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BA 519/2021 in RA 447/2021
MHCC020073752021
IN THE COURT OF SPECIAL JUDGE,CBI FOR GR.BOMBAY
AT BOMBAY
Bail Application No. 519 of 2021
In
Remand Application No. 447 of 2021
In
RC No. 0682021 E 0006
CBI, EOB, Mumbai
(CNR No.MHCC02-007375-2021)
Jagmohan Sagar S/o. Kailash Chand
Age about 36 years,
Flat No. 801, Tower No.9,
Shrikrishna Paradise Society,
Kharghar,
Navi Mumbai 400 706.
(Presently in Taloja Central Jail)
…. Applicant/Accused
V/s
CBI, EOB, Mumbai
11th Floor, CBI Building,
G Block BKC,
Bandra (East), Mumbai
…. Respondent
Appearances:
Ld. S.P.P. Shri. J.K. Sharma for CBI, EOB, Mumbai.
Ld. Advocate Shri. Prashant Mishra for the applicant/accused.
CORAM : HIS HONOUR SPECIAL JUDGE
SHRI A.S. SAYYAD
CBI SPECIAL COURT (C.R.No.52)
(IN CHARGE OF C.R.No.51)
DATE
: JUNE 18, 2021.

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BA 519/2021 in RA 447/2021
(DICTATED AND PRONOUNCED IN OPEN COURT)
:ORAL ORDER:
This is an application under section 167 (2) of Cr.P.C. filed by the
applicant,whereby he seeks his release on default bail.

2.

The necessary facts for disposal of this matter as follows:
On the basis of F.I.R. a RC no. 0682021 E 0006 came to be
registered with CBI, EOB, Mumbai on 10.04.2021 in respect of offences
punishable under sections 120-B of Indian Penal Code r/w section 7,
7(A), & 8 of the Prevention of Corruption Act 1988 (as amended in
2018). Pursuant to alleged F.I.R., on the same day the applicant came to
be arrested and produced before the court concerned. He was remanded
to CBI custody till 14.04.2021 and thereafter on the same day
remanded to judicial custody. Thereafter, it so happened that in the
same month of April, father of the applicant was expired, in turn, for
performing last rites i.e. Asthi Visarjan, the applicant moved an
application for interim bail and he was released on interim bail on
13.05.2021 with direction that he shall surrender to jail authority on
01.06.2021. The applicant instead of surrender, moved an application
for extension of time and the same was allowed time to time. However,
upon application for extension filed by the applicant, this court on
being heard both the sides, rejected the said application on 11.06.2021
and cancelled the interim bail earlier, ordering the applicant be
surrendered before the jail authority forthwith. Accordingly, on
14.06.2021 the applicant was surrendered before Taloja Jail authority
and since then till now he is in jail custody.

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3.

BA 519/2021 in RA 447/2021
According to applicant he was arrested on 10.04.2021 and till
now prosecution has not completed investigation within period of
limitation i.e. 60 days. Pursuant to failure in completing investigation
within stipulated period, the applicant accrues an indefeasible right to
file application for grant of default bail. For the forgoing reasons, the
applicant claimed his release forthwith on default bail.

4.

Resisting the application, the investigating officer Shri. Ashok
Yadav submitted detailed reply through Ld.SPP Shri. J.K. Sharma
contending therein that the application is premature and deserves to be
rejected. The investigating officer contended that the applicant was
arrested on 10.04.2021 and after expiry of CBI custody he was
remanded to jail custody on 14.04.2021. Upon filing an interim bail the
application by the applicant, on 13.05.2021 he was released on interim
bail. Later on, earlier interim bail granted to applicant was cancelled by
this court on 11.06.2021 and the applicant has surrendered to Taloja
Jail authority on 14.06.2021. According to investigating officer, the
applicant has erred in calculation of 60 days and in oversight has
calculated the period of interim bail as period under custody to arrive of
the limit of 60 days. That, the calculations of the applicant to arrive the
limit of 60 days for entitlement of default bail. The provision of 167(2)
of Cr.P.C. are defective and do not stand good in the eye of law as the
period when the applicant /accused was enlarged on interim bail cannot
be accounted for arriving at the limit of 60 days. For the reasons stated
earlier, the investigating officer and Ld.SPP prayed for rejection of the
application.

5.

Pursuant to receipt of this application, the report of Sessions
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BA 519/2021 in RA 447/2021
Registrar, City Civil & Sessions Court, Gr. Bombay sought called for.
Accordingly, report came to be submitted with an endorsement that as
of now no charge-sheet is filed.

6.

Heard Ld. Adv. Shri. Prashant Mishra for the applicant, Ld. SPP
Shri. J.K. Sharma for CBI, EOB, Mumbai and Shri. Ashok Yadav the
investigating officer of this case at the length of considerable time.

7.

On close scrutiny of the application listed with documents, it
would indicates that no dispute raised by both the sides regarding
registration of crime, the date of arrest and production of the applicant
before concerned court. The applicant was arrested on 10.04.2021 and
on the same day he was produced before the court who remanded the
applicant in CBI custody till 14.04.2021 and thereafter remanded the
applicant into judicial custody. From the documents on record, it
appears that father of the applicant died on 27.04.2021 due to Corona
virus and for performing the last rites of Asthi Visarjan of his father, an
interim bail was granted on 13.05.2021 till 31.05.2021 subject to
certain conditions that applicant shall surrender before the jail authority
on 01.06.2021. However, the said period was extended time to time till
11.06.2021 and finally on 11.06.2021 interim bail of the applicant was
cancelled with direction that he shall surrender forthwith before the jail
authority. Accordingly, he surrendered to Taloja Jail authority on
14.06.2021 and on the same day this application.

