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2011 DIGILAW 220 (JHR)

Bahadur Singh Sirka v. State of Jharkhand

2011-03-18

D.K.SINHA

body2011
Order The petitioner has invoked the inherent jurisdiction of this Court under Section 482 of the Code of Criminal Procedure for quashment of the order dated 19.6.2007 passed in G.R. No. 97 of 2007 arising out of Sonua P.S. Case No. 18 of 2007 by which though the SDJM. Chaibasa had granted bail to the petitioner under Section 167(2)(i) of the Code of Criminal Procedure as the charge-sheet could riot be submitted within stipulated period of 90 days but refused to accept the bail bond of the petitioner by order dated 19.6.2007 on the ground that the police had submitted charge-sheet on 18.6.2007 at about 5 p.m. prior to furnishing of the bail band on behalf of the petitioner Bahadur Singh Sirka. 2. The short question that has been raised on behalf of the petitioner is as to whether SDJM was within his competency to refuse the bail bond which was furnished on behalf of the petitioner after he was admitted to bail under Section 167(2)(a)(i) of the Code of Criminal Procedure. It would be evident from the order dated 18.6.2007 recorded by the SDJM, Chaibasa that when the final form under Section 173 of the Code of Criminal Procedure could not be filed by the Investigating Officer in spite of the detention of the petitioner in custody for 92 days, the SDJM directed the petitioner to be released on his executing bail bond of Rs.10,000/- (Rupees ten thousand) with two sureties of the like amount each and the copy of which was sent to the Superintendent of Police, Chaibasa. 3. Sub-clauses (i) and (ii) of Clause-(a) of the proviso of Section 167(2) of the Code of Criminal Procedure provide that where investigation relates to an offence punishable with death, imprisonment for life or imprisonment for a term of not less than 10 years, the maximum detention of the accused is for- a period of 90 days; and for any other offences, the maximum detention is up to 60 days. But when a charge-sheet is filed within 90 days or 60 days, as the case may be, the accused- right to be released on bail shall be considered on merit and not under sub-clauses (i) and (ii), otherwise sub-clauses are mandatory and the court has no discretion to override the proviso. 4. But when a charge-sheet is filed within 90 days or 60 days, as the case may be, the accused- right to be released on bail shall be considered on merit and not under sub-clauses (i) and (ii), otherwise sub-clauses are mandatory and the court has no discretion to override the proviso. 4. Admittedly, the bail bond was submitted on 19.6.2007 on behalf of the petitioner as against the order dated 18.6.2007 by which he was admitted to bail but since charge-sheet was filed on 18.6.2007 at about 5 pm the learned SDJM after hearing the counsel for the parties refused to accept the bail bond by explaining that indefeasible right accrued to the petitioner forfeited after submission of the charge sheet as the bail bond could not be furnished on his behalf before submission of the charge-sheet. 5. To my view if indefeasible right of being released on bail is accrued to any accused it can never be extinguished even after submission of charge-sheet beyond the period of 90 days if the court has directed for release of an accused on furnishing bond. In the instant case the petitioner had filed his bail petition after detention in custody for 92 days and considering his detention as also that the charge sheet could not be filed under Section 173 of Cr.P.C. within 90 days, the petitioner availed his right to be released on bail and accordingly, the order was passed for his release by the SDJM, Chaibasa. Such right accrued to the petitioner cannot be withdrawn or forfeited in view of the explanation (ii):- "For the avoidance doubts, it is hereby declined that notwithstanding the expiry of the period specified in Paragraph (a), the accused shall be detained in custody so long as he does not furnish his bail bond." But in the instant case the learned SDJM misconceived and refused to accept the bail bond which was furnished by the accused-petitioner as against the order dated 18.6.2007 by which he was directed to be released on executing bail bond of Rs. 10,000/- with two sureties of the like amount to his satisfaction. But in the given circumstances the court cannot back out and refuse to accept the bail bond of the petitioner on the ground that the charge-sheet has been submitted. 10,000/- with two sureties of the like amount to his satisfaction. But in the given circumstances the court cannot back out and refuse to accept the bail bond of the petitioner on the ground that the charge-sheet has been submitted. To sum up, right once accrued to any accused after detention in custody for 90 days is indefeasible right which cannot be forfeited or withdrawn in the given facts and circumstance and therefore, I find that the learned SDJM, Chaibasa misconceived the provision of law and therefore, the order impugned dated 19.6.2007 by which the learned SDJM refused to accept the bail bond of the petitioner pursuant to the order passed under Section 167(2)(a)(i) of the Code of Criminal Procedure cannot be sustained under law and the same is set aside. The petitioner is directed to file fresh bail bond within 15 days of this order to the satisfaction of the trial court and he is directed to be released if not wanted in any other case. 6. This Cr. M.P. is allowed.