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AMICUS AI
Citation Codes
Equivalent Citations
citation codes
Case Number
Attorney(S)
  • For Applicant: N.S Badhe
  • For Non-Applicant: B.T Patil, A.G.P
  • For Applicants: S.A Bobde
  • For Non-Applicant: B.T Patil, A.G.P
Judges
  • A.A Desai, J.
Acts
  • provisions contained in section 167 of the Code of Criminal Procedure. I,
  • sections 147, 148, 307, 302 read with section 34 of the Indian Penal Code
  • sections 302, 342, 498-A read with section 34 of the Indian Penal Code
  • sub-section (2) of section 167 of the Code of Criminal Procedure
  • Sections 167, 173 and 437 of the Code of Criminal Procedure
  • SECTION 10 GENERAL CLAUSES ACT
  • section 439 of the Code of Criminal Procedure.13.
  • provisions of Section 167(2) of the Code
  • sub-section (1) or (2) of Section 437
  • provisions of section 437(1), (2)
  • sub-section (2) of section 167,
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Cites
Cited by
Citation Codes
Equivalent Citations
citation codes
Case Number
Attorney(S)
  • For Applicant: N.S Badhe
  • For Non-Applicant: B.T Patil, A.G.P
  • For Applicants: S.A Bobde
  • For Non-Applicant: B.T Patil, A.G.P
Judges
  • A.A Desai, J.
Acts
  • provisions contained in section 167 of the Code of Criminal Procedure. I,
  • sections 147, 148, 307, 302 read with section 34 of the Indian Penal Code
  • sections 302, 342, 498-A read with section 34 of the Indian Penal Code
  • sub-section (2) of section 167 of the Code of Criminal Procedure
  • Sections 167, 173 and 437 of the Code of Criminal Procedure
  • SECTION 10 GENERAL CLAUSES ACT
  • section 439 of the Code of Criminal Procedure.13.
  • provisions of Section 167(2) of the Code
  • sub-section (1) or (2) of Section 437
  • provisions of section 437(1), (2)
  • sub-section (2) of section 167,
See more information ...
Smart Summary

Structured Summary of the Opinion

Factual and Procedural Background

Two applications challenged the legal effect of a charge sheet filed during the pendency of an application under proviso (a) to sub-section (2) of section 167 of the Code of Criminal Procedure (CrPC) seeking release on bail. The core procedural question was whether filing of a charge sheet while such an application was pending removes the right accrued to the accused under section 167(2) proviso.

The Court reviewed earlier authorities and competing submissions and then proceeded to consider the two specific criminal applications on their facts.

Criminal Application No. 55 of 1988: Applicants were charged under sections 147, 148, 307, 302 read with section 34 of the Indian Penal Code (IPC) for an incident on 22 October 1987 resulting in one death and injuries to another. Arrests occurred on 22 October 1987 and the charge sheet was filed on 22 January 1988. The prosecution relied on eyewitnesses implicating the applicants.

Criminal Application No. 928 of 1987: Applicant Baburao Wakle was charged under sections 302, 342, 498-A read with section 34 IPC for an incident on 26 September 1987. He was arrested on 27 September 1987. The Sessions Judge had previously considered and rejected the applicant's relief and observed material implicating him, including eyewitness accounts and post-mortem findings.

Legal Issues Presented

  1. Whether filing of a charge sheet under section 173 CrPC during the pendency of an application under proviso (a) to sub-section (2) of section 167 CrPC for release on bail obliterates the right accrued in favour of the accused under section 167(2) proviso.
  2. Whether, once a charge sheet is filed and investigation is complete, the Magistrate is divested of jurisdiction to entertain an application under section 167 and can only exercise jurisdiction under section 437 (or otherwise under Chapter XXXIII) to deal with bail matters.
  3. Whether an accused's entitlement to be released on bail under section 167(2) proviso is absolute and cannot be defeated by subsequent filing of the charge sheet, or whether the prosecution may seek cancellation of such bail under section 437(5) after filing of the charge sheet.

