Madhya Pradesh High Court
Rajendra Singh Bhati vs The State Of Madhya Pradesh on 8 November, 2023
Author: Vijay Kumar Shukla
1
IN THE HIGH COURT OF MADHYA PRADESH
AT INDORE
BEFORE
HON'BLE SHRI JUSTICE VIJAY KUMAR SHUKLA
ON THE 8th OF NOVEMBER, 2023
MISC. CRIMINAL CASE No. 36824 of 2023
BETWEEN:-
RAJENDRA SINGH BHATI S/O SHRI SOHAN SINGH
BHATI, AGED ABOUT 57 YEARS, OCCUPATION:
GOVT. EMPLOYEE R/O 126, SUBHASH NAGAR MAIN
DISTT. INDORE (MADHYA PRADESH)
.....APPLICANT
(SHRI NEERAJ KUMAR SONI, LEARNED COUNSEL FOR THE APPLICANT.
AND
THE STATE OF MADHYA PRADESH THROUGH SHO,
POLICE STATION M.G. ROAD, DISTRICT INDORE
(MADHYA PRADESH)
.....RESPONDENTS
(SHRI AJAY RAJ GUPTA - PUBLIC PROSECUTOR FOR STATE)
This application coming on for orders this day, the court passed
the following:
ORDER
The present petition is filed under section 482 Cr.P.C.
seeking quashment of the order dated 9.8.2023 passed by ASJ
and Special Court (under the Electricity Act) in crime NO.
Signature Not Verified
Signed by: MUKTA
CHANDRASHEKHAR KOUSHAL
Signing time: 09-11-2023
17:08:53
522/2022 affirming the order dated 31.7.2023 passed by JMFC
in criminal case No. 4757/2023.
2. The petitioner is claiming default bail on the ground
that respondent has failed to file chargesheet within the period
of 90 days under section 167(2) Cr.P.C. and therefore, the
petitioner is entitled for default bail.
3. Facts of the case are that applicant is accused in crime
No. 522/2022 registered at P.S. M.G. Road, Indore for
commission of offence under section 420, 467, 468 and 471
IPC. According to the applicant, he surrendered before the
Magistrate on 2.5.2023 and on the said date, order of remand
was passed. The period of 90 days expired on 30.7.2023 and
the chargesheet was filed on 31.7.2023, beyond the period of
90 days, and therefore indefeasible right has accrued in favour
of the petitioner for grant of default bail. In support of his
submission, he has placed reliance on the judgment passed by
the Supreme Court in the case of Enforcement Directorate,
Govt. of India Vs. Kapil Wadhwan (Cr.Appeal No.701-
702/2020) decided on 27.3.2023. He also referred the order
passed by High Court of Orissa in case of Lambodar Bag Vs.
Signature Not Verified
Signed by: MUKTA
CHANDRASHEKHAR KOUSHAL
Signing time: 09-11-2023
17:08:53
State of Orissa, (2018) 71 OCR 31 and the judgment passed
by Madras High Court on 6.12.2021 in CRL OP (MD)
No.18273 of 2021 (K.Muthuirul Vs. Inspector of Police).
4. Per contra, counsel for the State submitted that
chargesheet was filed on 31.7.2023 and the applicant filed an
application for grant of default bail after filing of the
chargesheet and therefore, in the light of the judgment passed
by the Apex Court in the case of Pragyna Singh Thakur Vs.
State of Maharashtra, (2011) 10 SCC 445, no indefeasible
right would accrue under section 167(2) Cr.P.C.. Counsel
further submitted that chargesheet was already submitted to the
Magistrate before expiration of 90 days. However, the
Magistrate was on remand duty, therefore, the chargesheet
could not be filed in the Court. He has produced copy
of Roznamcha dated 29.7.2023.
5. After hearing learned counsel for the parties, it is
apposite to refer the relevant provision of section 167(2)
Cr.P.C., which is reproduced herein under :-
(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
Signature Not Verified
Signed by: MUKTA
CHANDRASHEKHAR KOUSHAL
Signing time: 09-11-2023
17:08:53
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 ma 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 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. "
6. The Magistrate has rejected the application on the
ground that chargesheet was filed on 31.7.2023 before the tea-
break and application for default bail was filed after the tea-
break and therefore, in the light of the judgment passed in the
case of Pragyna Singh Thakur (supra), the applicant is not
entitled for default bail.
