MHCC020033212021
CNR
: MHCC02­003321­2021
Date of Institution
: 09/03/2021
Date of Registration
: 09/03/2021
Date of Judgment
: 23/03/2021
Duration
: Y :00, M :00, D :16
IN THE COURT OF SPECIAL JUDGE (CBI) FOR GREATER BOMBAY
BAIL APPLICATION NO.212 OF 2021
IN
CRIMINAL BAIL APPLICATION NO.18 OF 2021
Ganesh Babu Ubhare, aged about 37 yrs
)
R/o.SR 1A Wing, 601, Sheetaldham
)
Complex, Evershine City, Vasai (E), Palghar)..Applicant/Accused
V/s.
The State (Through CBI, EOB, Mumbai)
R.C. No.05/E/2020­CBI, EOB, Mumbai
dtd.15/09/2020
)
)
)..Respondent/CBI, EOB.

Appearance :
Ld. Adv. Mr. E. B. Dixit with P. R. Yadav for applicant/accused.
SPP Mr. J. K. Sharma for the respondent/CBI, EOB, Mumbai.
CORAM : H.H. THE SPECIAL JUDGE (CBI)
SHRI VIVEK V. KATHARE
DATE : 23/03/2021 (C.R.NO.53)
ORAL ORDER
1.

The
applicant/accused
Ganesh
Babu
Ubhare,
filed
application for default bail u/s.167(2) of Cr.P.C., on account of FIR
bearing RC No.05/E/2020 at CBI, EOB, Mumbai, u/s.120­B r/w
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Sec.420, 468, 471, 465, 467 of IPC and u/s.13(2) r/w Sec.13(1)(d) of
Prevention of Corruption Act, 1988.
2.

The applicant/accused came to be arrested in above crime
on 06/01/2021 and was produced before the Court and then remanded
to custody from time to time and at present, he is in Judicial Custody.
3.

It is submitted that the maximum punishment provided
u/s.467 of IPC is imprisonment for life or with imprisonment of either
description for a term which may extend to ten years and fine.
4.

It is submitted that the accused has completed sixty days in
custody on 06/03/2021. The respondent/CBI has not filed charge­sheet
within sixty days from the date of his arrest. Hence, prayed for default
bail.
5.

The respondent/CBI has strongly resisted the petition by
filing Reply. At the outset, it is contended that the offence charged
against applicant/accused are quite serious and one of the punishment
prescribed u/s.467 of IPC, is life imprisonment or imprisonment, which
may extend ten years and fine. Therefore, prayed for rejection of the
application being not maintainable.
6.

Heard
the
Ld.

Advocate
Mr.

P.

R.

Yadav
for
applicant/accused and the Ld. Mr. J. K. Sharma at length. The Ld.
Advocate for the applicant submitted that considering the quantum of
sentence provided for the commission of offence provided u/s.467 of
IPC, the legislature has provided the outer time limit for filing of
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charge­sheet within a period of sixty days from the date of production
of accused before the Court.

He has further submitted that as the
prosecution has not submitted the charge­sheet against the accused,
therefore, the applicant/accused is entitled for default bail. In support
of his contention, he has relied upon the following judgments :­
1.

Rakesh Kumar Paul V/s. State of Assam, (2017) 15 Supreme
Court Cases 67.

2.

Rajeev Chaudhary V/s. State (NCT) of Delhi, (2001) 5
Supreme Court Cases 34
3.

Beby Rao V/s. State of Chhattisgarh, Bilaspur CRMP
No.2551/2018
4.

Som Nath & another V/s. State of Punjab, Criminal Misc.
No.M­10219/2011
5.

Rajeev Sharma V/s. State (NCT) of Delhi, Cri. Revision
Petition No.363/2020, decided on 04/12/2020
7.

As held in the judgment of, “Rakesh Kumar Paul V/s. State
of Assam” (supra), the Hon’ble Apex Court has observed that “The
words “not less than” occurring in Clause (i) to proviso (a) of Sec.167(2)
of the Cr.P.C. must be given their natural and obvious meaning, which
means offence punishable with minimum ten years of imprisonment in
which case, period of investigation would be ninety days. However, in the
instant case, since petitioner could face imprisonment which may extend
upto ten years, which was not minimum sentence, he is entitled to default
bail since statutory period of sixty days for filing charge­sheet has expired.”
8.

Further it is held that, “Expression “not less than ten years”
obviously mean punishment should be ten years or more and cannot
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include offences where maximum punishment is ten years. Where, offence
is punishable with death, imprisonment for life or with minimum
imprisonment of ten years, Sec.167(2)(a)(i) would apply and accused can
apply for default bail only if, investigating agency does not file charge­
sheet within ninety days, while in all other cases where minimum sentence
is less than ten years, Sec.167(2)(a)(ii) would apply and accused would
be entitled to default bail after sixty days in case charge­sheet is not filed
within statutory period.”
9.

It is seen that indefeasible right to “default bail” accrued to
the applicant when period of sixty days for completing investigation and
filing charge­sheet came to an end on 06 th or 07th March, 2021 and that
indefeasible right continued till filing of application as no charge­sheet
has been filed. It is also observed in the judgment of, “Rakesh Kumar
Paul V/s. State of Assam” (supra) that, “No subterfuge should be resorted
to, to defeat indefeasible right of accused for default bail during
interregnum when statutory period of filing charge­sheet expires.”
10.

