While allowing the applicants to be released on default bail as per Section 167 (2)(a)(ii) of CrPC, the Bombay High Court recently held that the extension of remand, particularly after adding new sections constituting the serious offence, is not a bare formality, and the Court while extending the detention of the accused for a period more than prescribed under the law has to pass a speaking order after hearing both sides.

The Single Judge Bench of Justice S.G. Mehare observed that “The prosecution did not produce before this Court material to believe that the accused fall under any of the seven categories mentioned in Section 409 of the Indian Penal Code that the accused are public servants, bankers etc. The investigating officer cannot seek an extension of time to file a charge sheet, as the period of filing the charge sheet has to be determined from the material and papers produced before the Magistrate/Judge.

Senior Advocate R.N. Dhorde appeared for the Applicants, whereas APP K.S. Patil appeared for the Respondents.

In a nutshell, an FIR was filed against the applicants along with main accused for creating cryptocurrency and cheating other persons and Sections 420, 120-B, 504, 506, 406, 409 read with Section 34 of IPC and Sections 3, 4 and 5 of Maharashtra Protection of Interest of Depositors Act 2002 were added. Accused were in custody and remand period had been extended twice after a hearing. However, when the period of limitation as prescribed by Section 167(2)(a)(ii) was about to expire, the Investigating Officer submitted a letter informing that Section 406 and Section 409 have been added which was approved by the Sessions Court by stating ‘seen’. Similarly, time for filing chargesheet was extended by stating Additional Sessions Court by stating ‘seen and filed’.

After examining the submission, the High Court while examining the requisites of Section 167(2)(a)(i) and (ii) of CrPC, observed that police custody and judicial remand are not a bare formality and the accused has a right to know as to what has been alleged against him, and the Court must hear both the parties.

With respect to accrual of right to default bail, the High Court held that once right to claim default bail arises, the accused is entitled to release on bail, and no subterfuge should have resorted to defeat the indefeasible right.

Accordingly, the Bench observed that the Magistrate extending the judicial custody becomes functus officio, and his power to extend the remand ceases as soon as the prescribed period for filing the charge sheet is over.

Hence, while noting that the Investigating Officers failed to filed chargesheet within 60 days, the Bench allowed the application and directed for release of Applicants on default bail.

Cause Title: Irfan Moiudden Saiyed and Ors v. The State of Maharashtra

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