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REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

SPECIAL LEAVE PETITION(CRL.)NO.147 OF 2013

Suresh Kumar Bhikamchand Jain … PETITIONER

Vs. State of Maharashtra & Anr.    … RESPONDENTS

J U D G M E N T

ALTAMAS KABIR, CJI.

1. This  Special  Leave  Petition  arises  out  of  

the judgment and order dated 17th December, 2012,  

passed by the Aurangabad Bench of the Bombay High  

Court in CRLA No. 4601 of 2012, dismissing the same  

and directing the Special Judge, in seisin of the

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matter,  to  expedite  the  hearing  on  framing  of  

charge, as had been directed by this Court on 12th  

October, 2012, while disposing of Special Leave to  

Appeal (Crl.) No. 6463 of 2012, filed by the co-

accused Pradeep Raisoni.   

2. This  case  has  thrown  into  focus  certain  

important issues regarding the right of an accused  

to be released on bail under Section 167(2) of the  

Code  of  Criminal  Procedure,  1973,  hereinafter  

referred  to  as  "Cr.P.C.".  One  of  such  issues  

concerns the power of the Magistrate to pass orders  

of remand even beyond the period envisaged under  

Section 167(2) Cr.P.C. In the instant case, despite  

charge-sheet having been filed, no cognizance has  

been  taken  on  the  basis  thereof.   The  learned  

Magistrate has, however, continued to pass remand  

orders, without apparently having proceeded to the  

stage contemplated under Section 309 Cr.P.C.  In

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order to appreciate the issues which have cropped  

up during the hearing of the instant case, it is  

necessary to briefly set out  the facts giving rise  

to  the  said  questions,  which  have  fallen  for  

determination.

3. As per the prosecution case, the Petitioner,  

Suresh Kumar Bhikamchand Jain, is alleged to have  

misappropriated  amounts  meant  for  development  of  

slums in Jalgaon city, when he was functioning as  

the Minister of Housing and Slum Area Development,  

as  a  Member  of  the  Legislative  Assembly.  

Initially, charge-sheet was filed against certain  

persons  claiming  to  be  the  contractors  and  the  

Vice-President  of  the  Municipal  Corporation,  

Jalgaon.   Thereafter,  during  investigation  the  

Petitioner was arrested on 11th March, 2012, and  

while charge-sheet was filed against the four other  

accused  persons  on  25th  April,  2012,  a

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supplementary charge-sheet came to be filed against  

the Petitioner herein on 1st June, 2012.  For a  

while, the Petitioner was released on interim bail,  

but upon rejection of his application for bail on  

merit, he was again taken into custody on 5th July,  

2012.  

4.  What has been stressed upon on behalf of the  

Petitioner is that, although, charge-sheet had been  

filed  within  the  time  stipulated  under  Section  

167(2)  Cr.P.C.,  sanction  to  prosecute  the  

Petitioner  had  not  been  obtained,  as  a  result  

whereof, no cognizance was taken of the offence.  

Notwithstanding the above, remand orders continued  

to  be  made  and  the  Petitioner  remained  in  

magisterial custody.      

5. At this stage, it may be pertinent to point  

out that the Petitioner is an accused in respect of

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offences punishable under Sections 120B, 409, 411,  

406, 408, 465, 466, 468, 471, 177, 109 read with  

Section 34 of the Indian Penal Code, hereinafter  

referred to as "IPC" and also under Sections 13(1)

(c),  13(1)(d)  and  13(2)  of  the  Prevention  of  

Corruption Act, 1988, hereinafter referred to as  

"the PC Act", in Crime No. 13 of 2006, registered  

with the City Police Station Jalgaon.

6. Appearing  in  support  of  the  Special  Leave  

Petition, Mr. U.U. Lalit, learned senior Advocate,  

submitted  that  since  the  statutory  period  of  90  

days, envisaged under Section 167(2) Cr.P.C., had  

lapsed, the Petitioner could not have been remanded  

to custody, as had been done by the learned Special  

Judge, who is yet to take cognizance for want of  

sanction.  Mr. Lalit submitted that the Petitioner  

was,  therefore,  entitled  to  be  released  on  bail  

forthwith, since the orders of remand passed by the

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learned Magistrate after a period of 90 days were  

without jurisdiction and, therefore, invalid in the  

facts and circumstances of the case.

