Karnataka High Court
Moulali S/O Babajan Challal vs State Of Karnataka on 4 March, 2025
Author: V.Srishananda
Bench: V.Srishananda
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R
IN THE HIGH COURT OF KARNATAKA
DHARWAD BENCH
DATED THIS THE 4TH DAY OF MARCH, 2025
BEFORE
THE HON'BLE MR. JUSTICE V.SRISHANANDA
CRIMINAL REVISION PETITION NO.100051 OF 2025
(397(CR.PC)/438(BNSS))
BETWEEN:
MOULALI S/O. BABAJAN CHALLAL,
AGE: 26 YEARS, OCC. COOLIE,
R/O. VARDI, TQ. HANGAL,
DIST. HAVERI-581148.
...PETITIONER
(BY SRI ARAVIND D. KULKARNI, ADVOCATE)
AND:
1. STATE OF KARNATAKA
THROUGH ADUR POLICE STATION,
REP. BY STATE PUBLIC PROSECUTOR,
HIGH COURT OF KARNATAKA,
HIGH COURT BUILDING, DHARWAD-580011.
2. AKHILABANU W/O. SHABBIR AHMAD MANSOOR,
AGE: 45 YEARS, OCC. HOUSEHOLD WORK,
R/O. VARDI, TQ. HANGAL,
DIST. HAVERI-581148.
Digitally
signed by
MALLIKARJUN
...RESPONDENTS
MALLIKARJUN RUDRAYYA
RUDRAYYA
KALMATH
KALMATH
Date:
2025.03.12
(BY SMT.GIRIJA S. HIREMATH, HCGP FOR R1;
17:28:36
+0530
SRI UMESH P. HAKKARKI, ADVOCATE FOR
SRI M.V. HIREMATH, ADVOCATE FOR R2)
THIS CRIMINAL REVISION PETITION IS FILED UNDER
SECTION 438 AND UNDER SECTION 442 OF BNSS 2023, SEEKING
TO SET ASIDE THE ORDER DATED 01.02.2025 PASSED BY THE
ADDITIONAL DISTRICT AND SESSIONS JUDGE, FTSC-I, AT HAVERI
IN SPL.S.C.NO.08/2025 AND CONSEQUENTLY ALLOW THE
APPLICATION FILED BY THE PETITIONER AND ENLARGE THE
PETITIONER ON DEFAULT BAIL IN SPL.S.C.NO.08/2025 PENDING
ON THE FILE OF ADDITIONAL DISTRICT AND SESSIONS JUDGE,
FTSC-I, HAVERI, REGISTERED FOR THE OFFENCES PUNISHABLE
UNDER SECTIONS 376(2)(n), 506 OF IPC AND UNDER SECTIONS 4,
6, 8 AND 12 OF PROTECTION OF CHILDREN FROM SEXUAL
OFFENCES ACT, 2012.
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THIS PETITION, COMING ON FOR ORDERS, THIS DAY, ORDER
WAS MADE THEREIN AS UNDER:
ORAL ORDER
(PER: THE HON’BLE MR. JUSTICE V.SRISHANANDA)
Heard Sri.Aravind D. Kulkarni, learned counsel for
the petitioner, Smt. Girija S. Hiremath, learned High Court
Government Pleader for respondent No.1 and Sri.Umesh
P.Hakkarki, advocate for Sri.M.V.Hiremath, advocate for
respondent No.2-defacto complainant.
2. Petition under Section 397 of Cr.P.C./438 BNSS
with the following prayer:-
a. Set aside the order dated 01.02.2025 passed by the
Additional District and Sessions Judge, FTSC-I, At-Haveri
in Spl.S.C.No. 08/2025 and consequently allow the
application filed by the petitioner and enlarge the
petitioner on default bail in Spl.S.C. No.08/2025 pending
on the file of Additional District and Sessions Judge, FTSC-
I, Haveri, registered for the offences punishable under
Section 376(2)(n), 506 of IPC and under Sections 4,6, 8
and 12 of Protection of Children from Sexual Offences Act,
2012 (hereinafter for short ‘POCSO Act, 2012‘) and such
other reliefs.
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3. Facts in brief which are utmost necessary for
disposal of present petition are as under:
Second respondent filed a complaint on 25.11.2024
alleging that she is residing with her husband
Shabbirahmad at Vardi village in Hangal taluk and she is
eaking out her livelihood through household work and her
husband is a coolie. Complainant is having a son by name
Mahamad aslam and four daughters. Her son is also doing
the coolie work at Goa and elder daughter Mumtajbegaum
got married. Second daughter Khuthejabanu is pursuing
her bachelor degree at Gandhipur college, Haveri. Fourth
daughter (victim girl) is studying in 9th standard and 3rd
daughter Sadiyakausar is aged 16 years 7 months
discontinued her education studying in Urdu school,
Naregal up to 10th standard.
