Full Judgment Text
2025:BHC-AUG:28400
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
CRIMINAL WRIT PETITION NO. 1299 OF 2025
1) Ranganth Tulshiram Galande
Age:- 40 years, Occ. Agri,
R/o. Deulgaon Galande, Tq. Shrigonda,
Dist. Ahilyanagar
2) Anil Zumbarrao Darekar
Age:- 32 years, Occ. Agri,
R/o. Hiradgaon, Tq. Shrigonda,
Dist. Ahilyanagar
…. PETITIONERS
VERSUS
The State of Maharashtra,
Through Police Station Officer,
Shrigonda Police Station,
Tq. Shrigonda, Dist. Ahilyanagar
*
Advocate for the Petitioners :Mr.Rahul R. Karpe a/w Mr. S. R. Nikat
APP for Respondent-State : Mr. S. M. Ganachari
*
CORAM : SACHIN S. DESHMUKH, J.
th
Date : 7 October, 2025
JUDGMENT :-
1. Rule. Rule made returnable forthwith. Heard finally with
the consent of the parties.
2. The petitioners raise challenge to the order dated
09.09.2025 rendered by the learned Additional Sessions Judge,
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Shrigonda, rejecting the application presented by the petitioners
seeking default bail under Section 187(3) of the Bhartiya Nagarik
Suraksha Sanhita, 2023 (hereinafter “BNSS” for short)
3. The petitioners are accused in Crime No. 673 of 2025
registered with Shrigonda Police Station under Sections 316(2),
318(2), 318(4) read with 3(5) of the Bhartiya Nyaya Sanhita
(hereinafter “BNS” for short) and under Section 3 of the
Maharashtra Protection of Interest of Depositors (in Financial
Establishments) Act, 1999 (hereinafter “MPID Act” for short).
4. The petitioners were arrested on 07.07.2025. In the
wake of arrest in connection with offence for which petitioners were
initially charged, the charge-sheet ought to have been filed within
60 days i.e. by 05.09.2025 as mandate under Section 187(3) of
the BNSS. Owing to non-compliance of the same, the petitioners
sought default bail before the Sessions Court.
5. In the interregnum, the Investigating Officer, submitted
an application invoking of Section 316(5) of the BNS. On the said
application, the concerned Court recorded the remark “seen”.
Although it was incumbent upon the concerned Court to pass a
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reasoned and speaking order extending further judicial remand, as
is required under sub-Section (3) of Section 187 of the BNSS
recording satisfaction that adequate ground exists to do so.
However, except recording the remark “seen”, as per mandate of
Sub-section (3) of Section 187 is not complied with.
6. On account of such departure, the petitioners presented
an application seeking relief of default bail under Section 187(3) of
the BNSS contending that the investigation into the alleged
offences necessarily ought to have been concluded within a period
of 60 days from the date of first remand of the petitioners, which
period eventually expired on 05.09.2025.
7. Mere invoking Section 316(5) of the BNS, automatically
would not by itself extend the period of investigation to 90 days.
There must be a specific and reasoned order to that effect by the
Magistrate extending the judicial custody of the petitioners. In any
case, the indefeasible right of the petitioners to be released on
default bail under Section 187(3) of the BNSS cannot be
disregarded.
8. The learned Additional Sessions Judge, Shrigonda
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rejected the request of the petitioners for default bail, holding that
the invocation Section 316(5) of the BNS is sufficient since, the
punishment prescribed for the added section includes the
imprisonment for life. Therefore, according to the learned Judge,
the period of filing of charge-sheet automatically stands extended
from 60 days to 90 days. Resultantly, rejected the petitioners’
claim of the default bail which is indefeasible right of the
petitioners.
9. In the aforesaid backdrop, the petitioners have
approached this Court by filing the present writ petition under
Article 226 and 227 of the Constitution of India, contending the
petitioners have an indefeasible right to claim default bail under
Section 187(3) of the BNSS, owing to failure on the part of
Investigating Officer to submit charge-sheet within a period of 60
days from the date of first remand of the accused / petitioners.