7. Mr.  Lalit  also  submitted  that  Section  309  

Cr.P.C.,  which  also  deals  with  remand  of  the  

accused under certain circumstances, does not apply  

to the allegations relating to the provisions of  

the  PC  Act,  inasmuch  as,  there  is  no  committal  

proceeding  contemplated  in  the  proceeding  before  

the  learned  Special  Judge.   However,  as  far  as  

Section  309  Cr.P.C.  is  concerned,  Mr.  Lalit  

submitted that the same would be applicable only  

after cognizance of the offence had been taken or  

upon  the  commencement  of  the  trial  before  the  

Special Court.  In the absence of cognizance being  

taken by the Special Court, it could not be said  

that  the  trial  had  commenced  and,  therefore,  

further  detention  of  the  Petitioner  was  wholly

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illegal  and  not  authorised  in  law  and  he  was,  

therefore,  entitled  to  be  released  on  bail  

forthwith on the basis of the "indefeasible right"  

acquired by him on the failure of the Investigating  

Authorities to obtain sanction for prosecuting the  

Petitioner.  

8. Mr. Lalit submitted that the High Court also  

went  wrong  in  holding  that  in  the  absence  of  

sanction, the actual trial could not be stayed and  

could be proceeded with and that the question of  

grant of sanction could be considered at the stage  

of framing of charge, as to whether such sanction  

was actually required to prosecute the accused.

9. In  support  of  his  submission,  Mr.  Lalit  

referred to and relied upon the Constitution Bench  

decision  of  this  Court  in  Sanjay  Dutt v.  State  

[(1994)  5  SCC  410],  wherein  the  said  Bench  had

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occasion to consider the effect of non-completion  

of investigation within the time stipulated under  

Section 167(2) Cr.P.C.  Learned counsel pointed out  

that in the said decision, it has, inter alia, been  

held that default in completion of investigation  

within 180 days did not give a fully indefeasible  

right to the accused to be released on bail.  Such  

a right arises from the time of default in filing  

of the charge-sheet and continues till the filing  

thereof, but does not survive once the charge-sheet  

is  filed.   Thereafter,  grant  of  bail  would  be  

decided on merits.  Mr. Lalit submitted that the  

indefeasible right referred to in the said decision  

would become absolute in the event an application  

for  bail  was  filed  after  the  expiry  of  the  

statutory  period  stipulated  by  the  statute,  but  

before filing of the charge-sheet.  In such a case,  

Mr. Lalit submitted that the concerned accused was  

entitled as a matter of right to be released on

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bail.

10. Mr. Lalit also referred to the decision of  

this Court in Natabar Parida v. the State of Orissa  

[(1975) 2 SCC 220], which was decided by a Bench of  

2-Judges,  who  also  had  occasion  to  consider  the  

impact of Section 167(2) Cr.P.C. and the proviso  

(a) thereto.  In the said case, the powers of the  

High Court to pass an order of remand of an accused  

on the basis of inherent powers, was sought to be  

negated.  It was ultimately held that the Court  

will have no inherent power of remand of an accused  

to any custody, unless the power is conferred by  

law.   Mr.  Lalit  urged  that  since  remand  orders  

passed against the Petitioner in the present case  

did not have the sanction either of Section 167(2)  

Cr.P.C. or Section 309 Cr.P.C., the Petitioner was  

entitled  to  be  released  on  statutory  bail  

forthwith.

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11. Appearing for the State of Maharashtra, Mr.  

Sanjay V. Kharde, learned Advocate, supported the  

decision of the High Court and urged that with the  

filing  of  the  charge-sheet  under  Section  167(2)  

Cr.P.C., the conditions of the said Section stood  

satisfied  and  even  if  sanction  had  not  been  

obtained  for  prosecuting  the  Accused,  the  Trial  

Court  was  entitled  to  proceed  further  in  the  

matter.  Mr. Kharde submitted that the orders of  

remand passed by the Trial Court were not vitiated  

since charge-sheet had already been filed within 90  

days of the arrest of the Petitioner.

12. Also  referring  to  the  decision  in  Sanjay  

Dutt's case (supra), Mr. Kharde submitted that the  

"indefeasible right" of the accused to be released  

on bail under Section 167(2) Cr.P.C., in default of  

completion  of  the  investigation  and  filing  of  

charge-sheet within the time allowed, is a right

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which accrued to and is enforceable by the accused  

only from the time of default till the filing of  

the charge-sheet and it does not survive or remain  

enforceable  on  the  charge-sheet  being  filed.  

