@JUDGMENTTAG-ORDER
R. M. Lodha. J.
1. This criminal bail application is before us on the reference made by the learned Single Judge vide order dated 23rd August, 2000. The learned Single Judge before whom this criminal bail application was moved was of the view that since a serious question of law about the interpretation of sections 13 and 14 of the Maharashtra Protection of Interest of Depositors (Financial Establishment) Act, 1999 (for short "the Act of 1999") and applicability of the proviso to section 167(2) is involved, the matter needs to be heard by the Division Bench for laying down the law on this point.
2. The petitioner is accused in C. R. No. 36 of 1999 for the offences under sections 406 and 420 of the Indian Penal Code read with section 3 of the Act of 1999. The Petitioner is said to have surrendered on 17th June, 2000 before the. Designated Court constituted u/s 6 of the Act of 1999 and remanded by the concerned Designated Court on that day. We read the proceedings which took place after 17th June, 2000 before the Designated Court and various orders passed. The said orders are not material for our purposes. On 17th August, 2000, the Petitioner made an application before the Designated Court for his release under the proviso to sub-section (2) of section 167 of the Code of Criminal Procedure since the challan was not filed by the Investigating Officer. The said application under the proviso to section 167(2) made on 17th August, 2000 was opposed by the learned Public Prosecutor and the Designated Court vide its order of the even date rejected the application. The Designated Court observed that for cases under the Act of 1999, the provision for filling the charge-sheet within the stipulated period u/s 167 would give the Investigating Officer a grossly insufficient period and, therefore, the legislature in its wisdom has made the criminal procedure applicable "only so far as may be" to cases of the Act of 1999. The learned Designated Court held that though there is no conflict between the Code of Criminal Procedure and the Act of 1999, the specific provision of the Act of 1999 shall prevail over the general provisions u/s 167 of the Code of Criminal Procedure. The Designated Court accordingly rejected the application. The order passed by the Designated Court on 17th August, 2000 has been challenged by the Petitioner in Bail Application No. 2701 of 2000 on 18th August, 2000. The learned Single Judge hearing the bail applications heard the bail application on 22nd August. 2000 and the matter was kept overnight part-heard on 23rd August, 2000. On 23rd August. 2000, as indicated above, the learned Single Judge referred the matter to Division Bench observing that, considering the magnitude of the offence the question whether the proviso to section 167(2) of the Code of Criminal Procedure is attracted to the offence under the Act of 1999 needs to be considered by the Division Bench for authoritative pronouncement on the point and accordingly directed the registry to seek appropriate orders from the Hon''ble Chief Justice. The Hon''ble Chief Justice on 25th August, 2000 assigned the bail application for hearing to this Bench and that is how the matter has come up before us.
3. The Act of 1999 came into force on 29th April, 1999. The Act was enacted by the State of Maharashtra for making a suitable special legislation in the public interest to curb the unscrupulous activities of financial establishment in the State of Maharashtra. The statement and object of the Act reads thus : -
There is mushroom growth of Financial Establishments in the State of Maharashtra in the recent past. The sole object of these Establishments is of grabbing money received as deposits from public, mostly middle class and poor on the promises of unprecedented highly attractive rates of interests or rewards and without any obligation to refund the deposit to the investors on maturity or without any provision for ensuring rendering of the services in kind in return, as assured. Many of these Financial Establishments have defaulted to return the deposits on maturity or to pay interest or render the services in kind, in return, as assured to the public. As such deposits run into crores of rupees it has resulted in great public resentment and uproar, creating law and order problem in the State of Maharashtra, specially in the city like Mumbai which is treated as the financial capital of India. It is, therefore, expedient to make a suitable special legislation in the public interest to curb the unscrupulous activities of such Financial Establishment in the State of Maharashtra."
