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2006 DIGILAW 764 (PAT)

Md. Zaid @ Md. Zaid Sah v. State Of Bihar

2006-08-25

MADHAVENDRA SARAN, NARAYAN ROY

body2006
Judgment 1. Heard counsel for the parties. 2. The petitioners have prayed for issuance of a writ of habeas corpus, as the detention of the petitioners is said to be wholly illegal and without jurisdiction. 3. It is submitted by Mr. Vishwanath Prasad Sinha, learned senior counsel for the petitioners, that the petitioners were made accused for offence under Section 302 of the Indian Penal Code in Kusheshwar Sthan Police Station Case No. 67 of 2004 and they were arrested in New Delhi on 1.12.2005 and were produced before the Metropolitan Magistrate on 3.12.2005. 4. The petitioners thereafter were sent to Darbhanga for their production in the case, as the case related to the territorial jurisdiction of the District of Darbhanga. On 18.12.2005 the petitioners were produced before the Sub-Divisional Judicial Magistrate, Biroul at Benipur and the learned Magistrate remanded them to judicial custody. 5. In the meantime, a petition under Sec. 167(2) of the Code of Criminal Procedure (hereinafter to be referred to as "Code") was filed on behalf of the petitioners on 18.3.2006 for their release on bail on account of non-filing of the chargesheet within a period of ninety days. The petition filed by the petitioners was heard on the same day i.e. on 18.3.2006 by the learned Magistrate and on scrutiny of the facts and relevant documents the learned Magistrate held that the petitioners are not in judicial custody for more than ninety days and, therefore, he rejected their prayer for release on bail under Sec. 167(2) of the Code. 6. Proviso (a) to Sec. 167(2) of the Code contemplates as follows:- "(a) the Magistrate may authorise the detention of the accused person, otherwise than in the custody of the police, beyond the period of fifteen days, if he is satisfied that adequate grounds exist for doing so, but no Magistrate shall authorise the detention of the accused person in custody under this paragraph for a total period exceeding,- (i) ninety days, where the investigation relates to an offence punishable with death, imprisonment for life or imprisonment for a term of not less than ten years;...." 7. Proviso (a) to Sec. 167(2) of the Code applies in the case of the petitioners. 8. Proviso (a) to Sec. 167(2) of the Code applies in the case of the petitioners. 8. It appears from the order of the learned Magistrate that the detention of the petitioners was not found beyond a period of ninety days on 18.3.2006 when they applied for grant of bail, and, the application, therefore, was rightly dismissed. It further appears from the ordersheet that on 20th March, 2006 charge-sheet was already filed in the Court of the learned Magistrate, 19th March, 2006 was Sunday, and, therefore, the petitioners were not entitled to invoke the jurisdiction of the Court under Section 167(2) of the Code on 18.3.2006. It also appears that on 20th March, 2006 no such petition was filed on behalf of the petitioners to avail the provisions of Sec. 167(2) of the Code. 9. Mr. Sinha, learned counsel for the petitioners, now submits that since the petitioners were in judicial custody with effect from 3rd December, 2005 the period of ninety days will be counted from that date and the learned Magistrate, accordingly, could have granted bail to the petitioners on 18.3.2006, as the period of ninety days had already expired and no charge-sheet was filed. 10. When questioned as to whether these grounds were taken before the learned Magistrate invoking the jurisdiction under Sec. 167(2) of the Code, learned counsel for the petitioners frankly submitted that no such plea was taken before the learned Magistrate nor the same was taken before the revisional court, which also rejected the prayer of the petitioners. 11. Mr. Sinha, learned counsel for the petitioners, however, submitted that since the question of law is being raised before this Court, this Court may also exercise the power in the peculiar facts and circumstances of the case. 12. It is not in dispute that the present application was filed before this Court on 5.5.2006 to grant the privilege of Section 167(2) of the Code to the petitioners. It is also not in dispute that much prior to filing of this application, charge-sheet was filed in the court of the learned Magistrate on 20th March, 2006. Even on the day of admission or on filing of this application, the prayer of the petitioners was not tenable in view of filing of the charge-sheet much prior to filing of the same. 13. Law is settled on this point. Even on the day of admission or on filing of this application, the prayer of the petitioners was not tenable in view of filing of the charge-sheet much prior to filing of the same. 13. Law is settled on this point. The provisions of Sec. 167(2) of the Code could not be allowed to be availed, in a case where charge-sheet was already filed before invoking such jurisdiction. Reference in this connection made to the case of Uday Mohanlal Acharya Vs. State of Maharashtra, (2001(2) Patna Law Journal Reports S.C. 182). 14. For the reasons aforementioned, therefore, we do not find any merit in this application. 15. It is, accordingly, dismissed.