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2004 DIGILAW 265 (PAT)

Bijay Sah v. State Of Bihar

2004-03-04

CHANDRAMAULI KR.PRASAD

body2004
Judgment 1. This revision application is directed against the order dated 30th of January, 2004 passed by the Sessions Judge, Patna in Special Case No. 47 of 2003 whereby the prayer made by the petitioner for grant of bail under section 167 (2) of the Code of Criminal Procedure has been rejected. 2. Facts lie in a narrow compass, Petitioner is an accused in case no. 48 of 2003. According to the prosecution 80 K.Gs. of Ganja was recovered from the jeep in which he was travelling. Said recovery was made on 16.10.2003 and the petitioner was arrested on the same day. He was forwarded to the Magistrate, who remanded him to judicial custody by order dated 17.10.2003. Petitioner filed application for grant of bail on 16.1.2004, inter alia, contending that charge sheet having not been submitted, he had indefeasible right to get bail under section 167(2) of the Code of Criminal Procedure (hereinafter referred to as the Code). When such an application was filed the learned Judge, in session of the matter, called for a report and it was found that no charge sheet was submitted. After 30 minutes it came to the notice of the learned Judge that charge sheet has been submitted and taking note of the said fact, the prayer made by the petitioner for grant of bail under section 167(2) of the Code has been rejected. 3. Mr. Nadim Seraj appearing on behalf of the petitioner contends that after the expiry of a period of 90 days an indefeasible right had accrued to the petitioner and he having availed the same, later on by filing the charge sheet, the said right cannot be extinguished. In support of his submission he has placed reliance on a judgment of the Supreme Court in the case of Uday Mohanlal Acharya vs. State of Maharashtra [2001 (2) PLJR (SC) 182] and my attention has been drawn to the following passage from the said judgment:- "On the aforesaid premises, we would record conclusion as follows:- 1. Under sub-section (2) of Section 167, a Magistrate before whom an accused is produced while the police is investigating into the offence can authorise detention of the accused in such custody as the Magistrate thinks fit for a term not exceeding 15 days in the whole. 2. Under sub-section (2) of Section 167, a Magistrate before whom an accused is produced while the police is investigating into the offence can authorise detention of the accused in such custody as the Magistrate thinks fit for a term not exceeding 15 days in the whole. 2. Under the proviso to aforesaid sub-section (2) of Section 167, the Magistrate may authorise detention of 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 term of not less than 10 years, and 60 days where the investigation relates to any other offence. 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 furnish 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 Investigating Agency in completing the investigation within the period stipulated. 5. If the accused is unable to furnish bail, as directed by the Magistrate, then the conjoint reading of Explanation I and proviso to sub-section 2 of Section 167, the continued custody of the accused even beyond the specified period in paragraph (a) will not be unauthorised, and therefore, if during that period the investigation is complete and charge-sheet is filed then the so called indefeasible right of the accused would stand extinguished." (underlining mine) 4. Another decision on which Mr. Seraj has placed reliance is the Division Bench Judgment of this Court in the case of Dinesh Yadav and anr. vs. State and ors. [ 2001 (3) PLJR 732 ] and my attention has been drawn to paragraphs 5 and 6, which read as follows:- "5. The aforesaid proposition of law has further been explained and it has been held that in view of the conclusion as to when an accused can be said to have availed of his right, in the case in hand, it has to be held that the accused availed of his right on 17th August, 2000 by filing an application for being released on bail and offering therein to furnish bail in question. "6. From the law laid down by the Supreme Court, this becomes clear that as soon as the accused files an application and makes an offer to furnish bail, he has availed of his right under section 167 (2) Cr. P. C. and he is entitled to be released. In the instant case, the petitioner for release on bail under section 167 (2) Cr. P. C. was filed on 23.4.2001 i.e. after expiry of 90 days. The report was submitted on the same day that till 10 a.m. no charge sheet, was submitted. However, it appears from the subsequent report that charge sheet was submitted at about 11.45 a.m., therefore, it is manifest that charge sheet submitted in the case after the petitioners had already availed of their right. In fact, by the time the petitioners had filed their application, no charge sheet had been submitted by the investigating agency. Therefore, the instant case is squarely covered by the law laid down by the apex Court in the case of Uday Mohanlal Acharya vs. State of Maharashtra (supra)" 5. Mr. Seraj emphasises that once the petitioner had availed his right, said right cannot be defeated by submission of charge sheet. 6. In fairness to Mr. Seraj he is right in contending that the submission made by him finds support from the Division Bench judgment of this Court in the case of Dinesh Yadav (supra). Mr. Seraj emphasises that once the petitioner had availed his right, said right cannot be defeated by submission of charge sheet. 