4. Fraudulent default by financial establishment is an offence under the Act of 1999 and it provides that any financial establishment, which fraudulently defaults any repayment of deposit on maturity along with any benefit in the form of interest, bonus, profit or in any other form as promised or fraudulently fails to render service as assured against the deposit, every person including the promoter partner, director, manager or any other person or an employee responsible for the management of or conducting of the business or affairs of such financial establishment shall, on conviction, be punished with imprisonment for a term which may extend to six years and with fine which may extend to one lac of rupees and such financial establishment also shall be liable for a fine which may extend to one lac of rupees. Section 4 provides for attachment of properties on default of return of deposits. Sections 7, 8, 9 and 10 make separate provisions with regard to powers of the Designated Court regarding attachment, attachment of property of mala fide transferees, security in lieu of attachment and administration of property attached. The Competent Authority is appointed u/s 5 to exercise control over the monies and the properties attached by the Government u/s 4 of a Financial Establishment. For the purposes of the Act of 1999, the Designated Court or more Designated Courts are constituted. Appointment of the Special Public Prosecutor is provided u/s 12 of the Act of 1999. Section 16 empowers the State Government to make rules to carry out the purposes of the Act. Sections 13 and 14 which are relevant and material for our purposes read thus :
13. Procedure and powers of Designated Court regarding offences.-
(1) The Designated Court may take cognizance of the offence without the accused being committed to it for trial and, in trying the accused person, shall follow the procedure prescribed in the Code of Criminal Procedure, 1973 (2 of 1974), for the trial of warrant cases by Magistrates.
(2) The provisions of the Code of Criminal Procedure, 1973 (2 of 1974), shall so far as may be, apply to the proceedings before a Designated Court and for the purposes of the said provisions a Designated Court shall be deemed to be a Magistrate.
14. Act to override other law. - Save as otherwise provided in this Act, the provisions of this Act shall have effect notwithstanding anything inconsistent therewith contained in any other law for the time being in force or any custom or usage or any instrument having effect by virtue of any such law.
5. The question that falls for determination by us is; whether the accused arrested for commission of an offence u/s 3 of the Act of 1999 is entitled to compulsive bail or otherwise called order on default for failure on the part of the Investigating Officer in failing the challan u/s 167 of the Code of Criminal Procedure within 60 days of the detention of the accused in custody.
6. Sections 13 and 14 of the Act of 1999 which are relevant for the question being considered by us have already been reproduced above. The relevant part of section 167 reads thus :
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 well founded, 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 no 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 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 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:
(b) no Magistrate shall authorise ..... before him;
(c) no Magistrate of the second class, in the custody of the police.
7. In Union of India v. Thamisharasi & Ors., the Apex Court was seized of the question whether the proviso to sub-section (2) of section 167 of the Code of Criminal Procedure 1973 can be invoked by an accused arrested for commission of an offence under the Narcotic Drugs and Psychotropic Substances Act, 1985 (for short "N.D.P.S. Act") to claim release on bail on the expiry of the total period specified therein if the complaint is not filed within that period. After surveying various relevant provisions in the Code of Criminal Procedure and N.D.P.S. Act. the Apex Court ruled that the applicability of the proviso to section 167(2) of the Code of Criminal Procedure is not excluded by any of the provisions of the N.D.P.S. Act. In paragraph 8 of the report, the Apex Court observed that the provisions of the N.D.P.S. Act did not indicate that any part of sub-section (2) of section 167 of the Code of Criminal Procedure has been made inapplicable. In paragraph 14 of the report, the Apex Court held thus :
In our opinion, in order to exclude the application of the proviso to subsection (2) of Section 167 of Code of Criminal Procedure in such cases an express provision indicating the contrary intention was required or at least some provisions from which such a conclusion emerged by necessary implication. As shown by us, there is no such provision in the N.D.P.S. Act and the scheme of the Act indicates that the total period of custody of the accused permissible during investigation is to be found in section 167 of the Cr.P.C. which is expressly applied. The absence of any provision inconsistent therewith in this Act is significant.
Again in paragraph 16, the Apex Court held that to exclude merely the part of section 167, an express provisions in this statute is necessary. The Apex Court, thus, held in Thamisharasi''s case that the provisions of N.D.P.S. Act do not have the effect of excluding applicability of the proviso to sub-section (2) of section 167 which operates in a different field relating to the total period of custody of the accused permissible during investigation.
