Special Leave Petition (Crl.) No. 147 of 2013. Case: Suresh Kumar Bhikamchand Jain Vs State of Maharashtra and Anr.. Supreme Court (India)

Judgment:

Altamas Kabir, C.J.I.

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 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 "Code of Criminal Procedure". One of such issues concerns the power of the Magistrate to pass orders of remand even beyond the period envisaged under Section 167(2) Code of Criminal Procedure. 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 Code of Criminal Procedure. In 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 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) Code of Criminal Procedure, 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 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 "Indian Penal Code" 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) Code of Criminal Procedure, 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 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 Code of Criminal Procedure, 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 Code of Criminal Procedure 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 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...