Arguments of the Parties

Applicants' Arguments (as presented by Mr. S.A. Bobde)

  • The right accrued to the accused under the proviso to section 167(2) is absolute and persists even if a charge sheet is filed while the accused's application under that proviso is pending before the Magistrate.
  • Reliance was placed on The State of Maharashtra v. Sharad B. Sarda (1983 (1) BCR 578) where the Court observed that the right accrued after the relevant statutory period (sixty or ninety days) is absolute and cannot be defeated by resort to section 10 of the General Clauses Act; "So on merely filing of the Charge Sheet after the expiry of the period of ninety days or sixty days, as the case may be, the accused is not deprived of a right earned by him to be released on bail."
  • Further reliance was placed on Full Bench decisions: Babubhai Parshottamdas Patel v. State of Gujarat (1982 Cr. L.J. 284) and Bijayaketan Mohanty v. State of Orissa (1982 Cr. L.J. 1954) holding that mere subsequent filing of a charge sheet will not authorize taking the accused back into custody after release on bail under section 167(2) proviso.
  • Mr. Bobde also relied on State of U.P. v. Lakshmi Brahman ((1983) 2 SCC 372 : AIR 1983 SC 439) for the proposition that after expiry of sixty days further detention does not become ipso facto illegal or void (this authority was cited in the course of argument).

Prosecution's Arguments (as reflected in the opinion)

  • The prosecution pointed to operational facts bearing on grant of bail in the specific matters: co-accused were absconding and their anticipatory bail applications had been rejected; the applicants were not permanent residents of the City and hailed from Punjab; the applicants lacked immovable or movable property in Nagpur.
  • The State raised apprehensions that the applicants might abscond or attempt to tamper with prosecution witnesses, and on this basis urged refusal of bail in the factual matrix of the cases before the Court.
  • Separately, reliance was placed (by other counsel) on Raghubir Singh v. State of Bihar ((1986) 4 SCC 481 : AIR 1987 SC 149) — the Supreme Court held that where bail has been granted under the proviso to section 167(2) for prosecution default, after a charge sheet is filed the prosecution may seek cancellation of that bail under section 437(5) on grounds there are reasonable grounds to believe a non-bailable offence has been committed and that it is necessary to arrest and remand the accused.

Table of Precedents Cited

Precedent Rule or Principle Cited For Application by the Court
Shrawan Manaji Undirwade v. State of Maharashtra (1976 Mh. L.J. 654) The Division Bench held a right under section 167 could be availed before completion of investigation; once the charge sheet is filed the Magistrate can exercise power only under section 437 and is divested of authority under section 167 to release accused on bail. The Court referenced this authority for the proposition that magistrate's authority under section 167 is extinguished on completion of investigation; noted that a later legislative amendment extended the time period but did not alter the substantive position cited in the authority.
The State of Maharashtra v. Sharad B. Sarda (1983 (1) BCR 578) Held that the right accrued in favour of the accused after the statutory period (sixty/ ninety days) is absolute and cannot be defeated by resort to section 10 of the General Clauses Act; mere filing of charge sheet after expiry does not deprive accused of right to be released on bail. The opinion records that applicants' counsel relied on this decision. The Court noted the observation but also observed that an earlier Division Bench judgment (Shrawan Manaji Undirwade) perhaps was not placed before the Single Judge who decided Sarda.
Babubhai Parshottamdas Patel v. State of Gujarat (1982 Cr. L.J. 284) (Full Bench) Full Bench held that when the statutory period (ninety days) is over the matter has to be considered in light of section 167(2) proviso and mere subsequent filing of charge sheet will not authorise taking the accused back in custody. The Court observed this authority examined the impact of filing a charge sheet subsequent to release and held mere filing would not ipso facto entitle prosecution to cancel bail. The Court distinguished the factual situation of those Full Bench decisions from the instant cases and held their ratio would not assist the question before it.
Bijayaketan Mohanty v. State of Orissa (1982 Cr. L.J. 1954) (Full Bench) The Full Bench held that if an order of release on bail under section 167(2) is passed and then a charge sheet is filed before giving effect, the mere filing of the challan is not sufficient to remand the accused to custody; sections 437(1), (2) and (5) apply to persons released under section 167(2). The Court cited this Full Bench and noted it relied on Bashir v. State of Haryana. However, the Court considered the factual situation in those cases different from the instant matters and therefore did not treat that Full Bench ratio as directly decisive.
Bashir v. State of Haryana ((1977) 4 SCC 410 : AIR 1978 SC 55) The Supreme Court held that the fact that a charge sheet has come subsequent to admission to bail in exercise of power under the proviso is by itself of no consequence. The Full Bench of Orissa relied on this Supreme Court decision. The present Court recorded that Bashir was cited in the Full Bench reasoning but proceeded to analyze the instant matter on the basis that completion of investigation (filing of charge sheet) extinguishes the right under section 167 for the purposes described in this opinion.
State of U.P. v. Lakshmi Brahman ((1983) 2 SCC 372 : AIR 1983 SC 439) Held that after expiry of sixty days from arrest further detention of the accused does not become ipso facto illegal or void. The opinion records that this authority was relied upon in argument. The Court considered the principle in the context of competing authorities but concluded on the legal effect of filing a charge sheet as described in its reasoning.
Raghubir Singh v. State of Bihar ((1986) 4 SCC 481 : AIR 1987 SC 149) Held that where bail has been granted under proviso to section 167(2) for prosecution default, fixing of that defect by subsequent filing of charge sheet allows the prosecution to seek cancellation of bail under section 437(5) on appropriate grounds. The opinion records this authority as supporting the submission that cancellation of bail after filing of the charge sheet can be sought under section 437(5). The Court's own conclusion, however, was that once a charge sheet is filed the investigation is complete and the Magistrate's jurisdiction under section 167 is extinguished, leaving jurisdiction under section 437.