8. In Hitendra Vishnu Thakur & Ors v. State of Maharashtra & Ors., the Apex Court inter alia considered the question about the applicability of the proviso to sub-section (2) of section 167 of the Code of Criminal Procedure with regard to an accused arrested for an offence registered under Terrorist and Disruptive Activities Prevention Act [28 of 1987) (for short "T.A.D.A."). The Apex Court considered the relevant provision of T.A.D.A. and Code of Criminal Procedure, 1973, and in paragraph 20 of the report held thus :-
20. The law enjoins upon the investigating agency to carry out the investigation, in a case where a person has been arrested and detained, with utmost urgency and complete the investigation with great promptitude in the prescribed period. Sub-section (2) of Section 167 of the Code lays down that the Magistrate to whom the accused is forwarded may authorise his detention in such custody, as he may think fit, for a term specified in that section. The proviso to sub-section (2) fixes the outer limit within which the investigation must be completed within the said prescribed period, the accused would acquire a right to seek to be released on bail and if he is prepared to and does furnish bail, the Magistrate shall release him on bail and such release shall be deemed to be grant of bail under Chapter XXXIII of the Code of Criminal Procedure. The said Chapter comprises of Sections 436 to 450 but for our purposes it is only Sections 437 and 439 of the Code which are relevant, both these sections empower the Court to release an accused on bail. The object behind the enactment of Section 167 of the Code was that the detention of an accused person should not be permitted in custody pending investigation for any unreasonably longer period. However, realising that it may not be possible to complete the investigation in every case within 24 hours or even 15 days, as the case may be, even if the investigating agency proceeds with utmost promptitude, the Parliament introduced the proviso to Section 167(2) of the Code, prescribing the outer limit within which the investigation must be completed. Section 167 read with Section 20(4) of the T.A.D.A., thus, strictly speaking is not a provision for grant of bail but deals with the maximum period during which a person accused of an offence may be kept in custody and detention to enable the investigating agency to complete the investigation and file the charge-sheet, if necessary, in the Court. The proviso to Section 167(2) of the Code read with Section 20(4)(b) of the T.A.D.A., therefore, creates an indefeasible right in an accused person, on account of the default by the investigating agency in the completion of the investigation within the maximum period prescribed or extended, as the case may be, to seek an order for his release on bail. It is for this reason that an order for release on bail under proviso (a) of Section 167(2) of the Code read with Section 20(4) of T.A.D.A. is generally termed as an "order-on-default" as it is granted on account of the default of the prosecution to complete the investigation and file the challan within the prescribed period. As a consequence of the amendment, an accused after the expiry of 180 days from the date of his arrest becomes entitled to bail irrespective of the nature of the offence with which he is charged, where the prosecution fails to put up challan against him on completion of the investigation. With the amendment of clause (b) of sub-section (4) of Section 20 read with the proviso to sub-sec. (2) of Section 167 of the Cr. P. C.. an indefeasible right to be enlarged on bail accrues in favour of the accused, if the police fails to complete the investigation and put up a challan against him in accordance with law u/s 173 of the Cr.P.C. An obligation, in such a case, is cast upon the Court, when after the expiry of the maximum period during which an accused could be kept in custody, to decline the police request for further remand except in cases governed by Clause (bb) of Section 20(4).
9. The Apex Court, thus, in the light of the provisions of T.A.D.A. and the proviso to section 167(2) of Code of the Criminal Procedure, ruled that the said proviso to section 167(2) read with section 20(4) of the T.A.D.A. creates an indefeasible right in an accused person, on account of the default by the investigating agency to complete the investigation within the maximum period prescribed or extended, as the case may be, to seek an order for his release on bail.
