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2013 DIGILAW 2026 (RAJ)

Misru alias Misroop v. State of Rajasthan

2013-11-18

PRASHANT KUMAR AGARWAL

body2013
Hon'ble AGARWAL, J.—The accused-petitioners have preferred this revision petition under Section 397 read with Section 401 Cr.P.C. against the order dated 03.07.2013 passed by the Additional Sessions Judge, No.1, Deeg (District Bharatpur) in Sessions Case No.9/2013 whereby the learned trial Court refused to accept and attest the bail bonds offered by the petitioners in compliance of the orders dated 19.12.2012 and 20.12.2012 passed by the Additional Chief Judicial Magistrate, Deeg (District Bharatpur) under Section 167(2) Cr.P.C. in respect of FIR No.397/2012 registered at Police Station Deeg (District Bharatpur) for the offences under Sections 363, 366 and 376 IPC. 2. The short question raised for consideration in this petition is “Whether a person, who has been granted an order of compulsive bail under Section 167(2) of the Code of Criminal Procedure by the Magistrate and who did not furnish bail-bond for a long time pursuant to the order and a charge-sheet was filed, in the meanwhile, can be subsequently released on such bail on his furnishing bail-bond on the strength of the earlier order or whether the right to be released on bail stands extinguished on submission of the charge-sheet.” 3. The brief relevant facts for the disposal of this petition are that FIR No.397/2012 came to be registered against the petitioners on 15.6.2012 for the offences under Sections 363, 366 and 376 IPC at Police Station Deeg (District Bharatpur) and during the course of investigation accused-petitioner-Jahid @ Bulti was arrested on 3.9.2012 whereas the accused-petitioner-Shri Misru alias Misroop was arrested on 4.9.2012. It is an admitted fact that the charge-sheet could not be filed within the period of 90 days as provided under proviso to Section 167(2) Cr.P.C. and on the basis of application filed by each of the petitioners the concerned Magistrate exercising its power under proviso to Section 167(2) Cr.P.C. allowed the same vide orders dated 19.12.2012 and 20.12.2012 respectively. From petitioner-Shri Jahid personal bond of Rs.10,000/- and surety of the same amount was demanded, whereas from petitioner-Misru personal bond of Rs.25,000/- and surety of the same amount was demanded. It is an admitted fact that after investigation charge-sheet was filed 18.1.2013 upon which cognizance was taken and the case being exclusively triable by Court of Sessions, it was committed to the learned Additional Sessions Judge No.1, Deeg (District Bharatpur) for trial. It is an admitted fact that after investigation charge-sheet was filed 18.1.2013 upon which cognizance was taken and the case being exclusively triable by Court of Sessions, it was committed to the learned Additional Sessions Judge No.1, Deeg (District Bharatpur) for trial. It is an admitted fact that the requisite bail bonds as ordered by the learned Magistrate were not filed by the petitioners before the charge-sheet was filed. On 5.2.2013 charges were framed against the petitioners and the trial commenced. In order to prove charges statements of as many as four prosecution witnesses including the prosecutrix were recorded. At this stage of the proceedings on 3.7.2012, separate applications were filed by the petitioners praying therein that they are submitting the requisite bail bonds in compliance of the aforesaid orders passed by the Magistrate under proviso to Sec. 167(2) Cr.P.C. and the same may be attested and they may be released from custody. The learned trial Court after hearing the respective parties vide impugned order dated 3.7.2013 dismissed the aforesaid applications and refused to attest the offered bail bonds and release them on bail. Feeling aggrieved, the petitioners are before this Court by way of this petition. 4. It was submitted by the learned counsel for the petitioners that as the charge-sheet could not be filed within the prescribed period of 90 days an absolute and indefeasible right accrued to the petitioners to be released on compulsive bail under proviso to Section 167 (2) Cr.P.C. and the petitioners exercising their right moved applications to grant benefit of bail to them before the charge-sheet was filed and the learned Magistrate rightly allowed their applications and ordered to release them on bail if they furnish the requisite bail bonds. It was further submitted that as soon as the order to enlarge the petitioners on compulsive bail was passed, a further right accrued to them to furnish requisite bail bonds at any time before final judgment is passed by the Court after conclusion of trial as no period is fixed within which the requisite bail bonds are required to be furnished and the right once accrued in favour of the petitioners can not extinguish or lost merely because they failed to furnish the bail bonds at an earlier date and in the meanwhile charge-sheet was filed and trial also commenced. It was also submitted that the right of an accused under proviso to Section 167 (2) to be released on compulsive bail on account of failure on the part of investigating agency to file charge-sheet within the prescribed period cannot be defeated merely on a technical ground that requisite bail bonds were not filed at an earlier date. 5. In support of his submissions, learned counsel for the petitioners relied upon the case of Sayed Mohd. Ahmad Kazmi vs. State (Government of NCT of Delhi) & Ors. reported in (2012) 12 SCC 1 = 2013(1) RLW 750 (SC). 