Court's Reasoning and Analysis

The Court structured its analysis around the statutory scheme and the effect of filing a charge sheet on the jurisdiction to grant bail under section 167(2) proviso. The reasoning followed these principal steps:

  1. The Court examined the purpose of section 173 (duty of investigating agency to complete investigation without unnecessary delay) and section 167 (which limits detention by Magistrate during incomplete investigation beyond specified periods — sixty or ninety days depending on offence). These provisions aim to prevent prolongation and harassment by ensuring investigations are completed within statutorily prescribed periods.
  2. The Court acknowledged that default by the investigating agency to complete investigation within the prescribed period confers on the accused a right to enlargement on bail under section 167(2) proviso after furnishing the requisite bond.
  3. The Court considered multiple precedents and the submissions of counsel. It observed that some authorities (Full Benches of Gujarat and Orissa, and decisions like Sharad B. Sarda and Bashir) address the situation where an accused has been released under the proviso and the prosecution later files a charge sheet or seeks cancellation of bail.
  4. Crucially, the Court emphasized a temporal and jurisdictional distinction: while section 167 is intended to be exercised while investigation is pending, the moment a charge sheet is filed under section 173 the investigation is brought to an end. The Court concluded that filing of the charge sheet "extinguishes the right so accrued in favour of the accused" to the extent that applications seeking relief under proviso to section 167(2) cannot thereafter be entertained.
  5. Consequently, upon completion of investigation (i.e., filing of the charge sheet), the Magistrate is divested of authority to release the accused on bail under section 167 and the Court's jurisdiction to deal with bail shifts to the provisions of Chapter XXXIII (for instance section 437 or section 439 depending on forum and context). The Court therefore proposed to deal with the applications under section 439 of the CrPC.
  6. Applying this legal position to the specific facts of the two applications, the Court examined risk factors (eyewitnesses implicating the accused, co-accused absconding, non-residency, lack of local ties, potential for tampering with witnesses, and in the second matter the Sessions Judge's findings and post-mortem reports) and concluded that on these facts bail should not be granted.

Holding and Implications

Holding: The Court's core legal conclusion is stated as follows:

Once a charge sheet is filed under section 173 CrPC and the investigation is completed, the right accrued to an accused under the proviso to sub-section (2) of section 167 CrPC is extinguished for the purpose of entertaining that application; the Magistrate is divested of authority to grant bail under section 167 and jurisdiction to consider bail rests under the provisions of Chapter XXXIII (for example section 437).

Direct consequences for the parties (as applied in these cases):

  • Criminal Application No. 55 of 1988: The application for bail was rejected. The applicants were charged under sections 147, 148, 307, 302 read with 34 IPC; they were arrested on 22 October 1987, the charge sheet was filed on 22 January 1988, eyewitnesses implicated them, co-accused were absconding, and there were factors indicating risk of absconding and tampering with witnesses. The Court was not inclined to grant bail and rejected the application.
  • Criminal Application No. 928 of 1987 (Baburao Wakle): The application for bail was rejected. The Sessions Judge had already declined relief and noted eyewitness accounts and post-mortem evidence indicating violent beating likely causing death. The Court agreed with the Sessions Judge and rejected the bail application.

Broader implications: The opinion focuses on the legal effect of filing a charge sheet on the availability of relief under section 167(2) proviso and the consequent shift in jurisdiction to Chapter XXXIII provisions. The opinion does not assert or discuss the creation of a new binding precedent beyond its application to the matters before the Court; it applies established statutory interpretation and existing authorities to reach the result in these cases.

