AKHLAK v. STATE OF M. P. — 1999 DIGILAW 552 (MP)

R. S. GARG, J. ( 1 ) BY this petition under S. 439 read with S. 167 (2) of the Code of Criminal Procedure the applicants who have been arrested by the Police Mandideep in connection with Crime No. 227/98 for committing offences punishable under Ss. 467, 471, 478, 487 read with S. 109, I. P. C. and Ss. 34, 36 and 39 of M. P. Excise Act have prayed for grant of bail. ( 2 ) UNDISPUTEDLY, the accused persons were arrested on 27-12-1998 for transporting illicit liquor. The prosecution case is that the applicants in a tanker of Indian Oil Company which is generally used for carrying and transporting L. P. G. were transporting the liquor without any authority. The prosecution case is that the accused persons and others after forging certain documents used the same for transporting the liquor and as each of them was involved in commission of the crime, they were required to be arrested. Undisputedly, the accused persons were arrested on 27-12-1998. It is also not in dispute before me that up to 12-5-1999 i. e. the date of the order passed by the learned Sessions Judge, Raisen challan was not filed. At a request made by Shri Jain, learned counsel for the applicants, I enquired from the Session Judge, Raisen as to whether challan was filed or not Shri Shirpurkar, Addl. Registrar (Judicial) after making the enquiries informed me that up to 29th of July, 1999 challan was not filed before the competent Court. ( 3 ) THE applicants filed an application under S. 167 (2), Cr. P. C. before the trial Court inter alia pleading that as they were in custody for more than 90 days and as the challan was not filed, the applicants were entitled to be released on bail, in view of S. 167 (2) of the Code of Criminal Procedure. The learned trial Court rejected the said application on 12-1-1999 observing that without pursuing the case diary, it would not be proper to direct release of the applicants. Being dissatisfied by the said order, the applicants preferred an application before the Session Judge who found that the accused persons were arrested on 26-12-1998 and were in judicial custody from 27-12-1998. The learned trial Court rejected the said application on 12-1-1999 observing that without pursuing the case diary, it would not be proper to direct release of the applicants. Being dissatisfied by the said order, the applicants preferred an application before the Session Judge who found that the accused persons were arrested on 26-12-1998 and were in judicial custody from 27-12-1998. He found and it is undisputed fact, that within the period of 90 days and up to the date of his order challan was not filed by the Police. He also found that the police did not file challan up to the date of his order before the competent Court. The learned Session Judge observing that an order passed under S. 167 (2) of Cr. P. C. is an order in default and if such an order is passed in favour of the accused the Court granting the application as a right to recall the grant of bail under S. 439 (2) of Cr. P. C. Referring to the merits of the case, the learned Judge found that the accused persons who were transporting illicit liquor would not be entitled to be released on bail. Referring to the judgment reported in 1993 JLJ 29, it observed that in a case under Ss. 8/18 read with S. 37 Narcotic Drugs and Psychotropic Substances Act (for short 'n. D. P. S. ') even if the challan was not filed the accused would not be entitled to bail under S. 167 (2 ). Further placing reliance upon the judgment of the Supreme Court in the matter of Raghubir Singh v. State of Bihar, AIR 1987 SC 149 : (1987 Cri LJ 157) and Rajnikant v. Intelligence Officer Narcotic Control Bureau, New Delhi, AIR 1990 SC 71 : (1990 Cri LJ 62) it held that though the accused are entitled to be released under S. 167 (2) but bail cannot be granted to them under S. 439 (2) of Cr. P. C. Being aggrieved by the order passed by the learned Session Judge, the applicants have filed this petition under S. 439, Cr. P. C. read with S. 167 (2) inter alia pleading that as the prosecution did not file the challan up to the date of order, the Court below was unjustified in rejecting the application, illegally applying the provisions of S. 439 (2) of Cr. P. C. read with S. 167 (2) inter alia pleading that as the prosecution did not file the challan up to the date of order, the Court below was unjustified in rejecting the application, illegally applying the provisions of S. 439 (2) of Cr. P. C. ( 4 ) LEARNED counsel for the State submits that looking to the nature of the offence and the quantity of the illicit liquor and the price of the same, the Court below was justified in rejecting the application. ( 5 ) FOR proper appreciation of the controversy it would be proper to refer to the provisions of Ss. 167 (2) and 439 (2) of Cr. P. C. Sub-section (2) of S. 167 provides that the Magistrate to whom an accused person is forwarded under S. 167 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. Sub-section (2) provides that the Magistrate may authorise the detention of the accused person, otherwise than in the custody of the police, beyond the period of 15 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, 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; 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 onbail 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; no Magistrate shall authorise detention in any custody under this section unless the accused is produced before him; 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. (EXPLANATION I.