Dismissed

Prasang Laxman Sharpa v. the State of Maharashtra

Bombay HC14 Dec 2009APPLN/3906/2009

Case brief

AI extract

What is this about?

The High Court of Judicature at Bombay dismissed a criminal application seeking bail under section 167(2) CrPC. The court held that since the charge-sheet was filed within 90 days for an offence punishable by up to 14 years, the applicant was not entitled to bail despite the delay exceeding 60 days.

What did the court decide?

The criminal application for bail is dismissed; the applicant is not entitled to release on bail under section 167(2) of the Criminal Procedure Code.

Prasang Laxman Sharpa Vs the State of Maharashtra — Criminal Trial and Appeal | Bombay HC (2009)

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPLICATION NO. 3906 OF 2009

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Smt. Prasang Laxman Sharpa & Ors.

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.....Applicants.

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V/s

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The State of Maharashtra

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..... Respondent.

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Ms. Rashmi Gagwani i/b Mr. Ganesh K. Gole for the applicants. Mrs. M.R. Tidake, APP for the State.

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CORAM: V. M. KANADE, J. DATE : 14TH DECEMBER, 2009

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P.C.:-

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Heard the learned Counsel for the applicants and the learned APP for the State.

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Applicant has filed this application under section 167(2) of the Criminal Procedure Code and is seeking bail on the ground that indefeasible right accrues in favour of the applicant on account of charge-sheet not being filed within a period of 60 days from the date of his arrest. It is submitted that applicant Nos. 1 and 2 were arrested on 07/01/2009 and other applicant was arrested on 09/01/2009. It is submitted that charge-sheet in this case was filed on 18/03/2009 i.e beyond the period of 60 days and, therefore, applicants are entitled to be released on bail. In support of the said submission, he relied on the judgment of Division Bench of

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this Court in Nijamuddin Mohammad Bashir Khan & Ors v. State of Maharashtra¹

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It is not possible to accept the said submission made by the learned Counsel appearing on behalf of the applicants. Applicants were arrested for the offence punishable under sections 372, 373, 34 of the Indian Penal Code read with sections 3, 4, 5, 6, 7(1) of PITA Act. Section 5 of the said PITA Act provides that if a person convicted under section 5 has committed an offence in respect of a child under subsection (d)(i) then the punishment of imprisonment would be for a term not less than seven years but may extend to life and in case he has committed an offence in respect of minor under sub-section (d)(ii), the punishment would be for a term not less than seven years and not more than 14 years.

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The learned Counsel for the applicant invited my attention to para 17 of the said judgment in the case of Nijamuddin Mohammad Bashir Khan (supra) and submitted that in view of the wording of the said section 5 since the minimum sentence is 7 years, charge-sheet had to be filed within 60 days and not within 90 days.

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It is not possible to accept the said submission. In fact, in the said case issue before the Division Bench was what would be the period within which the Magistrate could remand a person to custody in the event the offence is made

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1 2006 B.C.I. 16

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punishable for a term which may extend to 10 years. The Division Bench, relied on the judgment of the Apex Court in the case of Rajeev Chaudhary v. State of Delhi¹ and para 6 of the said judgment was reproduced in the said judgment. In the said case which was before the Apex Court, the accused was arrested for the offence punishable under section 386 where imprisonment was for a term which may extend to 10 years and, in this context, therefore, the Apex Court clearly observed that where punishment extends upto 10 years, in such case the Magistrate would grant remand for a period of 60 days and not 90 days. In the present case, obviously, imprisonment for the said offence under section 5(d)(ii) is minimum 7 years and which may extend to 14 years. That being the position, ratio of the said judgment, in my view, would not apply to the facts of the present case. Prosecution, therefore, has to file charge-sheet within 90 days and not within 60 days. Since the charge-sheet is filed on 18/3/2009 i.e within a period of 90 days, applicant is not entitled to be released on bail under section 167(2) of the Criminal Procedure Code.

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6. Application is accordingly dismissed.

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(V.M. KANADE, J.)

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1 AIR 2001 SC 2369

Prasang Laxman Sharpa v. the State of Maharashtra

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Prasang Laxman Sharpa v. the State of Maharashtra

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