SURESH KUMAR BHIKAMCHAND JAIN versus STATE OF MAHARASHTRA & ANR.

Citation: [2013] 1 S.C.R. 1037 · Decided: 13-02-2013 · Supreme Court of India · Bench: ALTAMAS KABIR · Disposal: Dismissed
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Judgment (excerpt)

[2013] 1 S.C.R. 1037 
SURESH KUMAR BHIKAMCHAND JAIN 
V. 
STATE OF MAHARASHTRA & ANR. 
(Special Leave Petition (Crl.) No.147 of 2013) 
FEBRUARY 13, 2013 
[ALTAMAS KABIR, CJI, J. CHELAMESWAR AND 
VIKRAMAJIT SEN, JJ. 
CODE OF CRIMINAL PROCEDURE, 1973: 
s. 167 (2) - Statutory bail - Charge-sheet filed within the 
stipulated period, but cognizance not taken as sanction for 
prosecution had not been obtained - Held: Grant of sanction 
A 
- B 
c 
is nowhere contemplated u!s 167 - Once a charge-sheet is 
filed within the stipulated time, question of grant of default bail 
0 
or statutory bail does not arise - Filing of charge-sheet is 
sufficient compliance with provisions of s.167(2)(a)(ii) in the 
instant case -
Merely because sanction had not been 
obtained to prosecute the accused and to proceed to the stage 
of s.309 Cr.P.C., it cannot be said that the accused is entitled 
E 
to grant of statutory bail, as envisaged in s. 167. 
During investigation ·of a case of misappropriation of 
amount meant for development of slums, the petitioner, 
who was an MLA and was functioning as the Minster of 
Housing and Slum Area Development, at the relevant 
F 
time, was arrested on 11.3.2012. The case against him 
pertained to offences punishable u/ss 120-8, 409, 411, 
406, 408, 465, 466, 468, 471, 177, 109 read with s.34 IPC 
and also u/ss 13(1 )(c), 13(1) (d) and 13(2) of the Prevention 
of Corruption Act, 1988. The first charge-sheet against G 
four other accused was filed on 25.4.2012 and the 
supplementary charge-sheet in which the petitioner was 
named was filed on 1.6.2012. 
1037 
H 
1038 
SUPREME COURT REPORTS 
[2013) 1 S.C.R. 
A 
In the instant petition for special leave to appeal, the 
issue for consideration before the Court was regarding 
the right of the petitioner to be released on bail u/s 167(2) 
CrPC, as though the charge-sheet in the case had been 
filed within the stipulated period, the sanction for his 
B prosecution was not obtained as a result of which no 
cognizance was taken of the offence and remand orders 
continued to be made and the petitioner remained in 
magisterial custody. 
c 
Dismissing the petition, the Court 
HELD: 1.1. The power of remand is vested in the 
court at the very initial stage before taking of cognizance 
u/s 167(2) Cr.P.C. During the period of investigation, the 
accused is under the custody of the Magistrate before 
D whom he or she is first produced. During that stage, u/s 
167(2) Cr.P.C., the Magistrate is vested with authority to 
remand the accused to custody, both police custody and/ 
or judicial custody, for 15 days at a time, up to a 
maximum period of 60 days in cases of offences 
E punishable for less than 10 years and 90 days where the 
offences are punishable for over 10 years or even death 
sentence. [para 15 and 18] (1047-G; 1052-8-C] 
1.2. The scheme of the Cr.P.C. is such that once the 
investigation stage is completed, the court proceeds to 
F the next stage, which is the taking of cognizance and trial. 
An accused has to remain in custody of some court. 
Once cognizance is taken, the power to remand shifts to 
the provisicn~ of s.309 Cr.P.C., under which the trial court 
is empowered to postpone or adjourn proceedings and, 
G for the said purpose, to e;ttend the period of detention 
from time to time. However, the provisions of s. 309 
Cr.P.C. have no application to the facts of the instrnt 
case. [para 15 and 18] (1047-G-H; 1048-B; 1052-A] 
H 
1.3. In the event, an investigating authority fails to file 
SURESH KUMAR BHIKAMCHAND JAIN v. STATE OF 1039 
MAHARASHTRA 
the charge-sheet within the stipulated period, the accused 
A 
is entitled to be released on statutory bail. In such a 
situation, the accused continues to remain in the custody 
of the Magistrate till such time as cognizance is taken by 
the court trying the offence, when the said court assumes 
custody of the accused for purposes of remand during 
B 
the trial in terms of s.309 Cr.P.C. The two stages are 
different, but one follows the other so as to maintain a 
continuity of the custody of the accused with a court. 
[para 18] [1052-C-E] 
1.4. Sanction is an enabling provisio.n to prosecute, c 
which is totally separate from the concept of investigation 
which is concluded by the filing of the charge-sheet. The 
two are on separate footings. Merely because sanction 
has not been obtained to prosecute the accused and to 
proceed to the stage of s.309 Cr.P.C., it cannot be said 
D 
that the accused is entitled
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