4. When the matter stood thus, when the victim
girl was pursuing her studies at Naregal, accused
petitioner said to have developed intimacy with victim girl
and pursuant to said intimacy on 18.05.2024 at about 2
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p.m. when the victim girl was all alone in the house, the
accused visited the house of the complainant and cajoled
her and had a forcible sexual intercourse and thereafter
gave a life threat. Accused said to had repeated such
physical relationship number of times in victim girl
becoming the pregnant.
5. After receipt of the complaint, Adur Police
registered a case in Crime No.183/2024 on 25.11.2024 for
the offence punishable under Section 376(2)(n), 506 of
IPC and under Sections 4, 6, 8 and 12 of Protection of
Children from Sexual Offences Act, 2012. Thereafter,
Police thoroughly investigated the matter and filed the
charge sheet on 24.01.2025 (date of filing of charge sheet
disputed by the petitioner), interalia, arresting the
accused-petitioner and sending him to judicial custody.
6. An application came to be filed under Section
187 of the BNSS (earlier 167(2) of Cr.P.C.) by the
petitioner seeking grant of statutory bail on the ground
that the date of filing of charge sheet is beyond the period
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of 60 days as is contemplated under Section 193(2) of the
BNSS.
7. Learned Special judge heard the parties after
entertaining the objections of the prosecution and rejected
the application filed by the petitioner. Thereafter,
petitioner is before this Court.
8. Sri. Arvind D. Kulkarni, learned counsel for the
petitioner, reiterating the grounds urged in the bail
petition and contended that as could be seen from Section
193(2) of BNSS, it was incumbent on the part of the
investigating agency to complete the investigation within a
period of 60 days from the date of receipt of the
information (date of complaint) which is on 25.11.2024.
9. He would also contend that order sheet of the
trial Court depicts that even as on 28.01.2025, the office
note would indicate that the charge sheet was not filed
and it is only on 29.01.2025, the charge sheet is received
in the office of the learned special judge as could be seen
from the certified copy of the concerned registers extracts.
Therefore, the date that has been mentioned on the
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charge sheet countersigned by learned special judge as
24.01.2025 need not be taken into consideration for the
purpose of computing the period for filing the charge sheet
and thus sought for allowing the petition.
10. Per contra, learned counsel Sri.Umesh
P.Hakkarki, for Sri.M.V.Hiremath and learned High Court
Government pleader opposes the grounds urged in the
petition by contending that the signature found on the
charge sheet by the learned Special Judge stating that
‘check and then put up’ is dated 24.01.2025. Therefore,
the charge sheet is filed in time as is prescribed in the
statute. As such the benefit under Section 187 of the
BNSS is not available to the petitioner. Thus, they sought
for dismissal of the petition.
11. I have heard the parties in detail and perused
material available on record meticulously. On such perusal
of the material on record, the following admitted time line
is extracted.
1) Date of complaint – 25.11.2024
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2) Date of arrest of the petitioner 26.11.2024
3) As per Section 193(2) of the BNSS, 60 days period is
available for completing the investigation. Following are
the disputed dates.
Filing of Charge Sheet as per prosecution 24.01.2025
As per amendment 29.01.2025
12. For ready reference, Section 193 of the BNSS is
extracted hereunder:
193. Report of police officer on completion of
investigation.–(1) Every investigation under this Chapter
shall be completed without unnecessary delay.
(2) The investigation in relation to an offence under
sections 64, 65, 66, 67, 68, 70, 71 of the Bharatiya
Nyaya Sanhita, 2023 or under sections 4, 6, 8 or section
10 of the Protection of Children from Sexual Offences Act,
2012 shall be completed within two months from the date
on which the information was recorded by the officer in
charge of the police station.
(3) (i) As soon as the investigation is completed, the
officer in charge of the police station shall forward,
including through electronic communication to a
Magistrate empowered to take cognizance of the offence
on a police report, a report in the form as the State
Government may, by rules provide, stating–
(a) the names of the parties;
(b) the nature of the information;
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(c) the names of the persons who appear to be
acquainted with the circumstances of the case; (d)
whether any offence appears to have been committed
and, if so, by whom;
(e) whether the accused has been arrested;
(f) whether the accused has been released on his bond
or bail bond;
(g) whether the accused has been forwarded in custody
under section 190;
(h) whether the report of medical examination of the
woman has been attached where investigation relates to
an offence under sections 64, 65, 66, 67, 68, 70 or
section 71 of the Bharatiya Nyaya Sanhita, 2023;
(i) the sequence of custody in case of electronic
device;
(ii) the police officer shall, within a period of ninety
days, inform the progress of the investigation by any
means including through electronic communication to the
informant or the victim;
(iii) the officer shall also communicate, in such manner
as the State Government may, by rules, provide, the
action taken by him, to the person, if any, by whom the
information relating to the commission of the offence
was first given.
(4) Where a superior officer of police has been appointed
under section 177, the report shall, in any case in which
the State Government by general or special order so
directs, be submitted through that officer, and he may,
pending the orders of the Magistrate, direct the officer in
charge of the police station to make further investigation.
