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1998 DIGILAW 64 (PAT)

Chutar Mahto v. State Of Bihar

1998-01-23

A.K.PRASAD, R.A.SHARMA

body1998
Judgment A.K.Prasad, J. 1. After having heard the learned Counsel for the parties and with their consent this writ petition is being disposed of at the admission stage itself. 2. This writ petition by the sole petitioner is directed against the order dated 28.11.1997 (Annexure 2) in Nawadih P.S. Case No. 81 of 1997, under Sections 304-B, 34 and 201 of the Indian Penal Code, passed by the Additional Chief Judicial Magistrate, Barmo, whereby and whereunder he did not accept the bail bond on behalf of the petitioner-accused which had been furnished on 26.11.1997 in the light of the earlier order made on 25.11.1997 under Sec. 167(2)(a) of the Code of Criminal Procedure (hereinafter to be referred to as "the Code" for short) for his release on bail. 3. The facts of the case, which are not in dispute lie in a narrow compass. It is alleged in the Fardbeyan of Deo Narayan Mahto, which was recorded on 24.8.1997 (vide Annexure 1), on the basis of which Nawadih P.S. Case No. 81 of 1997 came to be instituted, that his grand-daughter Bina Devi, who was married to Nirpat Mahto about ten years ago had been murdered by her husband and in-laws, including the petitioner-accused, for non-fulfilment of dowry demand. It is said that the petitioner is uncle-in-law of the deceased. 4. The petitioner-accused was arrested by the police and he was remanded in the case on 21.8.1997. On 25.11.1997 a petition under Sec. 167(2)(a) of the Code was filed on behalf of the petitioner-accused for bail on the ground that he had remained in custody for more than 90 days and the Investigating Agency had failed to submit charge-sheet within the statutory period in the case. As charge-sheet had not been submitted in the case till 25.11.1997, although the period of 90 days had expired, the learned Magistrate in seisin of the case ordered for release of the petitioner-accused on bail, under Sec. 167(2)(a) of the Code, on furnishing a bail bond of Rs. 5,000.00 with two sureties of the like amount, each. As charge-sheet had not been submitted in the case till 25.11.1997, although the period of 90 days had expired, the learned Magistrate in seisin of the case ordered for release of the petitioner-accused on bail, under Sec. 167(2)(a) of the Code, on furnishing a bail bond of Rs. 5,000.00 with two sureties of the like amount, each. It appears that the bail bond was furnished on behalf of the petitioner-accused in the case on 26.11.1997 at 11 a.m., but in the meantime the charge-sheet had been submitted by the Investigating Officer on that day around 10.30 a.m. The bail bond furnished on behalf of the petitioner-accused, in the circumstances, was not accepted on the ground that the effect of the bail order dated 25.11.1997 had been extinguished because of the filing of the charge-sheet. 5. The point for consideration in the present writ petition is : as to whether the order of bail granted to the petitioner-accused under the provision of Sec. 167(2)(a) of the Criminal Procedure Code survives, if he has failed to furnish bail bond and in the meantime charge-sheet has been submitted in the case. 6. Mr. S.K. Ughal, learned Counsel for the petitioner-accused, has urged that there is no time limit for execution of bond after the order for release under Sec. 167(2)(a) of the Code has been passed and the right of an accused is indefeasible and it would enure even though the charge-sheet is submitted in the case subsequent to the passing of the order for bail and before furnishing of the bail bond. In support of his contention, Mr. Ughal has placed reliance on the decisions reported in : (i) AIR 1987 SC 149 , Raghubir Singh and Ors. V/s. State of Bihar; (ii) AIR 1993 SC 1 =II (1992) CCR 292 (SC), Aslam Babalal Desai V/s. State of Maharashtra; (iii) 1996 (1) SCC 718 =III (1996) CCR 103 (SC), Dr. Bipin Shantilal Panchal V/s. State of Gujarat; and (iv) 1995 (2) East. Cr. C. 545 (Pat.) (RB), Pradip Prasad V/s. The State of Bihar. 7. Mr. P.D. Agarwal, learned Govt. Advocate appearing on behalf of the State, on the other hand, has resisted the submission made on behalf of the petitioner. Bipin Shantilal Panchal V/s. State of Gujarat; and (iv) 1995 (2) East. Cr. C. 545 (Pat.) (RB), Pradip Prasad V/s. The State of Bihar. 7. Mr. P.D. Agarwal, learned Govt. Advocate appearing on behalf of the State, on the other hand, has resisted the submission made on behalf of the petitioner. He has contended that as the petitioner-accused admittedly failed to furnish the bail bond before submission of charge-sheet and when the charge-sheet had been submitted, the effect of the order dated 25.11.1997 granting bail to him shall be deemed to have been extinguished. In support of his contention, he has relied on the decisions reported in : (i) 1995 (1) East. Cr. C. 618=IV (1994) CCR 744 (SC), Sanjay Dutt V/s. State, through CBI Bombay, a decision of the five Judges of the Supreme Court; (ii) 1996 (1) East. Cr. C. 174 (SC), State through CBI V/s. Mohd. Ashraff Bhat and Anr., and (iii) 1994 (1) PLJR 337, Chaitu Sahni V/s. State of Bihar, a decision of Single Bench of this Court, direct on the point. 