Code of Criminal Procedure, 1973 – s. 167(2) – Maharashtra Control of Organized Crime Act, 1999 – ss.3 and 4 – Arrest of appellant-accused on 01.12.2016 – Before the expiry of 90 days period, application filed by the Additional Public Prosecutor on 28.02.2017 for extension of time to file charge-sheet upto 15.03.2017 – Special judge by order dated 28.02.2017 extended judicial custody of the appellant until 01.03.2017 – On the same day accused filed application for grant of statutory bail but the same was not pursued – On the next day 02.03.2017, after the expiry of 90 days period, appellant filed another application for grant of statutory bail – Judicial custody kept on extending from time to time until 08.03.2017 on which date charge sheet was filed and the Special court disposed of the Public Prosecutor’s application as infructuous – Thereafter, on 14.03.2017 Special Judge rejected the bail application dated 02.03.2017 – Challenge to, before the High Court – High Court rejected the prayer of the appellant to be released on bail by default – On appeal, held: No right can be said to have accrued to the appellant for grant of bail on the ground of default – Right to grant of statutory bail would have enured to the appellant only after rejection of the request for extension of time prayed by the Additional Public Prosecutor – Mere fact that 90 days period from the date of initial arrest of the appellant had lapsed on 02.03.2017, could not ineluctably entail in grant of statutory bail to the appellant – Moreso, when no decision was taken by the Court on the application submitted by the Additional Public Prosecutor until 08.03.2017, on which date the supplementary charge-sheet against the appellant was filed in Court – Considering the effect of filing of the supplementary charge-sheet against the appellant, coupled with the fact that his judicial custody was extended until the pendency of consideration of the application for extension of time to file the charge-sheet, in law, it is unfathomable as to how the appellant could claim to have any accrued right to be released on bail on the ground of default or for that matter, such a right having become indefeasible – No right had accrued to the appellant before filing of the charge-sheet; at best, it was an inchoate right until 8.03.2017 – Granting statutory bail after filing of chargesheet against the appellant and more so during the pendency of the application for extension of time to file charge-sheet was impermissible – Thus, the High Court rightly rejected the prayer for grant of statutory bail by the appellant.
Dismissing the appeals, the Court
HELD: 1.1 On 28.02.2017, the Additional Public Prosecutor had filed report for extension of time to file charge-sheet against the appellant until 15.03.2017. The same was filed within time, before the expiry of 90 days from the date of initial arrest of the appellant in connection with the subject FIR. Realising this position, the appellant did not pursue his first application for statutory bail dated 28.02.2017. Instead, he was advised to file a fresh statutory bail application on 02.03.2017. On 02.03.2017 the report submitted by the Additional Public Prosecutor was still undecided. Therefore, no right can be said to have accrued to the appellant for grant of bail on the ground of default. In law, only upon rejection of the prayer for extension of time sought by the Additional Public Prosecutor, right in favour of the appellant for grant of statutory bail could have ignited. The mere fact that
90 days period from the date of initial arrest of the appellant in connection with the subject FIR had lapsed on 02.03.2017, could not ineluctably entail in grant of statutory bail to the appellant. Moreso, when no decision was taken by the Court on the report/application submitted by the Additional Public Prosecutor until 08.03.2017, on which date the supplementary charge-sheet against the appellant was filed in Court. Considering the effect of filing of the supplementary charge-sheet against the appellant, coupled with the fact that his judicial custody was extended by the Court of competent jurisdiction until the pendency of consideration of the application for extension of time to file the charge-sheet, in law, it is unfathomable as to how the appellant could claim to have any accrued right to be released on bail on the ground of default or, such a right having become indefeasible. [Para 21][395-E-H; 396-A-B]
1.2 No right had accrued to the appellant before filing of the charge-sheet; at best, it was an inchoate right until 08.03.2017. Resultantly, the question of granting statutory bail after filing of charge-sheet against the appellant and moreso during the pendency of report/application for extension of time to file chargesheet was impermissible. In other words, the application for grant of statutory bail filed by the appellant on 02.03.2017, even if pending, could have been taken forward only if the prayer for extension of period was to be formally and expressly rejected by the Court. [Para 23][398-G-H; 399-A-B]
1.3 The consideration of application for grant of statutory bail in a situation, was dependent on rejection of prayer of the Additional Public Prosecutor for extension of time. When such prayer is made, it is the duty of the Court to consider the report/application for extension of period for filing of the charge-sheet in the first instance; only if it was to be rejected could the prayer for grant of statutory bail be taken forward. In no case, the hearing on statutory bail application precede the consideration of prayer for extension of the period for filing of the charge-sheet made by the Additional Public Prosecutor. [Para 24][399-B-C]
