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2006 DIGILAW 212 (PAT)

Mantu Kumar Sinha @ Bablu Kumar v. State Of Bihar

2006-03-02

CHANDRAMAULI KR.PRASAD

body2006
Judgment C.K.Prasad, J. 1. In both the applications, common petitions of law which little variation in fact, arise and as such, both are being disposed of by this common order. 2. Petitioner, Mantu Kumar Sinha alias Bablu Kumar is an accused in Jakkanpur P.S. Case No. 121 of 2004 registered under Sections 302, 120B/34 of the Indian Penal Code. He was arrested and remanded in the said case on 16.8.2004. Even before the expiry of the period of 90 days, he filed application on 11.11.2004 for release on bail in terms of Section 167(2) of the Code of Criminal Procedure, hereinafter referred to as the Code. He obviously, did not press the said application on the date it was filed. i.e., 11.11.2004, as the period of 90 days had not expired. The Court was closed from 12.11.2004 to 18.11.2004 and on 19.11.2004, charge-sheet No. 153/2004 dated 15.11.2004 was filed against the petitioner. Petitioner pressed the application for grant of bail which was rejected by the learned Chief Judicial Magistrate on 29.11.2004 on the ground that charge-sheet has already been filed against the petitioner. Aggrieved by the same, petitioner Mantu Kumar Sinha filed Cr. revision No. 897 of 2004 and the learned 4th Additional Sessions Judge, Patna by order dated 13.06.2005, rejected the revision application. 3. Aggrieved by the same, petitioner has preferred Cr. Misc. No. 30066 of 2005 Mantu Kumar Sinha v. The State of Bihar. 4. Petitioner Ratindra Kumar Choud-hary alias Yatindra Kumar Choudhary Cr. Revision No. 116/2006 is an accused in Kurhani P.S. Case No. 137 of 2004 registered under Section 392 of the Indian Penal Code. In the said case, charge-sheet was submitted on the day petitioner claimed release on bail under Section 167(2) of the Code which is after the expiry of a period of 90 days. Said prayer has been rejected. Thus, in both the cases, chargesheets have been filed after the expiry of a period of 90 days but before the order for release could be passed. 5. Mr. Vijay Kumar Sinha appears on behalf of the petitioner in Cr. Misc. No. 30066 of 2005, whereas Mr. Vijay Kumar Singh appears on behalf of the petitioner in Cr. Revision No. 116 of 2006. 5. Mr. Vijay Kumar Sinha appears on behalf of the petitioner in Cr. Misc. No. 30066 of 2005, whereas Mr. Vijay Kumar Singh appears on behalf of the petitioner in Cr. Revision No. 116 of 2006. They contend that after the expiry of a period of 90 days, an indefeasible right had accrued to the petitioners and they having asserted the right of release on bail by filing the chargesheet, later on the said right cannot be defeated. In support of the submission, reliance has been placed on a decision of the Supreme Court in the case of Uday Mohanlal Acharya v. State of Maharashtra, 2001 (2) East Cr C 256 (SC) : AIR 2001 SC 1910 and my attention has been drawn to the following passage from the said judgment : xxx xxx xxx "On the aforesaid premises, we would record our conclusions 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 the proviso to aforesaid sub-section (2) of Section 167. the Magistrate may authorise 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. 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. 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 1 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." 6. Reliance has also been placed on a Division Bench decision of this Court in the case of Dinesh Yadav and another v. State and others, 2001 (3) PLJR 732 and my attention has been drawn to paragraph Nos. 5 and 6 of the said judgment 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 or 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 PC. and he is entitled to be released. 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 PC. and he is entitled to be released. In the instant case, the petition for release on bail under Section 167(2) Cr PC 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 was 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 chargesheet 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 v. State of Maharashtra (supra)." 7. Reliance has also been placed on another Division Bench decision of this Court in the case of Karu Manjhi v. State of Bihar, 2006 (2) East Cr C 325 (Pat) : 2005 (3) PLJR 757 in which it has been held as follows : 3. xxx xxx xxx "(1) There is no dispute about the fact that the petitioner-accused surrendered to custody on 7.6.2004, in a case in which allegation of murder is made. (2) Obviously, therefore, it is rightly submitted jointly that the period of 90 days will expire on 5.9.2004; (3) The charge-sheet came to be filed on 6.9.2004; and (4) The application for default Bail, also came to be filed on 6.9.2004." 8. Accordingly, they contend that once petitioners had availed their rights, said rights cannot be defeated by submission of charge-sheet. 9. Dr. Mayanand Jha, and Mr. C. Jawahar, Additional Public Prosecutors appearing on behalf of the State, however, submit that before any order could be passed on the prayer of the petitioner for grant of bail, charge-sheets have already been submitted and hence, Courts below did not err in rejecting their prayers. 