Accordingly,  if  in  a  given  case,  the  accused  

applies for bail, under the aforesaid provision, on  

expiry of the period of 180 days or the extended  

period,  as  the  case  may  be,  then  he  has  to  be  

released  on  bail  forthwith.   However,  once  the  

charge-sheet is filed, the question of bail has to  

be decided only with reference to the merits of the  

case under the principles relating to grant of bail  

to  an  accused  after  filing  of  the  charge-sheet.  

Mr.  Kharde  reiterated  that  in  the  instant  case  

since  the  charge-sheet  had  already  been  filed,  

notwithstanding the fact that sanction had not been  

obtained, it could not be said that the powers of  

the learned Magistrate or the Trial Court to pass  

orders of remand came to an end, even if sanction

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had not been obtained for prosecuting the accused  

under the provisions of the PC Act.

13. The  question  posed  in  this  Special  Leave  

Petition concerns the right of a Magistrate or the  

Trial Court to pass orders of remand in terms of  

Section 167(2) Cr.P.C. beyond the period prescribed  

therein.  Section 167(2) Cr.P.C., which is relevant  

for an understanding of the issues involved in this  

case, is extracted hereinbelow:

"167. Procedure when investigation  cannot be completed in twenty-four  hours.   

(1) *** *** ***   (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

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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  authorize  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-   (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

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furnish  bail,  and  every  person  released  on  bail  under  this  sub- section shall be deemed to be so  released  under  the  provisions  of  Chapter XXXIII for the purposes of  that Chapter;   (b) no Magistrate shall authorize  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;   (c)  no  Magistrate  of  the  second  class, not specially empowered in  this  behalf  by  the  High  Court,  shall  authorise  detention  in  the  custody of the police.   Explanation I. - For the avoidance  of  doubts,  it  is  hereby  declared  that, notwithstanding the expiry of  the period specified in paragraph  (a), the accused shall be detained  in custody so long as he does not  furnish bail.   Explanation II. - If any question  arises  whether  an  accused  person

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was produced before the Magistrate  as required under clause (b), the  production  of  the  accused  person  may be proved by his signature on  the order authorising detention or  by  the  order  certified  by  the  Magistrate as to production of the  accused person through the medium  of electronic video linkage, as the  case may be.

Provided further that in case  of a woman under eighteen years of  age,  the  detention  shall  be  authorised to be in the custody of  a remand home or recognised social  institution."

14. From the above provision, it would be amply  

clear  that  the  Magistrate  may  authorise  the  

detention of an accused person, otherwise than in  

the custody of the police, beyond a period of 15  

days, if he is satisfied that there are adequate  

grounds  for  doing  so,  but  no  Magistrate  is  

authorised to detain the accused person in custody  

for  a  total  period  exceeding  90  days  where  the  

investigation relates to an offence punishable with

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death, imprisonment for life or imprisonment for a  

term of not less than ten years and 60 days where  

the investigation relates to any other offence.  In  

other words, if an accused was ready to offer bail,  

once the stipulated period for the investigation  

had been completed, then the Magistrate no longer  

had the authority to extend the period of detention  

beyond  the  said  period  of  90  days  and,  

consequently, he had no option but to release the  

accused on bail.  The language used in Sections  

167(2)(a)(i) and (ii) is that on the expiry of the  

period of 90 days or 60 days, as the case may be,  

the accused person shall be released on bail, if he  

is  prepared  to  and  does  furnish  bail.   The  

direction upon the learned Magistrate or the Trial  

Court  is  mandatory  in  nature  and  any  detention  

beyond the said period would be illegal.   

15. The power of remand is vested in the Court

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at  the  very  initial  stage  before  taking  of  

cognizance  under  Section  167(2)  Cr.P.C.   Once  

cognizance is taken, the power to remand shifts to  

the provisions of Section 309 Cr.P.C., under which  

the Trial Court is empowered to postpone or adjourn  

proceedings and, for the said purpose, to extend  

the period of detention from time to time.  Section  

309(2) Cr.P.C. contemplates a situation where if  

the Court after taking cognizance of an offence or  commencement  of  trial  finds  it  necessary  to  

postpone  the  commencement  of,  or  adjourn,  any  

inquiry  or  trial,  it  may,  for  reasons  to  be  

recorded, postpone or adjourn the inquiry or trial  

on such terms as it thinks fit, for such time as it  

considers reasonable, and  may by a warrant remand  the accused if in custody, for a period of fifteen  days  at  a  time.   Although,  the  provisions  of  