10. Mere invoking additional section 316(5) of the BNS,
would not by itself extend the period of further custody of the
petitioners in absence of specific order of the Magistrate under
Section 187(3) of BNSS to that effect.
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11. The learned counsel for the petitioners has placed
reliance on the order dated 23.08.2016 passed by Coordinate
Bench of this Court in the case of Pankaj Sundarlal Yadav Vs.
State of Maharashtra and Anr. (Criminal Writ Petition No.
475 of 2016), to contend that in the event of infraction with the
right to liberty, petition is maintainable. Further reliance is placed
on the order dated 03.05.2023 of Coordinate Bench of this Court in
the case of Irfan Moiuddeen Saiyyed and Others Vs. The State
of Maharashtra (Bail Application No. 712 of 2023) , in order to
contend that right of default bail is indefeasible one and cannot be
defied in a casual manner.
12. Per contra, the learned APP with his usual vehemence
has raised an objection regarding the maintainability of the present
petition, contending that petitioners should file appropriate
proceeding for bail before this Court instead of writ petition. As
such, the petition is not maintainable. However, the learned APP
fairly concedes with legal position laid down by this Court in case of
Irfan ( supra ). The learned APP further submitted that the
necessary request for adding or invoking Section 316(5) of BNS
was duly made before the concerned Court which eventually
endorsed the same with remark “seen” by the concerned Court.
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The invocation of additional section was duly approved by the
competent Court thereby extending the period of filing the charge-
sheet stands extended to 90 days. Consequently, same would
disentitle the petitioners to claim the relief of default bail.
13. Having heard the learned counsel for litigating sides,
the right to claim the default bail is premised on the anvil of Article
21 of the Constitution of India. Once the arrest is effected and the
accused persons are produced before the concerned Magistrate for
the purpose of remand, the computation period of 60 days in the
wake of the offences with which initially the petitioners were
charged, expire within 60 days in the light of provisions of Section
187 of BNSS.
14. The non-compliance on the part of Investigating Officer
with the mandate of Section 187 of BNSS cannot be permitted. The
accused has every right to know the allegations those are
subsequently added against him and equally the Court is under
obligation to hear the accused.
15. Undoubtedly, Section 187 of BNSS prescribes the
period of investigation and further provid the time limit for filing
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the charge-sheet to the Court. It further empowers the Court to
extend the same under certain circumstances. In unequivocal
terms, the concerned Magistrate or the Court may extend judicial
custody which essentially shall not exceed statuary prescribed 60
or 90 days period as prescrbed in Section 187 of the BNSS.
16. Upon expiry of the aforesaid period, as the case may
be, the entitlement of the accused persons to be released on
default bail is indefeasible right, if the charge-sheet is not been
filed between the said period corresponds to Section 187(3) of the
BNSS.
17. Equally, the judicial remand or police custody is not a
mere formality. In the event, the Investigating Officer, during the
course of judicial custody, discovers additional material constituting
new or additional offences under the particular section, it is
incumbent upon the Officer to issue notice to the accused before
presenting the fresh remand application to the concerned Court.
18. This procedure is rather mandatory in the wake of
statutory regime to ensure that the accused is conferred with an
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opportunity to resist the request for further extension of judicial
custody. Particularly, in relation to the additional offences based on
new material gathers during the investigation, such due procedure
safeguards the rights of the accused and ensure judicial control
over the detention of the custody of the accused persons.
19. After registration of crime, when the petitioners were
remanded before the Magistrate, the police custody was extended.
Eventually, the petitioners were remanded in judicial custody,
however, in absence of presenting the remand application
confronting the same to the accused i.e. present petitioners, it is
not open for the prosecution to merely communicate to the Court
to seek the extension of remand beyond the prescribed period
prescribed under Section 187 of BNSS.
20. Undoubtedly, the extension of remand, predominantly
after invoking new offences is not an empty formality and must be
undertaken in strict compliance with the procedureal and statutory
requirements.