10. The Constitution Bench of the Apex Court in Sanjay Dutt v. State through C.B.I., Bombay (II), again considered the applicability of section 167(2) of the Code of Criminal Procedure to an accused arrested for commission of an offence registered under T.A.D.A. and upon consideration of the provisions of T.A.D.A. Code of Criminal Procedure and various judgments, in paragraph 48 of the report, ruled, thus : -
48. We have no doubt that the common stance before us of the nature of indefeasible right of the accused to be released on bail by virtue of Section 20(4)(bb) is based on a correct reading of the principle indicated in that decision. The indefeasible right accruing to the accused in such a situation is enforceable only prior to the filing of the challan and it does not survive or remain enforceable on the challan being filed, if already not availed of. Once the challan has been filed, the question of grant of bail has to be considered and decided only with reference to the merits of the case under the provisions relating to grant of bail to an accused after the filing of the challan. The custody of the accused after the challan has been filed is not governed by Section 167 but different provisions of the Code of Criminal Procedure. If that right had accrued to the accused but it remained un-enforcement thereafter since it is extinguished the moment challan is filed because Section 167 of the Cr.P.C. ceases to apply- The Division Bench also indicated that if there be such an application of the accused for release ''on bail and also a prayer for extension of time to complete the investigation according to the proviso in Section 20(4)(bb), both of them should be considered together. It is obvious that no bail can be given even in such a case unless the prayer for extension of the period is rejected. In short, the grant of bail in such a situation is also subject to refusal of the prayer for extension of time, if such a prayer is made. If the accused applies for bail under this provision on expiry of the period of 180 days or the extended period, as the case may be, then he has to be released on bail forthwith. The accused, so released on bail may be arrested and committed to custody according to the provisions of the Code of Criminal Procedure. It is settled by Constitution Bench decisions that a petition seeking the writ of habeas corpus on the ground of absence of a valid order of remand or detention of the accused, has to be dismissed, if on the date of return of the rule, the custody or detention is on the basis of a valid order.
11. In the light of the aforesaid legal position laid down by the Apex Court regarding entitlement of the accused person in invoking proviso to section 167(2) of the Code of Criminal Procedure when Investigating Officer fails to file challan within the time provided u/s 167(2) of the Code of Criminal Procedure in case of offence registered under N.D.P.S. Act and T.A.D.A., when we turn to the Act of 1999, we do not find that the said Act of 1999 and particularly section 13(2) excludes the applicability of proviso to sub-section (2) of section 167 of the Code of Criminal Procedure to a person arrested for commission of an offence u/s 3 of the Act of 1999.
12. Sub-section (1) of section 13 provides that the Designated Court may take cognizance of the offence without the accused being committed to it for trial and shall follow the procedure prescribed in the Code of Criminal Procedure for the trial of the cases for the Magistrates in trying the accused person. Sub-section (2) of Section 13 provides that the provisions of the Code of Criminal Procedure shall apply to the proceedings before the Designated Court so far as may be applicable, section 14 overrides any other law which is inconsistent with the Act of 1999. There is no specific provisions either u/s 13 or any other section of the Act of 1999 which can be said to be contrary or inconsistent with section 167 of the Code of Criminal Procedure in respect of the arrest and detention of the accused in custody for commission of an offence u/s 3. Section 13(2) expressly incorporates provisions of Criminal Procedure Code to the proceedings before Designated Court as far as may be applicable. The proviso to sub-section (2) of section 167 can only be said to be excluded if the contrary provision can be seen in the Act of 1999 expressly or by necessary implication. The Act of 1999 does not provide nor the scheme of the Act of 1999 indicates the total period of the accused in custody during investigation for commission of an offence u/s 3. Obviously, in absence thereof, the total period of custody of the person accused of an offence under Act of 1999 permissible during investigation has to be found in section 167 of the Code of Criminal Procedure only. The use of the expression "so far as may be" in sub-section (2) of Section 167 is usual expression of legislation by incorporation. The expression "so far as may be" conveys the intention of the legislature in incorporating the provisions of one Act in another enactment. It is settled that the expression "so far as may be "lays down the principle that what is not either expressly, or, by necessary implication, excluded must be applied. The intention which is obvious in using the words "so far as may be" in sub-section (2) of section 13 of the Act of 1999 is to exclude only such provision of the Code of Criminal Procedure which becomes inapplicable because of any special procedure prescribed under the Act of 1999. The words "so far as may be" occurring in section 13(2) cannot be construed to provide discretion to the Court to apply the provisions of Code of Criminal Procedure where it likes. Save and except the special provisions contained in sections 4, 5, 7 to 10 relating to attachment of property and related matters in the Act of 1999, there is no special provision in the Act of 1999 relating to production, detention of accused in custody and investigation and, therefore, such provisions of the Code of Criminal Procedure are clearly applicable. We may note that remand of the person accused of an offence u/s 3 of the Act of 1999 can be only by command of law and in the absence of such provision in the Act of 1999, it has only to be found In section 167. Pertinently the petitioner himself invoked section 167 of the Code of Criminal Procedure when his police remand was extended beyond 15 days. We do not find any interdiction in the Act of 1999 against the applicability of section 167(2) proviso and, therefore, we have no hesitation in holding that the accused arrested for commission of an offence u/s 3 of the Act of 1999 is entitled to claim release on bail on expiry of the total period specified in section 167 if the challan is not filed within that period.
