of 2022.doc of the investigation and the specific reasons for the detention of the

accused beyond the said period of ninety days."

16. A conjoint reading of Section 167(2) of the Code with Section 21 of the

MCOC Act, 1999 would indicate that further proviso inserted by Section 21 of the

MCOC Act, 1999, empowers the Special Court to extend the time prescribed by the

proviso to Section 167(2) of the Code upto 180 days on the basis of the report of the

Public Prosecutor indicating the progress of the investigation and the specific reasons

for the detention of the accused beyond the stipulated period of 90 days.

17. By a catena of decisions, the legal position as regards the right of an

accused to be released on bail, under section 167(2) of the Code, has been crystallized.

However, a facet of action or inaction, which myriad situations throw up, continues to

give rise to the controversy about the entitlement for default bail , in the facts peculiar

to a given case. Broad principles, however, are well neigh settled. Firstly, the right to

default bail, as is evident, accrues on account of the default on the part of the

investigating agency in not completing the investigation within the period stipulated

by section 167 (2) of the Code and, in cases where an extended period is prescribed by

the governing statute, within the extended period. Secondly, while considering the

application for default bail, the merits of the allegations against the applicant are not at

all germane. Thirdly, once the right of default bail accrues, in the sense that the

accused has 'availed' the said right by filing an application for release on bail, the

ba 2472 of 2022.doc subsequent act on the part of the investigating agency to lodge the charge-sheet does

not deprive the accused of the said right. Upon default on the part of investigating

agency, the right is cemented as an indefeasible right. Fourthly, factors like the Court

did not entertain the application, refrained from passing an order or passed a wrong

order also do not defeat the said right.

18. Over a period of time, there has been a significant development in law.

The right to default bail under section 167 (2) of the Code has increasingly been seen

through the prism of right to life and personal liberty under Article 21 of the

Constitution of India. The right to default bail is construed to be a facet of fair

procedure guaranteed under Article 21 of the Constitution of India.

19. A useful reference, in this context, can be made to a three Judge Bench

judgment of the Supreme Court in the case of M. Ravindran vs. The Intelligence

Officer, Directorate of Revenue Intelligence9. In the said case, the Supreme Court

extensively adverted to the nature of interplay between the 'right to default bail' and

'fundamental right to life and personal liberty'. The following observations in

paragraph 17 are instructive and delineate the approach to be adopted by the Court

confronted with the question of application of the provsions contained in Section

167(2) of the Code :

17.1 Article 21 of the Constitution of India provides that "no person shall be deprived of his life or personal liberty except according

9 (2021) 2 Supreme Court Cases 485.

ba 2472 of 2022.doc to procedure established by law". It has been settled by a Constitution Bench of this Court in Maneka Gandhi v. Union of India, (1978) 1 SCC 248, that such a procedure cannot be arbitrary, unfair or unreasonable. The history of the enactment of Section 167(2), CrPC and the safeguard of 'default bail' contained in the Proviso thereto is intrinsically linked to Article 21 and is nothing but a legislative exposition of the constitutional safeguard that no person shall be detained except in accordance with rule of law.

..............

17.7 Therefore, as mentioned supra, Section 167(2) is integrally linked to the constitutional commitment under Article 21 promising protection of life and personal liberty against unlawful and arbitrary detention, and must be interpreted in a manner which serves this purpose. In this regard we find it useful to refer to the decision of the three-Judge Bench of this Court in Rakesh Kumar Paul v. State of Assam, (2017) 15 SCC 67, which laid down certain seminal principles as to the interpretation of Section 167(2), CrPC though the questions of law involved were somewhat different from the present case. The questions before the three Judge Bench in Rakesh Kumar Paul were whether, firstly, the 90 day remand extension under Section 167(2)(a)(i) would be applicable in respect of offences where the maximum period of imprisonment was 10 years, though the minimum period was less than 10 years. Secondly, whether the application for bail filed by the accused could be construed as an application for default bail, even though the expiry of the statutory period under Section 167(2) had not been specifically pleaded as a ground for bail. The majority opinion held that the 90 day limit is only available in respect of offences where a minimum ten year imprisonment period is stipulated, and that the oral arguments for default bail made by the counsel for the accused before the High Court would suffice in lieu of a written application. This was based on the reasoning that the Court should not be too technical in matters of personal liberty........