21. Resultantly, when the Court extends the detention of
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the accused beyond the prescribed period under the law, it was
obligatory upon the Court to render a speaking and reasoned order
after affording an opportunity of hearing the prosecution vis-a-vis
the accused / present petitioners. When confronted with this
position, the learned APP has fairly conceded that this exercise had
not been undertaken while extending the period of the judicial
remand of the present petitioners. However, it was submitted by
the learned APP that the concerned Magistrate has endorsed the
application as is evident from the remark “seen”. Therefore, same
satisfies the requirement of Section 187 of BNSS.
22. In order to invoke Section 316(5) of BNS, it was
incumbent upon the Investigating Officer to seek an extension of
time for filing the charge-sheet. While doing so, Investigating
Officer was reqruired to offer an adequate opportunity to the the
petitioners to contest such extension.
23. The necessary reference can be made to the verdict of
the Hon’ble Apex Court in case of Municipal Corporation of
Greater Mumbai Vs . Abhilash Lal [(2020 ) 3 SCC 2341] ,
mandates that if statute prescribes a particular act was performed
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in a specific manner and not in any other way, in deviation to the
statutory procedure would render such act null and void.
24. Admittedly, the provision of Section 187(3) of BNSS are
mandatory in nature. Resultantly, any slightest departure with the
statutory mandate has impact of impairing the constitutional right
of liberty of an individual although facing the accusations.
Nonetheless, the provisions of Chapter XIII of the BNSS are
mandatory at every stage after effecting arrest. Essentially, same
is predominantly controlled and regulated by the statutory regime
on the touchstone of Article 21, therefore, same ought to be
complied with full rigors. Any departure results into infraction of
the constitutional right, thereby creating an indefeasible right of
the petitioners to claim default bail.
25. The reliance is placed by the learned counsel for the
petitioners on the verdict of Division Bench of this Court in the case
of Rajkumar Bhagchand Jain Vs. Union of India and Ors.
(MANU / MH / 3290 / 2017) in order to contend that the
detention beyond the period of 60 days is in violation of Section
187(3) fo the BNSS, illegal detention of the petitioners cannot be
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sustained as it is violative of the right to life and liberty guaranteed
by Article 21 of the Constitution of India. Consequently, the
undisputed facts that the Division Bench regarded the further
detention as illegal one.
26. Undoubtedly, in the present case, the charge-sheet is
not filed within 60 days in the wake of registration of offences
under Sections 316(2), 318(2), 318(4) read with 3(5) of the BNS
and Section 3 of MPID Act. Resultantly, the Magistrate seizes its
power to extend the remand beyond the prescribed period for filing
the charge-sheet. Therefore, same entails the petitioners to claim
the indefeasible right to claim default bail. Resultantly, accused
persons are entitled to be released on bail, which is a indefeasible
right and cannot be infringed in any eventuality.
27. The objection raised by the learned APP that since the
petitioners are claiming to be enlarged on bail, as such, the
necessary application ought to be presented before the Court
concerned, does not warrant any consideration in the light of the
fact that indefeasible right of the petitioners to claim the default
bail on account of failure of the Investigating Officer to file a
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charge-sheet within a period of 60 days, which is on the anvil of
Article 21 of the Constitution of India and under any eventuality,
gloss cannot be created on the fundamental rights of the
petitioners. This Court is conscious of its obligation to protect and
safeguard the right to life and liberty of individual emanating from
Article 21 of the Constitution of India cannot be defeated under any
eventuality. Thus, the present petition succeeds. Hence, following
order :
ORDER
(a) The criminal writ petition is allowed .
(b) The order 09.09.2025 rendered in Default Bail
Application in Crime No. 673 of 2025 by the learned
Additional Sessions Judge, Shrigonda, thereby rejecting
the application presented by the petitioners seeking
default bail, stands quashed and set aside and the
application of petitioners is hereby allowed.
(c) The petitioners shall be enlarged on default bail
forthwith, subject to furnishing bail bonds / surety to
the satisfaction of the Trial Court, in case, the
petitioners are not required in any other offence, if any,
pending against these petitioners.
(d) Rule is made absolute in the above terms.
(SACHIN S. DESHMUKH, J.)
Omkar Joshi