6. In fairness to Mr. Seraj he is right in contending that the submission made by him finds support from the Division Bench judgment of this Court in the case of Dinesh Yadav (supra). This decision, in my opinion, is in conflict with another Division Bench of this Court in the case of Bishundeo Sao vs. The State of Bihar [2002 (3) PCCR 264] [: 2002 (4) PLJR 681 ], hence at one point of time I was inclined to refer the matter to larger Bench but having given my most anxious consideration I am constrained to observe that the judgment of the Division Bench of this Court in the case of Dinesh Yadav (supra) is not in tune with the judgment of the Supreme Court in the case of Uday Mohanlal Acharya (supra) and as such I refrain to refer the matter to larger Bench. In the case of Bishundeo Sao (supra) this Court observed as follows:- "4. In the case of Uday Mohanlal Acharya (supra) the Court observed, "In the aforesaid premises, we are of the considered opinion that an accused must be held to have availed of his right flowing from the Legislative mandate engrafted in the proviso to Sub-section (2) of Section 167 of the Code if he has filed an application after the expiry of the stipulated period alleging that no challan has been filed and he is prepared to offer the bail that is ordered, and it is found as a fact that no challan has been filed within the period prescribed from the date of the arrest of the accused." It may be mentioned that as regards the interpretation of "availed of" on which point there was difference of opinion, even as per the minority judgment (page 481) of the report) "the expression "availed of" does not mean mere filing of an application for bail expressing thereunder willingness to furnish bail bond, but the stage for actual furnishing of bail bond must read". It would thus appear that where after bail under Section 167(2) Cr. It would thus appear that where after bail under Section 167(2) Cr. P. C. is granted by the Court on the ground that charge sheet has not been submitted within stipulated period and pursuant thereto the accused files bail bonds, nothing further remains to be done by him and in such a case it must be held that he has availed of his indefeasible right. Conclusion no. 5 (page 473) of the report) relied on by the State counsel can be pressed into service where despite favourable order by the Magistrate, granting bail to the accused under Section 167(2), he fails to file the bail bond as directed by the Magistrate and charge sheet is submitted in the meantime before filing of the bail bonds. In such a case his so called indefeasible right to get bail under Section 167(2) gets extinguished." (underlining mine) 7. Thus relying on the decision of the Supreme Court in the case of Uday Mohanlal Acharya, Division of this Court in the case of Dinesh Yadav (supra) had held that in a case in which bail is sought for on the ground of expiry of stipulated period under section 167(2) of the Code and till that particular point of time, when no chargesheet is filed accused shall be deemed to have availed his right but following the same judgment another Division Bench of this Court in the case of Bishundeo Sao observed that despite favourable order by the Magistrate granting bail accused fails to file the bail bond and charge-sheet is submitted in the meanwhile the indefeasible right to get bail get extinguished. 8. The question in my opinion, which requires to be answered, is in regard to the time when the accused shall be deemed to have availed his right and the next as to whether after an accused had availed the right same can be extinguished or not on submission of the charge sheet. With deepest respect, I may observe that the Division Bench in the case of Dinesh Yadav after answering the first question did not answer the second question but came to the conclusion that accused had availed of his right and thus entitled to be released on bail. With deepest respect, I may observe that the Division Bench in the case of Dinesh Yadav after answering the first question did not answer the second question but came to the conclusion that accused had availed of his right and thus entitled to be released on bail. In the case of Mohanlal Acharya (supra) itself it has been held that if the accused is unable to furnish bail bond as directed and in the meanwhile chargesheet is submitted, said right would be extinguished. Hence in my opinion mere availing the right shall not entitle an accused to be enlarged on bail and the said right can be extinguished by submission of charge-sheet in certain circumstances. 9. Bearing in mind the aforesaid, I proceed to examine the facts of the present case. 10. In the present case the petitioner had filed application asserting his right to be released on bail under section 167(2) of the Code. On such an application being filed the learned Judge called for a report and the office reported that no charge sheet was submitted till 2.10 P. M. but even before the learned Judge could pass the order within 30 minutes at 2.45 P.M., office reported that chargesheet was submitted at 2.45 P.M. In the case of Uday Mohanlal Acharya (supra) the Supreme Court had observed that in case bail bonds are not filed and chargesheet is submitted, the indefeasible right of the accused would stand extinguished. In my opinion when in a case in which after the order is passed for furnishing the bail bond but the bail bonds are not furnished and in the mean- while chargesheet is submitted, the indefeasible right to an accused stand extinguished, for parity of reason in case in which the order of release is not passed but the chargesheet is submitted the right of an accused would stand extinguished. However, I may sound a note of caution. In a case in which it is found that there is delay in passing the order for inordinate period with a view to defeat the accused right, situation may be different. In the present case the delay is not inordinate and as such I am of the opinion that the learned Judge is right in rejecting the prayer of the petitioner holding that the right of the petitioner got extinguished on submission of the charge sheet. 11. In the present case the delay is not inordinate and as such I am of the opinion that the learned Judge is right in rejecting the prayer of the petitioner holding that the right of the petitioner got extinguished on submission of the charge sheet. 11. I do not find any merit in the application and it is dismissed accordingly.