Mumbai, December 4, 2018 – In a significant development highlighting the importance of timely investigation, Tushar Jayram Sawarkar, accused No. 1 in a bribery case registered by the Anti-Corruption Bureau (ACB), Mumbai, has been granted default bail by the Special Judge under the Prevention of Corruption Act for Greater Bombay. The order, passed on December 3, 2018, in Bail Application No. 883 of 2018, came as the prosecution failed to file a charge sheet within the stipulated 60-day period from Mr. Sawarkar’s first production in court.

Mr. Sawarkar was arrested and initially presented before the court on October 2, 2018, in connection with Crime No. 32/2018 of ACB, Mumbai, which pertains to offenses punishable under sections 7, 7A, and 12 of the Prevention of Corruption Act, 1988. These sections relate to public servants taking illegal gratification, taking undue advantage, and abetment of offenses under the Act. His earlier bail application was rejected on October 16, 2018.

With 62 days having elapsed since his initial court appearance, and none of the alleged offenses carrying a punishment of death or life imprisonment (which would have extended the permissible detention period before filing a charge sheet to 90 days), Mr. Sawarkar’s counsel, Mr. Prakash J. Salsingikar, moved for default bail under Section 167(2) of the Code of Criminal Procedure (Cr.P.C.). This section grants an accused the right to be released on bail if the investigating agency fails to file a charge sheet within the prescribed time limit.

The Learned Additional Public Prosecutor (APP) Mr. Ramesh Siroya presented the prosecution’s stance, and the court heard arguments from both sides and perused the case documents. Special Judge Shri S.V. Yarlagadda, presiding over the matter, unequivocally stated that since 62 days had passed since Mr. Sawarkar’s production, his application for default bail was legally tenable under Section 167(2) of the Cr.P.C. This legal and factual position was not contested by the prosecution.

The Investigating Officer (I.O.) was present in court and provided an explanation for the delay, referencing Remand Application No. 947/2018. According to the I.O., the charge sheet had been submitted to a superior officer for scrutiny and to obtain the necessary sanction for filing on November 28, 2018. However, the charge sheet along with the required sanction had not been received back, preventing its timely filing in court.

The Learned APP attempted to justify the delay, arguing that the I.O. could not file the charge sheet without it being scrutinized and without obtaining prior sanction.

However, Special Judge Yarlagadda found a lack of requisite diligence on the part of the investigating officer. The court pointed out that the 60th day from Mr. Sawarkar’s production fell on December 1, 2018, a date the I.O. should have been aware of. When questioned about whether the superiors were cautioned about the impending deadline when the charge sheet was submitted for scrutiny on November 28, 2018, the I.O. stated that he discussed it with his superior on December 1, 2018. The court noted that in its order dated November 30, 2018, it had already highlighted the approaching expiry of the 60-day period and had granted custody only until December 3, 2018. The court firmly stated that the I.O. could have and should have brought the urgency of filing the charge sheet before the December 1, 2018 deadline to the notice of his superiors at the time of its submission on November 28, 2018 itself.

Consequently, while acknowledging the APP’s justification, the court deemed the explanation for the delay unacceptable in light of the facts. Relying on the precedent set by the Hon’ble High Court in the case of Bulabhai Barkaji Mhatre V/s. Shankar Barkaji Mhatre, 1999(3) Mah.L.J. 227, the Special Judge directed that a copy of the order be forwarded to the Additional Commissioner of Police, Anti Corruption Bureau, Mumbai, to fix responsibility for the delay in filing the charge sheet and the subsequent facilitation of default bail for the accused.

The applicant’s counsel also informed the court about a pending bail application (No. 2766/2018) before the Hon’ble High Court. However, the Special Judge clarified that since the current application was for statutory bail based on the prosecution’s default, it had to be decided as per the relevant legal provisions.

While granting bail due to the prosecution’s failure, the court emphasized that the conditions of bail would still be governed by Chapter 33 of the Cr.P.C., particularly since the alleged offenses were non-bailable. Accordingly, the following final order was passed:

(1) The applicant be released on bail on PR Bond of ₹25,000/- with one or two solvent sureties or cash surety of like amount.

(2) The applicant shall not tamper with the prosecution’s evidence. He shall not directly or indirectly bring any influence on the prosecution’s witnesses. In case of breach, his bail is liable to be cancelled as per the law.

(3) The applicant shall make himself available to the Investigating Officer as and when required for investigation purpose.

(4) As directed by the Hon’ble High Court in the case of Bulabhai Barkaji Mhatre V/s. Shankar Barkaji Mhatre, 1999(3) Mah.L.J. 227, let the copy of this order be forwarded to the Additional Commissioner of Police, Anti Corruption Bureau, Mumbai, to fix the responsibility of the concerned officials for the failure to file the chargesheet within 60 days from the date of first production of the applicant and consequently for facilitating the default bail of the applicant.

(5) If the applicant fails to furnish the bail, his judicial custody be extended till 17.12.2018.

The bail application was thus disposed of. This case serves as a reminder of the crucial timelines mandated by the Cr.P.C. and the consequences that investigating agencies may face for failing to adhere to them. The direction to the Additional Commissioner of Police to fix responsibility for the delay underscores the court’s concern over the lapse in procedure.