13. The learned Additional Advocate General heavily relied upon section 96 of the Bombay Police Act, 1951 which provides the procedure to be followed by the officer and Magistrate in certain cases in Greater Bombay. Section 96 reads thus : -
96. (1) Notwithstanding anything contained in sections 129, 130, sub-section (2) of section 167, and section 173 of the Code of Criminal Procedure, 1898 -
(i) the powers and duties of a Magistrate under sections 129 and 130 of that Code may. in [any area under the charge of a Commissioner] be exercised and performed by the Commissioner.
(ii) the Presidency Magistrate in Greater Bombay to whom an accused person is forwarded under sub-section (2) of section 167 of the Code, may, whether he has or has no 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 at a time,
(iii) the officer in charge of the Police Station shall forward his report u/s 173 of the Code to the Commissioner or such other officer as the Commissioner may direct in that behalf.
(2) Nothing contained in section 62 of the Code of Criminal Procedure. 1898, shall operate to require any officer in charge of a Police Station [any area under the discharge of a Commissioner] to submit any report provided for by that section to any Magistrate.
(3) Section 127 and 128 of the Code of Criminal Procedure. 1898, in their application to Greater Bombay [and any other area for which a Commissioner has been appointed] shall be amended as follows :-
(a) in sections 127, for the words "Police Station" the words ''section or any Police Officer not below the rank of a Sub-Inspector authorised by the State Government in this behalf" shall be substituted :
(b) in section 128, for the words "police station whether within or without the presidency-towns" the words and figures "section or any Police Officer authorised u/s 127" shall be substituted.
14. It is true that clause (ii) of section 96(1) provides that notwithstanding the provisions contained in sub-section (2) of section 167 of the old code of Criminal Procedure, the Presidency Magistrate in Greater Bombay to whom an accused person is forwarded u/s 167(2) may authorise the detention of the accused in such custody for a term not exceeding 15 days at a time whether such Magistrate has jurisdiction or not to try the case. However, we may note that the Bombay Police Act received assent of the President on the 1st June, 1951 and became effective from 11th June, 1951 while Criminal Procedure Code, 1973 came into force on 1st April, 1974. Article 254(1) of the Constitution of India provides that if any provision of a law made by the Legislature of a State is repugnant to any provisions of a law made by Parliament which Parliament is competent to enact, the law made by Parliament shall prevail. Section 5 of the Code of Criminal Procedure makes a provision that the provision contained in the Code of Criminal Procedure shall not affect any special or local law for the time being in force, in the absence of any specific provision to the contrary to the Code. Since the provisions contained in clause (ii) of sub-section (1) of section 96 to the extent it does not provide for maximum period of detention during investigation is inconsistent with the provision contained in sub-section (2) of section 167 of the Code of Criminal Procedure, 1973, the said provision contained in clause (ii) of sub-section (1) of section 96 cannot be said to be saved u/s 5 of the Code of Criminal Procedure. In any case, section 96(1)(ii) has to be read in the manner which is in consonance with sub-section (2) of section 167 of the Code of Criminal Procedure, 1973 (a later Central legislation) and to the extent the said clause (ii) of sub-section (1) of section 96 is repugnant to section 167(2), it has to give way to the provision contained in section 167(2) including proviso thereto. The total period of detention, therefore, from the date of the arrest of the person accused of the offence u/s 3 of the Act of 1999 has to be governed and guided by section 167 of the Code of Criminal Procedure, 1973. The Designated Court constituted u/s 6 of the Act of 1999 who is deemed to be Magistrate cannot authorise detention of the accused of an offence u/s 3 in custody during investigation for the total period exceeding section 167(2) proviso. The view taken by the Designated Court in construction of section 13(2) vis-a-vis section 167(2) proviso is being clearly erroneous cannot be sustained.
