Section 167(2) CrPC- Investigating Agency Can't Curtail Accused' Right To Default Bail By Invoking Graver Charges: Bombay High Court

The Bombay High Court has made it clear that an investigating agency cannot thwart the right to default bail of an accused by merely invoking graver charges.Justice CV Bhadang observed,"There is no manner of doubt that the investigation is within the province and domain of the investigating agency. However that does not mean that the court, in almost all cases, would be bound by the invocation of a particular section against the accused by the prosecuting agency. This is because the label of the section or the provision invoked would not be decisive. To hold otherwise, would amount to placing the said right at the mercy of the investigating agency and would indirectly result in the magistrate abdicating the duty to enforce the right wherever necessary."It opined that the Court, while considering the plea for default bail, would be required to look into the generality of the allegations made and the material collected. In a given case where ex-facie the provision is not attracted, the Court may not be bound by the same.The observations were made in a case where the Court was primarily required to determine whether the accused would be entitled to default bail upon failure to complete investigation within 60 days or 90 days.The question arose as the charge under Section 409 IPC, which would extend the period of investigation to 90 days, was added against the accused days before expiry of 60 days. "The provision setting out a time line for completion of the investigation and the corresponding right of the accused to be released on bail when the investigation is not completed within the stipulated period, aims at balancing the interest, both of the investigation and the personal liberty of the accused...I thus find that the indefeasible right accrued to the applicant on expiry of 60 days on account of failure to file the chargesheet cannot be defeated by mere invocation of section 409 of IPC claiming that the period for completion of the investigation and filing of the chargesheet is 90 days," it held. The decision came as the Court noted that the accused, being a partner at the firm in default of payment, cannot be held liable for the offence under section 409 of IPC inasmuch as there is a communion of ownership over the partnership property/assets of all the partners and thus in absence of any entrustment the said offence is not made out (Velji Raghavji Patel vs State of Maharashtra, 1965 AIR 1433).The Additional Public Prosecutor argued that there is no requirement of any formal order permitting the addition of the new section as it is the prerogative of the investigating officer and matter of investigation is within exclusive jurisdiction and domain of the investigating agency. It was submitted that section 409 of IPC was added/invoked prior to the applicant seeking bail under section 167(2) of CrPC. It was submitted that the principle laid down in Veljee Raghavajee has been explained away by the Supreme Court in subsequent decisions. It was submitted that the same is qualified and would not apply where there is a special entrustment. It was also submitted that the magistrate/special court cannot look into this aspect at the stage of consideration of the application under section 167(2) of CrPC once the investigating officer invokes a section admitting 90 days for completion of the investigation. The Court, however, said that there is no doubt that the investigation is within the province and domain of the investigating agency. However that does not mean that the court would be bound by the invocation of a particular section against the accused by the prosecuting agency. "At least prima facie it is not shown that there was such special entrustment in favour of the applicant. And that the Special court has not adverted to these aspects except saying that the offence under section 409 of IPC is attracted," the High Court said. In view of the above, the Court granted bail on the execution of a PR Bond in the sum of ₹ 1,00,000/- with one or two solvent sureties in the like amount to the satisfaction of the Trial Court.Case Title: Alnesh Akil Somji Versus The State of MaharashtraCitation: 2022 LiveLaw (Bom) 176Click Here To Read/Download Order

Section 167(2) CrPC- Investigating Agency Can't Curtail Accused' Right To Default Bail By Invoking Graver Charges: Bombay High Court

Zeb Hasan

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