7. Upon perusal of the aforesaid proviso (a)(i) of section
167(2) Cr.P.C. it is manifest that where the investigation
Signature Not Verified
Signed by: MUKTA
CHANDRASHEKHAR KOUSHAL
Signing time: 09-11-2023
17:08:53
relates to an offence punishable with death or imprisonment of
life for a period not less than 10 years, the chargesheet has to
be filed within 90 days. In the present case as per the
respondent, the chargesheet was prepared and was attempted
to be filed on 29.7.2023 but on the said date, the Presiding
Officer was not available and therefore the same could not be
filed before the Court and copy was directed to be submitted in
the Court Room No.19 of Smt. Sakshi Kapoor. The relevant
entry of Roznamacha is reproduced herein under :-
मध्यप्रदे शशासन(पुलिसलिभाग)
रोजनामचालििरण
लजिा:इं दौरअर्बन थाना:महात्मागॉधीरोड़
लदन:शलनिार लदनां क:20/07/2023 समय:22:23
प्रविवि प्रलिलिकाप्रकार समय ब्यौरे सन्दभब
क्रम ांक
056 आगमन/िापसी 22:23 रोजनामचा प्रलिलि प्रधान िापसी
आरक्षक-कायबिाहक/
RAJENDRA SURAGE केलिए आर. 482
लनरीक्षक/SANTOSH SINGH
द्वाराकीगयी:इससमयसू चना रामकृष्ण
है लक रिाना इं तजाम मोहमब
डयू टी कर िापस थाना आया
िापसीखुिासाइसप्रकारहै लक
थाने से रिाना होकर इं तजाम
Signature Not Verified
Signed by: MUKTA
CHANDRASHEKHAR KOUSHAL
Signing time: 09-11-2023
17:08:53
हे तु रिाना होकर राजिाड़ा इं तजाम
पहं चा िहां से रिाना होकर
लजिा न्यायािय कोटब रूम (55) डयूटीसे
में अप. क्रं. 522/2022 धारा
420, 467, 468, 471 भादलि
काचािानश्रीयशकुमार लसंह
सा. की कोटब में चािान पेश
करने हे तुपहं चाजहॉंपरश्रीमान
द्वारा चािान का अििोकन
करते र्तायालकदोलदिसशेष
होने से थाने से संर्ंलधत कोटब
रूम (19) श्रीमलत साक्षीकपूर
मेडम की कोटब पेश करने की
लहदायत दी। लजसकी सू चना
हािात थाना प्रभारी महो. को
अिगत कराया र्ाद इं तजाम
डयूटी मेिाती मोहल्िा परचम
के साथ किबिा मैदान डयूटी
र्ादथाने आकरिापसीदजब है ।
8. In the case of Pragyna Singh Thakur (supra) it has been
held that if the chargesheet is filed and bail application is filed
subsequently, no indefeasible right is accrued in favour of the
accused under section 167(2) Cr.P.C.. The aforesaid judgment
has not been considered in any of the judgments relied on by
the counsel for the petitioner. In the case of Kapil
Wadhwan(supra), the Court held that if the chargesheet is not
filed within the period of 60 days from the date of remand and
on the next day default bail application was presented before
the Court, the date of remand would be excluded while
Signature Not Verified
Signed by: MUKTA
CHANDRASHEKHAR KOUSHAL
Signing time: 09-11-2023
17:08:53
computing 60 days and held that it would entitle the
respondent to default bail. The aforesaid judgment would not
render any assistance to the facts of the present case as in the
present case as per order of the Magistrate, the chargehseet was
filed on 31.7.2023 before tea-break and application for default
bail was filed after the tea-break. In the present case, as per
Roznamcha also, the chargehseet was already prepared and
was submitted in the court but same could not be taken on
record because the Magistrate was on remand duty. Apart from
that in the case of Sanjay Dutt Vs. CBI, 1994(5) SCC 402, it
is held that accused must apply for default bail, the moment the
right under section 167(2) Cr.P.C. accrues to him. Counsel for
appellant placed reliance on the judgment in the case of
Lamodar Bagh (supra) to contend that in the said case it has
been held that Magistrate is under obligation to inform the
accused that he has right to claim default bail. The aforesaid
case was dealing with the provisions under NDPS Act, 1985
and in reference to the aforesaid provision, the aforesaid ratio
was laid down. The Division Bench of this Court in the case of
Devraj Maratha @ Dillu Vs. State of M.P. (M.Cr.C.No.
Signature Not Verified
Signed by: MUKTA
CHANDRASHEKHAR KOUSHAL
Signing time: 09-11-2023
17:08:53
668/2018) while answering to a reference for interpretation of
subsection (6) of section 437 of Cr.P.C. held that provision is
mandatory in the sense that the Magistrate is required to
exercise his power of granting bail after statutory period if trial
is not concluded within that period, however passing of an
order under section 437(6) is mandatory but not grant of bail.
The relevant para are reproduced as under :-
"(a) provision envisaged in subsection (6) of Section 437 of the
Code is mandatory in the sense that the Magistrate is required to
exercise his power of granting bail after the statutory period, if the
trial is not concluded within that, however, passing of an order
under section 437(6) of the Code is mandatory, but not grant of
bail.
(b) The Magistrate is vested with full power to take into
consideration - (i) the nature of allegations, (ii) whether the delay
is attributable to the accused or to the prosecution, and (iii)
criminal antecedents of the accused or any other justifiable reason,
while refusing to grant bail."
9. In the light of aforesaid enunciation of law and in the
facts of the present case, the chargesheet was already prepared
and tendered in the court as per Roznamacha within 90 days
and chargesheet was filed on 31.7.2023 before tea-break and
application for default bail was filed after filing of the
chargesheet, no indefeasible right is accrued under section
Signature Not Verified
Signed by: MUKTA
CHANDRASHEKHAR KOUSHAL
Signing time: 09-11-2023
17:08:53
167(2) Cr.P.C. in favour of the applicant to claim default bail
as per law laid down by the Apex Court in the case of Pragyna
Singh Thakur (supra).
The petition sans merit and is hereby dismissed.
(VIJAY KUMAR SHUKLA)
JUDGE
MK
Signature Not Verified
Signed by: MUKTA
CHANDRASHEKHAR KOUSHAL
Signing time: 09-11-2023
17:08:53