15. Much was argued by the Additional Advocate General that more than 29000 persons have been cheated for the amount exceeding Rs. 450 crores and, therefore, the investigation of crime which was of vast magnitude could not be completed within 60 days and the accused person having committed such a grave and serious offence would not be entitled to compulsive bail because the challan could not be filed within the prescribed period. He submitted that for the offence committed u/s 3 of the Act of 1999, many a time, the period of 60 days would be insufficient for filing the challan. If that be so, it was for the Legislature to make specific provision in the Act of 1999 excluding the applicability of the proviso to sub-section (2) of section 167 of the Code of Criminal Procedure. To remind ourselves what has been stated by the Apex Court in Natabar Parida & Ors. v. State of Orissa wherein, the Apex Court observed, "..... But if it is not possible to complete the investigation within a period of 60 days then even in serious and ghastly types of crimes the accused will be entitled to be released on bail. Such a law may be a "paradise for the criminals," but surely it would not be so, as sometimes it is supposed to be, because of the Courts. It would be so under the command of the Legislature. "Since there is no command of the Legislature to the contrary excluding the applicability of the proviso to sub-section (2) of section 167 either by the express provision in the Act of 1999 or by necessary implication, the consequence of order on default provided in section 167(2) proviso shall follow even to a person who is accused of an offence u/s 3 of the Act of 1999 if charge-sheet is not filed within time provided therein.
16. We. therefore, are of the considered opinion that the accused arrested for commission of an offence u/s 3 of the Act of 1999 is entitled to claim release on bail on the expiry of total period specified in proviso to sub-section (2) of section 167 of the Code of Criminal Procedure if the challan is not filed within the period provided therein.
17. In the background of the aforesaid legal position, we have to examine petitioner''s claim for his release u/s 167(2) proviso. We may note few relevant dates. The Petitioner who is accused of the offence under sections 406 and 420 of the Indian Penal Code r/w section 3 of the Act of 1999 was arrested and remanded to police custody on 17th June. 2000. The maximum punishment provided for the offence committed u/s 3 of the Act of 1999 is six years. In the light of the period provided in the proviso to sub-section (2) of section 167, the maximum period of detention of the petitioner could have been 60 days. Since the Investigating Officer did not file challan within 60 days of the arrest of the petitioner/accused, the petitioner made an application on 17th August, 2000 claiming his release on bail by default in filing the challan by the Investigating Officer within time. The said application was rejected by the Designated Court on 17th August, 2000 itself. The accused/petitioner filed criminal bail application in this Court on 18th August, 2000 which was heard by the learned Single Judge for some time on 22nd August, 2000 and, thereafter, referred to the Division Bench vide order dated 23rd August, 2000. The bail application came up before us on 29th August, 2000 and, on that date, Mr. Manohar, learned senior counsel appearing for the petitioner/accused, concluded his arguments. At the instance of the learned Additional Advocate General, the matter was adjourned to 31st August, 2000. On 31st August, 2000, when the matter came up before us, the learned Additional Advocate General Informed us that the charge-sheet has been filed by the Investigating Officer against the accused/petitioner on 30th August, 2000. In the light of this event, which has taken place during the pendency of the bail application, we have to consider whether the petitioner can claim his release under the proviso to subsection (2) of section 167 of the Code of Criminal Procedure even though the charge-sheet has now been filed against the petitioner/accused.
