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2001 DIGILAW 402 (MP)

Ganesh Prasad v. State of M. P.

2001-05-08

S.P.KHARE

body2001
Short Note This is a petition under the proviso to section 167(2) and section 439 of the Code of Criminal Procedure, 1973 (hereinafter to be referred to as the Code) for bail. Applicant Ganesh Prasad was arrested on 27.12.2000 for the offence punishable under section 20(b) (i) of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter to be referred to as the Act). According to the prosecution, he was found in possession of fifteen kilograms of ganja. He was produced before the Judicial Magistrate, First Class on 28.12.2000 and on that date he was remanded to judicial custody. An application under the proviso to section 167(2) of the Code was filed on 1.3.2001 before the Special Judge appointed under the Act. That application came up for consideration before the Judge at 1.15 p.m. On the same date, the charge-sheet was filed at 1.25 p.m. Thus, the charge-sheet was filed on 63rd day from the date of remand. The application for-bail was submitted on the same date prior to submission of charge-sheet in the Court. The question is whether the applicant is entitled to be released on bail under the proviso to section 167(2) of the Code. There is recent decision of the Supreme Court in Uday Mohanlal Acharya vs. State of Maharashtra, 2001 AIR SCW 1500 in which all the previous decisions on the proviso to section 167( 2) of the Code have been considered. The following conclusions have been arrived at by the majority judgment: "1. Under sub-section (2) of S. 167, a Magistrate before whom an accused is produced while the police is investigating into the offence can authorize detention of the accused in such custody as the Magistrate thinks fit for a terms not exceeding 15 days on the whole. 2. Under the proviso to aforesaid sub-section (2) of S. 167, the Magistrate may authorize detention of the accused otherwise than the custody of police for a total period not exceeding 90 days where the investigation relates to offence punishable with death, imprisonment for life or imprisonment for a term of not less than 10 years and 60 days where the investigation relates to any other offence. 3. 3. 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. 4. When an application for bail is filed by an accused for enforcement of his indefeasible right alleged to have been accrued in his favour on account of default on the part of the investigating agency in completion of the investigation within the specified period, the Magistrate/Court must dispose it of forthwith, on being satisfied that in fact the accused has been in custody for the period of 90 days or 60 days, as specified and no charge-sheet has been filed by the investigating agency. Such prompt action on the part of the Magistrate/Court will not enable the prosecution to frustrate the object of the Act and the legislative mandate of an accused being released on bail on account of the default on the part of the investigation agency in completing the investigation within the period stipulated. 5. If the accused is unable to furnish bail, as directed by the Magistrate, then on the conjoint reading of Explanation I and proviso to sub-section (2) of S. 167, the continued custody of the accused even beyond the specified period in paragraph (a) will not be unauthorized and therefore, if during that period the investigation is completed and charge-sheet is filed then the so-called indefeasible right of the accused would stand extinguished. 6. The expression if not already availed of used by this Court in Sanjay Dutt's case, 1994 AIR SCW 3857 : 1995 Cri. LJ 477 (supra) must be understood to mean when the accused tiles an application and is prepared to offer bail on being directed. 6. The expression if not already availed of used by this Court in Sanjay Dutt's case, 1994 AIR SCW 3857 : 1995 Cri. LJ 477 (supra) must be understood to mean when the accused tiles an application and is prepared to offer bail on being directed. In other words, on expiry of the period specified in paragraph (a) of proviso to sub-section (2) of S. 167, if the accused files an application for bail and offers also to furnish the bail on being directed, then it has to be held that the accused has availed of his indefeasible right even though the Court has not considered the said application and has not indicated the terms and conditions of bail and the accused has not furnished the same." In the present case the prescribed period of 60 days for filing the challan as per proviso to section 167(2) of the Code had expired. The application for bail was submitted on 1.3.2001 and it came before the trial Judge for consideration at 1.15 p.m. The charge-sheet was filed at 1.25 p.m. Thus, the bail application was submitted before filing of the charge-sheet. In view of the conclusion no. 6 in the above decision of the Supreme Court it must be held that the accused has availed of his indefeasible right even though the Court has not considered the said application. The minority view in the above decision of the Supreme Court is that: "The expression availed of does not mean mere filing of the application for bail expressing thereunder willingness to furnish bail bond but the stage for actual furnishing of bail bond must reach. If challan is filed before that, then there is no question of enforcing the right, however valuable or indefeasible it may be, after filing of the challan because thereafter the right under default clause cannot be exercised." The majority decision is a binding precedent. The earlier decision of the Supreme Court in State of M.P. vs. Rustam, (1995) Supp. 3 SCC 221 had taken the view that the Court is required to examine the availability of the right to 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. The earlier decision of the Supreme Court in State of M.P. vs. Rustam, (1995) Supp. 3 SCC 221 had taken the view that the Court is required to examine the availability of the right to 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. It was further observed that on the date when the High Court entertained the petition for bail and granted it to the accused, undeniably the challan stood filed in Court and then the right as such was not available. This decision has been overruled in Uday Mohanlal Acharya's case. The application is allowed. It is directed that applicant Ganesh Prasad shall be released on bail on his furnishing a bail bond of Rs. 20,000/- with a surety for the like amount to the satisfaction of CJM, Betul. The application for bail was rejected on merits by this Court by order dated 8.2.2001 in M. Cr. C. No. 329 of 2001. But the prosecution agency by delaying filing of the charge-sheet has enabled the applicant to obtain bail as of right. Therefore, it is directed that the Superintendent of Police, Betul shall enquire into this aspect as to why filing of the challan was delayed and report the action taken by him to this Court.