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2000 DIGILAW 22 (PAT)

Pappu Singh v. State Of Bihar

2000-01-10

M.L.VISA

body2000
Judgment 1. Heard. 2. This is an application for bail in a case under section 302 of the Indian Penal Code and section 27 of the Arms Act. 3. The petitioner seeks bail not on merit but under the -provisions of section 167(2) of the Code of Criminal Procedure. 4. The following facts are admitted. The petitioner was remanded to jail custody on 13.4.99. He filed an application for bail under the provisions of section 167(2) Cr.P.C. before the court below on 12.7.1999. The application was kept for hearing on 13.7.99 as the application was filed on 12.7.99 in late hours. Charge sheet was submitted on 13.7.99. Prayer for bail under Section 167(2) Cr.P.C. was rejected by the Court below. 5. Learned lawyer appearing on behalf of the petitioner submitted that the petitioner filed application for bail under section 167(2) Cr.P.C. on 12.7.99 but it was not disposed of on that day and it was adjourned to 13.7.99 and on 13.7.99 when charge sheet was submitted which was admittedly filed after 90 days the prayer of petitioner for bail was rejected which is against the principle laid down by the Apex Court in the case of Mohamed Iqbal Madar Sheikh and others V/s. State of Maharashtra, (1996) 1 SCC 722 wherein it has been held that : "If an accused charged with any kind of offence becomes entitled to be released on bail under proviso (a) to Section 167 (2), that statutory right should not be defeated by keeping the applications pending till the charge-sheets are submited so that the right which had accrued is extinguished and defeated." 6. As the petitioner was remanded on 13.4.99 the period of 90 days for filing charge sheet was available to the prosecution till 12.7.99. This calculation is supported by the decision of the Apex Court in the case of State of M.P. V/s. Rustam and others, 1995 Supp (3) SCC 221 where it has been held that : "Clear 90 days have to expire before the right begins. Plainly put, one of days on either side has to be excluded in computing the prescribed period of 90 days." In this view of the matter the petition filed by the petitioner for bail under the provisions of section 167 (2) Cr.P.C. which was admittedly filed in late hours on 12.7.99 became ripe for hearing only on 13.7.99. Plainly put, one of days on either side has to be excluded in computing the prescribed period of 90 days." In this view of the matter the petition filed by the petitioner for bail under the provisions of section 167 (2) Cr.P.C. which was admittedly filed in late hours on 12.7.99 became ripe for hearing only on 13.7.99. When the court below took up the petition for consideration, the charge sheet was filed on that day. No doubt charge sheet has been filed on 91st day but since at the time of consideration of the question of bail the court below found that charge sheet had already been submitted, it therefore rejected the prayer of petitioner for bail u/s 167(2) Cr.P.C. In the same case i.e. State of M.P. V/s. Rustam and others (supra) the Apex Court has further laid down that: "The court is required to examine the availability of the right of compulsive bail on the date it is considering the question of bail and not barely on the date of presentation of the petition for bail." 7. It is not a case in which the petition of petitioner was kept pending and during the pendency the right of accused which accrued under section 167(2) Cr,P.C. was defeated because, as stated above, the petition of petitioner could not have been taken for consideration before 13.7.1999. The court below took up the petition for bail u/s 167(2) Cr.P.C. on 13.7.99. The charge-sheet on that day was filed at 10.30 A.M. (para 3 of page 10 of Annexure-2 of supplementary affidavit) before the sitting time of court below which in the relevant period was 11 A.M. Therefore, the principle laid down by the Apex Court in the case of Mohamed lqbal Madar Sheikh and others V/s. State of Maharashtra, (1996) 1 SCC 722 which has been relied upon by the learned counsel for the petitioner is" not applicable to the facts of the present case. 8. I, therefore, find no merit in this application. The prayer of petition for bail under section 167(2) Cr.P.C. is rejected.