17.9 Additionally, it is well-settled that in case of any ambiguity in the construction of a penal statute, the Courts must favour the interpretation which leans towards protecting the rights of the

ba 2472 of 2022.doc accused, given the ubiquitous power disparity between the individual accused and the State machinery. This is applicable not only in the case of substantive penal statutes but also in the case of procedures providing for the curtailment of the liberty of the accused.

17.10 With respect to the CrPC particularly, the Statement of Objects and Reasons (supra) is an important aid of construction. Section 167(2) has to be interpreted keeping in mind the three fold objectives expressed by the legislature namely ensuring a fair trial, expeditious investigation and trial, and setting down a rationalized procedure that protects the interests of indigent sections of society. These objects are nothing but subsets of the overarching fundamental right guaranteed under Article 21. 17.11 Hence, it is from the perspective of upholding the fundamental right to life and personal liberty under Article 21 that we shall clarify and reconcile the various judicial interpretations of Section 167(2) for the purpose of resolving the dilemma that has arisen in the present case.

(emphasis supplied)

20. The aforesaid exposition indicates that the Supreme Court, construing

the right to default bail as a manifestation of the constitutional guarantee under Article

21, has, in terms, observed that section 167(2) of the Code is nothing but a legislative

exposition of the constitutional safeguard that, no person shall be detained except in

accordance with rule of law.

21. The Supreme Court has exposited in clear terms that section 167(2) has

to be interpreted by keeping in mind the three-fold objectives expressed by the

legislature, namely, ensuring a fair trial, expeditious investigation and trial, and setting

down a rationalized procedure that protects the interests of indigent sections of

ba 2472 of 2022.doc society. Those objects are subsets of the overarching fundamental right guaranteed

under Article 21.

22. What is of salience is the enunciation by the Supreme Court that the practical

application of the mandate contained in section 167(2) of the Code, in a given case,

should be informed by the spirit of imperativeness of upholding the fundamental right

to life and personal liberty under Article 21.

23. Reverting to the controversy at hand, the real question that wrenches to

the fore, is whether the proviso authorizing detention of the accused for a specified

period, governs the case of an accused who is a subsequent arrestee in the sense that

he came to be arrested after the filing of the chargesheet under Section 173(2) of the

Code ? In other words, whether it is obligatory on the part of the investigating agency

to file a further report or supplementary chargesheet against such subsequent arrestee

within the period stipulated by the proviso to Section 167(2) of the Code and in default

an indefeasible right accrues to such subsequent arrestee to be released on bail ?

24. Since there is a conflict in the views of the two decisions rendered by the

learned Single Judges of this Court, it may be apposite to first advert to those two

decisions. In the case of Anil Somdatta Nagpal (Supra), an FIR was registered

against 11 accused persons for the offences under Sections 3 & 7 of the Essential

Commodities Act, 1955 and Section 3 of Petroleum Storage and Distribution Act,

2000. Post completion of investigation, chargesheet was filed on 5 May 2005. The

ba 2472 of 2022.doc applicant Nos.1 and 2 therein were not sent up for trial. The applicant Nos.1 and 2

surrendered on 6 July 2005 and 1 July 2005 respectively. The applicant No.2 filed an

application for default bail on 30 September 2005 asserting, inter alia, that though the

period of 90 days contemplated under Section 167(2) of the Code expired on 28

September 2005, the supplementary chargesheet was not lodged against him. On the

very day the prosecution filed some documents along with the supplementary

chargesheet qua the applicant No.2.

25. In the aforesaid backdrop, the question as to whether the time limit

prescribed by the proviso to Section 167(2) of the Code is to be reckoned in the

context of the final report under Section 173(2) of the Code i.e. 5 May 2005 or on

filing of the further report under Section 173(8) of the Code i.e. on 30 September

2005, arose for consideration. In the aforesaid context, the learned Single Judge

repelled the prayer for default bail holding, inter alia, as under :