- For the avoidance of doubts, it is hereby declared that, notwithstanding the expiry of the period specified in above paragraph, 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 above, the production of the accused person may be proved by his signature on the order authorising detention. ") ( 6 ) FROM a perusal of the above, it would be crystal clear that no Magistrate shall authorise the detention of the accused person in custody for a total period exceeding 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. The law further provides that if the challan is not filed then on the expiry of the said period 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. Chapter XXXIII contains the provisions as to bails and bail bonds. ( 7 ) SECTION 439 falls within Chapter XXXIII. Section 439 (1) refers to the special powers of the High Court or the Court of Session regarding bail. Sub-section (2) of S. 439, Cr. P. C. says that a High Court or Court of Session may direct that any person who has been released on bail under this chapter be arrested and commit him to custody. A juxtapose reading of S. 167 (2) and S. 439 (2) would clearly bring out the intention of the legislature. A person released under S. 167 (2)would be deemed to have been released under S. 439 and High Court or Court of Session may direct that any person who has been released on bail be arrested and commit him to custody. ( 8 ) SECTION 439 (2) from its very language would come into operation after the bail is granted and not at the time when grant of bail is an issue under consideration before the Court. ( 9 ) SECTION 167 (2) and S. 439 (2) have been subject-matter of judicial scrutiny number of times. Though the issue is not res integra but I feel it my duty to tell to the lower courts that judicial obsession or the fear should not weigh in their way while deciding the bail applications. ( 10 ) IN the matter of Hussainara Khatoon v. State of Bihar, AIR 1979 SC 1377 : (1979 Cri LJ 1052), the Supreme Court observed that when an under-trial prisoner is produced before a Magistrate and he has been in detention for 90 days or 60 days, as the case may be, the Magistrate must, before making an order of further remand to judicial custody, point out to the under-trial prisoner that he is entitled to be released on bail. The Supreme Court went on saying that the State Government must also provide at its own cost a lawyer to the under-trial prisoner with a view to enable him to apply for bail in exercise of his right under proviso (a) to sub-section (2) of S. 167 and the Magistrate must take care to see that the right of the under-trial prisoner to the assistance of a lawyer provided at State costs is secured to him. ( 11 ) IT cannot be denied after more than 50 years of the independence that it is the constitutional right of every accused person who is unable to engage a lawyer and secure legal services on account of reasons such as poverty, indigence or incommunicado situation, to have free legal services provided to him by the State. The Supreme Court in the matter of Hussainara Khatoon (1979 Cri LJ 1052) (supra) was of considered opinion that not only the accused is required to be informed of his right but it is the duty of the Magistrate to inform him and see that proper legal assistance is provided to the accused. ( 12 ) A Judge cannot be a silent spectator nor can have a platonic approach. A Judge is under an oath to decide without fear and favour. Once he is afraid of the public criticism then he is not discharging his duties judicially. ( 13 ) IN the matter of Umashankar v. State of M. P. , 1982 MPLJ 291 : (1982 Cri LJ 1186), a Division Bench of this Court held that the remand beyond the period of 90 days was illegal. This Court observed that it was the duty of the Magistrate to tell the accused that on that date they were entitled to be released on bail in case they were prepared to furnish bail. This Court further said that the applicants could not be deprived of their right to be released on bail under proviso (a) to S. 167 (2) by the Magistrate's inaction which enabled the filing of the challan before the disposal of the bail application. Though this Court further observed that subsequent filing of the challan would not offend his right but the later part of that order, I am of the opinion that would run contrary to the subsequent judgment of the Supreme Court. Though this Court further observed that subsequent filing of the challan would not offend his right but the later part of that order, I am of the opinion that would run contrary to the subsequent judgment of the Supreme Court. ( 14 ) IN the matter of State of U. P. v. Lakshmi Brahman, AIR 1983 SC 439 : (1983 Cri LJ 839), the Supreme Court observed that on the expiry of the period