Sunil Vitthal Wagh vs The State Of Maharashtra

Headnote AI-drafted · Editorially reviewed

The Division Bench of the Bombay High Court was constituted pursuant to a referral order passed by a Single Judge (N.J. Jamadar, J.) under Rule 8 of Chapter I of the Bombay High Court (Appellate Side) Rules, 1960, to resolve a conflict between two Single Judge decisions on the question whether an accused who was shown as absconding in the original charge-sheet and is subsequently arrested is entitled to the benefit of default bail under Section 167(2) of the Code of Criminal Procedure if a supplementary charge-sheet is not filed within the prescribed period.

One view, taken by S.C. Dharmadhikari, J. in Anil Somdatta Nagpal & Anr. v. State of Maharashtra (2006 Cri. L.J. 1307), held that once a charge-sheet is filed under Section 173(2) Cr.P.C. and cognizance is taken, the indefeasible right of default bail stands extinguished and any further report under Section 173(8) is merely further investigation that has no bearing on the right under Section 167(2). The contrary view of S.B. Shukre, J. in Pankaj v. State of Maharashtra (Crl. W.P. No.475 of 2016) held that where an accused is arrested after being shown as absconding in the original charge-sheet, the relevant date for computing the period under Section 167(2) is the date of such arrest, and failure to file a supplementary charge-sheet within the stipulated period gives the accused an indefeasible right to default bail.

The applicant, arrested on 28 August 2021 (the original charge-sheet having been filed on 15 September 2018 showing him as absconding), contended through Senior Advocate Mr. Aabad Ponda that the remand granted to him was under Section 167 Cr.P.C. and not Section 309, and that personal liberty guaranteed under Article 21 of the Constitution mandates a construction of Section 167(2) that protects 'wanted accused' or persons unaware of their status as absconders. The Court indicated it was deciding the pure question of law regarding default bail entitlement without entering into the merits of the underlying case.

Catchwords: default bail Section 167(2) CrPC supplementary charge-sheet Section 173(8) CrPC absconding accused wanted accused indefeasible right personal liberty Article 21 Constitution further investigation referral order conflicting Single Judge decisions cognizance remand