Application dismissed.
Show full summary ...

    Baburao Rajaram Wakle v. State Of Maharashtra

    1. Both these applications raise a common question as to whether filing of a charge sheet during the pendency of application under proviso (a) to sub-section (2) of section 167 of the Code of Criminal Procedure for release on bail, obliterates the right accrued in favour of the accused.

    2. This Court has an occasion to deal with such a situation in a case of Shrawan Manaji Undirwade v. State of Maharashtra reported in 1976 Mh. L.J 654. The Division Bench while examining the scheme of Sections 167, 173 and 437 of the Code of Criminal Procedure held that a right created under section 167 of the code could be availed by the accused before the completion of the investigation. Once the charge sheet is filed then the Magistrate can exercise his power only under section 437 of the code. It thus follows from the ruling that the Magistrate on completion of the investigation is divested of his authority under section 167 of the code, to release the accused on bail. By an Act No. 45 of 1978, the Legislature has merely amended the provisions by extending the period of sixty days to ninety days in case of investigation relating to offence punishable either with death or imprisonment for life or imprisonment for a term of not less than ten years. However, the substantive provisions as then contained in the Code of 1973, by this amendment remained unaffected.

    3. Mr. S.A Bobde, the learned counsel appearing for the applicants made a submission before me that the right accrued in favour of the accused under the provisions is absolute and it does not get affected even if the Charge Sheet is filed, then the application based on that right is under consideration before the Magistrate. Mr. Bobde placed reliance on the decision reported in The The State Of Maharashtra… v. Sharad B. Sarda….. 1983 (1) BCR 578. His Lordship has observed that the right accrued in favour of the accused after ninety days is absolute, and the said right cannot be permitted to be defeated by resorting to the provisions of section 10 of the General Clauses Act. His Lordship has held in para 14 that “So on merely filing of the Charge Sheet after the expiry of the period of ninety days or sixty days, as the case may be, the accused is not deprived of a right earned by him to be released on bail.” The learned Judge upheld the contention of the defence that if an accused is released on bail in view of the provisions of Section 167(2) of the Code then the prosecution can only ask for cancellation of bail as provided under Section 437(5), which lays down that any Court which has released an accused person on bail under sub-section (1) or (2) of Section 437 shall record in writing his reasons for so doing. The Judgment of the Division Bench cited supra perhaps was not referred to for the perusal, before the learned Single Judge.

    4. Mr. Bobde then placed reliance on the decision of the Full Bench of Gujarat High Court in case of Babubhai Parshottamdas Patel v. State of Gujarat reported in 1982 Criminal Law Journal 284. The Full Bench has held that the case has to be considered purely in the light of section 167(2) proviso when the period of ninety days is over. Mere subsequent filing of charge sheet will not authorise to take the accused back in custody. The Full Bench was considering the question whether on release of the accused in view of the mandate under section 167, can he be taken back in custody, subsequent to filing of the charge sheet.

    5. Mr. Bobde then placed reliance on the decision of the Full Bench of Orissa High Court in case of Bijayaketan Mohanty v. State of Orissa reported in 1982 Criminal Law Journal 1954. The Full Bench was considering a case where the order of release on bail was passed by the Magistrate. However, before giving effect, the prosecution filed a charge sheet. The learned Magistrate, therefore, refused to give effect to the order already passed and cancelling the order, remitted the accused back in the custody. The Full Bench has observed that as the provisions of section 437(1), (2) and (5) are applicable to a person who has been released under section 167(2), the mere fact that subsequent to his release a challan has been filed is not sufficient to commit him to custody. The Full Bench relying on the decision of the Supreme Court in Bashir v. State of Haryana, (1977) 4 SCC 410 : AIR 1978 SC 55 observed that the fact that charge sheet has come subsequent to admission to bail in exercise of the power under the proviso, is by itself of no consequence.

    6. Both these authorities have examined the question of impact of filing of charge sheet, subsequent to release of accused on bail. They have held mere filing of Charge Sheet, would not ipso facto entitle the prosecution to cancel the bail. According to me, the situation dealt by the Full Bench of Gujarat and Orissa High Courts is not similar as involved in the instant cases. As such, the ratio laid down therein would not assist to answer the question as posed before me.