(5) Whenever it appears from a report forwarded under
this section that the accused has been released on his
bond or bail bond, the Magistrate shall make such order
for the discharge of such bond or bail bond or otherwise
as he thinks fit.
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(6) When such report is in respect of a case to which
section 190 applies, the police officer shall forward to the
Magistrate along with the report–
(a) all documents or relevant extracts thereof on which
the prosecution proposes to rely other than those already
sent to the Magistrate during investigation;
(b) the statements recorded under section 180 of all the
persons whom the prosecution proposes to examine as its
witnesses.
(7) If the police officer is of opinion that any part of any
such statement is not relevant to the subject matter of
the proceedings or that its disclosure to the accused is not
essential in the interests of justice and is inexpedient in
the public interest, he shall indicate that part of the
statement and append a note requesting the Magistrate to
exclude that part from the copies to be granted to the
accused and stating his reasons for making such request.
(8) Subject to the provisions contained in sub-section (7),
the police officer investigating the case shall also submit
such number of copies of the police report along with
other documents duly indexed to the Magistrate for
supply to the accused as required under section 230:
Provided that supply of report and other documents by
electronic communication shall be considered as duly
served.
(9) Nothing in this section shall be deemed to preclude
further investigation in respect of an offence after a report
under sub-section (3) has been forwarded to the
Magistrate and, where upon such investigation, the officer
in charge of the police station obtains further evidence,
oral or documentary, he shall forward to the Magistrate a
further report or reports regarding such evidence in the
form as the State Government may, by rules, provide;
and the provisions of sub-sections (3) to (8) shall, as far
as may be, apply in relation to such report or reports as
they apply in relation to a report forwarded under sub-
section (3):
Provided that further investigation during the trial may be
conducted with the permission of the Court trying the
case and the same shall be completed within a period of
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CRL.RP No. 100051 of 2025ninety days which may be extended with the permission
of the Court.(Old Corresponding Section:Sec.173 of the
Code of Criminal Procedure,1973)
13. For ready reference Section 187 of the BNSS
(earlier Section 167 of Cr.P.C.) is extracted hereunder:
187. Procedure when investigation cannot be
completed in twenty-four hours.–(1) Whenever
any person is arrested and detained in custody, and
it appears that the investigation cannot be completed
within the period of twenty-four hours fixed by
section 58, and there are grounds for believing that
the accusation or information is well-founded, the
officer in charge of the police station or the police
officer making the investigation, if he is not below
the rank of sub-inspector, shall forthwith transmit to
the nearest Magistrate a copy of the entries in the
diary hereinafter specified relating to the case, and
shall at the same time forward the accused to such
Magistrate.
(2) The Magistrate to whom an accused person is
forwarded under this section may, irrespective of
whether he has or has no jurisdiction to try the case,
after taking into consideration whether such person
74 has not been released on bail or his bail has been
cancelled, authorise, from time to time, the detention
of the accused in such custody as such Magistrate
thinks fit, for a term not exceeding fifteen days in the
whole, or in parts, at any time during the initial forty
days or sixty days out of detention period of sixty
days or ninety days, as the case may be, as provided
in sub-section (3), 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.
(3) The Magistrate may authorise the detention of
the accused person, beyond the period of fifteen
days, if he is satisfied that adequate grounds exist for
doing so, but no Magistrate shall authorise the
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detention of the accused person in custody under this
sub-section 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 ten years or more;
(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 furnish bail, and every person
released on bail under this sub-section shall be
deemed to be so released under the provisions of
Chapter XXXV for the purposes of that Chapter.
(4) No Magistrate shall authorise 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 audio-video electronic means.
(5) 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 sub-section (3), 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 was produced before the Magistrate
as required under sub-section (4), 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 audio-video electronic
means, as the case may be:
Provided that in case of a woman under eighteen
years of age, the detention shall be authorised to be in
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CRL.RP No. 100051 of 2025the custody of a remand home or recognised social
institution:
Provided further that no person shall be detained
otherwise than in police station under police custody or
in prison under judicial custody or a place declared as
prison by the Central Government or the State
Government.
(6) Notwithstanding anything contained in sub-
section (1) to sub-section (5), the officer in charge of
the police station or the police officer making the
investigation, if he is not below the rank of a sub-
inspector, may, where a Magistrate is not available,
transmit to the nearest Executive Magistrate, on
whom the powers of a Magistrate have been
conferred, a copy of the entry in the diary hereinafter
specified relating to the case, and shall, at the same
time, forward the accused to such Executive
Magistrate, and thereupon such Executive Magistrate,
may, for reasons to be recorded in writing, authorise
the detention of the accused person in such custody
as he may think fit for a term not exceeding seven
days in the aggregate; and, on the expiry of the
period of detention so authorised, the accused person
shall be released on bail except where an order for
further detention of the accused person has been
made by a Magistrate competent to make such
order; and, where an order for such further detention
is made, the period during which the accused person
was detained in custody under the orders made by
an Executive Magistrate under this subsection, shall
be taken into account in computing the period
specified in sub-section (3):
Provided that before the expiry of the period
aforesaid, the Executive Magistrate shall transmit to
the nearest Judicial Magistrate the records of the
case together with a copy of the entries in the diary
relating to the case which was transmitted to him by
the officer in charge of the police station or the police
officer making the investigation, as the case may be.