"21. As far as Chapter-XIII of the Code is concerned, it provides for jurisdiction of Criminal Courts in inquiries and trials. Section 190 which falls under Chapter-XIV setting out conditions required for initiation of proceedings, and it states that subject to provisions of Chapter-XIV, any Magistrate may take cognizance of any offence upon receiving a complaint of facts which constitute such offence, upon police report of such facts and upon information received from any person other than a police officer or upon his own knowledge, that such offence has been committed. In the instant case, cognizance of the offence is taken upon police report of the facts. That police report is nothing but what is popularly called "a charge sheet" and as envisaged by Section 173(2). In other words, the term "police

ba 2472 of 2022.doc report" referred to in Section 190(1)(b) is traceable to the report of police officer upon completion of investigation, forwarded vide Section 173(2). Admittedly, that has been filed in this case on 5th May 2005. Therefore, it is not possible to accede to the submissions of Shri Maneshinde that the right of the applicants herein to be released on bail because of non compliance with the proviso to sub section (2) of Section 167, subsists in this case. The submissions proceed on the basis that the right under section 167(2) proviso can be availed off at the stage of even Section 173(8). In other words, the charge sheet may have been filed but since the applicants surrender later and a supplementary charge sheet/report is filed, the applicants can take benefit of the above proviso. This plea overlooks the difference between Police Report contemplated by Section 173(2) and Report of further investigation under section 173(8). Mr. Maneshinde has been unable to point out anything in the Code which permits invocation of the proviso to Section 167(2) even in case of further report covered by Section 173(8). Accepting such pleas would mean the right is never extinguished. It can continue endlessly permitting accused to take advantage of their own wrong. Once, the charge sheet was filed in this case then there is nothing in law permitting the applicants to avail of their indefeasible right, which stood extinguished.

22.In any event, these submissions are based upon forwarding to the Magistrate of an accused contemplated by Section 167(2) and the authority, power and jurisdiction of the Magistrate to authorise detention of the accused in custody. According to Shri Maneshinde, because the applicants herein have surrendered before the Court in July 2005, it is from that stage that the period prescribed by Section 167(2) should be computed and once it is so computed, then the fact of filing of charge sheet/report under Section 173(2) earlier i.e. on 5th May 2005 becomes wholly irrelevant.

23.It is not possible to accept this submission either. The reasons for not accepting them are obvious. Section 167(2) provides for power of the Magistrate to authorise detention of the accused who is forwarded to him.

ba 2472 of 2022.doc The question of forwarding the accused to him, would arise upon his arrest as contemplated by Section 167(1) of the Code. The mandate to forward the person to the Magistrate flows not only upon his arrest but also because of his detention in custody. That is the minimum guarantee when a person is being deprived of his liberty. While it may be true that on surrender to the Magistrate the applicants herein have been taken in custody but that by itself does not mean that they are entitled to be released on bail after the outer limit prescribed in law. If the Magistrate has taken cognizance of the offence upon police report being filed, then merely because absconding accused surrenders at a later stage and is taken in custody does not mean that the period of 60 days prescribed in Section 167(2) proviso must be computed in such a manner so as to enable him to be enlarged on bail. An accused cannot contend that the Court must take cognisance of his custody and not the offence.

24.In this behalf a reference can usefully be made to Sections 168, 169, 170 and 172 of the Code. In this behalf the phraseology of Section 170(1) is also relevant. The provisions contained in Chapter-XII deal with information to the police and their powers to investigate, as to what is to happen when investigation cannot be completed, is set out in this very Chapter. Investigation if not concluded/completed in 24 hours is a contingency dealt with by Section 167 which enlists the procedure to be followed in case the same arises. However, Section 168 onwards deal with report of investigation by subordinate police officer, release of an accused without evidence (Section 169), cases to be sent to Magistrate when evidence is sufficient and Section 173 is a provision dealing exclusively with a report to be forwarded by a police officer. Section 173(2) very clearly states that as soon as investigation is complete, the officer in-charge shall forward to a Magistrate empowered to take cognizance of an offence a police report, in the form prescribed by the State Government. Hence, upon investigation being completed and the report contemplated by Section 173(2) being forwarded, cognizance of the offence is taken, and therefore, no question

