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REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

SPECIAL LEAVE PETITION(CRL.)NO.147 OF 2013

Suresh Kumar Bhikamchand Jain … PETITIONER

Vs.

State of Maharashtra & Anr. … RESPONDENTS

J U D G M E N T

ALTAMAS KABIR, CJI.

1. This Special Leave Petition arises out of

the judgment and order dated 17th December, 2012,

passed by the Aurangabad Bench of the Bombay High

Court in CRLA No. 4601 of 2012, dismissing the same

and directing the Special Judge, in seisin of the

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matter, to expedite the hearing on framing of

charge, as had been directed by this Court on 12th

October, 2012, while disposing of Special Leave to

Appeal (Crl.) No. 6463 of 2012, filed by the co-

accused Pradeep Raisoni.

2. This case has thrown into focus certain

important issues regarding the right of an accused

to be released on bail under Section 167(2) of the

Code of Criminal Procedure, 1973, hereinafter

referred to as "Cr.P.C.". One of such issues

concerns the power of the Magistrate to pass orders

of remand even beyond the period envisaged under

Section 167(2) Cr.P.C. In the instant case, despite

charge-sheet having been filed, no cognizance has

been taken on the basis thereof. The learned

Magistrate has, however, continued to pass remand

orders, without apparently having proceeded to the

stage contemplated under Section 309 Cr.P.C. In

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order to appreciate the issues which have cropped

up during the hearing of the instant case, it is

necessary to briefly set out the facts giving rise

to the said questions, which have fallen for

determination.

3. As per the prosecution case, the Petitioner,

Suresh Kumar Bhikamchand Jain, is alleged to have

misappropriated amounts meant for development of

slums in Jalgaon city, when he was functioning as

the Minister of Housing and Slum Area Development,

as a Member of the Legislative Assembly.

Initially, charge-sheet was filed against certain

persons claiming to be the contractors and the

Vice-President of the Municipal Corporation,

Jalgaon. Thereafter, during investigation the

Petitioner was arrested on 11th March, 2012, and

while charge-sheet was filed against the four other

accused persons on 25th April, 2012, a

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supplementary charge-sheet came to be filed against

the Petitioner herein on 1st June, 2012. For a

while, the Petitioner was released on interim bail,

but upon rejection of his application for bail on

merit, he was again taken into custody on 5th July,

2012.

4. What has been stressed upon on behalf of the

Petitioner is that, although, charge-sheet had been

filed within the time stipulated under Section

167(2) Cr.P.C., sanction to prosecute the

Petitioner had not been obtained, as a result

whereof, no cognizance was taken of the offence.

Notwithstanding the above, remand orders continued

to be made and the Petitioner remained in

magisterial custody.

5. At this stage, it may be pertinent to point

out that the Petitioner is an accused in respect of

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offences punishable under Sections 120B, 409, 411,

406, 408, 465, 466, 468, 471, 177, 109 read with

Section 34 of the Indian Penal Code, hereinafter

referred to as "IPC" and also under Sections 13(1)

(c), 13(1)(d) and 13(2) of the Prevention of

Corruption Act, 1988, hereinafter referred to as

"the PC Act", in Crime No. 13 of 2006, registered

with the City Police Station Jalgaon.

6. Appearing in support of the Special Leave

Petition, Mr. U.U. Lalit, learned senior Advocate,

submitted that since the statutory period of 90

days, envisaged under Section 167(2) Cr.P.C., had

lapsed, the Petitioner could not have been remanded

to custody, as had been done by the learned Special

Judge, who is yet to take cognizance for want of

sanction. Mr. Lalit submitted that the Petitioner

was, therefore, entitled to be released on bail

forthwith, since the orders of remand passed by the

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learned Magistrate after a period of 90 days were

without jurisdiction and, therefore, invalid in the

facts and circumstances of the case.

