Case Note & Summary
The petitioners, Dattatraya Ankush Pathade and Sonali Satish Wakade, were arrested in connection with Crime No.416 of 2020 registered at Shrigonda Police Station for offences punishable under Sections 302, 109, 120(B) read with Section 34 of the Indian Penal Code. The petitioner in Writ Petition No.1084 of 2020 (Sonali) was arrested on 05-05-2020 and produced before the Judicial Magistrate First Class, Shrigonda on the same day. The petitioner in Writ Petition No.1290 of 2020 (Dattatraya) was arrested on 04-05-2020 and produced before the Magistrate on 05-05-2020. Both were initially remanded to police custody and then to judicial custody. They filed applications for default bail under Section 167(2) of the Code of Criminal Procedure, 1973 on 04-08-2020 and 05-08-2020 respectively, claiming that the statutory period of 90 days for completion of investigation had expired and no charge sheet had been filed. The learned Judicial Magistrate First Class, Shrigonda rejected both applications on 06-08-2020. The petitioners challenged the rejection by filing Criminal Revision Applications No.11 of 2020 and 10 of 2020, which were also rejected by the learned Additional Sessions Judge, Shrigonda on 04-09-2020. Hence, they filed the present writ petitions. The core legal issue was whether the accused were entitled to default bail under Section 167(2) CrPC when the charge sheet was not filed within 90 days from the date of first remand, and whether the right to default bail is extinguished if the charge sheet is filed after the application for default bail is filed but before it is decided. The petitioners argued that they had completed 90 days in custody and the charge sheet was not filed, thus they had an indefeasible right to default bail. The respondent State contended that the charge sheet was filed on 06-08-2020 before the applications were decided, and therefore the right to default bail did not accrue. The court analyzed the provisions of Section 167(2) CrPC and the precedents, including the Constitution Bench decision in Uday Mohanlal Acharya v. State of Maharashtra. The court held that the right to default bail accrues on the expiry of the statutory period if no charge sheet is filed, and this right is not defeated by the subsequent filing of the charge sheet before the application is decided. The court computed the period from the date of first remand (05-05-2020 for both) and found that the 90th day was 03-08-2020. Since the charge sheet was filed on 06-08-2020, after the expiry of 90 days, the petitioners had an indefeasible right to default bail. The court allowed both writ petitions, set aside the orders of the courts below, and directed that the petitioners be released on bail on furnishing a personal bond of Rs.25,000 each with one surety.
Headnote
A) Criminal Procedure - Default Bail - Section 167(2) CrPC - Indefeasible Right - Accused arrested for offences punishable with death or imprisonment for life (Section 302 IPC) are entitled to default bail if investigation not completed within 90 days from first remand - The right to default bail accrues on the 91st day and is not defeated by subsequent filing of charge sheet before the application is decided - Held that the accused had completed 90 days in custody and charge sheet was not filed, hence they are entitled to default bail (Paras 8-15). B) Criminal Procedure - Computation of Period - Section 167(2) CrPC - The period of 90 days is to be computed from the date of first remand, not from the date of arrest - The day of first remand is excluded and the 90th day is the last day for filing charge sheet - If charge sheet is not filed by the end of the 90th day, the right to default bail accrues on the 91st day (Paras 8-10). C) Criminal Procedure - Default Bail - Section 167(2) CrPC - Filing of Application - The right to default bail is not lost if the charge sheet is filed after the application for default bail is filed but before it is decided - The indefeasible right crystallizes on the date of filing of the application if the charge sheet has not been filed by then (Paras 11-15).
Issue of Consideration
Whether the accused are entitled to default bail under Section 167(2) of the Code of Criminal Procedure, 1973 when the charge sheet was not filed within 90 days from the date of first remand, and whether the right to default bail is extinguished if the charge sheet is filed after the application for default bail is filed but before it is decided.
Final Decision
Both writ petitions are allowed. The orders passed by the Judicial Magistrate First Class, Shrigonda dated 06-08-2020 and the Additional Sessions Judge, Shrigonda dated 04-09-2020 are set aside. The petitioners are directed to be released on bail on furnishing a personal bond of Rs.25,000 each with one surety.
Law Points
- Default bail under Section 167(2) CrPC
- Indefeasible right to bail upon expiry of statutory period
- Computation of 90 days for investigation
- Right to default bail not defeated by subsequent filing of charge sheet
