Citations: Abdul Wahid Vs State of Maharashtra, (1991) 93 BOMLR 478
Date of Judgment: 27/08/1991
Equivalent citations: 1992 CriLJ 1900
Case No: Criminal Application No. 216 of 1991
Case Type: Criminal Appeal
Appellant: Abdul Wahid
Respondent: State of Maharashtra
Bench: Hon’ble Justice Deshpande, Hon’ble Justice W.M Sambre
Court: Bombay High Court
Statutes Referred:
- Code of Criminal Procedure, 1973; Sections 167, 170, 309, 437, 439
Cases Referred:
- State of U.P. Vs Lakshmi Brahman, (1983 Cri LJ 839) (SC)
- Hussainara Khatoon Vs Home Secretary, State of Bihar, (1979 Cri LJ 1052)
- Raghubir Singh Vs State of Bihar, (1987 Cri LJ 157) (SC)
- Rajnikant Vs Intelligence Officer, Narcotic Control Bureau, (1990 Cri LJ 62) (SC)
- Shrawan Vs State of Maharashtra, 1976 Mah LJ 654
- Sumersinbh Umedsinh Rajput Vs State of Gujarat, 16 G.L.R. 572
- Babubhai Vs State of Gujarat, 1982 Cri LJ 284 : (AIR 1982 NOC 72)
- Ramsaran Vs State of Maharashtra, 1976 Mah LJ 432
- Habibulla Vs State of Maharashtra, 1988 Mah LJ 285
- Baburao Vs State of Maharashtra, 1989 Mah LJ 1027
Facts:
- On 08/08/1989, applicant Abdul Wahid was arrested regarding an incident that took place on 25/04/1991 in which a person was killed. On the 92nd day from the date of arrest when a bail application was made before the Session Court charge-sheet was filed simultaneously.
- Session Courts refused bail of the applicant under Section 167(2) of the Code of Criminal Procedure, 1973. Aggrieved by this, the applicant approached the Court under Section 439 read with Section 167 of the Code of Criminal Procedure, 1973. However, the court denied the bail and held that after the charge-sheet is filed the relief of bail can be sought under Section 437 of the Code of Criminal Procedure, 1973 and not Section 167(2) of this Code.
- Meanwhile, owing to conflicting views the Session Court referred this matter to the Division Bench of the Bombay High Court to be decided upon.
Issues Involved:
- Whether the applicant has an absolute right for being enlarged on bail under Section 167(2) of the Code of Criminal Procedure, 1973 that it cannot be deprived or obliterated after filing a charge-sheet?
Contention of Appellant:
The counsel for the Appellant referred to the following cases to give the following contentions:
- In Rajnikant Vs Intelligence Officer of Narcotic Control Bureau, the court held that the right of the applicant to get released on order-on-default under Section 167(2) proviso (a) of the Code of Criminal Procedure, 1973 is absolute. In case of failure of the investigating authority to file a charge-sheet before the expiry of the prescribed duration as the case may be, the accused should be granted bail while the merits of the case can not be examined after the expiry.
- Also, the proposition laid down in the Shrawan Vs State of Maharashtra, that legalized the detention of accused beyond 60 days cannot be considered a good law as the authority was drawn from the case of Sumersinbh Umedsinh Rajput Vs State of Gujarat that was further overruled in the case of Babubhai Vs the State of Gujarat by the Gujarat High Court.
- The counsel for the appellant referred to the case of Hussainara Khatoon Vs Home Secretary, State of Bihar where it was observed that when an undertrial prisoner is produced before a Magistrate after being detained for 90 days or 60 days, the Magistrate before making any order for other remand provide for the option of release on bail under Section 167(2) of Criminal Procedure Code of 1973.
Judgement:
The Appeal was rejected on merits.
The Hon’ble Division Bench rejected the Appellants plea. The Court observed that the application for bail under Section 167(2) of Code of Criminal Procedure, 1973 was dismissed on merits and the right provided to the applicant under this section for bail can be exercised before the chargesheet is filed and not later.
Ratio Decidendi:
- The rights accrued to the accused under Section 167(2) of the Code of Criminal Procedure, 1973 are not absolute and can be let off. It can only be regarded as absolute only when there is failure to file the charge-sheet within the prescribed statutory period of 90 or 60 days as the case may be.
- Further, the legality of subsequent detention is not obliterated merely on the ground that the authority to detain a person arises from the distinct section of the Code i.e. Section 167 and Section 309 of the Code of Criminal Procedure of 1973.
- Mere preparedness of the accused to furnish bail is not enough, rather a duty to furnish should go hand in hand. Moreover, these rights of enlarged bail arise on the default of the investigation agency to file the charge-sheet within the prescribed period.
- The right of the accused to furnish bail can be exercised under Section 437 of the Code of Criminal Procedure of 1973 and not Section 167(2) in case the application is not made before the completion of the investigation and charge-sheet.
- In the view that the bail application has been already dismissed on merits by the lower court, there is no point to come up with the question of merits again. Hence, the application is rejected.
Conclusion:
The instant matter of Abdul Wahid Vs State of Maharashtra deals with the question of the alleged absolute right of the accused or the applicant to be released on bail under Section 167 of the Code of Criminal Procedure of 1973 after the charge-sheet is filed.
The Bombay High Court, in this case, has rightly observed that the bail application was dismissed on merits by the below courts and the right of the applicant to be enlarged on bail under this Code can be exercised before the filing of the charge-sheet within the prescribed period of 90 or 60 days as the case may be. Thus, the rights provided under Section 167(2) of the Code of Criminal Procedure are not absolute and can be obliterated or divested after filing the charge sheet.
Drafted By: Shivani Tiwary, SOL DAVV
Edited by: Aashima Kakkar, Associate Editor, Law Insider
Published On: October 14, 2021 at 10:23 IST