18. Mr. Manohar, learned senior counsel appearing for the accused/petitioner, strenuously urged that by filing the charge-sheet during the pendency of the bail application when it was being heard, the State has committed fraud and such act of the State cannot deprive the petitioner''s entitlement to claim release on bail u/s 167(2) proviso when the application has already been made by the accused/petitioner seeking to enforce his right under the said provision. Mr. Manohar submitted that right to claim bail under the proviso to sub-section (2) of section 167 arose to the petitioner as soon as 60 days were over from the date of the arrest of the petitioner and the challan was not filed and that the right which has accrued to the petitioner could not be defeated by filing charge -sheet subsequently since the petitioner''s right u/s 167(2) proviso is absolute and indefeasible. Mr. Manohar further submitted that right to claim release by the accused person u/s 167(2) proviso for the absence of the charge-sheet within time only accrues once and such right having accrued, it has to be taken to its logical conclusion by granting ball to the accused u/s 167(2) proviso. In this connection, Mr. Manohar cited Full Bench Judgment of the Gujarat High Court in Babubhai Parshottamdas Patel v. State of Gujarat, Umashanker & Ors. v. State of Madhya Pradesh,; Hitendra Vishnu Thakur (supra); Sanjay Dutt (supra); Devendrapal Singh v. Government of National Capital Territory of Delhi,. Mohammed Iqbal Madar Sheikh & Ors. v. State of Maharashtra,; Ramesh Madhukar Thombre v. State of Maharashtra:. Santosh Singh Govardhan Singh Kashyap v. State of Maharashtra and Smt. Nanda & Anr. v. State of Maharashtra,.
19. In Sanjay Duff''s case (supra), the Apex Court in paragraph 48. which has already been quoted above, held that the custody of the accused after the challan has been filed is not governed by section 167 but by different provisions of the Code of Criminal Procedure. If that right had accrued to the accused but it remained unenforced till the filing of the challan then there is no question of its enforcement thereafter since it is extinguished the moment challan is filed because section 167 of the Code of Criminal Procedure ceases to apply. The Apex Court also observed that once the challan has been filed, question of grant of ball has to be considered and decided only with reference to the merits of the case under the provisions relating to grant of bail to an accused.
20. In State of M. P. v. Rustam & Ors., the Apex Court, following the dicta in Sanjay Dutt''s case (supra), held thus : "..... The Court is required to examine the availability of the right of compulsive bail on the date it is considering the question of bait and not barely on the date of the presentation of the application for bail."
21. Though the right accrued to the accused for release on bait under the proviso to section 167(2), if the challan is not filed within the prescribed period, is indefeasible, obviously it is indefeasible only till the challan is filed and right under the proviso to section 167(2) is enforced. Even though the accused person makes an application for grant of bail under the proviso to section 167(2) if the charge-sheet is not filed within the prescribed period and such an application ponds for any reason and during the pendency of such application, the challan is filed by the Investigating Officer, the accused cannot claim his release on ball under the proviso to section 167(2) of the Code of Criminal Procedure. The indefeasible right of the accused to be released on bail under proviso to section 167(2), as the Apex Court has observed in Hitendra v. Thakur (supra) and Sanjay Dutt (supra), is a right enforceable by the accused only from the time of the default till the filing of the challan and it does not survive or remain enforceable on the challan being filed. The right of the accused after the challan has been filed to be enlarged on ball shall only be governed by the provisions relating to the grant of bail applicable at that stage. In other words, if during the pendency of the application for bail under the proviso to section 167(2), the challan is filed in the Court, the investigation comes to an end and so also the power of the Magistrate of granting bail to the accused under the provisions of section 167(2) and, in that event, the provisions of section 437 or section 439 of the Code of Criminal Procedure, as the case may be, would come into play. We find that this aspect of the controversy is also concluded by the Constitution Bench of the Apex Court in Sanjay Dutt''s case (supra) and also in Rustam''s case (supra).
