Case Note & Summary
The appellants were arrested on 31.05.2021 in connection with Crime No.509/2021 for offences under Sections 302, 201, 120-B, 364, 212 read with Section 34 IPC, Section 4/25 of the Arms Act, and Section 142 of the Maharashtra Police Act. During investigation, the investigating officer found evidence that the appellants could be prosecuted under the Maharashtra Control of Organised Crime Act (MCOCA) and sought approval from the Police Commissioner, which was granted on 30.08.2021. The appellants filed an application for default bail under Section 167(2) Cr.P.C. on the ground that the charge sheet was not filed within 90 days of their arrest. The learned Special Judge rejected the application, holding that since MCOCA offences were invoked, the period for filing charge sheet was 180 days, and the application was premature. The appellants appealed to the High Court. The High Court examined the facts and found that the appellants were arrested on 31.05.2021, and the charge sheet was not filed within 90 days. The court noted that the right to default bail accrued on 29.08.2021, and the inclusion of MCOCA offences on 30.08.2021 could not defeat the already accrued right. The court held that the right to default bail under Section 167(2) Cr.P.C. is a fundamental right and cannot be taken away by subsequent inclusion of more serious offences. The court allowed the appeal and granted default bail to the appellants on certain conditions.
Headnote
A) Criminal Procedure - Default Bail - Section 167(2) Cr.P.C. - Right to default bail accrues on expiry of 90 days from arrest if charge sheet not filed - The court held that the right to default bail is a fundamental right and cannot be defeated by subsequent inclusion of more serious offences after the expiry of the statutory period. (Paras 1-10)
B) Criminal Procedure - Default Bail - Section 167(2) Cr.P.C. - Inclusion of MCOCA offences after expiry of 90 days - The court held that the right to default bail, once accrued, cannot be taken away by adding MCOCA offences after the period of 90 days. (Paras 11-15)
C) Criminal Procedure - Default Bail - Section 167(2) Cr.P.C. - Computation of period - The period of 90 days is to be computed from the date of arrest, and the charge sheet must be filed within that period to prevent the right to default bail from accruing. (Paras 5-8)
Issue of Consideration
Whether the appellants are entitled to default bail under Section 167(2) Cr.P.C. when the charge sheet was not filed within 90 days of arrest, and whether the subsequent inclusion of MCOCA offences after the expiry of the statutory period can defeat the accrued right to default bail.
Final Decision
The appeal is allowed. The order dated 30.08.2021 passed by the learned Special Judge is set aside. The appellants are granted default bail under Section 167(2) Cr.P.C. on such conditions as the trial court may impose.
Law Points
- Default bail under Section 167(2) Cr.P.C.
- Right to default bail accrues on expiry of 90 days
- Inclusion of MCOCA offences after expiry does not defeat accrued right
- Section 167(2) Cr.P.C. is a fundamental right
- MCOCA Section 3(1)(ii)
- 3(2)
- 3(4)
- Section 14-A of SC/ST Act
Case Details
2022 LawText (BOM) (02) 111
Criminal Appeal No. 429 of 2021
A. S. Chandurkar, G. A. Sanap
Mr A. S. Mardikar, Sr. Adv. With Mr P. V. Navlani for the appellants; Mr T. A. Mirza, APP for the State; Mr S. V. Sirpurkar, Advocate for respondent No.2
Akash @ Gangu Dilip More, Prashant @ Sonu Laxman Chavre, Rohit Amol Mandle, Karan Kailas Itoria, Nitesh Narayan Pival
State of Maharashtra, Mahadeo Hiralal Wankhede
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Nature of Litigation
Criminal appeal against rejection of default bail application under Section 167(2) Cr.P.C.
Remedy Sought
The appellants sought default bail on the ground that charge sheet was not filed within 90 days of arrest.
Filing Reason
The appellants were arrested on 31.05.2021 and charge sheet was not filed within 90 days; they claimed entitlement to default bail.
Previous Decisions
The learned Special Judge rejected the default bail application on 30.08.2021, holding that MCOCA offences were invoked and the period for filing charge sheet was 180 days.
Issues
Whether the appellants are entitled to default bail under Section 167(2) Cr.P.C. when charge sheet was not filed within 90 days of arrest?
Whether the subsequent inclusion of MCOCA offences after the expiry of 90 days can defeat the accrued right to default bail?
Submissions/Arguments
Appellants argued that they were arrested on 31.05.2021 and charge sheet was not filed within 90 days, hence they are entitled to default bail.
Respondent argued that MCOCA offences were invoked and the period for filing charge sheet is 180 days, so the application was premature.
Ratio Decidendi
The right to default bail under Section 167(2) Cr.P.C. accrues on the expiry of the statutory period (90 days) if charge sheet is not filed. This right is a fundamental right and cannot be defeated by subsequent inclusion of more serious offences after the expiry of the period.
Judgment Excerpts
In this appeal, filed under Section 14-A of the Scheduled Castes and the Scheduled Tribes (Prevention of the Atrocities) Act, 1989 read with Section 439 and 167(2) of the Code of Criminal Procedure, 1973, challenge is to the order dated 30.08.2021 whereby the learned Special Judge rejected the application made by the appellants for default bail under Section 167(2)(a)(i) of the Cr.P.C.
The accused were arrested on 31.05.2021 in crime, bearing No.509 of 2021, registered at Badnera Police Station, District Amravati, for the offences punishable under Section 302, 201, 120-B, 364, 212 read with Section 34 of the Indian Penal Code, 1860 read with Section 4/25 of the Arms Act, 1959 and Section 142 of the Maharashtra Police Act.
Procedural History
The appellants were arrested on 31.05.2021. On 30.08.2021, the learned Special Judge rejected their default bail application. The appellants filed the present appeal under Section 14-A of the SC/ST Act read with Section 439 and 167(2) Cr.P.C. The High Court allowed the appeal on 21.02.2022.
Acts & Sections
- Code of Criminal Procedure, 1973: Section 167(2), Section 167(2)(a)(i), Section 439
- Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989: Section 14-A
- Indian Penal Code, 1860: Section 302, 201, 120-B, 364, 212, 34
- Arms Act, 1959: Section 4, 25
- Maharashtra Police Act: Section 142
- Maharashtra Control of Organised Crime Act, 1999: Section 3(1)(ii), 3(2), 3(4)