(7) A Magistrate authorising under this section
detention in the custody of the police shall record his
reasons for so doing.
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(8) Any Magistrate other than the Chief Judicial
Magistrate making such order shall forward a copy of
his order, with his reasons for making it, to the Chief
Judicial Magistrate.
(9) If in any case triable by a Magistrate as a
summons-case, the investigation is not concluded
within a period of six months from the date on which
the accused was arrested, the Magistrate shall make
an order stopping further investigation into the
offence unless the officer making the investigation
satisfies the Magistrate that for special reasons and
in the interests of justice the continuation of the
investigation beyond the period of six months is
necessary.
(10) Where any order stopping further investigation
into an offence has been made under sub-section
(9), the Sessions Judge may, if he is satisfied, on an
application made to him or otherwise, that further
investigation into the offence ought to be made,
vacate the order made under sub-section (9) and
direct further investigation to be made into the
offence subject to such directions with regard to bail
and other matters as he may specify.
(Old Corresponding Sections:Sec.167 of Code of
Criminal Procedure,1973.)
14. On conjoint reading of the above provisions, it is
incumbent on the part of the investigating agency to file
final report within a period of 60 days from the date of
receipt of information (complaint) as could be seen from
Section 193(2) Cr.P.C.
15. However, whether 60 days period is to be
considered as mandatory period or it should be directory is
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the question i.e. to be decided in a given case inasmuch as
in the case on hand, the charge sheet is filed. However,
date of filing of the charge sheet in case on hand is in
dispute. While on the charge sheet itself, there is an
endorsement by the learned special judge that the charge
sheet is received and endorsement reads that ‘check and
then put up’ signed by the learned special judge is dated
24.01.2025.
16. However, order sheet that has been placed on
record by the counsel for the petitioner is dated
28.01.2025. The office note says that advocate for the
accused filed an advancement application along with the
application under Section 187(3) (ii) of the BNSS praying
for the case to be taken on today’s board. Hence,
submitted for orders.
17. Learned Special Judge has made an order on
28.01.2025 which reads as under:
Special judge order dated 28.01.2025:
Adur PS Crime 183/2024
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CRL.RP No. 100051 of 2025Case taken on today’s board as per the
advancement application filed by Sri UNG adv
for Accused.
Sri UNG Adv for Accused has filed the
aforesaid advancement application along with
application U/Sec.187 (3)(ii) of BNSS today at
12.35 in the afternoon.
Copy served on Special PP.
Special PP prays time to file objections to the
aforesaid application.
In the mean while, Office is directed to verify
and to endorse in the order sheet as to whether
the charge sheet is submitted by the IO in this
Case or not.
Call on for objections of Special PP to the
aforesaid application filed U/Sec 187 (3) (ii) of
BNSS by 29.01.2025.
I/c Addl. District and Sessions
Judge, FTSC-1, Haveri.
18. Further, Order sheet dated 29.01.2025 reads as
under:
29.01.2025
SubmissionCharge sheet submitted Dt:24.01.2025
The PI Hanagal Circle PS has submitted Charge
sheet against the accused person in Adur PS Crime No.
183/2024. dated:24.01.2025 for the offences punishable
376(2)(n) and 506 of IPC and the U/s 4, 6, 8 and 12
POCSO Act-2012 along with one set of charge sheet copy
is furnished.
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The charge sheet and police papers are checked
and verified and as per list submitted by 10.
Original FIR/Complainant, PF. 164 Statement and
Panchanama are kept along with this file.
Material objects seized in this case are not
produced.
There are 35 witnesses cited for prosecution in this
case.
Accused is in JC.
Name of the accused is:
A.1 Moulali s/o Babajan Challal
Occu: Driver
Age: 39 yrs R/o: Vardi Village
Tq: Hanagal Dist: Haveri.
Hence submitted for orders.
P/Clerk Sheristedar
I have perused the charge sheet, information
furnished, FIR issued, statements recorded and
material documents enclosed and also produced
on record.
Based on my perusal of the above said
records, there are grounds to proceed with the
case by taking cognizance of the following
offenses. Hence, I proceed to pass the
following:-
ORDER
Cognizance of offense punishable under
Sections 376(2)(n) and 506 of IPC and the
offenses punishable under Sections 4, 6, 8 and
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CRL.RP No. 100051 of 202512 of POCSO Act, 2012 has been taken against
the person by name:-
A.1 Moulali S/o Babajan Challal
Occu: Driver Age: 39 yrs
R/o: Vardi Village
Tq: Hanagal Dist: Haveri,”
19. To substantiate that as on 28.01.2025 there
was no filing of the charge sheet, certified copy of the
registers maintained in the office of Special Judge are also
furnished where under in respect of case on hand, it is
seen that Special case No.8/2025 is registered on
29.01.2025.