1.4 In the instant case, the judicial custody of the appellant was extended by the Court of competent jurisdiction from time to time pending consideration of request to extend time to file charge-sheet, initially from 28.02.2017, till 01.03.2017 and so continued from 01.03.2017, until 07.03.2017, and again from 07.03.2017, till 08.03.2017 on which date the charge-sheet was filed against the appellant in the Court. The order passed by the Special Court on 08.03.2017, has been so construed by the High Court and additionally by explicitly extending the period for filing of the charge-sheet against the appellant until 08.03.2017. There is no error in that approach of the High Court. [Para 25][399-EG]
1.5 In the instant case, before the appellant instituted the subject application for grant of statutory bail on 02.03.2017, the Additional Public Prosecutor had already filed his report/application for extending the period for filing of charge-sheet against the appellant until 15.03.2017, but decision thereon was deferred. As held by the Constitution Bench in the case of Sanjay Dutt case, unless the report/application filed by the Additional Public Prosecutor for extension of time was rejected, no right would accrue in favour of the accused much less to consider his application for grant of statutory bail. Further, in such cases it is the duty of the concerned Court to first deal with the prayer for extension of period to file charge-sheet made by the Additional Public Prosecutor. The High Court, thus answered the issue against the appellant and additionally considered the justness of the prayer made by the Additional Public Prosecutor for extension of period for filing charge-sheet. It recorded an express finding that the said request was genuine and appropriate and thus extended the time for that purpose till 08.03.2017. [Para 26][400D-G]
1.6 In the instant case, the prayer for extension of period for filing charge-sheet was moved by the Additional Public Prosecutor before the statutory period had lapsed, but the same remained pending until 08.03.2017, when charge-sheet was filed in Court. Until the said request was formally and expressly rejected by the competent Court, in view of the exposition in the case of Sanjay Dutt case, the concerned Court could not have assumed jurisdiction to consider the prayer for grant of statutory bail of the appellant. The request made by the Additional Public Prosecutor was formally disposed of as infructuous on 08.03.2017, after filing of the charge-sheet against the appellant. That was not an order of rejection of the request of the Additional Public Prosecutor as such. The High Court examined this aspect and, rightly answered the issue against the appellant for the reasons recorded in the impugned judgment, including by explicitly extending the time to file charge-sheet till 08.03.2017. The said view of the High Court is affirmed. [Para 27][401-B-E]
1.7 Taking overall view of the matter, it is noticed that the report was submitted, before expiry of the initial statutory period of 90 days for filing of the charge-sheet against the appellant. That request was disposed of by the Special Court on 08.03.2017 as infructuous, after the charge-sheet against the appellant was submitted in Court. Until 08.03.2017, the appellant was sent to judicial custody by the competent Court pending consideration of request of the Additional Public Prosecutor for extension of time to file the charge-sheet. The Court, in law, could not have considered the prayer for grant of statutory bail of the appellant until 08.03.2017, on which date the charge-sheet was already filed against the appellant in the concerned Court. Further, the High Court considered the circumstances in which the order came to be passed by the Special Court on 08.03.2017. It rightly held that the said request could not have been closed as having become infructuous. Rather, it was the duty of the Court to decide the request on its merits and only upon its rejection, proceed to consider the prayer for grant of statutory bail. The High Court, therefore, noticed that it had two options: first, to remit the matter back to the Special Court for a proper decision on the said report of the Additional Public Prosecutor dated 28.02.2017 or second, to consider the same itself and pass appropriate orders thereupon. It chose to adopt the second option, which was thought desirable and not objected to by the appellant as can be discerned from the noting in of the impugned judgment. The High Court, then proceeded to consider the prayer for extension of time made in the report submitted by the Additional Public Prosecutor on 28.02.2017, and, for tangible reasons, found the same to be genuine and appropriate. Having thus held, it allowed the said request by extending the time to file charge-sheet till 08.03.2017. There is no infirmity in the said approach of the High Court. Having extended the time till 08.03.2017 and as the charge-sheet was already filed on that date, the question of considering the prayer for grant of statutory bail of the appellant vide application dated 02.03.2017, on the ground of default, did not survive for further consideration. Right to grant of statutory bail would have enured to the accused only after rejection of the request for extension of time prayed by the Additional Public Prosecutor. As a result, the High Court rightly rejected the prayer for grant of statutory bail pursued by the appellant vide application dated 02.03.2017. The conclusion reached by the High Court is concurred with. The rejection of the prayer for grant of statutory bail would not come in the way of the appellant in pursuing his remedy for grant of regular bail on merit. [Paras 28-29][401-FH; 402-A-F] Hitendra Vishnu Thakur v. State of Maharashtra (1994)
4 SCC 602 : [1994] 1 Suppl. SCR 360; Union of India v. Nirala Yadav (2014) 9 SCC 457 : [2014] 6 SCR 148; Uday Mohanlal Acharya v. State of Maharashtra (2001)
5 SCC 453 : [2001] 2 SCR 878; Sanjay Dutt v. State through CBI (1994) 5 SCC 410 : [1994] 3 Suppl. SCR
263 – referred to.
As published in the Supreme Court Reports, Supreme Court of India. Text from the Indian Supreme Court Judgments open data set (Dattam Labs), CC BY 4.0.
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