ASLAM BABALAL DESAI versus STATE OF MAHARASHTRA

Citation: [1992] SUPP. 1 S.C.R. 545 · Decided: 15-09-1992 · Supreme Court of India · Bench: A.M. AHMADI

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Judgment (excerpt)

ASLAM BABALAL DESAI 
v. 
STATE OF MAHARASHTRA 
SEPTEMBER 15, 1992 
(A.M. AHMADI, M.M. PUNCHHI AND K. RAMASWAMY, JJ.) 
Code of Criminal Procedure 197rSection 167(2)-Bail granted for 
failure of prosecution to complete investigation within tim~Whether liable 
to be cancelled when challan/chargesheet presented. 
A complaint was lodged against the appellant and 8 others, alleging 
Commission of offences punishable under sections 147, 148, 302 and 323 
read with section 149 of I.P.C. in regard to an incident which took place 
on 8th September 1990. The appellant was arrested in that connection of 
A 
B 
c 
the next day i.e. 9th September 1990. The appellant thereafter made an 
application before the Sessions Judge, for being enlarged on bail. That D 
was rejected. He approached the High Court but later withdrew the ap-
plication and then once again moved the Sessions Judge for bail under the 
proviso to section 167 (2) of the Code on the ground that the investigation 
bad not been completed within 90 days and the appellant was released on 
bail vide order dated 11th March 1991. The charge-sheet and other docu-
E 
ments were tendered subsequent thereto and the Stat• of Mauarasbtra 
moved an application under Section 439(2) of the .code in the High Court 
for cancellation of bail granted by the Sessions Judge. The High Conrt 
cancelled the bail vide order dated 31st March 1992 stating that the bail 
bad been granted on a technical ground namely, failure to file the char-
gesbeet within the time allowed and since the investigation revealed the 
commission of a serious offence of mrder, on the ratio of this Court's 
decision in Rajnikant Jeevanlal Patel v. Intelligence Officer NCB, New Delhi, 
(1981) 3 S.C.C. 532, it was open to the High Court to direct cancellation 
of the bail. In obedience to the order of the High Court the appellant 
surrendered to bis bail. 
Now the question under consideration is can bail granted under the 
proviso to subsection (2) of Section 167 of the Criminal Procedure Code 
1973, for failure to complate the investigation within the prescribed period 
thereunder be cancelled on the mere presentation of the challan (charge 
sheet) at any item thereafter. 
545 
F 
G 
H 
546 
SUPREME COURT REPORTS[1992] SUPP. 1 S.C.R. 
A 
Grantig the Special Leave, the Court, 
B 
HELD: That the provisions of the Code, in particular sections 57 
and 167 manifest the legislative anxiety that once a person's Liberty has 
been interfered with by the police arresting him without a court's order or 
a warrant the investigation must be carried out within the maximum 
period allowed by the proviso (a) to Section 167(2) of the Code as the said 
proviso was introduced in the code by way of enlargement of time for 
which the arrested accused could be kept in custody. Therefore the 
prosecution agency must realise that if it fails to show a sense of urgency 
in the investigation of the case and omits or defaults to file a chargesheet 
C within the time prescribed, the accused would be entitled to he released on 
bail and the order passed to that effect under section 167 (2) would be an 
order under Section 437(1) or (2) or 439 (1) of the Code. Since section 167 
does not empower cancellation of the bail the power to cancel the bail can 
only be traced to section 437 (5) or 439 f2) of the code. The bail can then 
D be cancelled on considerations which ae valid for cancellation of bail 
granted under section 437(1) or (2) or 439(1) of the code. The fact that the 
bail was earlier rejected or that it was secured by the thrust of proviso (a) 
of section 167(2) of the code then recedes in the background. Once the 
accused has been released on bail, bis liberty cannot be interfered with 
lightly i.e. on the ground that the prosecution has subsequently submitted 
E a charge sheet. Such a view would introduce a sense of complacency in the 
investigating agency and would distroy the very purpose of instilling a 
sense of urgency expected by sections 57 and 167(2) of the code. 
(566 F-H, 567 A-BJ 
F 
So, once an accused is released on bail under section 167(2) he 
cannot be taken back in custody merely on the filing of a chargesheet but 
there must exist special reasons for so doing besides the fact that the 
chargesheet reveals the commission of a non-bailable crime. The ratio of 
Rajnikant's case to the extent it Is inconsistent herewith, does not, with 
G respect, state the law correctly. (567-C] 
Further, even where two views are possib

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