20. In other words, it is the argument of the
counsel for the petitioner that after the 61st day, petitioner
enjoys indefeasible right of getting the statutory bail as is
contemplated under Section 187(3)(ii) of the BNSS.
21. In support of his arguments, Sri.Aravind
Kulkarni placed on record the judgment of Constitution
Bench of the Hon’ble Apex Court in the case of Udaya
Mohanlal Acharya Vs. State of Maharashtra reported
in 2001(5) SCC 453. Relevant portion of the said
judgment is culled out hereunder for ready reference.
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” 5. Before examining the correctness of the
rival submissions and finding out as to when the
right accrues to the accused for being released on
bail under the proviso to sub-section (2) of Section
167 and when that right gets extinguished, it will
be appropriate to notice the very scheme of the
Code. Under Section 56 of the Code of Criminal
Procedure it is the bounden duty of the police
officer arresting a person to produce him before a
Magistrate having jurisdiction without unnecessary
delay. Under Section 57 of the Code there is an
embargo on the police officer to detain in custody
a person arrested beyond 24 hours excluding the
time necessary for the journey from the place of
arrest to the Court of the Magistrate. The object
behind the aforesaid two provisions which are
required to be read together is that the accused
should be brought before a Magistrate without
much delay and that the Magistrate will have
succinct of the matter within 24 hours. The
aforesaid provision in fact is in consonance with
the constitutional mandate engrafted under Article
22(2). The continuance of detention for the
purpose of investigation beyond 24 hours has to
be authorised by the Magistrate from time to time
and without such special order from the Magistrate
the detention may be illegal. Under the Criminal
Procedure Code of 1878 a Magistrate was not
entitled to allow detention of an accused in
custody for a term exceeding 15 days on the
whole. It was also found that the investigation
could not ordinarily be completed within 15 days.
The Law Commission, therefore, suggested that an
accused could be denied to remain in custody for
more than 60 days which got engrafted in Section
167 of the present Code (Criminal Procedure Code,
1973). The legislature, however, felt that a drastic
change was called for to alter the tardy pace of
investigation and, therefore, by the Criminal
Procedure Code (Amendment) Act, 1978 (Act 45
of 1978), proviso (a) to sub-section (2) of Section
167 has been added. Under the amended
provision, therefore a Magistrate is empowered to
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authorise detention of the accused in custody,
pending investigation for an aggregate period of
90 days in cases where the investigation relates to
offence punishable with death, imprisonment for
life or imprisonment for not less than 10 years or
more and in other cases the period of 60 days has
been kept. The extended period of 90 days was
brought into the Criminal Procedure Code by an
amendment as it was found that in several cases
of serious nature it was not possible to conclude
the investigation. This provision of Section 167 is
in fact supplementary to Section 57, in
consonance with the principle that the accused is
entitled to demand that justice is not delayed. The
object of requiring the accused to be produced
before a Magistrate is to enable the Magistrate to
see that remand is necessary and also to enable
the accused to make a representation which he
may wish to make. The power under Section 167
is given to detain a person in custody while the
police goes on with the investigation and before
the Magistrate starts the enquiry. Section 167,
therefore, is the provision which authorises the
Magistrate permitting detention of an accused in
custody and prescribing the maximum period for
which such detention could be ordered. Having
prescribed the maximum period, as stated above,
what would be the consequences thereafter has
been indicated in the proviso to sub-section (2) of
Section 167. The proviso is unambiguous and clear
and stipulates that the accused shall be released
on bail if he is prepared to and does furnish the
bail which has been termed by judicial
pronouncement to be “compulsive bail” and such
bail would be deemed to be a bail under Chapter
33. The right of an accused to be released on bail
after expiry of the maximum period of detention
provided under Section 167 can be denied only
when an accused does not furnish bail, as is
apparent from Explanation I to the said section.
The proviso to sub-section (2) of Section 167 is a
beneficial provision for curing the mischief of
indefinitely prolonging the investigation and
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thereby affecting the liberty of a citizen. Section
167 occurs in Chapter 12 dealing with the powers
of the police to investigate in a criminal offence
which starts with lodging of information in
cognizable cases under Section 154, and
ultimately culminating in submission of a report on
completion of investigation under Section 173.
Soon after completion of investigation the officer-
in-charge of the police station has to forward to
the Magistrate, empowered to take cognizance of
the offence, a report in the prescribed form and
once such report is filed before the Magistrate
which is commonly termed as “challan” then the
custody of the accused is no longer required to be
dealt with under Section 167 of the Code, but
under Section 209. On submission of the challan
under Section 173 in a case instituted on a police
report or otherwise, when it appears to the
Magistrate that the offence is exclusively triable by
the Court of Session, the moment the accused is
brought before the Magistrate or he himself
appears then the Magistrate commits the case to
the Court of Session and subject to the provisions
of the Code relating to bail, remand the accused to
custody until such commitment has been made.