    7. Mr. Bobde then placed a reliance on the decision in State of U.P v. Lakshmi Brahman, (1983) 2 SCC 372 : AIR 1983 SC 439. The Supreme Court has held that after expiry of sixty days from the date of the arrest of the accused, his further detention does not become ipso facto illegal or void.

    8. Mr. Badhe placed a reliance on the decision in case of Raghubir Singh v. State of Bihar reported in (1986) 4 SCC 481 : AIR 1987 SC 149. The Supreme Court has held that where bail has been granted under the proviso to section 167(2) for the default of the prosecution in not completing the investigation within sixty days, after the defect is cured by the filing of a charge-sheet, the prosecution may seek to have the bail cancelled on the ground that there are reasonable grounds to believe that the accused has committed a non-bailable offence and that it is necessary to arrest him and commit him to custody. The submission as canvassed is that the cancellation can be resorted under section 437(5) after filing the charge-sheet.

    9. Section 173 emphasises the Investigating Agency to complete the investigation without unnecessary delay. Section 167 provides that the Magistrate cannot authorise the detention of an accused in case of incomplete investigation beyond the period of ninety days in a crime of serious nature. Consequently the accused is entitled to be released on bail under the said provisions. Such release shall deemed to be under Chapter XXXIII of the Code for all purposes. These provisions intend to prevent prolonging and unnecessary delay in the investigation. It is pertinent that these provisions under Chapter XII are not, however, specifically enacted for enlarging of accused on bail. The Code has made specific provisions in this behalf under Chapter XXXIII.

    10. Default on the part of the investigating agency to complete the investigation within a specified period of ninety days does confer the right on the accused to get enlarged on bail after furnishing a requisite bond. However, the question before me as raised is whether the right so accrued remains absolute even if the Charge Sheet is filed during the pendency of such application for grant of bail.

    11. Section 167 prevents misuse of the authority of the investigating agency, and checks the consequent harassment to the accused. The Magistrate has to exercise his jurisdiction while investigation is pending. However, the moment charge sheet is filed under section 173, investigation comes to an end. It extinguishes the right so accrued in favour of the accused. The applications seeking reliefs under proviso to sub-section (2) of section 167, therefore, cannot be entertained. The Court can assume jurisdiction only under section 437 of the code. completion of investigation divests the authority of the Magistrate to release the accused on bail under the relevant provisions.

    12. The applicants in both the cases are, therefore, not entitled to be released on bail under the relevant provisions contained in section 167 of the Code of Criminal Procedure. I, therefore, propose to deal with the application for grant of bail under section 439 of the Code of Criminal Procedure.

    13. In Criminal Application No. 55 of 1988, the applicants are charged for an offence punishable under sections 147, 148, 307, 302 read with section 34 of the Indian Penal Code for the incident occurred on 22nd October, 1987 resulting in death of Manjitsingh and causing injuries to one Ranjeetsingh. They were arrested on 22nd October, 1987 and charge sheet was filed on 22nd January, 1988. There are eye witnesses who have involved the applicant in the incident of assault.

    14. The prosecution has pointed out that the co-accused of the applicants are absconding since long and their application for anticipatory bail has been rejected. The State has further pointed out that the applicants are not permanent residents of the City and they belong to State of Punjab. It is also pointed out that they do not have any movable or immovable property at Nagpur. It is apprehended that the applicants may abscond and may also try to tamper with the prosecution witnesses. Considering this aspect I am not inclined to release him on bail. Criminal Application No. 55 of 1988 is, therefore, rejected. In Criminal Application No. 928 of 1987 the applicant Baburao Wakle has been charged for an offence punishable under sections 302, 342, 498-A read with section 34 of the Indian Penal Code in connection with the incident occurred on 26th September, 1987. The applicant was arrested on 27th September, 1987. He initially moved the learned Sessions Judge for grant of bail. However, the learned Sessions Judge granted the bail to the parents of the applicant by the order dated 18th November 1987. The application of the applicant came to be rejected. The learned Sessions Judge has observed that the witnesses have seen the applicant No. 1 beating his wife Kanta. It is also observed that they have seen applicant with a pipe in his hand. According to the learned Sessions Judge, there is a sufficient material to implicate the accused in a crime of ghastly murder of his wife Kanta. The post mortem report disclosed injuries on a person and probable cause of death is due to beating. I agree with the learned Sessions Judge and not inclined to release the applicant on bail. The application for grant of bail is, therefore, rejected.

    Application dismissed.
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    Comments

    Baburao Rajaram Wakle v. State Of Maharashtra
    (Feb 15, 1988)