03 Nov 2020

When the charge sheet is filed within 90 days, the accused is not entitled to an indefeasible right to bail - Bombay High Court

Case : Dattatraya v. State of Maharashtra & Anr. Criminal Writ Petition No. 1290 of 2020

Court : Bombay High Court

Bench : Justice Vibha Kankanwadi

Decided on : 03 Nov 2020

Relevant Statutes

Article 226 of the Constitution of India

Sections 302, 109, 120(B) and 34 of the Indian Penal Code, 1860

Section 167 of the Code of Criminal Procedure, 1973

Chapter III of the Criminal Manual

Brief Facts and Procedural History

1. The accused were arrested for committing offence u/s 302, 109, 120(B) read with Section 34 of the Indian Penal Code, 1860. They were produced before Judicial Magistrate First Class and remanded first to police custody than to judicial custody. Their applications for bail u/s 167(2), the Code of Criminal Procedure, 1973 i.e., default bail were rejected. Revision applications against the order of rejection were filed before the Additional Sessions Judge and got rejected.

2. Consequently, they approached the High Court for relief.

3. Taking into consideration the say filed by the prosecution as well as the endorsements and the Standard Operating Procedure circular in view of the pandemic situation, it was held by the learned Judicial Magistrate First Class that the charge sheet has been filed within 90 days and, therefore, there is no indefeasible right to the accused persons.

The Issues of the Case

Whether the chart sheet in the respective cases was filed within 90 days?

Whether the accused are entitled to bail u/s 167(2) of the Code of Criminal Procedure, 1973?

The Observations of the Court

1. A common judgement was given for two writ petitions for having raised the same point.

2. Section 167(2) prescribes, regarding authorization of detention by the Magistrate for a period of 60 days or 90 days as the case may be and not beyond that if the charge sheet is not filed within the said period. Therefore, filing of charge sheet with the Court would be sufficient compliance and it is not necessary that it should be stretched to the point of registration of the charge sheet.

3. The Court of Judicial Magistrate First Class and of the Additional Sessions Judge correctly observed that filing of charge sheet and registration of the same are two different stages. After the filing of the charge sheet/complaint, it will have to be examined. If any objection is there, it has to be raised and either after the removal of those objections or subject to further order passed by the Court, the number would be assigned to the case. The presentation should be before the Magistrate, yet, it is through the staff and not to the presiding officer personally.

4. Assistant Superintendent of the Court endorsed that the charge sheet was filed on 31-07-2020 and numbered on 05-08-2020. As regards the late registration of the charge sheet is concerned, it has been stated that it was in view of the Standard Operating Procedure and the circulars as well as the arrangement that has been made locally to accept the physical filing in view of the pandemic situation, especially that the documents were also required to be kept in isolation in view of the then understanding that the coronavirus gets spread even through the documents.

5. The High Court confirmed the order of the learned Judicial Magistrate First Class that the charge sheet has been filed within 90 days and, therefore, there is no indefeasible right to the accused persons, keeping in consideration Ravi Prakash Singh @ Arvind Singh v. State of Bihar, [(2015) 8 SCC 340] wherein the ratio that has been laid down is, “while computing the period under Section 167(2), the day on which accused was recommended to judicial custody has to be excluded and the day on which Challan/charge-sheet is filed in the Court has to be included. In Naresh @ Nana Vs. State of Maharashtra (1999 (3) Mh.L.J, 631) it has been held that “there is no provision in Code of Criminal Procedure which indicates that if the last day happens to be a holiday or non-working day of the Court, then charge sheet could be filed on the reopening day of the Court and the same should be treated to be within 90 days.”

6. The ratio that was laid down in S. Kasi v. State (2020 (3) MLJ (Cri) 229) or Shaikh Moin Shaikh Mehmood v. State of Maharashtra, (Criminal Appeal No.502 of 2020 decided on 24-09-2020) and the opinion of the Law Commission of India in Report No.14 on Reforms of the Judicial Administration and the present Code of Criminal Procedure which provide for balancing the need for sufficient time limits to complete the investigation with the need to protect the civil liberties of the accused will not be applicable here for being related to different facts.

Decision

The Bombay High Court rejected the writ petitions as;

1. The charge sheet was filed on the 88th day so the applicants had no indefeasible right under Section 167(2), Code of Criminal Procedure, 1973 and, therefore, both the applications and the revisions were rightly rejected.

2. No grounds are made to invoke the constitutional powers of this Court under Articles 226 and 227 of the Constitution of India to interfere with aforesaid orders.

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