from the date of the arrest of the accused, his further detention does not become ipso facto illegal or void, but if the charge-sheet is not submitted within the prescribed period, then notwithstanding anything to the contrary in S. 437 (1), the accused would be entitled to an order for being released on bail if he is prepared to and does furnish bail. ( 15 ) IN the matter of Chaganti Satyanarayana v. State of Andhra Pradesh, AIR 1986 SC 2130 , while considering the provisions of S. 167 (2), proviso (a) S. 57 and S. 309, the Supreme Court observed that the period of 90 days envisaged by proviso (a) begins to run from date of order of remand and not from earlier date when accused was arrested. A similar view was taken by the Supreme Court in the matter of C. B. I. Special Investigation Cell-I v. Anupam J. Kulkarni, AIR 1992 SC 1768 : (1992 Cri LJ 2768 ). The Supreme Court observed that remand of accused to police custody can be for 15 days only and thereafter further remand during the total period of 90 days or 60 days can only be judicial remand. The Court further observed that if the investigation is not completed within the period of 90 days or 60 days then the accused has to be released on bail as provided under the proviso to S. 167 (2) of Cr. P. C. The Supreme Court observed that the period of 90 days or 60 days has to be computed from the date of detention as per the orders of the Magistrate and not from the date of arrest by police. P. C. The Supreme Court observed that the period of 90 days or 60 days has to be computed from the date of detention as per the orders of the Magistrate and not from the date of arrest by police. The learned Court below has referred to the judgment of the Supreme Court in the matter of Raghubir Singh v. State of Bihar, AIR 1987 SC 149 : (1987 Cri LJ 157) but it appears that the learned Court below did not try to read the saidjudgment or appreciate its import. In the matter of Raghubir Singh (supra) the Supreme Court observed that in default of the prosecution the accused is entitled to be released on bail and such a release is not defeated by lapse of time, the filing of the charge-sheet or by remand to custody under S. 309 (2 ). The Supreme Court observed that order for release on bail may however be cancelled under S. 437 (5) or S. 439 (2 ). Referring to the grounds for cancellation of bail, the Supreme Court observed as under (para 22) :-"generally the grounds for cancellation of bail broadly, are, interference or attempt to interfere with the due course of administration of justice, or evasion or attempt to evade the course of justice, or abuse of the liberty granted to him. The due administration of justice may be interfered with by intimidating or suborning witnesses, by interfering with investigation, by creating or causing disappearance of evidence etc. The course of justice may be evaded or attempted to be evaded by leaving the country or going underground or otherwise placing himself beyond the reach of the sureties. He may abuse the liberty granted to him by indulging in similar or other unlawful acts. Where bail has been granted under the proviso to S. 167 (2) for the default of the prosecution in not completing the investigation in sixty days, after the defect is cured by the filing of a charge-sheet, the prosecution may seek to have the bail cancelled on the ground that there are reasonable grounds to believe that the accused has committed a non-bailable offence and that it is necessary to arrest him and commit him to custody. In the last mentioned case, one would expect very strong grounds indeed. In the last mentioned case, one would expect very strong grounds indeed. "this judgment is not an authority to say that the Court while considering an application under S. 167 (2) of the Cr. P. C. is entitled to see whether on a subsequent application the bail granted under S. 167 (2) is likely to be cancelled or not. If that course is adopted it would create a legal problem. The grant of bail under S. 167 (2) on default of the prosecution is mandatory but cancellation of the bail under S. 437 (5) or 439 (2) depends upon the exercise of the discretion. In no case S. 439 (2) could be read with S. 167 (2 ). Section 439 (2) would come into operation only after the bail is granted to an accused either under S. 167 (2) or S. 439 (1 ). It would be fallacy of law to say that on the application of the prosecution as the bail can be cancelled, bail should not be granted. The Supreme Court has clearly observed that grounds for cancellation of bail are different such as interference or attempt to interfere with the due course of administration of justice, or evasion or attempt to evade the course of justice, or abuse of the liberty granted to him. The Supreme Court in the matter of Raghubir Singh (1987 Cri LJ 167) (supra) does nowhere say that because on the application of the prosecution bail can be cancelled, the same should not be granted to the accused under S. 167 (2 ). The bail granted under S. 167 (2) is liable to be cancelled if the Court comes to the conclusion that it was necessary to again arrest the accused and commit him to custody but for such a procedure one