10. Having appreciated the rival submission, I do not find any substance in the submission of the learned counsels for the petitioners. 10. Having appreciated the rival submission, I do not find any substance in the submission of the learned counsels for the petitioners. However, in fairness to them, I may observe that they are right in contending that the submission made by them finds support from the Division Judgments of this Court in the case of Dinesh Yadav (supra) and Karu Manjhi (supra). But I find that the decisions of this Court in the cases referred to above, are in conflict with another Division Bench judgment of this Court in the case of Bishundeo Sao v. The State of Bihar, 2002 (4) PLJR 681 . Hence, at one point of time. I was inclined to refer the matter to a larger bench but having pondered about the matter and after giving my most anxious consideration, 1 am not inclined to take that course and constrained to observe that the judgment of the Division Bench of this Court in the case of Dinesh Yadav (supra) and Kara Manjhi (supra), are not in tune with the judgment of the Supreme Court in the case of Uday Mohalal Acharya (supra). 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 must reach". 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 must reach". It would thus appear that where after bail under Section 167(2) Cr PC 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." 11. Thus, relying on the decision of the Supreme Court in the case of Uday Mohanlal Acharya (supra). the Division Bench of this Court in the cases of Dinesh Yadav (supra) and Kara Manjhi (supra). held that in 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 charge-sheet is filed, accused shall be deemed to have availed the right for release on bail but following the same judgment, another Division Bench of this Court, in the case of Bishundeo Sao (supra) observed that despite favourable order by the Magistrate granting bail, the accused fails to file the bail bond and charge-sheet submitted in the meanwhile, the indefeasible right to get bail gets extinguished. 12. It is unfortunate that the attention of the Court deciding the case of Kara Manjhi (supra) was not drawn to the Division Bench Judgment of this Court rendered in the case of Bishundeo Sao (supra). 13. 12. It is unfortunate that the attention of the Court deciding the case of Kara Manjhi (supra) was not drawn to the Division Bench Judgment of this Court rendered in the case of Bishundeo Sao (supra). 13. 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 has 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 of this Court in the case of Dinesh Yadav (supra) and Kara Manjhi (supra), after answering the first question, did not answer the second question but came to the conclusion that the accused has availed of his right and thus, entitled to be released on bail. 14. In the case of Mohanlal Acharya (supra) itself, it has been held that if the accused is unable to furnish his bail bond as directed and in the meanwhile, charge-sheet 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 circumstance. 15. In the case of Uday Mohanlal Acharya (supra), the Supreme Court has observed that in case, bail bonds are not filed and charge-sheet is submitted, the indefeasible right of the accused would stand extinguished. In my opinion, when in a case in which the order of release is passed and for that purpose, bail bond is directed to be furnished, but before bail bonds could be furnished, the charge-sheet submitted, the indefeasible right of the accused to get enlarged on bail, stands extinguished, for parity of reason in case in which the order of release is not passed but the charge-sheet is submitted, the right of the accused would stand extinguished. Having said so, I would like to add a note of caution. In a case in which the delay in passing the order for inordinate period is with a view to defeat the right of the accused situation may be different. 16. Bearing in mind the aforesaid principle, I proceed to examine the facts of the present case. Having said so, I would like to add a note of caution. In a case in which the delay in passing the order for inordinate period is with a view to defeat the right of the accused situation may be different. 16. Bearing in mind the aforesaid principle, I proceed to examine the facts of the present case. In the case of the petitioner Mantu Kumar Sinha, even before the expiry of period of 90 days, he had filed application on 11.11.2004. The period of 90 days was to expire between the period 12.11.2004 to 18.11.2004, during the Courts holidays. On 19.11.2004, the Court reopened and charge-sheet dated 15.11.2004 was filed. In such circumstance the petitioner was not entitled to be released on bail under the provisions of Section 167(2) of the Code and the Courts below did not err in rejecting his prayer. 17. As regards petitioner Ritendra Kumar Choudhary alias Yatinder Kumar Choudhary on the day he filed application for release on bail after expiry of 90 days under Section 167(2) of the Code, on the same day, the charge-sheet was filed and thus he was also not entitled to be released on bail in terms of Section 167(2) of the Code. 18. I do not find any merit in both the applications and are dismissed accordingly.