Case Note & Summary
The petitioners, seven individuals arrested in connection with Crime No.47/2022 for offences under Sections 302, 307, 324, 143, 147, 148 read with Section 149 of the Indian Penal Code, 1860 and Section 135 of the Maharashtra Police Act, 1951, were arrested on 25/02/2022. On 30/03/2022, the prosecution invoked Sections 3(1) and 3(4) of the Maharashtra Control of Organized Crime Act, 1999 (MCOCA). The petitioners were in custody for over 90 days without a chargesheet being filed. They applied for default bail under Section 167(2) of the Code of Criminal Procedure, 1973 (CrPC) before the Judicial Magistrate First Class, Court No.3, Gondia, which was rejected. Their revision application before the Sessions Court was also dismissed. Aggrieved, they filed the present criminal writ petition before the Bombay High Court. The key legal issue was whether the petitioners were entitled to default bail as the chargesheet was not filed within 90 days from the date of arrest, and whether the subsequent filing of the chargesheet after the application for default bail defeated their right. The petitioners argued that under Section 167(2) CrPC, they had an indefeasible right to default bail once the period of 90 days expired without a chargesheet, and that this right could not be extinguished by the later filing of the chargesheet. The State contended that the period of investigation under MCOCA could be extended to 180 days under Section 21(2) of the MCOCA Act, and that the chargesheet was filed before the petitioners could furnish bail. The court analyzed the provisions of Section 167(2) CrPC and Section 21(2) MCOCA, noting that no report under Section 21(2) MCOCA was filed to extend the period. The court held that the right to default bail accrues on the expiry of 90 days and becomes indefeasible once the accused applies for bail and is prepared to furnish bail. The subsequent filing of the chargesheet does not defeat this right. The court allowed the petition, set aside the orders of the lower courts, and directed that the petitioners be released on default bail on furnishing a personal bond of Rs.25,000 each with one or two sureties.
Headnote
A) Criminal Procedure - Default Bail - Section 167(2) CrPC - Indefeasible Right - The right to default bail under Section 167(2) of the Code of Criminal Procedure, 1973 accrues upon the expiry of the prescribed period (90 days) if the investigation is not completed and no chargesheet is filed. This right is indefeasible and cannot be defeated by the subsequent filing of a chargesheet after the accused has applied for default bail. The court held that once an application for default bail is made and the accused is prepared to furnish bail, the right is crystallized and cannot be extinguished by a later chargesheet. (Paras 10-14) B) Criminal Procedure - Default Bail - Section 167(2) CrPC - Extension of Custody - Under Section 21(2) of the Maharashtra Control of Organized Crime Act, 1999, the period of investigation can be extended up to 180 days, but only if the Public Prosecutor files a report indicating progress and reasons for the delay. In the absence of such a report, the default period remains 90 days. The court held that since no such report was filed, the petitioners were entitled to default bail after 90 days. (Paras 7-9) C) Criminal Procedure - Default Bail - Section 167(2) CrPC - Application for Bail - The right to default bail under Section 167(2) CrPC is not automatic; the accused must apply for bail and be prepared to furnish bail. Once the accused applies, the right becomes indefeasible. The court held that the petitioners had applied for default bail before the chargesheet was filed, and thus their right was crystallized. (Paras 10-14)
Issue of Consideration
Whether the petitioners are entitled to default bail under Section 167(2) of the Code of Criminal Procedure, 1973, as the chargesheet was not filed within 90 days from the date of arrest, and whether the subsequent filing of the chargesheet after the application for default bail defeats the right.
Final Decision
The petition is allowed. The impugned orders dated 08/06/2022 passed by the Judicial Magistrate First Class, Court No.3, Gondia and dated 22/07/2022 passed by the Sessions Judge, Gondia are quashed and set aside. The petitioners are directed to be released on default bail on their furnishing a personal bond of Rs.25,000/- each with one or two sureties in the like amount to the satisfaction of the trial court.
Law Points
- Default bail under Section 167(2) CrPC
- Indefeasible right to default bail
- MCOCA Section 21(2) extension of custody
- Filing of chargesheet after application for default bail
- Right to default bail not defeated by subsequent chargesheet