would accept very strong grounds. I am unable to understand as to how support could be drawn from this judgment for not granting the bail. ( 16 ) THE learned Court below has relied upon the judgment of the Supreme Court in the matter of Rajnikant v. Intelligence Officer, Narcotic Control Bureau, New Delhi, AIR 1990 SC 71 : (1990 Cri LJ 62) to hold that if the investigation reveals that the accused has committed a serious offence and charge-sheet is filed, the bail granted to the accused under proviso (a) to S. 167 (2) could be cancelled. The attention of the learned Judge is invited to the judgment of the Supreme Court in the matter of Aslam Babalal Desai v. State of Maharashtra, AIR 1993 SC 1 : (1992 Cri LJ 3712), in which the judgment in the matter of Rajnikant (1990 Cri LJ 62) (supra) was overruled by the Supreme Court. It is not expected of any Court to rely upon a judgment which has been overruled. The Supreme Court observed that once an accused is released on bail under S. 167 (2) he cannot be taken back in custody merely on the filing of a charge-sheet but there must exist special reasons for so doing besides the fact that the charge-sheet reveals the commission of a non-bailable crime. The Supreme Court considering the liberty of an individual observed as under (para 15) :-"even where two views are possible, this being a matter belonging to the field of criminal justice involving the liberty of an individual, the provision must be construed strictly in favour of individual liberty since even the law expects early completion of the investigation. The delay in completion of the investigation can be on pain of the accused being released on bail. The prosecution cannot be allowed to trifle with individual liberty if it does not take its task seriously and does not complete it within the time allowed by law. It would also result in avoidable difficulty to the accused if the latter is asked to secure a surety and a few days later be placed behind the bars at the sweet will of the prosecution on production of a charge-sheet. We are, therefore, of the view that unless there are strong grounds for cancellation of the bail, the bail once granted cannot be cancelled on mere production of the charge-sheet. The view we are taking is consistent with this Court's view in the case of Bashir and Raghubir, AIR 1978 SC 55 : (1978 Cri LJ 173) and AIR 1987 SC 149 : (1987 Cri LJ 157) (supra) but if any ambiguity has arisen on account of certain observations in Rajnikant's case AIR 1990 SC 71 : (1990 Cri LJ 62) our endeavour is to clear the same and set the controversy at rest. " ( 17 ) IN the matter of Directorate of Enforcement v. Deepak Mahajan, AIR 1994 SC 1775 : (1994 Cri LJ 2269), considering a case of violation of provisions of Foreign Exchange Regulation Act (46 of 1973), the Supreme Court observed that the operation of S. 4 (2) of the Code is straightway attracted to the area of investigation, inquiry and trial of the offences under the special laws including the FERA and Customs Act and consequently S. 167 of the Code can be made applicable during the investigation or inquiry of an offence under the Special Acts also inasmuch as there is no specific provision contrary to that excluding the operation of S. 167. ( 18 ) THE matter relating to S. 167 (2) again came up for consideration before a constitutional Bench of the Supreme Court. The Supreme Court was required to consider the provisions of Terrorist and Disruptive Activities (Prevention) Act, 1987 specially S. 20 (4) (bb ). In the matter of Sanjay Datt v. State (1994) 5 SCC 410 : (1995 Cri LJ 477), the Supreme Court observed as under :-"we have no doubt that the common stance before us of the nature of indefeasible right of the accused to be released on bail by virtue of S. 20 (4) (bb) is based on a correct reading of the principle indicated in that decision. The indefeasible right accruing to the accused in such a situation is enforceable only prior to the filing of the challan and it does not survive or remain enforceable on the challan being filed, if already not availed of. Once the challan has been filed, the question of grant 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 the filing of the challan. The custody of the accused after the challan has been filed is not governed by S. 167 but different provisions of the Code of Criminal Procedure. If the right had accrued to the accused but it remained unenforced 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 S. 167, Cr. P. C. ceases to apply. If the right had accrued to the accused but it remained unenforced 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 S. 167, Cr. P. C. ceases to apply. The Division Bench also indicated that if there be such an application of the accused for release on bail and also a prayer for extension of time to complete the investigation according to the proviso in S. 20 (4) (bb), both of them should be considered together. It is obvious that no bail can be given even in such a case unless the prayer for extension of the period is rejected. In short, the grant of bail in such a situation is also subject to refusal of the prayer for extension of time, if such a