Section 309 Cr.P.C. may not have any application to  

the facts of this case, in order to appreciate the

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view that we have taken, the same are reproduced  

hereinbelow:

“309. Power to postpone or adjourn  proceedings.—(1)  In  every  inquiry  or trial the proceedings shall be  held as expeditiously as possible,  and  in  particular,  when  the  examination of witnesses has once  begun, the same shall be continued  from  day  to  day  until  all  the  witnesses in attendance have been  examined,  unless  the  Court  finds  the adjournment of the same beyond  the following day to be necessary  for reasons to be recorded. Provided that when the inquiry or  trial relates to an offence under  Sections 376 to Section 376 D of  the Indian Penal Code (45 of 1860),  the inquiry or trial shall, as far  as possible, be completed within a  period of two months from the date  of commencement of the examination  of witnesses. (2)  If  the  court,  after  taking  cognizance  of  an  offence,  or  commencement  of  trial,  finds  it  necessary or advisable to postpone  the  commencement  of,  or  adjourn,  any inquiry or trial, it may, from  time  to  time,  for  reasons  to  be  recorded, postpone or adjourn the  same  on  such  terms  as  it  thinks

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fit, for such time as it considers  reasonable,  and  may  by  a  warrant  remand the accused if in custody: Provided that no Magistrate shall  remand an accused person to custody  under  this  section  for  a  term  exceeding fifteen days at a time: Provided  further  that  when  witnesses  are  in  attendance,  no  adjournment  or  postponement  shall  be granted, without examining them,  except  for  special  reasons  to  be  recorded in writing: Provided also that no adjournment  shall  be  granted  for  the  purpose  only of enabling the accused person  to show cause against the sentence  proposed to be imposed on him. Provided also that –  (a) no  adjournment  shall  be  granted at the request of a party,  except where the circumstances are  beyond the control of that party; (b) the fact that the pleader of a  party is engaged in another Court,  shall  not  be  a  ground  for  adjournment; (c) where a witness is present in  Court but a party or his pleader is  not  present  or  the  party  or  his  pleader though present in Court, is  not  ready  to  examine  or  cross- examine the witness, the Court may,  if thinks fit, record the statement  of the witness and pass such orders  as  it  thinks  fit  dispensing  with

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the examination-in-chief or cross- examination of the witness, as the  case may be. Explanation  1  –  If  sufficient  evidence has been obtained to raise  a  suspicion  that  the  accused  may  have  committed  an  offence  and  it  appears  likely  that  further  evidence  may  be  obtained  by  a  remand this is a reasonable cause  for a remand.

Explanation 2 – The terms on which  an adjournment or postponement may  be granted include, in appropriate  cases, the payment of costs by the  prosecution or the accused.”

16. At this juncture, we may refer to certain  

dates  which are relevant to the facts of this  

case, namely:

(a) 11.03.2012  -  Petitioner  arrested  and  

remanded to police custody;

(b) 25.04.2012  -  First  charge-sheet  filed  

against the four accused;

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(c) 1.06.2012 - Supplementary charge-sheet filed  

in which the Petitioner is named;

(d) 30.07.2012  -  The  Trial  Court  rejected  the  

Petitioner's prayer for grant of bail;

(e) 13.09.2012  -  The  High  Court  confirmed  the  

order of the Trial Court;

(f) 2.10.2012 - Application filed under Section  

167(2) Cr.P.C. before the Trial Court;

(g) 5.10.2012  -  Trial  Court  rejected  the  

application under Section 167(2) Cr.P.C.

17. From the above dates, it would be evident  

that  both  the  charge-sheet  as  also  the  

supplementary  charge-sheet  were  filed  within  90

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days from the date of the Petitioner's arrest and  

remand  to  police  custody.   It  is  true  that  

cognizance was not taken by the Special Court on  

account  of  failure  of  the  prosecution  to  obtain  

sanction  to  prosecute  the  accused  under  the  

provisions of the PC Act, but does such failure  

amount  to  non-compliance  of  the  provisions  of  

Section 167(2) Cr.P.C. is the question with which  

we are confronted.  In our view, grant of sanction  

is nowhere contemplated under Section 167 Cr.P.C.  

What  the  said  Section  contemplates  is  the  

completion of investigation in respect of different  

types of cases within a stipulated period and the  

right of an accused to be released on bail on the  

failure of the investigating authorities to do so.  

