TABLE OF CONTENTS

INDEX OF AUTHORITIES.......................................................................2 STATUTE REFERRED..... .......................................................................3 CASES REFERRED....................................................................................3 BOOKS REFERRED...................................................................................3 WEBSITE......................................................................................................3 LIST OF ABBREVIATION.........................................................................4 STATEMENT OF JURISDICTION.............................................................5 SUMMARY OF FACTS...............................................................................6 STATEMENT OF ISSUES...........................................................................7 SUMMARY OF ARGUEMENTS................................................................8 ARGUEMENTS ADVANCED....................................................................9 PRAYER.......................................................................................................12

INDEX OF AUTHORITIES

STATUTES REFFERED The Code of Criminal Procedure , 1973. Constitution of India ,1950

WEBSITES

1. www.munupatra.com 2. www.juris.nic 3. www.indlaw.com 4. www.indiankanoon.com 5. www.indianpundit.com

Cases

1. HitendraVishnu Thakur and Ors. v. State of Maharashtra and Ors , 1994 AIR 2623 2. Hussainara Khatoon and Ors. v. Home Secretary, State of Bihar , 1979 AIR 1369 3. Uday Mohanlal Acharya v. State of Maharashtra, 2000(4) Mh.L.J 4. Sajid Basir Shaikh vs State Of Maharashtra ,

2 WRITTEN SUBMISSION ON BEHALF OF APPELLANT

LIST OF ABBREVIATIONS
AIR - All India Reporter Anr. - Another Art. - Article Edn. - Edition Honble - Honourable i.e. - That is Ibid - At the same place Ltd. - Limited Pg. - Page Para - Paragraph Sec. - Section HC - High Court u/s - Under Section v. - Versus Vol. Volume

3 WRITTEN SUBMISSION ON BEHALF OF APPELLANT

STATMENT OF JURISDICTION

The Appellant is humbly approaching this honble high court under article 226 of the Indian Constitution .

4 WRITTEN SUBMISSION ON BEHALF OF APPELLANT

SUMMARY OF FACTS

On 11th June, 2003 an information was received by the Investigating Agency that two persons were to arrive between 12 noon to 1 p.m. below Amar Mahal Bridge on the Eastern Express Highway.

The applicant came to be apprehended and he was found in possession of 42 gms. of 'diecetylmorphine' i.e. heroin. The applicant was arrested on 11th June, 2003 and produced before the special Court on 12th June, 2003. As such, the charge sheet ought to have been filed by 10th August, 2003. However, the charge sheet was filed on 11th August, 2003 i.e. on 61stday from the date of first remand i.e. 12th June, 2003, hence, the applicant is entitled to bail under Section 167(2) of Criminal Procedure Code and application for bail under Section 167(2) of Criminal Procedure Code came to be wrongly rejected by the learned Sessions Judge.

The application for bail preferred by the applicant on 18th September, 2003 under Section 167

5 WRITTEN SUBMISSION ON BEHALF OF APPELLANT

ISSUES RAISED

That the applicant should be released on bail as the charge sheet is not filed within the outer limit provided in Section 167(2) of Criminal Procedure Code.

6 WRITTEN SUBMISSION ON BEHALF OF APPELLANT

SUMMARY OF ARGUEMENTS

The Applicant should be released on bail as the charge sheet is not filed within the outer limit provided in Section 167(2) of Criminal Procedure Code

7 WRITTEN SUBMISSION ON BEHALF OF APPELLANT

AGRUMENTS ADVANCED

That the Applicant should be released on bail as the charge sheet is not filed within the outer limit provided in Section 167(2) of Criminal Procedure Code

It is humbly submitted before this honble court that the petitioner should be released on bail as per sec 167 (2) of Crpc.1

S.167(2).- The Magistrate to whom an accused person is forwarded under this section may, whether he has or

has not jurisdiction to try the case, from time to time, authorise the detention of the accused in such custody as such Magistrate thinks fit, for a term not exceeding fifteen days in the whole; and if he has no jurisdiction to try the case or commit it for trial, and considers further detention unnecessary, he may order the accused to be forwarded to a Magistrate having such jurisdiction: Provided that (a) the Magistrate may authorise the detention of the accused person, otherwise than in the custody of the police, beyond the period of fifteen days, if he is satisfied that adequate grounds exist for doing so, but no Magistrate shall authorise the detention of the accused person in custody under this paragraph for a total period exceeding, (i) ninety days, where the investigation relates to an offence punishable with death, imprisonment for life or imprisonment for a term of not less than ten years; (ii) sixty days, where the investigation relates to any other offence, and, on the expiry of the said period of ninety days, or sixty days, as the case may be, the accused person shall be released on bail if he is prepared to and does furnish bail, and every person released on bail under this sub-section shall be deemed to be so released under the provisions of Chapter XXXIII for the purposes of that Chapter; (b) no Magistrate shall authorise detention in any custody under this section unless the accused is produced before him; (c) no Magistrate of the second class, not specially empowered in this behalf by the High Court, shall authorise detention in the custody of the police.

