JUDGMENT:- Applicants 1 to 3 - original accused nos. 3 to 5 are facing trial before the Sessions Court being Sessions Case No.160/2011 for the offence punishable under sections 143,323,302 read with 149 of the Indian Penal Code. By this application they are seeking their release on bail pending trial. 2. Facts, as unfolded in the F.I.R. lodged by one Kalpana w/o deceased Kishor Kohade, are thus: On 28/7/2011 over a petty issue there were altercations between the accused persons on one hand and the deceased on the other. The deceased was dealt with kicks and fist blows and was knock down. The postmortem notes reveal that the deceased had abrasion 4 x 3 cm over left elbow joint and laceration 1 x 1cm over occipital region of the scalp. On internal examination, haematoma 3 x 3 cm over occipital region and fracture 3 cm over upper occipital bone were seen. The final opinion is head injury with intra-cranial bleeding. The accused nos.1 to 3 were arrested on 29/7/2011 and were produced before the Magistrate on 30/7/2011. The chargesheet could not be submitted till 31/10/2011 and therefore, application for bail under section 167 (2) of the Criminal Procedure Code was moved. On the same day i.e. on 31/10/2011, learned Magistrate directed release of the applicants 1 to 3 on bail on their furnishing P.R. bond in the sum of Rs.25,000/- each and one surety each in the like amount by observing thus: "Perused record. The application has been moved at 11.00 a.m. Till 2.00 p.m. no charge sheet has been filed by the P.S. Gondpipari. The accused were first remanded on 30.07.2011 and till today the investigation is not complete, charge sheet is not yet filed on record. In sum and substance the required period of 90 days is almost over. The accused therefore, have got indefeasible right to claim bail. Therefore following order." After this order was passed and during course of the day the chargesheet was submitted. When the accused persons moved an application for acceptance of the surety on 3rd of November, 2011 learned Magistrate declined to accept the same by observing that; "The accused were granted bail in view of section 167(2) of Cr. P.C. as the police official failed to furnish charge sheet against the accused. When the accused persons moved an application for acceptance of the surety on 3rd of November, 2011 learned Magistrate declined to accept the same by observing that; "The accused were granted bail in view of section 167(2) of Cr. P.C. as the police official failed to furnish charge sheet against the accused. However, the charge sheet was filed by the Police Officer on the same day when the bail was granted to accused. The accused despite order of bail failed to furnish the requisite bail. Mean time the police officer has filed the charge sheet in the case. Therefore, in view of ratio laid down in Uday Mohanlal Acharya V/s. State of Maharashtra, reported in AIR 2001 S.C.1910 Hon'ble Supreme Court held that the accused offers to furnish the bail and thereby avail of his indefeasible right and then an order of bail is passed on certain terms and conditions, but the accused failed to furnish the bail at that point of time a challan is filed then possibly it can be said that the right of the accused stood extinguished. In view of this the accused failed to furnish the requisite bail as per the order of the court prior to tiling of the charge sheet therefore the permission of furnishing surety at this stage when the right of accused is extinguished, cannot be granted. Hence application stands rejected." Against this order the applicants filed an application under section 439 of the Criminal Procedure Code before the learned Additional Sessions Judge, Chandrapur. Learned Additional Sessions Judge concurring with the view taken by learned Magistrate observed as under: "Heard both the parties. Perused the chargesheet. The criteria for granting bail under section 167(2) Cr.P.C. is different than that of granting bail under section 437 r/w 439 Cr.P.C. Once the chargesheet is submitted, the bail petition is required to be decided on merits and accused cannot take the advantage of the lapse of 90 days period for filing chargesheet". On merits also learned Additional Sessions Judge found that there exists prima facie case against the accused persons and therefore, rejected their bail application. 3. Learned Magistrate relied upon minority view taken in the decision in case of Uday Mohanlal Acharya V/s. State of Maharashtra reported in AIR 2001 Supreme Court 1910 : [2001 ALL MR (Cri) 713 (S.C.)]. On merits also learned Additional Sessions Judge found that there exists prima facie case against the accused persons and therefore, rejected their bail application. 3. Learned Magistrate relied upon minority view taken in the decision in case of Uday Mohanlal Acharya V/s. State of Maharashtra reported in AIR 2001 Supreme Court 1910 : [2001 ALL MR (Cri) 713 (S.C.)]