7. Mr. Lalit also submitted that Section 309

Cr.P.C., which also deals with remand of the

accused under certain circumstances, does not apply

to the allegations relating to the provisions of

the PC Act, inasmuch as, there is no committal

proceeding contemplated in the proceeding before

the learned Special Judge. However, as far as

Section 309 Cr.P.C. is concerned, Mr. Lalit

submitted that the same would be applicable only

after cognizance of the offence had been taken or

upon the commencement of the trial before the

Special Court. In the absence of cognizance being

taken by the Special Court, it could not be said

that the trial had commenced and, therefore,

further detention of the Petitioner was wholly

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illegal and not authorised in law and he was,

therefore, entitled to be released on bail

forthwith on the basis of the "indefeasible right"

acquired by him on the failure of the Investigating

Authorities to obtain sanction for prosecuting the

Petitioner.

8. Mr. Lalit submitted that the High Court also

went wrong in holding that in the absence of

sanction, the actual trial could not be stayed and

could be proceeded with and that the question of

grant of sanction could be considered at the stage

of framing of charge, as to whether such sanction

was actually required to prosecute the accused.

9. In support of his submission, Mr. Lalit

referred to and relied upon the Constitution Bench

decision of this Court in Sanjay Dutt v. State

[(1994) 5 SCC 410], wherein the said Bench had

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occasion to consider the effect of non-completion

of investigation within the time stipulated under

Section 167(2) Cr.P.C. Learned counsel pointed out

that in the said decision, it has, inter alia, been

held that default in completion of investigation

within 180 days did not give a fully indefeasible

right to the accused to be released on bail. Such

a right arises from the time of default in filing

of the charge-sheet and continues till the filing

thereof, but does not survive once the charge-sheet

is filed. Thereafter, grant of bail would be

decided on merits. Mr. Lalit submitted that the

indefeasible right referred to in the said decision

would become absolute in the event an application

for bail was filed after the expiry of the

statutory period stipulated by the statute, but

before filing of the charge-sheet. In such a case,

Mr. Lalit submitted that the concerned accused was

entitled as a matter of right to be released on

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bail.

10. Mr. Lalit also referred to the decision of

this Court in Natabar Parida v. the State of Orissa

[(1975) 2 SCC 220], which was decided by a Bench of

2-Judges, who also had occasion to consider the

impact of Section 167(2) Cr.P.C. and the proviso

(a) thereto. In the said case, the powers of the

High Court to pass an order of remand of an accused

on the basis of inherent powers, was sought to be

negated. It was ultimately held that the Court

will have no inherent power of remand of an accused

to any custody, unless the power is conferred by

law. Mr. Lalit urged that since remand orders

passed against the Petitioner in the present case

did not have the sanction either of Section 167(2)

Cr.P.C. or Section 309 Cr.P.C., the Petitioner was

entitled to be released on statutory bail

forthwith.

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11. Appearing for the State of Maharashtra, Mr.

Sanjay V. Kharde, learned Advocate, supported the

decision of the High Court and urged that with the

filing of the charge-sheet under Section 167(2)

Cr.P.C., the conditions of the said Section stood

satisfied and even if sanction had not been

obtained for prosecuting the Accused, the Trial

Court was entitled to proceed further in the

matter. Mr. Kharde submitted that the orders of

remand passed by the Trial Court were not vitiated

since charge-sheet had already been filed within 90

days of the arrest of the Petitioner.

12. Also referring to the decision in Sanjay

Dutt's case (supra), Mr. Kharde submitted that the

"indefeasible right" of the accused to be released

on bail under Section 167(2) Cr.P.C., in default of

completion of the investigation and filing of

charge-sheet within the time allowed, is a right

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which accrued to and is enforceable by the accused

only from the time of default till the filing of

the charge-sheet and it does not survive or remain

enforceable on the charge-sheet being filed.

Accordingly, if in a given case, the accused

applies for bail, under the aforesaid provision, on

expiry of the period of 180 days or the extended

period, as the case may be, then he has to be

released on bail forthwith. However, once the

charge-sheet is filed, the question of bail has to

be decided only with reference to the merits of the

case under the principles relating to grant of bail

to an accused after filing of the charge-sheet.

Mr. Kharde reiterated that in the instant case

since the charge-sheet had already been filed,

notwithstanding the fact that sanction had not been

obtained, it could not be said that the powers of

the learned Magistrate or the Trial Court to pass

orders of remand came to an end, even if sanction

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had not been obtained for prosecuting the accused

under the provisions of the PC Act.

