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2007 DIGILAW 456 (PAT)

Mahendra Kumar @ Mahendra v. State Of Bihar

2007-02-28

SUBASH CHANDRA JHA

body2007
Judgment 1. Heard learned counsel for the petitioner and learned Additional Public Prosecutor appearing on behalf of the State. 2. This application has been directed for the purpose of quashing of order dated 23.2.2006 passed by the learned Chief Judicial Magistrate, Patna, whereby and whereunder prayer for bail of accused Jai Prakash and Mahendra Rai @ Mahendra Kumar filed on 18.2.2006 under Section 167(2) Cr.P.C. has been rejected. 3. Petitioner has, thus, urged of his released on bail under the aforesaid provision of 167(2) Cr.P.C. on account of non- submission of charge-sheet against him after expiry of prescribed period of retention in custody for ninety days. 4. Petitioner is said to have been remanded to custody in Jakkanpur P.S. Case No. 151/2005, F.I.R. of which has been drawn under Sec. 364/34 of Indian Penal Code. 5. Petitioner was remanded to custody on 21.11.2005. A petition was filed under Sec. 167(2) Cr. P.C. for his release on account of non-competition of investigation within prescribed period of ninety days, on 18.2.2006. 6. It has been submitted on behalf of the petitioner that petition for release on bail was filed on 18.2,2006 which was Saturday, after completition of ninety days, which was put up on 20.2.2006, but the impugned order was passed on 23.2.2006. It has also been submitted that, meanwhile, charge-sheet was received in the court of the learned Chief Judicial Magistrate, on 20.2.2006. 7. Learned Additional Public Prosecutor appearing on behalf of the State has submitted that, as a matter of fact, petition for release on bail was filed after expiry of 88 days of his detention which was pre- matured and non-maintainable. The law envisages consideration for such bail due to laches on the Investigating Agency in furnishing Final Form after expiry of ninety days in a case registered under Section 364 of Indian Penal Code. It has also been submitted that 19.2.2006 was Sunday and, therefore, the case was placed on 20.2.2006. 8. From the facts stated above, it is manifest that petition for release on bail in default of submission of Final Form by the Investigating Agency is pre-matured which was filed after expiry of 88th day in his detention. The charge-sheet seems to have been submitted as it bears the signature of Investigating Officer on 19.2.2006 i.e. investigation was complete within ninety days of detention of the petitioner. 9. The charge-sheet seems to have been submitted as it bears the signature of Investigating Officer on 19.2.2006 i.e. investigation was complete within ninety days of detention of the petitioner. 9. No judicial order is expected to be passed on holiday i.e. 19.2.2006. 10. A Division Bench decision of this Court reported in 2001(3) PLJR, 732 (Dinesh Yadav and another Vs. The State and others) has been relied upon by the learned counsel for the petitioner. But this decision is only applicable if the accused remained in custody for ninety days and no charge-sheet submitted, then he is entitled for grant of compulsive bail. It would be revealed that such petition for release on bail was pre-mature. It has been held in case of Vinay Choudhary Vs. The State, reported in 1989 Cr.L.J., 1490 (Delhi High Court) that when the Magistrate on 90th day accepting challan and directing submission of same before regular Magistrate next day, accused is not entitled to bail. 11. In the facts and circumstances, the petition filed under Sec. 167(2) Cr. P.C., was pre-mature as the investigation is said to have been completed within ninety days of the detention i.e. by 19.2.2006. There is no question of releasing the petitioner on bail and thereby giving benefit of law as provided under Sec. 167(2) Cr.P.C. 12. In the result, this application is dismissed.