. What has been laid down in the case supra is that if the accused files an application for being released on bail and offers to furnish bail when the chargesheet is not filed within the period of 60 days (now 90 days), it amounts to accused availing indefeasible right for being released on bail and shall be released on bail. It was further held that subsequent filing of chargesheet in mean time does not extinguish right of accused to be released on bail Learned Magistrate has misread the ratio laid down in the case supra by observing that "availing of the right to be released on bail" means not merely applying for bail but also furnishing sureties. This seems to be an erroneous view. If the accused files an application for being released on bail and offers to furnish bail irrespective of the fact that whether the Magistrate disposes of that application or not, it amounts to the accused availing of his indefeasible right. 'Offers to furnish bail' means applying for bail expressing wil1ingness to furnish sureties as may be ordered by the Court. This does not include the time consumed in arranging for sureties, actual1y executing the bond of the accused and sureties, furnishing necessary affidavit relating to sufficiency or fitness of the sureties and completing other formalities as required under law. It is very unfortunate that learned Additional Sessions Judge in a very casual manner dealt with this aspect of the matter and ignored glaring flaws committed by the learned Magistrate in relying upon minority view in Uday Mohanlal Acharya's case, [2001 ALL MR (Cri) 713 (S.C.)] (Supra). In an exactly similar situation, wherein the application for being released on bail was tiled at 11 a.m. and at 3 p.m. prosecution filed charge-sheet; the Hon'ble Single Judge of this Court in Rajubhai @ Jacob Mathew Pinto & Anr. In an exactly similar situation, wherein the application for being released on bail was tiled at 11 a.m. and at 3 p.m. prosecution filed charge-sheet; the Hon'ble Single Judge of this Court in Rajubhai @ Jacob Mathew Pinto & Anr. V/s. State of Maharashtra reported in 2005 ALL MR (Cri) 290 by relying upon Division Bench decision of this Court in case of Ramesh Madhukar V/s. State of Maharashtra reported in 1999 (2) Mh.L.J. 554 and Uday Mohanlal Acharya's case, [2001 ALL MR (Cri) 713 (S.C.)] (supra) held that once right to be released on bail is accrued and availed of by filing application for bail, filing of chargesheet posterior in point of time, will make no difference to the legal position. 4. After referring to the decision in case of Nijamuddin Mohammad Bashirkhan Vs. State of Maharashtra reported in 2006 ALL MR (Cri) 3110 and also the decision in case of Uday Mohanlal Acharya's case, [2001 ALL MR (Cri) 713 (S.C.)] (supra) Division Bench of this Court in case of Jitendra s/o Maroti Deotare & Anr. V/s. State of Maharashtra reported in 2008 ALL MR (Cri) 2458 observed that: "If it is found that, as a matter of fact that no such challan was filed within the period prescribed from the date of arrest, such applicant/accused must be held to have exercised the said right, even if, such application is posted for consideration or for orders before the court after some time or even after the Magistrate refuses the application erroneously and the accused moves the higher forum for getting formal order of being released on bail in enforcement of his indefeasible right. Filing of challan at subsequent stage will not take away the right of the accused. The Hon'ble Apex Court has held that such an interpretation would sub-serve the purpose and the object for which the provision in the shape of proviso to sub-section (2) of section 167 of Criminal Procedure Code has been made." This is the case where not only the accused availed of his right, but order for his release on bail was passed by the learned Magistrate. That being so, the learned Magistrate as well as the learned Additional Sessions Judge committed serious error in refusing to enlarge the accused on bail. 5. That being so, the learned Magistrate as well as the learned Additional Sessions Judge committed serious error in refusing to enlarge the accused on bail. 5. Even on merits, what appears is that there was quarrel between the deceased on one hand and six accused persons on the other. In a fight, the deceased was knock down. Thereafter, for a whole night the deceased was lying in the house. In the morning, he was carried to Rural Hospital, Gondpipri and during treatment, he died. The postmortem notes point out only one injury in the nature of laceration 1cm x 1 cm on occipital region of the scalp resulting in the fracture of occipital bone and in turn causing intracranial bleeding and ultimately resulting into his death. At the most this case would fall under section 304-II of the Indian Penal Code. This is apart from the fact that, amongst six accused named, it is not clear as to who caused fatal injury to the deceased. 6. For the reasons aforestated, application is allowed. 7. The applicant no1. Umaji Raghunath Shende, applicant no.2 Balaji Raghunath Shende and applicant no.3 Ganpat Chepu Wadai are directed to be released on bail on their furnishing P.R. bond of Rs.20,000/- (Rs. Twenty Thousand Only) each with one solvent surety each in the like amount. 8. Hamdast allowed. Application allowed.