Jitendra S/O Maroti Deotare and ors. Vs. State of Maharashtra - Court Judgment

Excerpt:
criminal - delay of charge sheet - sections 34,201 and 302 of indian penal code, 1908 (ipc) and section 167 (2) of the code of criminal procedure, 1973 (cr.p.c) - petitioners arrested under sections 34,201 and 302 of ipc - petitioners filed application under section 167 (2) of cr.p.c for bail on ground of delay filing of charge sheet - court rejected application on ground that charge sheet filed within 90 days - hence, present petition - held, charge sheet filed after 90 days because last two days was holidays - lower court did not consider time of filing under said provision in proper way - petition allowed - section 34: [d.k. deshmukh, s.j. vazifdar & j.p. devadhar, jj] court fee on petition under section 34 of the act bombay court fees act (36 of 1959), schedule i, article 3, schedule ii, article 1(f)(iii) held, according to article 3 of schedule i, on any plaint, application or petition or memorandum of appeal for setting aside or modifying an award, same court fee is payable as is payable on a plaint or memorandum of appeal under article 1. thus, when an award is challenged by a plaint, application, petition or memorandum of appeal, court fee is payable on ad valorem basis. but from this requirement of payment of court fee on ad valorem basis, article 3 excludes an application or petition or memorandum of appeal filed in civil or revenue court challenging any award made under the arbitration act, 1940.thus, the provisions of article 3 of schedule 1 do not apply when an application is filed or appeal is filed challenging an award made under the arbitration act, 1940. thus the provisions of article 3 of schedule i do not apply when an application is filed challenging an award made under the arbitration act, 1940. the question, therefore, that arises for consideration is whether reference to the provisions of 1940 act found in article 3 of schedule i of the bombay court fees act can be said to include reference to the 1996 act. perusal of the provisions of section 8 of general clauses act shows that where by a central enactment any provision of a former enactment is repealed and re-enacted with or without modification then reference in any other enactment to the provisions so repealed shall, unless a different intention appears, be construed as references to the provisions so re-enacted. in the present case, it is common ground that the former enactment is the 1940 act, the new enactment is the 1996 act and any other enactment is the bombay court fees act, the only provision of the 1940 act referred to in article 3 of schedule 1 of the bombay court fees act is the provisions of section 33 of the 1940act and bare comparison of that provision with the provisions of sub-section (1) of section 34 of the 1996 act shows that the provision of section 33 of 1940 act is repealed and re-enacted in sub-section (1) of section 34 of the 1996 act with slight modification. therefore, reference to the provisions of section 33 of the 1940 act in article 3 of schedule-i of the bombay court fees act has to be construed, in view of the provisions of section 8 of the general clauses act, as reference to the provisions of section 34 of the 1996 act. so far as an appeal filed under section 37 of the 1996 act is concerned, perusal of section 37 shows that an appeal is provided to the appellate court against an order setting aside an arbitral award or refusing to set aside an arbitral award under section 34. thus, as the provisions of article 3 of schedule-i do not apply to an application or petition filed under section 34 of the 1996 act, they will also not apply to the memorandum of appeal filed to set aside or modify an award made by the arbitrator under the 1996 act. in other words nothing contained in article 3 of schedule-i of the bombay court fees act applies to an application, petition or memorandum of appeal to set aside or modify any award made under the 1996 act as it does not apply to an application or petition or memorandum of appeal to set aside or modify an award made under the arbitration act, 1940. perusal of the provisions of section 8 of the general clauses act shows that references in any other enactment to a provision in a former enactment is to be construed as reference to re-enacted provision in the new enactment unless a different intention appears. the different intention may appear either in the new enactment or in the other enactment. nothing was pointed out either in the 1996 act or in the bombay court fees act which can be construed as a different intention or which will show that it was not the intention of the maharashtra legislature to exclude an application or petition or memorandum of appeal filed in court to set aside or modify an award made under the 1996 act, from the provisions of article 3 of schedule-i of the bombay court fees act. it appears that the intention behind excluding an application made, challenging the award made under the 1940 act, from requirement of payment of ad valorem court fee which is required to be paid if the same litigant filed a suit on the same subject matter, was to encourage a litigant to go for arbitration instead of filing a suit. nothing has been pointed out to show that ther4e is any change in that legislative policy. on the contrary, from the preamble of the 1996 act it is clear that the policy of the legislature is to encourage people to adopt the mode of arbitration for resolving disputes. article 3 of schedule-i of the bombay court fees act does not apply to a petition, application or memorandum of appeal filed for challenging an award made under the 1996 act, and court fee on a petition filed under section 34 of the 1996 act challenging an award in high court is payable according to article 1(f)(iii) of schedule ii. section 37: [d.k. deshmukh, s.j. vazifdar & j.p. devadhar, jj] court fee on appeal under section 37 of the arbitration & conciliation act, 1996 - held, court fee is payable according to article 13 of schedule ii of the bombay court fees act. schedule i, article 3 & schedule ii, article 1(f)(iii): [d.k. deshmukh, s.j. vazifdar & j.p. devadhar, jj] court fee on petition under section 34 of the arbitration & conciliation act, 1996 - held, when a petition under section 34 is to be filed before a principal civil court of original jurisdiction which is not a high court, the question arises which article of either first schedule or second schedule would apply. in so far as the challenge to an award made under the 1940 act is concerned, an application under section 33 of that act could be made to a civil court and therefore, payment of court fee was governed by article 1(a) of schedule ii. this was so because the application was to be presented to the court of civil judge which was not a principal civil court of original jurisdiction. but now because of change of definition of term court in the 1996 act, a petition has to be presented, challenging an award made under the 1996 act in terms of the provisions of section 34 thereof, before the principal civil court of original jurisdiction. no entry either in the first schedule or in the second schedule was pointed out which applies to an application or petition to be made before the principal civil court of original jurisdiction, and therefore, when a litigant wants to file petition before a principal civil court having original jurisdiction which is not high court, challenging an award made under the 1996 act, no court fee under bombay court fees act is payable because of absence of a general or specific provision. therefore, it can be said that no court fee under the bombay court fees act is payable when a petition under section 34 challenging an award is filed before any principal civil court of original jurisdiction which is not high court. schedule ii, article 13: [d.k. deshmukh, s.j. vazifdar & j.p. devadhar, jj] court fee on appeal under section 37 of the arbitration & conciliation act, 1996 - held, court fee is payable according to article 13 of schedule ii of the bombay court fees act. - 8 has observed that an accused like the present petitioners must be held to have availed of his right flowing from the legislative mandate, if he files application after the expiry of stipulated period mentioning that no challan or charge-sheet has been filed and he is prepared to offer bail that would be ordered. 25,000/- each with one surety in the like amount.k.j. rohee, j.1. rule returnable forthwith. heard finally by consent of parties.2. the petitioners were arrested on 13-4-2008 in connection with crime no. 73/2008 under sections 302, 201 read with section 34 of indian penal code alleged to have taken place on 10-4-2008. the petitioners were produced before the concerned magistrate on 14-4-2008. initially the magistrate granted p.c.r. till 19-4-2008. from 19-4-2008 m.c.r. came to be extended from time to time. the last application for m.c.r. was moved on 30-6-2008 praying for grant of m.c.r. till 15-7-2008. however the magistrate granted m.c.r. only till 14-7-2008.it is undisputed that 90 days expired on 13-7-2008, which happened to be a sunday. on the next day i.e. on monday 14th july, 2008 the petitioners moved application under section 167(2) of the code of criminal procedure for grant of bail in default of filing of the charge-sheet. the said application was filed by the petitioners at 11 a.m. the learned magistrate directed the a.p.p. to give his say. the endorsement made on the said application by the a.p.p. shows that he received copy of the application at 2.30 p.m. and sought time to file say. however, it seems that on the same day (though the date is wrongly written as 14-8-2008), he filed say strongly opposing the application.3. on the same day the learned magistrate passed a detailed order rejecting the application by observing that since the charge-sheet was filed on 14-7-2008 itself, it cannot be said that there was default on the part of the prosecution to file charge-sheet within 90 days so as to entitle the petitioners to be released on bail under section 167(2) of the code of criminal procedure. the said order is under challenge.we have heard sliri r.m. daga, advocate for the petitioners and shri y.b. mandpe, a.p.p. for respondent/state. they have cited the following cases.1. : [1957]1scr208 , (h. h. raja) harinder singh v. s. karnail singh and ors. 2. 1985 cri.l.j. 939, n. sureya reddy and anr. v. state of orissa. 3. 1986 (3) crimes 577, powell nawawa ogechi v. the state (delhi administration). 4. 1999 (2) mh.l.j. 555, ramesh madhukar thombre v. state of maharashtra. 5. : 2000(5)bomcr382 , naresh @ nana baliram sonwane v. state of maharashtra. 6. : 2001crilj1832 , uday mohanlal acharya v. state of maharashtra. 7. 2005 all m.r. (cri) 291, mahaya chaitya ozare v. state of maharashtra. 8. 2006 all m.r. (cri) 3110, nijamuddin mohammad bashirkhan v. state of maharashtra.4. we have carefully gone through the above rulings. the order of the learned magistrate itself shows that the petitioners moved application for bail on 14-7-2008 at 11 a.m., whereas the investigating officer filed the charge-sheet at 12.30 p.m. on the same day. it is thus apparent that the right which accrued to the petitioners to be released on bail in default in filing of charge-sheet was exercised by them at 11 a.m. when no charge-sheet was filed. it was tried to be urged by the learned a.p.p. that the investigation was already completed and as such the petitioners are not entitled to be released on bail for default. however, we cannot forget that though the investigation might have been completed, no charge-sheet came to be filed immediately on completion of the investigation.in fact in the case of najamuddin v. state of maharashtra (supra), division bench of this court held that it is the duty of the magistrate on expiry of 90 days to tell the accused or to inform the accused about his right to be released for default in filing of the charge-sheet.5. it was urged by the learned a.p.p. that at the time when the learned magistrate decided the application, charge-sheet was filed. however, in our view the time which is crucial or material is not when the magistrate considers the application for bail and passes order, but what is important is the time when the