The procedure for commitment to the Court of
Session as provided in Section 209 of the present
Code is radically different from the commitment
proceedings under the 1898 Code. No enquiry is
contemplated by the Magistrate under the present
scheme. All that the Magistrate is required to do is
to grant copies, prepare the records, notify the
Public Prosecutor and formally commit the case to
the Court of Session. Section 209(b) provides that
the Magistrate shall remand the accused to
custody subject to the provisions of the Code
relating to bail, necessarily, therefore, subject to
the provisions in Sections 436, 437 and 439. Thus,
under clause (b) of Section 209 the committing
Magistrate has the power to remand the accused
to custody during and until the conclusion of the
trial, subject to the provisions relating to bail.
When the committing Magistrate passes an order
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of commitment and the accused, at the stage is
found to be on bail, the committing Magistrate has
the power to cancel the bail and commit him to
custody, if he considers it necessary to do so. But
such a cancellation would be in accordance with
sub-section (5) of Section 437 of the Code and
there must be proper grounds for cancellation and
not that the Magistrate would cancel the bail ipso
facto on a challan being filed and the accused
being produced for the purpose of passing an
order of committal. Any order a Magistrate passes
under Section 209(b) to remand an accused to
custody would also obviously be subject to the
provisions of the Code relating to bail. In a case
where the committing Magistrate while passing an
order of committal remands the accused to
custody in exercise of power under Section
209(b), the power of the learned Sessions Judge
under sub-section (2) of Section 309 is not
whittled down in any manner at any time after
commencement of trial, but ordinarily if the
committing Magistrate has already passed an
order remanding the accused to custody while
passing an order of commitment no further order
is required to be passed by the Sessions Judge in
exercise of power under sub-section (2) of Section
309. Bearing in mind the aforesaid scheme in the
Code of Criminal Procedure we would now
examine the point in issue.
13. In State of M.P. v. Rustam [1995 Supp (3)
SCC 221 : 1995 SCC (Cri) 830] this Court set
aside the order of the High Court where the High
Court had released the accused on bail, charge-
sheet not having been filed within the period
stipulated in Section 167(2) of the Code of
Criminal Procedure, as by the time the High Court
entertained the bail application, challan had
already been filed, this Court had observed that
the court is required to examine the availability of
the right to compulsive bail on the date it is
considering the question of bail and not barely on
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the date of presentation of the petition for bail.
This Court came to the conclusion: (SCC p. 223,
para 4)
“On the dates when the High Court
entertained the petition for bail and granted it
to the accused-respondents, undeniably the
challan stood filed in court, and then the right
as such was not available.”
A conspectus of the aforesaid decisions of
this Court unequivocally indicates that an
indefeasible right accrues to the accused on the
failure of the prosecution to file the challan
within the period specified under sub-section
(2) of Section 167 and right can be availed of
by the accused if he is prepared to offer the
bail and abide by the terms and conditions of
the bail, necessarily, therefore, an order of the
court has to be passed. It is also further clear
that that indefeasible right does not survive or
remain enforceable on the challan being filed, if
already not availed of, as has been held by the
Constitution Bench in Sanjay Dutt case [(1994)
5 SCC 410 : 1994 SCC (Cri) 1433] . The crucial
question that arises for consideration,
therefore, is what is the true meaning of the
expression “if already not availed of”? Does it
mean that an accused files an application for
bail and offers his willingness for being
released on bail or does it mean that a bail
order must be passed, the accused must
furnish the bail and get him released on bail?
In our considered opinion it would be more in
consonance with the legislative mandate to
hold that an accused must be held to have
availed of his indefeasible right, the moment he
files an application for being released on bail
and offers to abide by the terms and conditions
of bail. To interpret the expression “availed of”
to mean actually being released on bail after
furnishing the necessary bail required would
cause great injustice to the accused and would
defeat the very purpose of the proviso to
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and further would make an illegal custody to be
legal, inasmuch as after the expiry of the
stipulated period the Magistrate had no further
jurisdiction to remand and such custody of the
accused is without any valid order of remand.