8. The proviso to Sub-sec. (2) of Sec. 167 of the Code which has bearing on the question under consideration may be extracted at this stage, which runs as under : "(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-sec. shall be deemed to be so released under the provisions of Chapter XXXIII for the purpose of that Chapter; xxx xxx xxx xxx xxx xxx xxx 9. shall be deemed to be so released under the provisions of Chapter XXXIII for the purpose of that Chapter; xxx xxx xxx xxx xxx xxx xxx 9. In Raghubir Singhs case (supra), the Apex Court held that an order for release on bail made under the proviso to Sec. 167(2) is not defeated by the lapse of time or the filing of the charge-sheet and such an order may however be cancelled under Sec. 437(5) or Sec. 439(2) of the Criminal Procedure Code. It has been laid down by the Apex Court in Aslams case (supra) that once the accused has been released on bail under Sec. 167(2) of the Criminal Procedure Code, he cannot be taken back in custody merely on the filing of the charge-sheet, but there must exist special reasons for doing so, besides the fact that the charge-sheet reveals the commission of non-bailable crime. In the present case, though there was an order regarding grant of bail to the petitioner-accused under Sec. 167(2)(a) of the Code, but in fact he had not been released on bail, because charge-sheet had been submitted in the meantime. Hence the principle laid down in Aslams case (supra) is not applicable to the facts of the present case. In Pradip Prasads case (supra), a Division Bench of this Court held that where no charge-sheet was submitted within the statutory period of 90 days, the accused was entitled to be released on bail under Sec. 167(2) of the Code, even at late stage and after filing of the charge-sheet because the right had accrued to him by operation of law. However, the Constitution Bench of the Apex Court in Sanjay Dutts case (supra), has categorically laid down that indefeasible right accruing to the accused under Sec. 167(2) of the Criminal Procedure Code is enforceable only prior to the filing of the Challan and it does not survive or remain enforceable on the Challan being filed, if not already availed of. However, the Constitution Bench of the Apex Court in Sanjay Dutts case (supra), has categorically laid down that indefeasible right accruing to the accused under Sec. 167(2) of the Criminal Procedure Code is enforceable only prior to the filing of the Challan and it does not survive or remain enforceable on the Challan being filed, if not already availed of. Further, it has been laid down that once the Challan has been filed, the question of granting of bail has to be considered and decided only with reference to the merits of the case under the provisions relating to grant of bail to an accused after filing of the Challan and the custody of the accused after the Challan has been filed is not governed by Sec. 167, but different provisions of the Code. Further, it has been laid down therein that if that right had accrued to the accused, but it remained un-enforced till the filing of the Challan, then there is no question of its enforcement thereafter since it is extinguished, the moment Challan is filed because Sec. 167 of the Code ceases to apply. In my opinion, the ratio laid down in this decision of the Supreme Court applies to the facts of the present case. 10. The principle laid down by the Apex Court in Sanjay Dutts case (supra), on the point has been followed and reiterated by the Apex Court in Dr. Bipins case (supra), and Asrafs case (supra). 11. In view of the recent decisions of the Apex Court referred to above, the decision of this Court in Pradips case (supra) and the earlier decision of the Apex Court in Raghubir Singhs case (supra), in my opinion, do not hold good on the point that indefeasible right under Sec. 167(2) of the Code can be exercised even after the submission of the charge-sheet and that it does not come to an end with the passage of time. 12. In the case of Ashok Paswan V/s. The State of Bihar, 1984 PLJR 274, this Court has held that two conditions have been laid down in Sec. 167 of the Code for release of an accused on bail. The first condition is that the report under Sec. 173 of the Code is not submitted within the prescribed time and secondly, the accused in custody must furnish bail bond. The first condition is that the report under Sec. 173 of the Code is not submitted within the prescribed time and secondly, the accused in custody must furnish bail bond. Failure on the part of the police to submit the charge-sheet within the prescribed period, alone, cannot entitle the accused to be released on bail unless he furnishes bail bond. It may be noticed that in proviso to Sec. 167 of the Code it is incorporated that "....and, on 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...". One may recapitulate here that admittedly in the present case the petitioner-accused had failed to furnish the bail bond before submission of the charge-sheet. The matter would have been different if the petitioner-accused had been released on bail on furnishing bail bond and subsequently the charge-sheet was received in the case. Where the bail bond is furnished by an accused after submission of the charge-sheet, the effect of earlier order under Sec. 167(2) of the Code is deemed to have been extinguished. This view is. supported by the decision of this Court in Chaitus case (supra). 13. In the result, there is no merit in this writ petition and the same is accordingly dismissed.