prayer is made. If the accused applies for bail under this provision on expiry of the period of 180 days or the extended period, as the case may be, then he has to be released on bail forthwith. The accused, so released on bail may be arrested and committed to custody according to the provisions of the Code of Criminal Procedure. It is settled by Constitution Bench decisions that a petition seeking the writ of habeas corpus on the ground of absence of a valid order of remand or detention of the accused, has to be dismissed, if on the date of return of the rule, the custody or detention is on the basis of a valid order. ""as a result of the above discussion, our answers to the three questions of law referred for our decision are as under : (1) and (2a) xxx xxx xxx xxx xxx xxx (2) (B) "the 'indefeasible right' of the accused to be released on bail in accordance with S. 20 (4) (bb) of the TADA Act read with S. 167 (2) of the Cr. P. C. in default of completion of the investigation and filing of the challan within the time allowed, as held in Hitendra Vishnu Thakur is a right which enures to, and is enforceable by the accused only from the time of default till the filing of the challan and it does not survive or remain enforceable on the challan being filed. If the accused applies for bail under this provision on expiry of the period of 180 days or the extended period, as the case may be, then he has to be released on bail forthwith. The accused, so released on bail may be arrested and committed to custody according to the provisions of the Code of Criminal Procedure. The right of the accused to be released on bail after filing of the challan, notwithstanding the default in filing it within the time allowed, is governed from the time of filing of the challan only by the provisions relating to the grant of bail applicable at that stage. " ( 19 ) A fair reading of the judgment of the Supreme Court would make it clear that the "indefeasible right" of the accused to be released on bail in default of completion of the investigation and filing of the challan within the time allowed, is a right which enures to, and is enforceable by the accused only from the time of default till the filing of the challan and it does not survive or remain enforceable on the challan being filed. From the judgment of the Supreme Court, it would clearly appear that from the time of default till the filing of the challan, the right of the accused is indefeasible. None has an authority either under the law or because of the obsession that the accused cannot be released on bail. Once the Supreme Court had said that the right of the accused is indefeasible then non-observance of the order of the Supreme Court and non-following the ratio of the judgment of the Supreme Court would perilously border contempt of the lawful authority of the Supreme Court. ( 20 ) IN the matter of Dr. B. S. Panchal v. State of Gujarat, AIR 1996 SC 2897 : (1996 Cri LJ 1652), considering the provisions of Narcotic Drugs and Psychotropic Substances Act specially S. 37 of the Act, the Supreme Court observed that S. 37 of the Act does not exclude application of proviso (a) to S. 167 (2), therefore failure of prosecution to file charge-sheet within prescribed time under S. 167 (2) would create a right in favour of the accused. The Supreme Court following the judgment of the constitutional Bench in the matter of Sanjay Dutt (1995 Cri LJ 477) (supra) observed that the right would remain indefeasible between the date of the default and filing of the challan and, if an accused person fails to exercise his right to be released on bail, after filing of the charge-sheet he cannot exercise the right available to him under S. 167 (2 ). The Supreme Court also observed that once such an accused is released under S. 167 (2) of the Cr. P. C. he cannot be re-arrested on the mere filing of the charge-sheet. ( 21 ) IN the matter of Manoj v. State of M. P. (1999) 2 Jab LJ 1 : (1999 Cri LJ 2095), the Supreme Court again observed that benefit under S. 167 (2), proviso (a) is available to an accused of an offence under N. D. P. S. Act. The Supreme Court observed that the Police Officer is obliged to produce the accused before the nearest Judicial Magistrate. ( 22 ) FROM the above judgments of the Supreme Court, it would clearly appear that irrespective of the nature of the offence or the provisions of law for violation of which the accused has been arrested if the challan/charge-sheet is not filed within the period prescribed i. e. 60 days or 90 days, the accused would have a right to be released on bail. The accused is required to be informed by the Magistrate that because of the defaults and lapses on the part of the prosecution if such accused furnishes bail to the satisfaction of Magistrate such an accused would be released. Such a right of the accused is indefeasible from the date of default up to the date of the filing of the challan. None has a right to keep the accused in jail if the challan has not been filed within the prescribed period when the accused is applying for and is ready and willing to furnish bail to the satisfaction of the Judicial Magistrate. The right of the accused