JUDGEMENT
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(1.)(Majority opinion by Pattanaik, J., on his behalf and on behalf of U. C. Banerjee, J.)
Leave granted.
(2.)In this Appeal by grant of Special Leave the question that arises for consideratrion is when can an accused be said to have availed of his indefeasible right for being released on bail under the Proviso to Sec. 167(2) of the Code of Criminal Procedure, if a challan is not filed within the period stipulated thereunder. In the case in hand, the accused after surrendering himself in the Court was remanded to judicial custody by order of the Magistrate on 17-6-2000. A case has been instituted against him under Secs. 406 and 420 of the Indian Penal Code read with Maharashtra Protection of Interest of Depositors (Financial Establishment) Act, 1999 (for short M.P.I.D. Act). The period of 60 days for filing of charge-sheet was completed on 16-8-2000. On the next day i.e., 17-8-2000, an application for being released on bail was filed before the Magistrate alleging that non-filing of challan within 60 days entitles the accused to be released on bail under proviso to Sec. 167(2) of the Code of Criminal Procedure. The Magistrate rejected the prayer on the same day on a conclusion that the provisions of Sec. 167(2) Cr.P.C. has no application to cases pertaining to M.P.I.D. Act. The accused, therefore, preferred a Criminal Revision Application before the Bombay High Court. A learned single Judge after hearing the contentions raised by the accused and by the State referred the matter to the Division Bench on 23rd August, 2000 and the matter was listed before a Division Bench on 29th August, 2000. On that date the Division Bench adjourned the matter for argument to 31st August, 2000 and in the meanwhile a charge-sheet was filed before the trial Judge on 30th August, 2000. The Division Bench of Bombay High Court, on examination of the relevant provisions of the M.P.I.D. Act, more particularly, Sections 13 and 14 thereof, and relying upon the judgment of this Court in Union of India v. Thamisharasi & Ors., 1995 (4) SCC 190, Hitendra Thakur & Ors. v. State of Maharashtra, 1994 (4) SCC 602, as well as the Constitution Bench decision in Sanjay Dutt v. State through C.B.I. Bombay (II), 1994 (5) SCC 410, came to hold that there is no interdiction in the Maharashtra Act of 1999 against the applicability of Sec. 167(2) proviso of the Criminal Procedure Code, and therefore, an accused arrested for commission of an offence under Sec. 3 of the M.P.I.D. Act is entitled to claim release on bail on expiry of total period specified in Sec. 167 if the challan is not filed within that period. Having held so, on the entertainability of the claim of the accused invoking provisions of Sec. 167 of Criminal Procedure Code, the High Court ultimately refused to grant relief on the ground that by the time the application for bail before the Division Bench came to be considered on 31st August, 2000, a charge-sheet had been filed before the Magistrate on 30th August, 2000, and therefore, the so-called enforceable right did not survive or remain enforceable. In coming to the aforesaid conclusion, the High Court relied upon the Constitution Bench decision of this Court in Sanjay Dutt's case (supra) as well as the case of State of M. P. v. Rustom & Ors., 1995 Supp. (3) SCC 221, and further held that the Full Bench decision of Gujarat High Court in Babubhai Patel's case, 1981 GLR 1232 : 1982 Cri.LJ 284, is contrary to the decision of the Supreme Court in Rustom's case (supra). On dismissal of an application filed by the accused the present appeal has been preferred to this Court.
(3.)Mr. K.T.S. Tulsi, learned senior Counsel appearing for the accused/ appellant contended that the legislative mandate conferring right on the accused to be released on bail on the expiry of the period contemplated under the proviso to sub-sec. (2) of Sec. 167, if the accused is prepared to furnish bail, cannot be nullified by taking recourse to subterfuge and keeping the matter pending for passing of an order, allowing the prosecution to file a charge-sheet. According to Mr. Tulsi, the expression shall be released on bail in the Proviso to sub-sec. (2) of Sec. 167 not only confers indefeasible right on the accused but also casts duty/obligation on the Magistrate, since the Magistrate will not be entitled to remand the accused any further. In this view of the matter, if an accused files and application on the expiry of the period contemplated under the proviso to sub-sec. (2) of Sec. 167 and offers to furnish the bail on being ordered and by the date of filing of the application no charge-sheet had been filed by the prosecution, then the accused has to be released on bail and the right conferred upon him under the aforesaid provision of the Code must be enforced and subsequent filing of charge-sheet will not alter the position. Mr. Tulsi further contended that in paragraph 48 of the judgment in Sanjay Dutt's case (supra), when it has been indicated, The indefeasible right accruing to the accused in such a situation is enforceable only prior to the filing of the challan and it does not survive or remain enforceable on the challan being filed, in already not availed of would obviously mean, if application for being released on bail had not been made before the filing of challan. In other words, according to Mr. Tulsi if an accused had not made any application for being released on bail, notwithstanding the fact, that charge-sheet had not been filed within the stipulated period he will not be entitled to file the same after filing of the challan, but if the accused has filed the application for bail and was prepared to offer and furnish the bail, as required by the Court. then subsequent filing of challan will not take away the right of the accused merely because the Magistrate or any other Court had not passed the order, or the accused had not been factually released. According to Mr. Tulsi if the observations of this Court in Sanjay Dutt's case (supra) is interpreted in the manner, as it has been interpreted by the High Court in the impugned judgment, then the prosecution can always frustrate the right of the accused accrued in his favour under the mandates of the Statute by several dialectic tactics or even in contingency, like absence of the Presiding Officer of the Court or non-availability of the Court to take up application of bail and passing orders thereon. Mr. Tulsi contends that the passing of an order of bail under proviso to sub-sec. (2) of Sec. 167 is merely a clerical act of the concerned Magistrate or the Court in implementation of the legislative mandate, and at that stage, no adjudication is required to be made and in this view of the matter the provisions of the Code should be so construed so as not to frustrate the legislative mandate but it must be so construed which should be in aid of fulfilling the intention of the legislature. This being the position, Mr. Tulsi contends that the impugned order is wholly erroneous and should be set aside.