MHCC020063872021
CNR
: MHCC02­006387­2021
Date of Institution
: 13/05/2021
Date of Registration
: 13/05/2021
Date of Judgment
: 03/06/2021
Duration
: Y :00, M :00, D :21
IN THE COURT OF SPECIAL JUDGE (CBI) FOR GREATER BOMBAY
BAIL APPLICATION NO.428 OF 2021
IN
CRIMINAL BAIL APPLICATION NO.310 OF 2021
Sankeshwar Singh, aged about 38 yrs
R/o.B­304, Poonam Autum Building,
Poonam Nagar, Virar (West).

)
)
)..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. Girish Kulkarni with Adv. Mr. Darshan Juikar 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 : 03/06/2021 (C.R.NO.53)
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ORAL ORDER
1.

The
applicant/accused
Sankeshwar
Singh,
filed
this
petition for his release on default bail.
2.

The applicant/accused came to be arrested in above
referred crime on the allegations of availing car loan by submitting
forged & fabricated documents.

Offence is registered interalia u/s.

u/s.13(2) r/w Sec.13(1)(d) of Prevention of Corruption Act, 1988 r/w
Sec.120­B r/w Sec.420, 465, 467, 468 & 471 of IPC.
3.

It is contended that the applicant/accused came to be
produced before the Remand Court on 13/03/2021, after his arrest on
the Production Warrant.

He was remanded to Police Custody and
subsequently to Judicial Custody. Presently, he is in Judicial Custody.
4.

It is contended that consequent to his arrest on
13/03/2021, the mandatory period for filing charge­sheet has come to
an end on 12/05/2021 and the applicant has right to apply for bail
u/s.167(2) of Cr.P.C. Hence, the application.
5.
Reply.

The respondent/CBI has resisted the petition by filing
The role & complicity of accused person as averred in the
present application is not much disputed. The application is however,
opposed on the ground that amongst other sections, Sec.467 of IPC,
entails the punishment with imprisonment for life or with imprisonment
of either description for term which may extend to ten years and shall
also be liable for fine. Therefore, the statutory period for filing of the
charge­sheet is ninety days as per the prosecution case. It is further
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contended that release of co­accused on similar ground is of no avail to
the applicant as the case of each accused has to be considered on its
own merits. Hence, prayed for rejection of the application.
6.

Heard the Ld. SPP Ld. Mr. J. K. Sharma for CBI and Ld.

Advocate
Mr.

Girish
applicant/accused.

Kulkarni
with
Advocate
Mr.

Juikar
for
It is submitted by the Ld. Advocate for the
applicant/accused that considering the nature of charges leveled against
the applicant/accused, he would face imprisonment, which may extend
to ten years, which was not minimum sentence and therefore, he is
entitled for default bail since statutory period of sixty days for filing the
charge­sheet has expired.

The said proposition has been strongly
opposed by the Ld. Prosecutor. Defence Counsel 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
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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
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 12/05/2021 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
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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
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
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“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
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.

12/05/2021, charge­sheet was not filed by the Investigating Agency,
therefore, indefeasible right accrued to the accused to release him on a
default bail.

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16.

Hence, the application deserves to be allowed in terms of
order below :­
ORDER
1. Criminal Bail Application No.428/2021 in CBI Remand Application
No.310/2021, is hereby allowed.
2. The
applicant/accused
Sankeshwar
Singh,
arrested
in
RC
No.05/E/2020 ­ CBI, EOB, Mumbai, registered u/s.13(2) r/w
Sec.13(1)(d) of Prevention of Corruption Act, 1988 r/w Sec.120­B
r/w Sec.420, 465, 467, 468 & 471 of IPC, 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.
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.

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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: 03/06/2021
Dictated on
Transcribed on
Signed on
(VIVEK V. KATHARE)
Special Judge (CBI)
Court Room No.53, Gr. Bombay.

: 03/06/2021
: 04/06/2021
:
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“Certified to be true and correct copy of the original signed order”.
04/06/2021.
at about 2.00 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
: 03/06/2021
Judgment/Order signed by Hon’ble Judge on : 04/06/2021
Judgment/Order uploaded on
: 04/06/2021
at about 2.00 p.m.

….