It is seen that applicant has filed application for grant of
default bail and is willing to furnish bail, is being deemed to exercise his
right to avail bail as held in the supra judgment, the accused need not
make out any grounds for grant of default bail but, only needs to state
that sixty/ninety days as the case may be, have been expired and
charge­sheet is not filed is entitled to bail and willing to furnish the
same.
11.

There is no ambiguity in wordings of Sec.167(2) of Cr.P.C.,
inasmuch as if, offence is punishable with death, imprisonment for life
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or with minimum sentence of ten years, Sec.167(2)(a)(ii) would apply
and accused would be entitled to default bail only if, Investigating
Agency does not file charge­sheet within ninety days. In all other cases,
where, minimum sentence is less than ten years and maximum sentence
is not a death or life imprisonment, Sec.167(2)(a)(ii) would apply and
accused would be entitled to default bail after sixty days in case of
charge­sheet is not filed.
12.

Similarly, in case of, “Rajeev Chaudhary V/s. State (NCT)
of Delhi” (supra), it has been observed that, “Only if the minimum
prescribed punishment is ten years imprisonment or more, then the
requirement of completing investigation may extend to ninety days.”
13.

As held in the judgment of Hon’ble Chhatisgarh High Court
in case of, “Beby Rao V/s. State of Chhattisgarh” (supra), it is clear that
“Punishment provided for the offence u/s.467 of IPC, is imprisonment
for life or with imprisonment of either description for a term, which
may extend to ten years and shall also be liable to fine, which shows
that minimum sentence of imprisonment of not less than ten years is
not there. And therefore, as held by the Hon’ble Supreme Court in case
of, “Rajeev Chaudhary V/s. State (NCT) of Delhi” (supra), and “Rakesh
Kumar Paul V/s. State of Assam” (supra), since Sec.467 of the IPC, is
not an offence punishable with minimum of ten years imprisonment,
the period of detention of accused persons in custody would be sixty
days instead of ninety days.
14.

Further, as held in the Judgment of, “Som Nath & another
V/s. State of Punjab,” (supra), u/s.467 of IPC Court can award the
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sentence for a period less than ten years. Sec.467 does not provide that
minimum sentence would be not less than ten years.

Therefore, if
minimum punishment for an offence is not less than 10 years then only
period of ninety days for filing charge­sheet would be applicable, if
offence is punishable for any term upto ten years then period of sixty
days would be applicable to submit the charge­sheet.
15.

Therefore, it is concluded that since Sec.467 of IPC is not
an offence punishable with minimum ten years of imprisonment, the
period of detention of accused persons in the custody would be sixty
days.

Admittedly, as on the date of completing sixty days i.e.

06/03/2021, charge­sheet was not filed by the Investigating Agency,
therefore, indefeasible right accrued to the accused to release him on a
default bail.
16.

Hence, the application deserves to be allowed in terms of
order below :­
ORDER
1. Criminal Bail Application No.212/2021 in CBI Remand Application
No.18/2021, is hereby allowed.
2. The
applicant/accused
Ganesh
Babu
Ubhare,
arrested
on
06/01/2021, in RC No.05/E/2020 ­ CBI, EOB, Mumbai, registered
u/s.120­B r/w Sec.420, 468, 471, 465, 467 of IPC & Sec.13(2) r/w
Sec.13(1)(d) of Prevention of Corruption Act, 1988, be released on
default bail u/s.167(2)(a)(ii) of Cr.P.C. on following conditions :­
a. The applicant/accused be released on his executing P. R. Bond
of Rupees Twenty­Five Thousand only with one solvent surety
in the like amount.
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b. The applicant/accused shall furnish his permanent residential
address alongwith documentary proof of his address & cell
number of himself and his two close relatives and change in
address, if any, before the Trial Court.
c.

The applicant/accused shall not leave the territory of India
without prior permission of Court and surrender his Passport,
if any, to the Registrar of this Court, as condition precedent for
his release on bail.

d. The applicant/accused shall not directly or indirectly make any
inducement, threat or any promise to any person acquainted
with the facts of the case so as to dissuade him from disclosing
such fact to the Court or to any Police Officer or tamper with
the evidence.
e. The applicant/accused shall not indulge into any criminal
activities during the bail.
3. In the event of breach of any of the conditions as above, the
prosecution is at liberty to move the Court for cancellation of bail.
4. Application is hereby disposed off accordingly.
(Pronounced in open Court)
Mumbai:
Date: 23/03/2021
Dictated on
Transcribed on
Signed on
(VIVEK V. KATHARE)
Special Judge (CBI)
Court Room No.53, Gr. Bombay.

: 23/03/2021
: 25/03/2021
:
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“Certified to be true and correct copy of the original signed order”.
25/03/2021.
at about 4.30 p.m.

(Mrs. Vidya Abhijit Mande)
Stenographer (H.G.)
Court Room No.53
Name of the Hon’ble Judge
: Shri. Vivek V. Kathare
(Court Room No.53)
Date of pronouncement of Judgment/Order
: 23/03/2021.

Judgment/Order signed by Hon’ble Judge on : 25/03/2021.
Judgment/Order uploaded on
: 25/03/2021.

at about 04.30 p.m.

….