The issue can be examined from a different angle. If we assume for the sake of argument that the effect of the order refusing sanction to prosecute the accused as amounting to not disclosing of any offence under the MCOC Act, the further consequence thereof would, at the most, be that the custody extension order will cease to have any effect at the end of the day on which sanction is refused and till that day, the extension order would have to be held as valid. Even from this view point, the petitioners are not entitled to be released on default bail as the essential condition required for accrual of indefeasible right under Section 167(2) of Cr.P.C. to the petitioners is not fulfilled. This can be seen from the facts available on record, which show that charge-sheet has been filed on 22/08/2022 and on the same day, the application under Section 167(2) of Cr.P.C. was moved by the petitioners. Of course, it is the contention of the learned Counsel for the petitioners that the application of the petitioners was filed about 30 minutes before the charge-sheet was filed and, therefore, their application was first in point of time and as such there was an accrual of right of default bail to the petitioners. The argument, in our view, is really not relevant for deciding the controversy involved in the petition. The reason being that, the day on which sanction was refused by the authority, would have to be considered to be the day on which the extended period of custody expired and, therefore, the right to seek default bail would arise on the immediate next day. It also means that when sanction is refused, as for example on Monday, this day of Monday would be the last day on which extended period of custody would come to an end, though in normal circumstances it would have expired later, and therefore, the Investigating Officer would have to take care that he files the final report on that day or otherwise he risks the grant of default bail to the accused. This is because of the fact that the provisions made under Section 167(2) of Cr.P.C. speak not in terms of hours, minutes and seconds, but only in terms of number of days completed. For the purpose of ascertaining as to when the period of authorized custody comes to an end, it is only the number of completed days, which is relevant and not the time at which the event having the effect of rendering the custody as unauthorized took place. {Para 21}
22. If we examine the issue from the above alternative, which we have proposed only by way of assumption and for the sake of argument, still the petitioners cannot be said to be fulfilling the essential requirement of Section 167(2) of Cr.P.C. in order to avail of right of default bail. The application under Section 167(2) of Cr.P.C. was filed by them on 22/08/2022 and that was the day when the sanction to prosecute the petitioners was refused. It was thus the day which became the last day of their authorized custody, which was otherwise extended up to 23/08/2022. Therefore, the right to avail of default bail in terms of Section 167(2) of Cr.P.C. really arose in their favour only from 23/08/2022.
IN THE HIGH COURT OF BOMBAY (NAGPUR BENCH)
Criminal Writ Petition No. 817 of 2022
Decided On: 23.12.2022
Naresh and Ors. Vs. The State of Maharashtra and Ors.
Hon’ble Judges/Coram:
S.B. Shukre and M.W. Chandwani, JJ.
Author: M.W. Chandwani, J.
Citation: MANU/MH/4539/2022.
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