ba 2472 of 2022.doc arises of applicability of proviso to Section 167(2) of the Code. Proviso contemplates release on bail when investigation is underway and not being completed within the period of 90/60 days. A person gets a right to be released on bail if he is prepared and choses to furnish the same. As rightly pointed out by Shri Borulkar, in the present case, investigation was carried out and a report under Section 173(2) was filed on 5th May 2005. The cognizance of the offence was thus taken. Merely because the applicants took their own sweet time to surrender before the Court, does not mean that they will be entitled to avail of the benefit of proviso to Section 167(2). That pursuant to their arrest and they being detained in custody, a further report was filed under Section 173(8) of the Code, is of no consequence. By its very nature it was a report of further Investigation. That further investigation can be carried out even after forwarding a report under Section 173(2) is an aspect covered by Section 173(8) and not disputed before me. It cannot have any bearing on the so called right of the applicants herein under Section 167(2) proviso." (emphasis supplied)

26. In the case of Pankaj V/s. The State of Maharashtra and Ors. (supra),

an FIR was registered on 13 June 2015 for the offences punishable under Sections 302

read with Section 34 of IPC and Section 3 read with 25 of the Arms Act, 1959 and

Section 3(2)(5) of the Scheduled Castes and Scheduled Tribes (Prevention of

Atrocities) Act, 1989. In all eight persons were arraigned as accused. Out of them,

five were arrested. Two were absconding. The applicant - Pankaj (A7) was initially

granted interim pre-arrest bail. Later on, the application for pre-arrest bail was

rejected on 5 February 2016. The applicant surrendered before the learned Additional

Sessions Judge on 6 February 2016. He was taken into custody and remanded to

ba 2472 of 2022.doc police custody. In the meanwhile, on 6 November 2015, the investigating officer had

filed a chargesheet in the case showing the applicant as an absconding accused. On 6

May 2016, at about 11.00 a.m., the applicant filed an application for default bail

contending that though the period of 90 days had elapsed, no chargesheet was filed

against him. On the very day, subsequently, supplementary chargesheet came to be

filed against the applicant.

27. The learned Single Judge after adverting to the provisions of Section 167

of the Code, its object and the precedents which govern the exercise of jurisdiction,

including the decisions in the cases of CBI V/s. Dawood Ibrahim Kaskar and Ors.

(supra) and Sureshkumar Bhikamchand Jain V/s. State of Maharashtra and Anr.10

held that the applicant therein, having availed indefeasible right to default bail before

the supplementary chargesheet came to be filed, was entitled to be released on bail.

The observations in paragraph 21 encapsulate the view of the learned Single Judge and

read as under :

"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 chargesheet 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 chargesheet in which he is shown as absconding accused, competition of investigation would be declared only by the act of filing of supplementary chargesheet against him. If the supplementary chargesheet against such an accused is not filed within

10 2013 Cr.L.J. 1625

ba 2472 of 2022.doc 90 days or 60 days, as contemplated under 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 chargesheet 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 chargesheet 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 chargesheet 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. The supplementary chargesheet 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 chargesheet 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 chargesheet was filed in the afternoon. The 6th day of May, 2016 was the

ba 2472 of 2022.doc 91st day from the date of arrest of the applicant i.e. 06/02/2016, and the supplementary chargesheet 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 chargesheet 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 is entitled to be released on bail in view of his right arising under Section 167(2) of the Code of Criminal Procedure." (emphasis supplied )

28. Evidently, there is a cleavage of judicial opinion. The decisions in the

cases of Anil Somdatta Nagpal (Supra), and Pankaj V/s. The State of Maharashtra

and Ors. (supra), are irreconcilable. Anil Somdatta Nagpal (Supra), proceeds on

the premise that there is an essential distinction between the final report under

Section 173(2) and the report filed, post further investigation, under Section 173(8) of

the Code and the subsequent arrestee is not entitled to claim the benefit of the proviso

to Section 167(2), once the final report has already been lodged, and that the

indefeasible right stands extinguished.