8 WRITTEN SUBMISSION ON BEHALF OF APPELLANT

In the present case the applicant was arrested on 11th June, 2003 and produced before the special Court on 12th June, 2003. As such, the charge sheet ought to have been filed by 10th August, 2003. However, the charge sheet was filed on 11th August, 2003 i.e. on 61st day from the date of first remand i.e. 12th June, 2003, hence, the applicant is entitled to bail under Section 167(2) of Criminal Procedure Code and application for bail under Section 167(2) of Criminal Procedure Code came to be wrongly rejected by the learned Sessions Judge. The application for bail preferred by the applicant on 18th September, 2003 under Section 167(2) of Criminal Procedure Code came to be rejected by the Special Court by order dated 8th October, 2003. It is settled by series of judgments of this Court in the last 25 years that framers of the Code conceived and desired that after expiry of the period prescribed in proviso to Section 167(2) of the Code, an accused has to be released on bail if no challan is filed because after the expiry of the statutory period prescribed therein, there is no power in Magistrate to remand for further custody. The decision of the Apex Court , HitendraVishnu Thakur and Ors. v. State of Maharashtra and Ors2. The Apex Court by the said judgment held in paragraph No. 20 that the accused has an indefeasible right to be enlarged on bail once the police fail to file the charge sheet within the time provided by law. The Apex Court held that an obligation is casted on the Court to inform the accused of his right of being released on bail to enable him to make an application in that behalf. Same is the ratio of the decision the Apex Court , Hussainara Khatoon and Ors. v. Home Secretary, State of Bihar3. In the case in hand the applicant had filed an application for bail on 6th August, 2003 before the Special Court. The said application was pending on 11th August, 2003 i.e. on the 61st day when the charge sheet came to be filed. The applicant had made a move to enforce his right

Explanation I.- For the avoidance of doubts, it is hereby declared that, notwithstanding the expiry of the period specified in paragraph (a), the accused shall be detained in custody so long as he does not furnish bail. Explanation II.- If any question arises whether an accused person was produced before the Magistrate as required under paragraph (b), the production of the accused person may be proved by his signature on the order authorising detention.

2 3

1994 AIR 2623 1979 AIR 1369

9 WRITTEN SUBMISSION ON BEHALF OF APPELLANT

under Section 167(2) of Criminal Procedure Code even before the charge sheet was filed. It is an admitted fact that the said application was not for enforcement of right under Section 167(2) of Criminal Procedure Code but the said application was purely on merits. The applicant cannot make any use of the application which was filed by him on 6-8-2003 before the trial Court as the application for bail was pending at the time when the charge sheet was not filed and hence, he ought to be released on bail on that ground. In the case of Uday Mohanlal Acharya v. State of Maharashtra4 the Apex Court has observed : "On the expiry of the said period of 90 days or 60 days, as the case may be, an indefeasible right accrues in favour of the accused for being released on bail on account of default by the investigating agency in the completion of the investigation within the period, prescribed and the accused is entitled to be released on bail if he is prepared to and furnishes the bail as directed by the Magistrate." Same was the opinion of this Honble high Court in the case Sajid Basir Shaikh vs State Of Maharashtra5 and bail was granted by the Court to the applicant.

Hence it is clear from the facts of the case that the charge was not filed and bail should be granted to the applicant as per sec 167(2) of Crpc.

4 5

2000(4) Mh.L.J , 742 : 2001 All 2005 (3) MhLj 860

10 WRITTEN SUBMISSION ON BEHALF OF APPELLANT

PRAYER

Wherefore in the light of issue raised, arguments advanced, reasons given and authorities cited, the council of respondent humbly pray and implore this Honble HighCourt to be graciously pleased to 1. Grant bail to the applicant Pass any other order that this court may deem fit in the interests of justice, equity and good conscience.

Place: Bombay

All of which respectfully submitted S/r:______________________ Counsel for the Appellant

11 WRITTEN SUBMISSION ON BEHALF OF APPELLANT