Case Note & Summary
The applicant, Sajid Basir Shaikh, filed a bail application under Section 439 of the Criminal Procedure Code, 1973 before the Bombay High Court. He was arrested on 7 July 2004 in connection with a First Information Report registered for offences under Sections 395, 397, 324, 34 of the Indian Penal Code read with Sections 3 and 25 of the Arms Act, involving an armed robbery at Mumbai Airport. The co-accused, Dhananjay Shantaram Keer, who was arrested a day later, was released on default bail on 6 October 2004 by the Metropolitan Magistrate because the charge-sheet was not filed within ninety days. The charge-sheet was eventually filed on 20 October 2004. The applicant submitted an application for default bail on 3 November 2004, but it was rejected on the same day on the ground that the charge-sheet had already been filed, thereby extinguishing his right. His subsequent bail application before the Sessions Court was also rejected on 7 March 2005. The applicant raised two main contentions before the High Court. First, he argued that although he did not apply for bail before the charge-sheet was filed, the Magistrate failed to discharge the obligation of informing him of his right to default bail, and therefore his right was not extinguished. He relied on decisions of the Supreme Court in Hitendra Vishnu Thakur v. State of Maharashtra, Hussainara Khatoon v. Home Secretary, State of Bihar, and Uday Mohanlal Acharya v. State of Maharashtra. Second, he claimed parity with co-accused Dhananjay Keer, contending that Keer played a major role while he was merely the driver of the vehicle used in the crime. The prosecution opposed the bail, arguing that the right to default bail under Section 167(2) CrPC ceases upon filing of the charge-sheet and that the applicant’s criminal antecedents—seven pending cases across Mumbai, Dombivali, and Dhule—and his active participation in the robbery disentitled him to parity. The High Court examined the legal position and held that the right to compulsory bail under Section 167(2) CrPC is indeed an indefeasible right, but it must be exercised by the accused before the charge-sheet is filed. Once the charge-sheet is filed, the right is extinguished and cannot be revived, even if the Magistrate failed to inform the accused of the right. The court relied on Dr. Bipin Shantilal Panchal v. State of Gujarat and Hamaja Mohiddin Kutty v. State of Maharashtra. It further held, following Bhulabai Barkaji Matre v. Shankar Barkaji Matre and Directorate of Enforcement v. Deepak Mahajan, that default bail is no different from bail on merits and is subject to cancellation under Sections 437(5) and 439(2) CrPC. On parity, the court noted that the applicant had been identified by witnesses in a test identification parade as the driver who actively participated in the robbery, and his criminal record weighed against him. Consequently, the court dismissed the bail application, concluding that neither the default bail claim nor the parity argument could succeed.
Headnote
A) Code of Criminal Procedure, 1973 - Bail - Default Bail under Section 167(2) - Indefeasible Right Extinguishes on Filing of Charge-Sheet - Code of Criminal Procedure, 1973, Section 167(2) - The applicant was arrested for offences under the Indian Penal Code and Arms Act. The charge-sheet was filed after the 90-day period, but the applicant did not apply for default bail until after filing. The applicant contended that the Magistrate failed to inform him of his right to default bail, and thus his right survived. The court held that the right to be released on default bail must be exercised before the charge-sheet is filed; once the charge-sheet is filed, the right is extinguished and cannot be revived even if the Magistrate omitted to inform the accused. Held, the first submission of the applicant was rejected. (Paras 6-7) B) Code of Criminal Procedure, 1973 - Bail - Nature of Default Bail - Equivalent to Merit Bail - Code of Criminal Procedure, 1973, Sections 167(2), 437, 439 - The court examined whether bail granted under Section 167(2) CrPC is different from bail on merits. Relying on precedent, it held that there is no distinction; such bail is deemed to be under Chapter XXXIII and can be cancelled under Sections 437(5) and 439(2) CrPC. Held, the case of the applicant had to be examined on merits. (Paras 7-8) C) Code of Criminal Procedure, 1973 - Bail - Parity with Co-Accused - Not Absolute; Can Be Denied for Serious Role and Antecedents - Code of Criminal Procedure, 1973 - The applicant sought parity with co-accused Dhananjay Keer, who was released on default bail. However, the applicant was identified as the driver of the vehicle used in the armed robbery and had seven prior criminal cases. The court held that parity is not an absolute rule and could be refused based on the accused's role and criminal antecedents. Held, the applicant was not entitled to bail on parity. (Paras 3, 8-10)
Issue of Consideration
Whether the right to default bail under Section 167(2) CrPC can be availed after filing of charge-sheet, particularly when the Magistrate did not inform the accused of his right; and whether the accused is entitled to bail on parity with a co-accused who was released on compulsory bail.
Final Decision
Bail application dismissed. The court held that the right to default bail under Section 167(2) CrPC was extinguished once the charge-sheet was filed, and the Magistrate's omission did not revive it. The court also found that the applicant could not claim parity because of his criminal antecedents and significant role in the armed robbery.
Law Points
- Right to default bail under Section 167(2) CrPC extinguishes on filing of charge-sheet
- Accused must exercise indefeasible right before filing of charge-sheet
- Magistrate has duty to inform accused of right but failure does not revive extinguished right
- Bail granted under Section 167(2) deemed to be under Chapter XXXIII CrPC and on par with bail on merits
- Parity not absolute in bail matters
- can be denied for serious offences and criminal antecedents
