IN THE COURT OF SESSION FOR GREATER BOMBAY, BOMBAY.
BAIL APPLICATION NO.883 OF 2018
CNR NO.: MHCC020154322018
(In crime no.32/2018 of ACB, Mumbai, for offences punishable under
sections 7, 7A and 12 of the Prevention of Corruption Act, 1988 in ACB
RA No.947/2018.)
Tushar Jayram Sawarkar
Aged: 34 years, Indian Inhabitant,
Occ.: Service, R/o.: Old Boys Hostel,
J.J. Hospital Compound, Byculla,
Mumbai.
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APPLICANT
(ACCUSED NO.1)
The State of Maharashtra through the ]
SHO, ACB, Mumbai.
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RESPONDENT
(PROSECUTION)
V/s.
APPEARANCE:
Mr. Prakash J. Salsingikar, Advocate for the Applicant/Accused No.1.
Mr. Ramesh Siroya, APP for the Respondent/State.
APPLICATION FOR DEFAULT BAIL UNDER SECTION 167(2) OF THE
CODE OF CRIMINAL PROCEDURE
CORAM : SHRI S.V. YARLAGADDA
SPECIAL JUDGE UNDER THE
PREVENTION OF CORRUPTION ACT
(Court Room No.54)
DATE :
3rd December, 2018.
ORDER
(Dictated and pronounced in open Court)
The applicant is accused no.1 in the above mentioned case.
The offences are punishable under sections 7, 7A and 12 of the
Prevention of Corruption Act, 1988. The applicant was arrested and
produced first before the Court on 02.10.2018. His earlier application
for bail was rejected on 16.10.2018. Today is 62 nd day from the date of
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production of the applicant. None of the offences are punishable with
death or imprisonment for life. So the maximum period for which the
applicant can be kept in custody before filing of the chargesheet is 60
days. Hence, the application is seeking bail under section 167(2) of the
Cr.P.C. (i.e. Code of Criminal Procedure).
2.
The learned additional public prosecutor gave his say. I
heard the learned advocate for the applicant and the learned additional
public prosecutor. I perused the case papers.
3.
Since it is 62nd day from the date of production of the
applicant, his application for default bail is liable to be allowed under
section 167(2) of the Cr.P.C. There is no quarrel about this legal and
factual position.
4.
The investigating officer is present today. I heard him. I
perused his explanation submitted in the Remand Application
no.947/2018.
According to him, he submitted the chargesheet on
28.11.2918 to the superior officer for its scrutiny and also for obtaining
necessary sanction to file the chargesheet. Since he did not get back the
chargesheet alongwith the requisite sanction, he could not file the
chargesheet in time.
5.
The learned additional public prosecutor submitted the
investigating officer’s failure to submit the chargesheet in time, is
justified. Because, without getting scrutinized and without obtaining
the prior sanction, he cannot file the chargesheet.
6.
The prosecution is itself submitting that there is enough
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material and prima facie case for conviction of the applicant. But, I find
that there is no requisite diligence on the part of the investigating
officer. When the 60th day was falling on 01.12.2018, the investigating
officer must be deemed to have its knowledge.
To my query as to
whether he cautioned his superiors at the time of submission of the
chargesheet for their scrutiny, approval and sanction that, if the
chargesheet is not filed by 01.12.2018, the applicant would get a right
to be released on default, he submitted that he discussed it with his
superior on 01.12.2018. In my order dated 30.11.2018 itself, I pointed
that 60 days period was going to expire and therefore, the custody was
granted up to 03.12.2018 only. But, the investigating officer could have
and ought to have brought it to the notice of his superiors at the time of
submission of the chargesheet itself i.e. on 28.11.2018 that if the
chargesheet is not filed by 01.12.2018, the applicant would get right of
default bail. Therefore, though the learned additional public prosecutor
is justifying the delay, in the above facts, the explanation is not
acceptable. Therefore, as directed by our Hon’ble High Court in the
case of Bulabhai Barkaji Mhatre V/s. Shankar Barkaji Mhatre, 1999(3)
Mah.L.J. 227, the competent superior officer of the investigating officer
needs to be directed to fix the responsibility for the delay in filing the
chargesheet and consequently for facilitating the release of the
applicant/accused on default bail.
The applicant’s learned advocate
submitted that his bail application no.2766/2018 is pending before the
Hon’ble High Court. However, since this is a statutory bail, I have to
decide it as per law.
7.
The bail, though it is granted due to default of the
prosecution to file the chargesheet within the 60 days period, is
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governed by the provisions of Chapter 33 of the Cr.P.C. in respect of
bail. Hence, I propose to annex necessary reasonable conditions while
granting the bail, since it is a nonbailable offence. Accordingly, the
following order is passed.
FINAL ORDER
(1) The applicant be released on bail on PR Bond of Rs.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 is disposed off accordingly.
Date: 03/12/2018.
(S.V. YARLAGADDA)
Special Judge
Under the Prevention of Corruption Act,
Greater Bombay.
Order Dictated on : 03/12/2018
Transcribed on
: 04/12/2018
Signed on
: 04/12/2018
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“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED ORDER.”
04/12/2018 at 5.30 p.m.
BHARAT KASHINATH GAIKWAD
UPLOAD DATE AND TIME
NAME OF STENOGRAPHER
Name of the Judge
HHJ SHRI S.V. YARLAGADDA
(Court Room No.54)
Date of pronouncement of Order
03/12/2018
Order signed by P.O. on
04/12/2018
Order uploaded on
04/12/2018