Section 167(2) CrPC – Investigative agency cannot restrict defendant’s right to bail on grounds of more serious charges: Bombay High Court

The Bombay High Court has made it clear that an investigative body cannot preclude a defendant’s right to bail simply by invoking more serious charges.

Justice CV Bhadang observed,

There is no doubt that the investigation falls within the jurisdiction and domain of the investigating agency. However, this does not mean that the court in almost all cases would be bound by the invocation of a particular section against the accused by the Crown. Indeed, the label of the article or provision invoked is not decisive. To decide otherwise would amount to placing said right at the mercy of the investigating body and would indirectly lead the magistrate to renounce the obligation to enforce this right wherever necessary.

He considered that the Court, while examining the application for bail by default, would be required to examine the generality of the allegations made and the evidence gathered. In a given case where ex face provision is not drawn, the Court cannot be bound by it.

The submissions were made in a case where the Court was primarily required to determine whether the accused would be eligible for bail if he did not complete the investigation within 60 or 90 days.

The question arose as the charge under Article 409 ICC, which would extend the investigation period to 90 days, was added against the accused a few days before the 60-day expiry.

“The provision setting a time limit for the completion of the investigation and the corresponding right of the accused to be released on bail where the investigation is not completed within the time allowed, is intended to balance the interest, to both of the investigation and of the personal freedom of the accused…I therefore conclude that the imprescriptible right acquired by the applicant on the expiry of a period of 60 days due to the failure to file the indictment cannot be reversed by the simple invocation of article 409 of the IPC alleging that the time limit for the completion of the investigation and the filing of the indictment is 90 days,” He held.

The decision came as the Court noted that the defendant, being a partner in the defaulting business, cannot be held responsible for the offense provided for in article 409 of the IPC insofar as there is community of ownership over the property of the company / the assets of all the partners and therefore in the absence of a mandate, the said offense n is not constituted (Velji Raghavji Patel v State of Maharashtra 1965 AIR 1433).

The Additional Attorney General argued that there was no requirement for a formal order permitting the addition of the new section as it is the prerogative of the investigator and the matter of the investigation falls within the jurisdiction and the exclusive domain of the investigating body.

It was argued that Article 409 of the ICC was added/invoked before the applicant applied for bail under Article 167(2) of the CrPC. It has been argued that the principle enunciated in Veljee Raghavajee has been explained by the Supreme Court in subsequent decisions. It was argued that the same is qualified and would not apply where there is a special warrant. It has also been argued that the magistrate/special tribunal cannot consider this aspect at the stage of examining the application under Article 167(2) of the CrPC once the investigator has invoked a section admitting 90 days for completion of investigation.

The Court, however, stated that there is no doubt that the investigation falls within the jurisdiction and domain of the investigating agency. However, this does not mean that the court would be bound by the invocation of a particular section against the accused by the Crown.

At least prima facie, it has not been demonstrated that there was such a special mandate in favor of the applicant. And that the special court did not mention these aspects, except saying that the offense under article 409 of the ICC is drawn,“, declared the high court.

In view of the above, the court granted a surety for the performance of a public relations obligation in the amount of ₹1,00,000/- with one or two solvent sureties in a similar amount to the satisfaction of the court of first instance.

Case Title: Alnesh Akil Somji v. State of Maharashtra

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