8.

In the set out facts detailed as above it needs to see whether this
application squarely fall within the ambit of section 167 (2) of Cr.P.C. or
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BA 519/2021 in RA 447/2021
not, the relevant provision of 167 of Cr.P.C. it reads thus :
“167.

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 57, and there
are grounds for believing that the accusation or information is wellfounded, 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 Judicial Magistrate a copy of the
entries in the diary hereinafter prescribed 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, 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
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 authorise 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, —
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BA 519/2021 in RA 447/2021
(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 furnish bail, and every person released on bail under this
subsection shall be deemed to be so released under the provisions of
Chapter XXXIII for the purposes of that Chapter;]
(b) 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 medium of electronic video linkage.]
9.

Thus, it can be seen that the above said provision prescribes,
regarding authorization of detention by the Magistrate for a period of 60
days or 90 days as the case may be and not beyond that, if the charge
sheet is not filed within the said period.
10.

In view of the settled law laid down as above, if the present
controversy involved in this matter is taken into consideration, the
applicant moved an application for default bail on 14.06.2021. In the
said application, in calculating the period of custody for the purpose of
filing of the application for default bail, the applicant included the
period of 33 days of interim bail as his jail custody. In this regard a
profitable reference can be made to decision in matter of Chaganti
Satyanarayan & Ors. V. State of Andhra Pradesh SSC 1986 3 page 141
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BA 519/2021 in RA 447/2021
wherein Hon’ble Apex Court ruled that the period of 90 days will
commence only from the date of remand and not from any anterior date
inspite of the fact that the accused may have to be taken into custody
earlier. By this application, applicant tried to show that he was in
custody more than 60 days from 10.04.2021 till now and in the
aforesaid period investigation has not completed by the prosecution.
Resultantly, he accrues
right of default bail. Ld. SPP relied upon a
decision of Apex Court in the matter Gautam Navlakha V/s. National
Investigation Agency, Criminal Appeal No.510/2021, he invited the
attention of this court towards para no 137 of the decision, wherein
Hon’ble Apex Court ruled that there is one aspect which stands out
custody under section 167 has been understood hitherto as police
custody and judicial custody, with judicial custody being conflated to jail
custody ordinarily.

11.

In the light of law laid down as above, if the present controversy
involved in this matter tested on touchstone with the laid down above
law, in this matter the accused has arrested on 10.04.2021 and released
on interim bail on 13.05.2021 till 11.06.2021. Meaning thereby, from
his arrest on 10.04.2021, he remained in jail custody till 13.05.2021 i.e.
for 34 days. He thereafter was on interim bail from 13.05.2021 till
14.06.2021. i.e. for 33 days. No doubt as per settled law the prosecution
ought to have completed investigation within 60 days as the case may
be, but for claiming benefit of this provision the accused must not be in
detention more than stipulated period i.e. 60 days. In the present matter
if detention days of the applicant is to be counted, the
applicant
appears to be undergone detention from 10.04.2021 to 13.05.2021 for
34 days and thereafter for period of 33 days, till filing of this application
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BA 519/2021 in RA 447/2021
for a period of 33 days he was on interim bail till 14.06.2021. If
stipulated period for completing investigation is to be calculated from
10.04.2021, the prosecution ought to have completed investigation till
09.06.2021 and from next day on 10.06.2021 accused accrues right of
default bail.

12.

From the facts discussed as above, it became much clear that the
applicant was clearly in detention only for period of 34 days till filing of
this application. In pursuant by piecing of this broken periods of custody,
the statutory period of 60 days entitled the applicant to default bail is
not reached. No doubt, a right of default bail is a fundamental right, but
it arises only when the conditions are fulfilled. The nature of the
detention, being under section 167 of Cr.P.C. is indispensable to count
the period. The applicant has wrongly calculated the period of interim
bail as period under custody to arrive of the limit of 60 days for
entitlement of default bail.

13.

For the forgoing reasons and discussion, I am of the considered
opinion that the present application does not fall actual for the facts of
this case within the ambit of section 167 of Cr.P.C. This application sans
of merit as premature. Hence, the following order –
ORDER
Criminal Bail Application No. 519 of 2021 is rejected and
disposed of accordingly.

Date :18.06.2021
(A.S. Sayyad)
Special Judge (C.B.I.),
City Civil & Sessions Court,
Gr. Bombay.

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Dictated on
: 17.06.2021
Transcribed on
: 17.06.2021
Signed by HHJ on :
BA 519/2021 in RA 447/2021
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BA 519/2021 in RA 447/2021
“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER”
UPLOAD DATE AND TIME
21.06.2021 (1.30 p.m.)

NAME OF STENOGRAPHER
MRS. K.Y. INAMDAR
(STENOGRAPHER)
Name of the Judge
(with Court Room No.)

Shri A.S. Sayyad
C.R. No.52
Date of Pronouncement of JUDGMENT/ ORDER
18.06.2021
JUDGMENT/ORDER signed by P. O. on
21.06.2021
JUDGMENT/ORDER uploaded on
21.06.2021