29. In contrast, Pankaj V/s. The State of Maharashtra and Ors. (supra)

holds that if further investigation is started against the accused arrested after filing of

the chargesheet in which he is shown as an absconding accused, completion of

investigation qua such subsequent arrestee can only be manifested by filing

ba 2472 of 2022.doc supplementary chargesheet against him. If such supplementary chargesheet is not

filed within the stipulated period, an indefeasible right accrues and such accused is

entitled to be enlarged on bail. However, Pankaj V/s. The State of Maharashtra and

Ors. (supra), does not refer to the earlier decision in the case of Anil Somdatta

Nagpal (Supra),

30. The decisions in the cases of Amit Madhukar Bhogale V/s. The State

of Maharashtra (supra) and Suraj Arun Pote V/s. State of Maharashtra (supra),

on which reliance was placed by Mrs. Shinde to bolster up the submission that the

issue sought to be raised in the instant application stands covered by those decisions,

does not seem to advance the cause of the submission.

31. In the case of Suraj Arun Pote (Supra), which was followed in the case

of Amit Madhukar Bhogale (Supra), the accused applicant therein was arrested on

20 May 2021. Chargesheet was lodged on 25 August 2021. On 18 August 2021

approval under Section 23(1) of the MCOC Act, 1999 was granted to invoke the

provisions of MCOC Act, 1999. On 23 October 2021, the applicant was again

arrested in connection with the offences punishable under the MCOC Act, 1999 and

remanded to police custody. On 17 November 2021, the applicant moved an

application for default bail under the provisions of Section 167(2) of the Code

asserting that the investigating agency ought to have filed the chargesheet within the

period of 180 days of the first remand. In that context, this Court held that initial

ba 2472 of 2022.doc chargesheet was lodged within 90 days of the first remand of the accused. The further

investigation under the MCOC Act, was not a completely new investigation. Thus,

the chargesheet filed on 19 February 2022, post invocation of MCOC Act, can only be

described as a supplementary chargesheet.

32. In the case of Amit Madhukar Bhogale (Supra), this Court was

confronted with the questions, whether right to claim default bail revives even though

the chargesheet in respect of the IPC offence is filed within the statutory period

prescribed by Section 167(2) of the Code only because the MCOCA is invoked after

filing of the chargesheet and whether the investigation into the MCOC offence is a

new investigation or continuation of the earlier investigation into the IPC offence ?

32. It is imperative to note that in the said case as well, the accused therein

was already arrested and the chargesheet was lodged for IPC offences within the

stipulated period. This Court after following the decisions in the cases of CBI V/s.

Dawood Ibrahim Kaskar and Ors. (supra) and Pradeep Ram V/s. State of

Jharkhand and Anr., held that the investigation carried out from the point of prior

approval was not a new investigation but only further investigation and the right to

default bail did not revive post invocation of the provisions contained in MCOC 1999.

33. Evidently, the questions which arose before this Court in the cases of

Amit Madhukar Bhogale V/s. The State of Maharashtra (supra) and Suraj Arun

Pote V/s. State of Maharashtra (supra), were in a completely different fact situation.

ba 2472 of 2022.doc I find it difficult to accede to the submission of Mrs. Shinde that the decisions in the

cases of Amit Madhukar Bhogale V/s. The State of Maharashtra (supra) and

Suraj Arun Pote V/s. State of Maharashtra (supra), bear upon the controversy at

hand.

34. At this juncture, a useful reference can be made to the decision of the

Supreme Court in the case of CBI V/s. Dawood Ibrahim Kaskar and Ors. (supra)

wherein the interplay between the provisions contained in Section 309 and 167of the

Code was illuminatingly postulated by the Supreme Court in the following words :

"10. In keeping with the provisions of Section 173(8) and the above quoted observations, it has now to be seen whether Section 309(2) of the Code stands in the way of a Court, which has taken cognizance on an offence, to authorise the detention of a person, who is subsequently brought before it by the police under arrest during further investigation, in police custody in exercise of its power under Section 167 of the Code. Section 309 relates to the power of the Court to postpone the commencement of or adjournment of any inquiry of trial and sub-section (2) thereof reads as follows:

"309(2) If the Court, after taking cognizance of an offence, or commencement of trial, finds it necessary or advisable to postpone the commencement of, or adjourn, any inquiry or trial, it may, from time to time, for reasons to be recorded, postpone or adjourn the same on such terms as it thinks fit, for such time as it considers reasonable, and may be a warrant remand the accused if in custody :

Provided that no Magistrate shall remain an accused person to custody under this Section for a term exceeding fifteen days at a time;"

