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2006 DIGILAW 1224 (PAT)

Umesh Rai v. State Of Bihar

2006-12-11

ABHIJIT SINHA

body2006
Judgment 1. Heard Sri Vikram Singh, the learned counsel for the petitioner and Sri Jharkhandi Upadhyay, the learned A.P.P. for the State. 2. The grievance of the petitioner is against the order dated 2.5.2006 whereunder the learned Additional Chief Judicial Magistrate, Naugachai, refused to accept the bail bond in connection with Gopalpur P.S. Case No. 95 of 2003 pursuant to he having been granted the benefits under the proviso to Sec.167(2) Cr.P.C. vide order dated 29.4.2006. 3. The brief facts of the case are undisputed. The petitioner who is a co-villager of the informant was remanded to custody on 28.1.2006 on being impleaded as an accused in the aforesaid case under Sections 147/148/149/364 I.P.C. and he remained in custody till 29.4.2006. It is said that on 29.4.2006 a petition was filed on behalf of the petitioner to grant him benefits under the proviso to Sec.167(2) Cr.P.C. as the Investigating Officer had failed to submit a charge-sheet within the stipulated period of 90 days and having heard the parties, the learned A.C.J.M. by order on same day passed the order in his favour and directed him to furnish bail bond. 4. It is alleged that when the bail bond on behalf of the petitioner was submitted on 2.5.2006, the learned court below refused to accept the same on the ground that the Investigating Officer in the meantime had submitted the Charge-sheet on 30.4.2000 which was a Sunday. 5. It has further been submitted on behalf of the petitioner that he got the knowledge of his being granted bail on 1.5.2006 and the same was communicated to his bailors and pairvikar immediately and on the following day, i.e., 2.5.2006, the bail bonds were furnished. 6. The assertions on behalf of the petitioner is that the learned court below had acted illegally in passing the impugned order ignoring the law settled by the Apex Court in respect of scope and ambit under the proviso to Sec.167(2) Cr.P.C In this connection, reference was made to the case of Raghubir Singh vs. The State of Bihar, AIR 1987 SC 149 wherein a Division Bench observed that "an order for release on bail made under the proviso to Sec.167(2) Cr.P.C. is not defeated by lapse of time, the filing of the charge-sheet or by remand to custody under Sec.309(2) Cr.P.C.". It also observed that the order for release on bail may, however, be cancelled under Sec. 437(5) or Sec. 439(2) Cr.P.C. In this context, the Apex Court held that "bail is granted under the proviso to Sec.167(2) Cr.P.C. for the default of the prosecution in not completing the investigation within the stipulated time and after the defect is cured by filing 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 and in that case one would expect very strong ground indeed". 7. However, in the case of Uday Mohanlal Acharya vs. The State of Maharashtra, 2001(5) SCC 453 , the majority view of a Division Bench of the Apex Court (Pattanaik and Banerjee, JJ.) having noticed a catena of decisions including Raghubir Singhs case (supra) observed that "the proviso to sub-section (2) of Sec.167 is a beneficial provision for curing the mischief of indefinitely prolonging the investigation and thereby effecting the liberty of a citizen". It held that "even though a Magistrate does not possess any jurisdiction to refuse the bail when no. charge-sheet is filed after expiry of the period stipulated under the proviso to sub-section (2) of Sec.167 and even though the accused may be prepared to furnish the bail required, but such furnishing of bail has to be in accordance with the order passed by the Magistrate". In other words, without an order of the Magistrate the legislative mandate engrafted in the proviso cannot be given effect to. Necessarily, therefore, an order of the Court has to be passed. The majority view further held that "if, however, the accused is unable to furnish the bail as directed by the Magistrate, then on a conjoint reading of explanation-1 of the proviso to sub-section (2) of Sec.167, the continued custody of the accused even beyond the specified period will not be unauthorised, and, therefore, if during that period the investigation is complete and the charge-sheet is filed then so-called indefeasible right of the accused would stand extinguished. The indefeasible right of the accused does not survive or remain enforceable on the challan being filed, if already not availed-off, as has been held by the Constitution Bench of the Supreme Court in Sanjay Dutts case, (1994)5 SCC 410 ". 8. In the instant case, by order dated 29.4.2006, the learned A.C.J.M. directed for release of the accused Umesh Rai on furnishing bail bond of Rs. 10,000.00 with two sureties of the like amount each. However, bail bond came to be filed only on 2.5.2006 but in the meantime on 30.4.2006 charge-sheet was submitted against the petitioner. In other words, it would mean that before the petitioner could avail of his indefeasible right the charge-sheet came to be filed and the learned A.C.J.M. in view of the decision in Uday Mohanlal Acharyas case (supra) rejected the prayer for bail. 9. In my view, due regard being had to the decision of the Constitution Bench in Sanjay Dutts case (supra) and the majority view in Uday Mohanlal Acharyas case (supra), the impugned order of the learned A.C.J.M., Naugachia is justified and calls for no interference. 10. Accordingly, the application fails and is dismissed.