| Case Name : | Bhulabai wdo Barkaji Matre Vs. Shankar Barkaji Matre and others 1999 (3) Mh.L.J. 227 |
| Referred Judgements : | GAYARAM MONDAL V. STATE [REFERRED TO] TALAB HAJI HUSSAIN VS. MADHUKAR PURSHOTTAM MONDKAR [REFERRED TO] |
| Date of judgement : | June 07,1999 |
| Court : | Highcourt of Bombay. |
| Case Type : | Criminal Jurisdiction |
| Appellant : | BHULABAI BARKAJI MATRE |
| Respondents : | SHANKAR BARKAJI MATRE |
| Issue / Query : | Section 167(2) If chargesheet is not filed in time explaination of IOto be called |
Facts-
-Both of the operations seek cancellation of bail of the indicted persons and as similar are being disposed of by this common judgment.
-At the time notice came to be issued to the non-applicants-accused in these two cases, the charge distance wasn’t filed within a period of 90 days, the aspirants- indicted came to be released on bail, in dereliction.
-The aspirant Bhulabai, mama of these two indicted is also one of the substantiations to the incident.
-It’s the case of the aspirant- Bhulabai wd/ o Barkaji Matre, that the non- aspirants/ indicted have boggled their father, family and family as they were the substantiations to the incident of murder committed by them of their family? Uttam Matre.
Issue–
Both these applications seek cancellation of the bail of the accused persons and as such are dealt with by this joint judgment.
Arguments–
It is submitted by Mr. Joshi, learned counsel for the appellants that taking into account that the appellants are the main witnesses of the gruesome murders committed by the non-appellants/accused and as the non-appellants/accused have threatened the appellants with dire consequences, they have misused the bail granted to them by manipulating the criminal prosecution; and their bail deserves to be revoked.
Within the criminal justice system, the importance of bail cannot be overlooked, as its denial is a restriction on the freedom of the accused, access to a lawyer and the preparation of a defence. Section 437 of the Criminal Code determines when bail can be imposed in the case of a non-bailable offence. If the court finds that if granted bail the accused is likely to abscond or commit further crimes or tamper with witnesses or otherwise obstruct the course of justice, the best course of action is to deny the accused bail. In addition to the granting of bail on the merits, the Criminal Code provides certain statutory rights to bail to a person who has been arrested for a non-bailable offence, as set out in Sections 437(2) and 437(6).
Grounded on this, the Criminal Procedure Code provides whether bail is granted pursuant to Composition 167 Clause 2 of the Criminal Procedure Code grounded on graces or unlawfully and thus the provision of similar bail is made. Termination can only be done by exercising the powers of the court grounded in Sec. 437(5) and 439(2) of the Criminal Procedure Law. The only difference is that the power to drop bail under Sec. 437(5) may be exercised in any court, whereas the power to drop bail under Sec. 439(2) rests with the High Court or the Civil Court.
But vague charges alone aren’t enough grounds to drop bail.
Since Section 167 doesn’t confer power to drop bail, the power to drop bail can only be traced to Section 437(5) or Section 439(2) of the Act. After the indicted is released on bail, there will be no simple hindrance in his release.
The detention in completing the disquisition may be vexation caused by the release of the indicted-on bail. Thus, we’re of the view that bail, formerly granted, cannot be abandoned simply on the product of a charge- distance, unless there’s a strong reason to drop the bail.
Ruling –
Therefore, the ratio laid down in Aslam Babalal Desai’s case is that unless there are cogent grounds for cancellation of bail, bail once granted cannot be canceled by mere presentation of charge sheet. The order passed by the two learned Additional Sessions Judges rejecting the application for cancellation of bail is not only erroneous but also defeats the purpose and object of a free and fair trial.
The investigative body is therefore required to complete the investigation within the stipulated period of 60/90 days as stated in Section 167(2). The disciplinary body is then expected to proceed with the matter and submit a progress report to the relevant magistrate through their public prosecutor’s office. This procedure will provide protection against abuse of power by the investigating authority and will also serve the interest of justice by enforcing the mandate enshrined in Articles 21 and 22 of the Constitution of India. In the instant case, this Court is prima facie of the opinion that in case of Crime No. 80/1998, the investigating police officer negligently filed a charge sheet against the non-applicants/accused within the stipulated time and without justification, though the investigation was almost completed on time. The learned Additional Public Prosecutor assured the court that a ministerial inquiry has been opened in the matter and this court would not like to observe anything that would influence and influence the ministerial proceedings initiated against the investigator but he expects that in case the investigator is found guilty of such misconduct, the authorities will they will deal with him severely.
Judgement –
Bail granted to non-applicants/accused in two cases viz., Crime No. 95/1992 Police Station, Yevda, Tehsil Daryapur, District Amravati (Sessions Court No. 19/1993) and Crime No. 80/1998, Police Station, Daryapur (Sessions Trial No. 137/1998) now pending before the Additional Sessions Judge, Achalpur, is quashed and the accused are directed to surrender before the learned Additional Sessions Judge on or before 15th June, 1999, who commits them to judicial custody. In the event that the non-complainants/accused do not surrender as directed, it is further ordered that the learned Additional Sessions Judge issue warrants for their non-bailable arrest and take appropriate steps to forfeit their sureties, bonds and take action against the surety in accordance with law; and take them into custody while securing their arrest. Witnesses may be deprived of police protection after arrest.
Conclusion –
In this case, we can conclude that failure to comply, apart from making the officer concerned responsible for the actions of the Department, would also make him liable for contempt of court and any person concerned if he is harmed by the failure to comply with these instructions. he will be entitled to initiate proceedings for contempt of court. The Court therefore directs all concerned to follow the proposed steps conscientiously and for this purpose a copy of this judgment and order has been forwarded to the Chief Minister of Home Affairs of Maharashtra, the Department of Home Affairs and the Director General of Police of the State of Maharashtra; and it shall be their duty to distribute them to every police-station under their charge, and to cause them to be notified at every police-station in a conspicuous place within a reasonable time. Copies of the judgment and order will also be forwarded to the Director of Public Prosecutions, Bombay and all Sessions Judges in the State of Maharashtra for circulation to all Courts and Magistrates exercising powers of custody under Section 167 of the CrPC during the investigation. And this is with the hope that if the steps are followed, it will act as a check on all involved, with a case investigation, arrest and indictment.
written by Mrugen Dhage intern under legal vidhiya