22. Though Mr. Manohar, learned senior counsel placed heavy reliance on the Full Bench judgment of Gujarat High Court in Babubhai P. Patel''s case (supra), we are of the view that in the light of the law laid down in the subsequent judgments of the Apex Court particularly Sanjay Dutt''s case and Rustam''s case, the view taken in Babubhai Patel''s case (supra) to the extent the same is contrary and inconsistent to the law laid down by the Apex Court in aforesaid cases cannot be held to be good law. For the self-same reason, we also hold that the judgment of the learned Single Judge in Ramesh Madhukar Thombre (supra) does not lay down the correct law. Sanjay Dutt''s case though referred has not been properly applied in Ramesh Madhukar Thombre''s case. If the right of the accused under the proviso to section 167(2) has not been enforced by his release on bail until the charge-sheet is filed, such right comes to an end on filing of the challan. Merely because the application is made by the accused for his release on bail u/s 167(2) proviso before the challan is filed and for any reason the application remains pending, but once the challan is filed, he cannot claim his release on the ground that he had moved the Court claiming his release on ball before the challan was filed. Filing of the challan does make difference and extinguishes the right of the accused in claiming his release on bail u/s 167(2) proviso, if he has not been released on bail for any reason by the time the challan has been filed. The relevant time for consideration of right of accused for compulsive bail is the time when such application is being considered by the Court and not the date on which such application is made. In Sanjay Dutt''s case (supra), the Apex Court relying upon its decisions in Naranjan Singh Nathawan & Ors. v. State of Delhi & OFS.,; Ram Narayan Singh v. State of Delhi & Ors., and A. K. Gopalan v. Government of India, applied the principle applicable to habeas corpus petition that if on the date of the return of the rule the custody or detention is on the basis of the valid order, such habeas corpus cannot be granted also to the matter where application is made by an accused for his release on bail u/s 167(2) proviso for want of filing of the charge-sheet within time. Applying the same principle we have no hesitation in holding that now since the challan has been filed, obviously, custody of the accused is valid and governed by section 309 of the Code of Criminal Procedure and the accused cannot claim his release on bail under the proviso to section 167(2).
23. Mr. Manohar, learned senior counsel appearing for the petitioner highlighted the conduct on the part of the Investigating Officer in filing the charge-sheet abruptly before the Designated Court when the hearing of the application was going on before this Court and while referring to the affidavit of Mr. Ramakant T. Ghogale, Inspector of Police, submitted that, on one hand the Investigating Officer staled before this Court in his affidavit dated 23rd August, 2000 that he has yet to carry the Investigation and on the other, on 30th August, 2000, the charge-sheet was filed which is not the charge-sheet in the eye of law. Mr. Manohar invited our attention to the Apex Court judgment in Mohammed Iqbal''s case (supra), particularly paragraph 12 in which the Apex Court observed thus : -
12. During hearing of the appeal, it was pointed out by the counsel appearing on behalf of the appellants that some courts in order to defeat the right of the accused to be released on bail under proviso (a) to Section 167(2) after expiry of the statutory period for completion of the Investigation, keep the applications for bail pending for some days so that in the meantime, charge-sheets are submitted. Any such act on the part of any Court cannot be approved. If an accused charged with any kind of offence becomes entitled to be released on bail under proviso (a) to Section 167(2), that statutory right should not be defeated by keeping the applications pending till the charge-sheets are submitted so that the right which had accrued is extinguished and defeated. So far the present case is concerned, we are informed by the counsel for the appellants that a petition for grant of bail on merit had been filed which was rejected on 22.3.1993. But admittedly no petition for grant of bail after the expiry of the statutory period for the submission of the charge-sheet had been filed. There is no statement that any application for grant of bail had been filed on behalf of the appellants under proviso (a) to Section 167(2) after the expiry of the statutory period which application was kept pending till 30.8.1993. Now the appellants have forfeited their right to be released on bail under proviso (a) to Section 167(2) as they are in custody on basis of orders for remand passed under other provisions of the Code. In such a situation, we are left with no option but to dismiss these appeals. However, we direct that the trial of the appellants be expedited.
24. Since now the challan has been filed and though abruptly in the facts and circumstances of the present case, and the aforesaid legal position discussed by us, the accused/petitioner is not entitled to release on bail under the proviso to sub-section (2) of section 167 of the Code of Criminal Procedure. The custody of the accused/petitioner is now u/s 309 of the Code of Criminal Procedure and he can apply only for bail u/s 437 of the Code of Criminal Procedure but cannot get benefit of compulsive ball.
25. In view of the foregoing discussion, the bail application made by the accused/petitioner has to be rejected and is accordingly rejected.
26. Needless to say that it would be open to the accused/petitioner to apply for regular bail u/s 437 of the Code of Criminal Procedure before the Designated Court and upon such application being made, the same would be considered by the concerned Designated Court in accordance with law.
27. Certified copy be expedited.