13. The question posed in this Special Leave

Petition concerns the right of a Magistrate or the

Trial Court to pass orders of remand in terms of

Section 167(2) Cr.P.C. beyond the period prescribed

therein. Section 167(2) Cr.P.C., which is relevant

for an understanding of the issues involved in this

case, is extracted hereinbelow:

"167. Procedure when investigation

cannot be completed in twenty-four

hours.

(1) *** *** ***

(2) The Magistrate to whom an

accused person is forwarded under

this section may, whether he has or

has not jurisdiction to try the

case, from time to time, authorise

the detention of the accused in

such custody as such Magistrate

thinks fit, for a term not

exceeding fifteen days in the

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whole; and if he has no

jurisdiction to try the case or

commit it for trial, and considers

further detention unnecessary, he

may order the accused to be

forwarded to a Magistrate having

such jurisdiction:

Provided that-

(a) The Magistrate may authorize

the detention of the accused

person, otherwise than in the

custody of the police, beyond the

period of fifteen days, if he is

satisfied that adequate grounds

exist for doing so, but no

Magistrate shall authorise the

detention of the accused person in

custody under this paragraph for a

total period exceeding-

(i) ninety days, where the

investigation relates to an offence

punishable with death, imprisonment

for life or imprisonment for a term

of not less than ten years;

(ii) Sixty days, where the

investigation relates to any other

offence,

and, on the expiry of the said

period of ninety days, or sixty

days, as the case may be, the

accused person shall be released on

bail if he is prepared to and does

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furnish bail, and every person

released on bail under this sub-

section shall be deemed to be so

released under the provisions of

Chapter XXXIII for the purposes of

that Chapter;

(b) no Magistrate shall authorize

detention of the accused in custody

of the police under this section

unless the accused is produced

before him in person for the first

time and subsequently every time

till the accused remains in the

custody of the police, but the

Magistrate may extend further

detention in judicial custody on

production of the accused either in

person or through the medium of

electronic video linkage;

(c) no Magistrate of the second

class, not specially empowered in

this behalf by the High Court,

shall authorise detention in the

custody of the police.

Explanation I. - For the avoidance

of doubts, it is hereby declared

that, notwithstanding the expiry of

the period specified in paragraph

(a), the accused shall be detained

in custody so long as he does not

furnish bail.

Explanation II. - If any question

arises whether an accused person

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was produced before the Magistrate

as required under clause (b), the

production of the accused person

may be proved by his signature on

the order authorising detention or

by the order certified by the

Magistrate as to production of the

accused person through the medium

of electronic video linkage, as the

case may be.

Provided further that in case

of a woman under eighteen years of

age, the detention shall be

authorised to be in the custody of

a remand home or recognised social

institution."

14. From the above provision, it would be amply

clear that the Magistrate may authorise the

detention of an accused person, otherwise than in

the custody of the police, beyond a period of 15

days, if he is satisfied that there are adequate

grounds for doing so, but no Magistrate is

authorised to detain the accused person in custody

for a total period exceeding 90 days where the

investigation relates to an offence punishable with

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death, imprisonment for life or imprisonment for a

term of not less than ten years and 60 days where

the investigation relates to any other offence. In

other words, if an accused was ready to offer bail,

once the stipulated period for the investigation

had been completed, then the Magistrate no longer

had the authority to extend the period of detention

beyond the said period of 90 days and,

consequently, he had no option but to release the

accused on bail. The language used in Sections

167(2)(a)(i) and (ii) is that on the expiry of the

period of 90 days or 60 days, as the case may be,

the accused person shall be released on bail, if he

is prepared to and does furnish bail. The

direction upon the learned Magistrate or the Trial

Court is mandatory in nature and any detention

beyond the said period would be illegal.