That apart, when an accused files an
application for bail indicating his right to be
released as no challan had been filed within the
specified period, there is no discretion left in
the Magistrate and the only thing he is required
to find out is whether the specified period
under the statute has elapsed or not, and
whether a challan has been filed or not. If the
expression “availed of” is interpreted to mean
that the accused must factually be released on
bail, then in a given case where the Magistrate
illegally refuses to pass an order
notwithstanding the maximum period
stipulated in Section 167 had expired, and yet
no challan had been filed then the accused
could only move to the higher forum and while
the matter remains pending in the higher
forum for consideration, if the prosecution files
a charge-sheet then also the so-called right
accruing to the accused because of inaction on
the part of the investigating agency would get
frustrated. Since the legislature has given its
mandate it would be the bounden duty of the
court to enforce the same and it would not be
in the interest of justice to negate the same by
interpreting the expression “if not availed of” in
a manner which is capable of being abused by
the prosecution. A two-Judge Bench decision of
this Court in State of M.P. v. Rustam [1995
Supp (3) SCC 221 : 1995 SCC (Cri) 830]
setting aside the order of grant of bail by the
High Court on a conclusion that on the date of
the order the prosecution had already
submitted a police report and, therefore, the
right stood extinguished, in our considered
opinion, does not express the correct position
in law of the expression “if already not availed
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CRL.RP No. 100051 of 2025of”, used by the Constitution Bench in Sanjay
Dutt [(1994) 5 SCC 410 : 1994 SCC (Cri)
1433] . We would be failing in our duty if we do
not notice the decisions mentioned by the
Constitution Bench in Sanjay Dutt case [(1994)
5 SCC 410 : 1994 SCC (Cri) 1433] which
decisions according to the learned counsel,
appearing for the State, clinch the issue.
In Makhan Singh Tarsikka v. State of
Punjab [1951 SCC 1140 : AIR 1952 SC 27 :
1952 Cri LJ 321 : 1952 SCR 368] an order of
detention had been assailed in a petition filed
under Article 32, on the ground that the period
of detention could not be indicated in the initial
order itself, as under the provisions of the
Preventive Detention Act, 1950, it is only when
the Advisory Board reports that there is
sufficient cause for detention, the appropriate
Government may confirm the detention order
and continue the detention of the detenu for
such period, as it thinks fit. On a construction
of the relevant provisions of the Preventive
Detention Act, as it stood then, this Court
accepted the contention and came to hold that
the fixing of the period of detention in the
initial order was contrary to the scheme of the
Act and could not be sustained. We fail to
understand as to how this decision is of any
assistance for arriving at a just conclusion on
the issue, which we are faced with in the
present case.
……………………………
With the aforesaid interpretation of the expression
“availed of” if the charge-sheet is filed subsequent to
the availing of the indefeasible right by the accused
then that right would not stand frustrated or
extinguished, necessarily therefore, if an accused
entitled to be released on bail by application of the
proviso to sub-section (2) of Section 167, makes the
application before the Magistrate, but the Magistrate
erroneously refuses the same and rejects the
application and then the accused moves the higher
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higher forum for consideration a charge-sheet is filed,
the so-called indefeasible right of the accused would
not stand extinguished thereby, and on the other hand,
the accused has to be released on bail. Such an
accused, who thus is entitled to be released on bail in
enforcement of his indefeasible right will, however,
have to be produced before the Magistrate on a charge-
sheet being filed in accordance with Section 209 and
the Magistrate must deal with him in the matter of
remand to custody subject to the provisions of the
Code relating to bail and subject to the provisions of
cancellation of bail, already granted in accordance with
the law laid down by this Court in the case of Mohd.
Iqbal v. State of Maharashtra [(1996) 1 SCC 722: 1996
SCC (Cri) 202 “.
22. Sri.Aravind Kulkarni also placed on record the
judgment of the Hon’ble Apex Court in the case of Central
Bureau of Investigation Vs. Anupam J. Kulkarni
reported in (1992) 3 SCC 141 and invited the attention
of this Court to paragraph No.9 and the same is extracted
hereunder for ready reference.
“9. At this juncture we want to make another
aspect clear namely the computation of period
of remand. The proviso to Section 167(2)
clearly lays down that the total period of
detention should not exceed ninety days in
cases where the investigation relates to
serious offences mentioned therein and sixty
days in other cases and if by that time
cognizance is not taken on the expiry of the
said periods the accused shall be released on
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CRL.RP No. 100051 of 2025bail as mentioned therein. In Chaganti
Satyanarayana case [(1986) 3 SCC 141 :
1986 SCC (Cri) 321] it was held that “It,
therefore, stands to reason that the total
period of 90 days or 60 days can begin to run
from the date of order of remand”. Therefore
the first period of detention should be
computed from the date of order of remand.
Section 167(2-A) which has been introduced
for pragmatic reasons states that if an
arrested person is produced before an
Executive Magistrate for remand the said
Magistrate may authorise the detention of the
accused not exceeding seven days in
aggregate. It further provides that the period
of remand by the Executive Magistrate should
also be taken into account for computing the
period specified in the proviso i.e. aggregate
periods of ninety days or sixty days. Since the
Executive Magistrate is empowered to order
detention only for seven days in such custody
as he thinks fit, he should therefore either
release the accused or transmit him to the
nearest Judicial Magistrate together with the
entries in the diary before the expiry of seven
days. The section also lays down that the
Judicial Magistrate who is competent to make
further orders of detention, for the purposes of
computing the period of detention has to take
into consideration the period of detention
ordered by the Executive Magistrate.