application was filed and the time when the charge-sheet was filed. in the case of najamuddin (supra), this court has held that the magistrate has to pass orders forthwith so as not to enable the prosecution to frustrate the object of the legislature. it may be pointed out here that the hon'ble apex court in the case of uday mohanlal (supra), in paragraph no. 8 has observed that an accused like the present petitioners must be held to have availed of his right flowing from the legislative mandate, if he files application after the expiry of stipulated period mentioning that no challan or charge-sheet has been filed and he is prepared to offer bail that would be ordered. if it is found that, as a matter of fact that no such challan was filed within the period prescribed from the date of arrest, such applicant/accused must be held to have exercised the said right, even if, such application is posted for consideration or for orders before the court after some time or even after the magistrate refuses the application erroneously and the accused moves the higher forum for getting formal order of being released on bail in enforcement of his indefeasible right. filing of challan at subsequent stage will not take away the right of the accused. the hon'ble apex court has held that such an interpretation would sub-serve the purpose and the object for which the provision in the shape of proviso to sub-section (2) of section 167 of criminal procedure code has been made. hon'ble apex court has observed that the personal liberty is one of the cherished objects of the indian constitution and deprivation of the same can be only in accordance with law and in conformity with the provision thereof, as stipulated in article 21 of the constitution of india. it is, therefore, not possible for us to accept the contentions of the learned a.p.p. that when the application of present petitioners came up for consideration before the magistrate, as the charge-sheet was already filed the application had become infructuous.6. it is also necessary to point out here that reliance upon the division bench judgment of orissa high court in the case of n. sureya reddy (supra), by the learned a.p.p. is equally misconceived. in view of the comments upon the said judgment and on provisions of section 10 of the general clauses act by the division bench of the delhi high court in judgment in the case of powell ogechi (supra), it is not necessary for us to delve more in this controversy. suffice it to mention that section 167(2) of criminal procedure code does not bar investigation after 60 or 90 days and also does not bar filing of charge-sheet/challan after 60/90 days. thus it does not prescribe any time limit either for completion of investigation or for filing of charge-sheet and hence section 10 of the general clauses act is not at all attracted. the delhi high court has relied upon the judgment of this court in the case of state of maharashtra v. sharad sarda 1983 (1) bcr 578 :1983 (2) cri. 18. various judgments cited before us as also the plain language of section 167(2) of criminal procedure code reveal that it puts embargo on the power of the court to further permit detention of any accused person after expiry of 60 days or 90 days if such accused is ready and willing to furnish bail. the provision has been made to curtail the deprivation of liberty of an individual who is presumed innocent at that stage. it, therefore, has got nothing to do with the date on which the prosecution completes investigation or files charge-sheet. the investigation can take place even on holidays and detention of such accused person also continues on holidays. therefore, the argument that 60th day or 90th day was a public holiday and therefore, the prosecution could not file charge-sheet on that date and had filed the same immediately on the next working day, has hardly got any relevance if the purpose of the said provision is looked into.7. in any case in the present facts, the charge-sheet itself is dated 14-7-2008 and as such it is apparent that it could not have been filed on 13-7-2008 which was the 90th day. it is not the case of the prosecution that after expiry of 90th day it had made the present petitioners aware of their indefeasible right and thereafter it choose to file charge-sheet on next working day. the contention of learned a.p.p. that no investigation was carried out in the matter after 9-7-2008 is not borne out from record. therefore, the stance to distinguish between the completion of investigation and filing of charge-sheet as to distinct and unrelated events need not be examined in the present matter.8. it is also to be noted that on 30-6-2008 when j.m.f.c. granted remand it was upto 14-7-2008 i.e. upto 91st day. the prosecution has sought remand upto 15-7-2008 but then the magistrate granted it only upto 14-7-2008. it is apparent that when the period of 90 days was to expire on a public holiday, looking to the mandate of the provisions the magistrate ought to have granted remand till the next working day available immediately before such public holiday. 13-7-2008 was sunday and 12-7-2008 was also a holiday for courts being second saturday. in these circumstances, the magistrate ought to have granted remand only upto friday i.e. 11-7-2008 or then, if he was inclined to grant it beyond 11-7-2008, the magistrate ought to have informed the present petitioners of their right which accrues after expiry of 90th day. here the right had already accrued on 13-7-2008 i.e. on sunday itself and on the next day the accused/present petitioners were produced before the learned magistrate.9. the petitioners themselves have moved application at 11 a.m. on 91st day, as such the learned magistrate was not justified in rejecting the application for bail. the said order therefore, needs to be quashed and set aside. we, therefore, pass the following order:criminal writ petition is allowed. the impugned order dated 14-7-2008 is quashed and set aside. the petitioners are directed to be released on their executing p.r. in the sum of rs. 25,000/- each with one surety in the like amount.rule is made absolute in the aforesaid terms.