would stand defeated if he does not apply for grant of bail and the challan happens to be filed. ( 23 ) ONCE the bail is granted to an accused under S. 167 (2) of the Cr. The right of the accused would stand defeated if he does not apply for grant of bail and the challan happens to be filed. ( 23 ) ONCE the bail is granted to an accused under S. 167 (2) of the Cr. P. C. , on simply filing of the challan the accused cannot be taken back in custody. The law mandates that once an accused is released under S. 167 (2) he would be deemed to have been released under provisions of Chapter XXXIII of the Cr. P. C. Such an accused can be taken back in custody if an application under S. 437 (5) or 439 (2) is filed. For cancellation of the bail the Court is required to see not only the allegations but will have to keep in mind the observations made by the Supreme Court. None has an authority to say that because accused has committed a ghastly crime and as the bail granted to him is likely to be cancelled under S. 437 (5) or 439 (2), bail under S. 167 (2) should not be granted. ( 24 ) AN earlier refusal of bail on merits would not be a ground to refuse bail under S. 167 (2 ). The rejection of the bail application on merits has nothing to do with the default of the prosecution. Section 167 authorises a Judicial Magistrate to keep the man in custody either for 60 days or 90 days but the law mandates and commands a Judicial Magistrate to henceforth release the accused if the prosecution agency did not choose to file the challan within 60 days or 90 days and the accused has applied for and is ready and willing to furnish bail. ( 25 ) FOR following the provisions of law if the accused is required to go to the jail then violation of S. 167 (2) would open the lock of the jail and lapses on the part of the prosecution/investigation agency would pave his path for his coming out. A judicial order cannot put lock on the jail gates if the accused is entitled to be released because of the lapses or default of the prosecution. A judicial order cannot put lock on the jail gates if the accused is entitled to be released because of the lapses or default of the prosecution. ( 26 ) IT may appear to the Judge considering the application filed under S. 167 (2) that the prosecution agency was purposefully not filing the challan against the accused within the prescribed period but the Court being bound by the legal provisions cannot say that it would detain the accused in jail and infringe his fundamental right guaranteed under Art. 22 of the Constitution of India read with S. 167 (2) of the Cr. P. C. ( 27 ) IF the Court feels that the investigating agency or the Investigation Officer was hand in glove with the accused when the Court may ask the superior officers to take an action against such defaulting officer but for the lapses committed by such an officer the accused cannot be denied the freedom. The prosecution is bound to suffer because of the lapses of its officer, the department may take action against such a defaulting officer but under the provisions of law the Court has no authority to extend the time for filing the challan by rejecting the application for grant of bail. All concerned are bound by law and any violation of the legal provisions would certainly lead to serious consequences. ( 28 ) THE present is a case of judicial apathy and obsession, the learned Session Judge appears to have been unnecessarily influenced by the merits of the matter. Consideration of the merits is absolutely irrelevant when an application under S. 167 (2) is under consideration. A Judge is bound to act in accordance with law. His personal grievance/grudges obsession and fear have no role to play. If a Judge is allowed to be influenced or swayed away by his personal feelings, it is likely to lead to lawlessness because every judge would interpret the law according to his own whim and capricious and is likely to commit breach of the mandatory provisions of law. ( 29 ) IN the opinion of this Court, the Magistrate so also the Session Judge acted absolutely without jurisdiction in rejecting the applicants bail application. In view of the above discussion, the applications were required to be allowed. The application is allowed. Each of the applicant on his furnishing a personal bond in sum of Rs. ( 29 ) IN the opinion of this Court, the Magistrate so also the Session Judge acted absolutely without jurisdiction in rejecting the applicants bail application. In view of the above discussion, the applications were required to be allowed. The application is allowed. Each of the applicant on his furnishing a personal bond in sum of Rs. one lac with two local sureties in the like amount each to the satisfaction of C. J. M. Raisen, shall be released immediately on bail. The prosecution shall be entitled to see whether the sureties are solvent or not. It is however made clear that this order would not affect the right of the prosecution to make an application under S. 437 (5) or S. 439 (2) of the Cr. P. C. ( 30 ) A copy of this order be sent to the learned Judicial Magistrate, First Class and the learned Session Judge, Raisen for future guidance. Order accordingly. .