Therefore on a combined reading of Sections
167(2) and (2-A) it emerges that the Judicial
Magistrate to whom the Executive Magistrate
has forwarded the arrested accused can order
detention in such custody namely police
custody or judicial custody under Section
167(2) for the rest of the first fifteen days
after deducting the period of detention
ordered by the Executive Magistrate. The
detention thereafter could only be in judicial
custody. Likewise the remand under Section
309 CrPC can be only to judicial custody in
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terms mentioned therein. This has been
concluded by this Court and the language of
the section also is clear. Section 309 comes
into operation after taking cognizance and not
during the period of investigation and the
remand under this provision can only be to
judicial custody and there cannot be any
controversy about the same. (vide Natabar
Parida v. State of Orissa [(1975) 2 SCC 220 :
1975 SCC (Cri) 484).)
23. Per contra, it is the argument of Smt.Girija
Hiremath and Sri.Umesh P. Hakkaraki for Sri.M.E.Hiremath
that the endorsement made by the learned Special Judge
on the charge sheet that it has been presented to the
Court and endorsement made on the charge sheet would
represent that the investigation officer has filed the charge
sheet to the Special Judge on 24.01.2025 itself.
24. The endorsement would also make it clear
that the office was directed to verify the charge sheet
papers to the effect that compliance has been made in the
final report in terms of the Section 193 of BNSS (Section
173 of Cr.P.C.).
25. It is also their argument that when once the
investigation officer has filed the charge sheet within the
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period of 60 days, the right to seek for statutory bail
extinguishes and therefore, sought for dismissal of the
petition.
26. In the light of the above disputed fact of
date of filing of the charge sheet, this Court bestowed it’s
best attention to the material placed on record. As could
be seen from the endorsement made by the learned
Special Judge on charge sheet, charge sheet is received by
the learned Special Judge and he has made an
endorsement ‘check and then put up’, the said
endorsement is dated 24.01.2025.
27. After the charge sheet is field, the power to
remand exists in the Court till the ministerial act of
verification of the charge sheet papers are carried out and
till the date of taking of the cognizance is under Section
346 of the BNSS (Section 309 of Cr.P.C.).
28. In other words, power to remand in the
interregnum of filing of the charge sheet and actual date
of taking the cognizance is inherent in the trial Court.
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29. View of this Court in this regard is supported
by the judgement of Hon’ble Apex Court in the case of
Suresh Kumar Bhikamchand Jain Vs. State of
Maharashtra and another reported in (2013) 1 S.C.R
1037. Relevant paragraphs of the said decision are culled
out hereunder for ready reference:
1.2. The scheme of the Cr.P.C. is 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. Once cognizance is taken, the power
to remand shifts to the provisions of s.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. However, the provisions of s.309
Cr.P.C. have no application to the facts of
the instant case. [para 15 and 18] [1047-
G-H; 1048-B; 1052-A]
1.2. The scheme of the Cr.P.C. is 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. Once cognizance is taken, the power
to remand shifts to the provisions of s.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. However, the provisions of s.309
– 30 –
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Cr.P.C. have no application to the facts of
the instant case. [para 15 and 18] [1047-
G-H; 1048-B; 1052-A]
30. Applying the principles of law enunciated in the
aforesaid judgments of the Hon’ble Apex Court relied on
by the parties as referred supra, there cannot be any iota
of doubt in the principles enunciated by the Hon’ble Apex
Court in the case of Udaya Mohanlal Acharya and
Anupam J. Kulkarni supra, that accused enjoys
indefeasible right to seek for grant of statutory bail if there
is no filing of the charge sheet within the prescribed
period. It is also to be noted that filing of Charge Sheet
subsequently would not take away the right already
accrued.
31. As already observed supra, filing of the charge
sheet as is contemplated under Section 193(2) of Cr.P.C.
could be treated as mandatory even in case where the
accused is not arrested is to be discussed in an
appropriate case.
32. For the purpose of disposing of the present
case, since the accused-petitioner is arrested on the very
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next day on 26.11.2024, filing of the charge sheet on
24.01.2025 is well within the ambit of Section 193(2)of
the BNSS in the case on hand which is sufficient
compliance of the said provision.
33. It is needless to emphasise that once the charge
sheet is filed ticking of the clock with regarding to
statutory right which is carved out in the Statute would
automatically stop. As could be seen from the material on
records, in the charge sheet dated 24.01.2025 and actual
cognizance has been taken on 29.01.2025 as referred
supra and thereafter necessary endorsements has been
carried out in the relevant registers wherein, the pending
FIR is culminated in filing a charge sheet and a special
case came to be registered.
34. In view of the principles of law enunciated in
the case of Suresh Kumar Bhikamchand Jain supra,
this Court is of the considered opinion that rejection of the
petitioner seeking grant of statutory bail is justified though
not the order of the learned Special Judge is not happily
worded.
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35. In view of the foregoing discussion, following
order is passed:
ORDER
Petition is merit less, and is hereby dismissed.
However, dismissal of the present petition would not come
in the way of petitioner seeking regular bail in accordance
with law.
SD/-
(V.SRISHANANDA)
JUDGEHMB
CT:PA
LIST NO.: 2 SL NO.: 1