11. There cannot be any manner of doubt that the remand and the custody referred to in the first proviso to the above sub-section are different

ba 2472 of 2022.doc from detention in custody under Section 167. While remand under the former relates to a stage after cognizance and can only be to judicial custody, detention under the latter relates to the stage of investigation and can initially be either in police custody or judicial custody. Since, however, even after cognizance is taken of an offence the police has a power to investigate into it further, which can be exercised only in accordance with Chapter XII, we see no reason whatsoever why the provisions of Section 167 thereof would not apply to a person who come to be later arrested by the police in course of such investigation. If section 309(2) is to be interpreted - as has been interpreted by the Bombay High Court in Mansuri (supra) - to mean that after the Court takes cognizance of an offence it cannot exercises its power of detention in police custody under Section 167 of the Code, the Investigating Agency would be deprived of an opportunity to interrogate a person arrested during further investigation, even if it can on production of sufficient materials, convince the Court that his detention in its (police) custody was essential for that purpose. We are therefore of the opinion that the words "accused if in custody" appearing in Section 309(2) refer and relate to an accused who was before the Court when cognizance was taken or when enquiry or trial was being held in respect of him and not to an accused who is subsequently arrested in course of further category is concerned he can be remanded to judicial custody only in view of Section 309(2), but he who come under the second category will be governed by Section 167 so long as further investigation continues. That necessarily means that in respect of the latter the Court which has taken cognizance of the offence may exercise its power to detain him in police custody, subject to the fulfillment of the requirements and the limitation of Section 167."

(emphasis supplied)

35. The Supreme Court has, thus, in terms enunciated that there was no

reason whatsoever why the provisions of Section 167 of the Code would not apply to a

person who came to be latter arrested by the police in the course of further

ba 2472 of 2022.doc investigation.

36. In the case of Pradeep Ram V/s. State of Jharkhand and Anr. (supra),

the Supreme Court again reiterated that even after taking cognizance when an accused

is subsequently arrested during further investigation, the accused can be remanded

under Section 167(2) of the Code. On the contrary, when cognizance has been taken

and the accused was in custody at the time of taking cognizance or when inquiry or

trial was being held in respect of him, he can be remanded to judicial custody only

under Section 309(2) of the Code. The Supreme Court culled out the principles as

under :

"64. After having noticed, the relevant provisions of Section 167(2) CrPC and Section 309 CrPC and law laid down by this Court, we arrive at the following conclusions :

64.1 The accused can be remanded under Section 167(2) CrPC during investigation till cognizance has not been taken by the Court. 64.2 That even after taking cognizance when an accused is subsequently arrested during further investigation, the accused can be remanded under Section 167(2) CrPC.

64.3 When cognizance has been taken and the accused was in custody at the time of taking cognizance or when inquiry or trial was being held in respect of him, he can be remanded to judicial custody only under Section 309(2) CrPC."

37. Reverting to the facts of the case, evidently when the chargesheet was

lodged on 15 September 2018, neither the applicant was in custody nor any inquiry or

trial was being held in respect of the applicant till the time he came to be arrested on

ba 2472 of 2022.doc 28 August 2021. In the aforesaid view of the matter, if the right to default bail claimed

by the applicant is considered in the light of the spirit of imperativeness of upholding

the fundamental right to life and personal liberty under Article 21, as exposited by the

Supreme Court in the case of M. Ravindran vs. The Intelligence Officer,

Directorate of Revenue Intelligence11 the decision in the case of Pankaj V/s. The

State of Maharashtra and Ors. (supra), prima facie, appears to be more in

consonance with the object of Section 167(2) of the Code. On the other hand, the

decision in the case of Anil Somdatta Nagpal (supra), appears to take a formalistic

and constricted view of the matter. However, since there is a a cleavage of judicial

opinion in the two decisions of this Court, both rendered by learned Single Judges, it

may be expedient that the conflict is resolved by a Bench of two or more learned

Judges.

38. I am, therefore, inclined to invoke Rule 8 of Chapter I of the Bombay

High Court (Appellate Side) Rules, 1960 and make a reference.

39. The Registrar, Judicial I, is requested to place the papers before the

Hon'ble the Chief Justice for appropriate orders.

( N.J.JAMADAR, J. )

11 (2021) 2 Supreme Court Cases 485.