15. The power of remand is vested in the Court

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at the very initial stage before taking of

cognizance under Section 167(2) Cr.P.C. Once

cognizance is taken, the power to remand shifts to

the provisions of Section 309 Cr.P.C., under which

the Trial Court is empowered to postpone or adjourn

proceedings and, for the said purpose, to extend

the period of detention from time to time. Section

309(2) Cr.P.C. contemplates a situation where if

the Court after taking cognizance of an offence or

commencement of trial finds it necessary to

postpone the commencement of, or adjourn, any

inquiry or trial, it may, for reasons to be

recorded, postpone or adjourn the inquiry or trial

on such terms as it thinks fit, for such time as it

considers reasonable, and may by a warrant remand

the accused if in custody , for a period of fifteen

days at a time. Although, the provisions of

Section 309 Cr.P.C. may not have any application to

the facts of this case, in order to appreciate the

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view that we have taken, the same are reproduced

hereinbelow:

“309. Power to postpone or adjourn

proceedings.—(1) In every inquiry

or trial the proceedings shall be

held as expeditiously as possible,

and in particular, when the

examination of witnesses has once

begun, the same shall be continued

from day to day until all the

witnesses in attendance have been

examined, unless the Court finds

the adjournment of the same beyond

the following day to be necessary

for reasons to be recorded.

Provided that when the inquiry or

trial relates to an offence under

Sections 376 to Section 376 D of

the Indian Penal Code (45 of 1860),

the inquiry or trial shall, as far

as possible, be completed within a

period of two months from the date

of commencement of the examination

of witnesses.

(2) If the court, after taking

cognizance of an offence, or

commencement of trial, finds it

necessary or advisable to postpone

the commencement of, or adjourn,

any inquiry or trial, it may, from

time to time, for reasons to be

recorded, postpone or adjourn the

same on such terms as it thinks

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fit, for such time as it considers

reasonable, and may by a warrant

remand the accused if in custody:

Provided that no Magistrate shall

remand an accused person to custody

under this section for a term

exceeding fifteen days at a time:

Provided further that when

witnesses are in attendance, no

adjournment or postponement shall

be granted, without examining them,

except for special reasons to be

recorded in writing:

Provided also that no adjournment

shall be granted for the purpose

only of enabling the accused person

to show cause against the sentence

proposed to be imposed on him.

Provided also that –

(a)no adjournment shall be

granted at the request of a party,

except where the circumstances are

beyond the control of that party;

(b)the fact that the pleader of a

party is engaged in another Court,

shall not be a ground for

adjournment;

(c)where a witness is present in

Court but a party or his pleader is

not present or the party or his

pleader though present in Court, is

not ready to examine or cross-

examine the witness, the Court may,

if thinks fit, record the statement

of the witness and pass such orders

as it thinks fit dispensing with

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the examination-in-chief or cross-

examination of the witness, as the

case may be.

Explanation 1 – If sufficient

evidence has been obtained to raise

a suspicion that the accused may

have committed an offence and it

appears likely that further

evidence may be obtained by a

remand this is a reasonable cause

for a remand.

Explanation 2 – The terms on which

an adjournment or postponement may

be granted include, in appropriate

cases, the payment of costs by the

prosecution or the accused.”

16. At this juncture, we may refer to certain

dates which are relevant to the facts of this

case, namely:

(a) 11.03.2012 - Petitioner arrested and

remanded to police custody;

(b) 25.04.2012 - First charge-sheet filed

against the four accused;

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(c) 1.06.2012 - Supplementary charge-sheet filed

in which the Petitioner is named;

(d) 30.07.2012 - The Trial Court rejected the

Petitioner's prayer for grant of bail;

(e) 13.09.2012 - The High Court confirmed the

order of the Trial Court;

(f) 2.10.2012 - Application filed under Section

167(2) Cr.P.C. before the Trial Court;

(g) 5.10.2012 - Trial Court rejected the

application under Section 167(2) Cr.P.C.

17. From the above dates, it would be evident

that both the charge-sheet as also the

supplementary charge-sheet were filed within 90

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days from the date of the Petitioner's arrest and

remand to police custody. It is true that

cognizance was not taken by the Special Court on

account of failure of the prosecution to obtain

sanction to prosecute the accused under the

provisions of the PC Act, but does such failure

amount to non-compliance of the provisions of

Section 167(2) Cr.P.C. is the question with which

we are confronted. In our view, grant of sanction

is nowhere contemplated under Section 167 Cr.P.C.