The scheme of the provisions relating to remand of  

an accused, first during the stage of investigation  

and,  thereafter,  after  cognizance  is  taken,  

indicates  that  the  Legislature  intended

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investigation  of  certain  crimes  to  be  completed  

within 60 days and offences punishable with death,  

imprisonment for life or imprisonment for a term of  

not less than 10 years, within 90 days.  In the  

event, the investigation is not completed by the  

investigating authorities, the accused acquires an  

indefeasible right to be granted bail, if he offers  

to furnish bail.  Accordingly, if on either the  

61st  day  or  the  91st  day,  an  accused  makes  an  

application for being released on bail in default  

of charge-sheet having been filed, the Court has no  

option but to release the accused on bail.  The  

said provision has been considered and interpreted  

in  various  cases,  such  as  the  ones  referred  to  

hereinbefore.   Both  the  decisions  in  Natabar  

Parida's  case(supra)  and  in  Sanjay  Dutt's  case  

(supra) were instances where the charge-sheet was  

not filed within the period stipulated in Section  

167(2) Cr.P.C. and an application having been made

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for grant of bail prior to the filing of charge-

sheet, this Court held that the accused enjoyed an  

indefeasible right to grant of bail, if such an  

application  was  made  before  the  filing  of  the  

charge-sheet, but once the charge-sheet was filed,  

such right came to an end and the accused would be  

entitled to pray for regular bail on merits.

18. None  of  the  said  cases  detract  from  the  

position that once a charge-sheet is filed within  

the  stipulated  time,  the  question  of  grant  of  

default bail or statutory bail does not arise.  As  

indicated hereinabove, in our view, the filing of  

charge-sheet  is  sufficient  compliance  with  the  

provisions of Section 167(2)(a)(ii) in this case.  

Whether cognizance is taken or not is not material  

as far as Section 167 Cr.P.C. is concerned.  The  

right which may have accrued to the Petitioner, had  

charge-sheet not been filed, is not attracted to

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the facts of this case.  Merely because sanction  

had not been obtained to prosecute the accused and  

to proceed to the stage of Section 309 Cr.P.C., it  

cannot  be  said  that  the  accused  is  entitled  to  

grant of statutory bail, as envisaged in Section  

167 Cr.P.C.  The scheme of the Cr.P.C. is such that  

once  the  investigation  stage  is  completed,  the  

Court  proceeds  to  the  next  stage,  which  is  the  

taking of cognizance and trial.  An accused has to  

remain in custody of some court.  During the period  

of investigation, the accused is under the custody  

of the Magistrate before whom he or she is first  

produced.  During that stage, under Section 167(2)  

Cr.P.C., the Magistrate is vested with authority to  

remand the accused to custody, both police custody  

and/ or judicial custody, for 15 days at a time, up  

to a maximum period of 60 days in cases of offences  

punishable for less than 10 years and 90 days where  

the offences are punishable for over 10 years or

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even death sentence. In the event, an investigating  

authority fails to file the charge-sheet within the  

stipulated period, the accused is entitled to be  

released on statutory bail.  In such a situation,  

the accused continues to remain in the custody of  

the  Magistrate  till  such  time  as  cognizance  is  

taken by the Court trying the offence, when the  

said  Court  assumes  custody  of  the  accused  for  

purposes of remand during the trial in terms of  

Section 309 Cr.P.C.  The two stages are different,  

but  one  follows  the  other  so  as  to  maintain  a  

continuity of the custody of the accused with a  

court.  

19. Having  regard  to  the  above,  we  have  no  

hesitation in holding that notwithstanding the fact  

that the prosecution had not been able to obtain  

sanction to prosecute the accused, the accused was  

not entitled to grant of statutory bail since the

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charge-sheet had been filed well within the period  

contemplated  under  Section  167(2)(a)(ii)  Cr.P.C.  

Sanction  is  an  enabling  provision  to  prosecute,  

which  is  totally  separate  from  the  concept  of  

investigation which is concluded by the filing of  

the  charge-sheet.   The  two  are  on  separate  

footings.

20. In  that  view  of  the  matter,  the  Special  

Leave  Petition  deserves  to  be  and  is  hereby  

dismissed.  

...................CJI.    (ALTAMAS KABIR)

.....................J.  (J. CHELAMESWAR)

.....................J.  (VIKRAMAJIT SEN)

New Delhi; Dated: February 13, 2013.