What the said Section contemplates is the

completion of investigation in respect of different

types of cases within a stipulated period and the

right of an accused to be released on bail on the

failure of the investigating authorities to do so.

The scheme of the provisions relating to remand of

an accused, first during the stage of investigation

and, thereafter, after cognizance is taken,

indicates that the Legislature intended

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investigation of certain crimes to be completed

within 60 days and offences punishable with death,

imprisonment for life or imprisonment for a term of

not less than 10 years, within 90 days. In the

event, the investigation is not completed by the

investigating authorities, the accused acquires an

indefeasible right to be granted bail, if he offers

to furnish bail. Accordingly, if on either the

61st day or the 91st day, an accused makes an

application for being released on bail in default

of charge-sheet having been filed, the Court has no

option but to release the accused on bail. The

said provision has been considered and interpreted

in various cases, such as the ones referred to

hereinbefore. Both the decisions in Natabar

Parida's case(supra) and in Sanjay Dutt's case

(supra) were instances where the charge-sheet was

not filed within the period stipulated in Section

167(2) Cr.P.C. and an application having been made

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for grant of bail prior to the filing of charge-

sheet, this Court held that the accused enjoyed an

indefeasible right to grant of bail, if such an

application was made before the filing of the

charge-sheet, but once the charge-sheet was filed,

such right came to an end and the accused would be

entitled to pray for regular bail on merits.

18. None of the said cases detract from the

position that once a charge-sheet is filed within

the stipulated time, the question of grant of

default bail or statutory bail does not arise. As

indicated hereinabove, in our view, the filing of

charge-sheet is sufficient compliance with the

provisions of Section 167(2)(a)(ii) in this case.

Whether cognizance is taken or not is not material

as far as Section 167 Cr.P.C. is concerned. The

right which may have accrued to the Petitioner, had

charge-sheet not been filed, is not attracted to

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the facts of this case. Merely because sanction

had not been obtained to prosecute the accused and

to proceed to the stage of Section 309 Cr.P.C., it

cannot be said that the accused is entitled to

grant of statutory bail, as envisaged in Section

167 Cr.P.C. The scheme of the Cr.P.C. is such that

once the investigation stage is completed, the

Court proceeds to the next stage, which is the

taking of cognizance and trial. An accused has to

remain in custody of some court. During the period

of investigation, the accused is under the custody

of the Magistrate before whom he or she is first

produced. During that stage, under Section 167(2)

Cr.P.C., the Magistrate is vested with authority to

remand the accused to custody, both police custody

and/ or judicial custody, for 15 days at a time, up

to a maximum period of 60 days in cases of offences

punishable for less than 10 years and 90 days where

the offences are punishable for over 10 years or

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even death sentence. In the event, an investigating

authority fails to file the charge-sheet within the

stipulated period, the accused is entitled to be

released on statutory bail. In such a situation,

the accused continues to remain in the custody of

the Magistrate till such time as cognizance is

taken by the Court trying the offence, when the

said Court assumes custody of the accused for

purposes of remand during the trial in terms of

Section 309 Cr.P.C. The two stages are different,

but one follows the other so as to maintain a

continuity of the custody of the accused with a

court.

19. Having regard to the above, we have no

hesitation in holding that notwithstanding the fact

that the prosecution had not been able to obtain

sanction to prosecute the accused, the accused was

not entitled to grant of statutory bail since the

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charge-sheet had been filed well within the period

contemplated under Section 167(2)(a)(ii) Cr.P.C.

Sanction is an enabling provision to prosecute,

which is totally separate from the concept of

investigation which is concluded by the filing of

the charge-sheet. The two are on separate

footings.

20. In that view of the matter, the Special

Leave Petition deserves to be and is hereby

dismissed.

...................CJI.

(ALTAMAS KABIR)

..................... J.

(J. CHELAMESWAR)

..................... J.

(VIKRAMAJIT SEN)

New Delhi;

Dated: February 13, 2013.