6. On the other hand, it was submitted by the learned Public Prosecutor that although an absolute right to be released on bail accrued in favour of the petitioners as the charge-sheet could not be filed within the prescribed period and on that account orders were also passed by the concerned Magistrate in favour of the petitioners, but as the petitioners did not submit the requisite bail bonds before the charge-sheet was filed, the right which accrued in their favour stood extinguished as soon as the charge-sheet was filed. It was further submitted that the right under proviso to Section 167 (2) Cr.P.C. is not absolute in the sence that there is automatic release on bail on expiry of the prescribed period. The requisite conditions are also required to be fulfilled by the accused. 7. I have considered the submissions made on behalf of the respective parties and the material made available for my perusal as well as the relevant legal provisions and the case law including the decision relied upon on behalf of the petitioners. 8. The relevant part of Section 167 (2) Cr.P.C. provides that on the expiry of the prescribed period of 90 days or 60 days, as the case may be, the accused-person shall be released on bail if he is prepared to and does furnish bail, and every person released on bail under this provision shall be deemed to be so released under the provisions of Chapter XXXIII Cr.P.C. 9. A close look at the aforesaid provision reveals that before benefit of bail is granted to an accused, he is required to fulfill atleast following two conditions:- (i) He must be prepared to furnish the bail (ii) He must furnish the requisite bail, as ordered by the Magistrate. 10. A close look at the aforesaid provision reveals that before benefit of bail is granted to an accused, he is required to fulfill atleast following two conditions:- (i) He must be prepared to furnish the bail (ii) He must furnish the requisite bail, as ordered by the Magistrate. 10. It is well settled legal position that accused gets a right to be released on bail as soon as the prescribed period of 90 days or 60 days, as the case may be expires, but to get benefit of the said provision an application for grant of bail is required to be filed by the accused and if in a case no such application is filed and in meanwhile charge-sheet is filed, the right is lost even if charge-sheet was filed after the expiry of the prescribed period. Filing of such an application is not merely a formality but it is a legal requirement showing preparedness on the part of the accused to avail benefit of the provision. It is also well settled law that the right to be released on compulsive bail does not get lost if the application is filed before charge-sheet is filed but the same was kept pending and no order was passed and in the meanwhile charge-sheet was filed. Although, it is clear that the right accrued in favour of an accused to be released on bail under the aforesaid provision cannot be defeated merely because no immediate order was passed and once a right is accrued and exercised by the accused, the same cannot be lost merely due to delay made by the Magistrate in considering and deciding the application, but it is also clear that the right is to be exercised by the accused and he must be prepared, willing and ready to get benefit of the aforesaid provision. The filing of an application on the expiry of the prescribed period is indication of the fact that the accused is prepared, willing and ready to exercise his right. The right granted under the said provision is not automatic in the sense that the accused is not entitled to be released on bail as soon as the prescribed period expires. He cannot walk out of custody merely on the ground that the charge-sheet has not been filed before expiry of the prescribed period. The right granted under the said provision is not automatic in the sense that the accused is not entitled to be released on bail as soon as the prescribed period expires. He cannot walk out of custody merely on the ground that the charge-sheet has not been filed before expiry of the prescribed period. In the present case, although the petitioners exercised their right to be released on bail by filing applications before the charge-sheet was filed and the same were rightly allowed by the Magistrate in accordance with law, but the question in the present case is whether the right which earlier accrued in favour of the petitioners stood extinguished by reason that the requisite bail bonds as ordered by the Magistrate were not furnished by the petitioners and in the meanwhile after investigation charge-sheet was filed. I am of the considered view that an accused can be released on bail under the aforesaid provision only when both the conditions as already mentioned are fulfilled by him. In the present case although, one of the conditions was fulfilled as the petitioners exercised their right to be released on bail by filing appropriate applications at an appropriate time, but they failed to fulfill the second condition to furnish the requisite bail bonds. An accused can be released from custody only when bail bonds to satisfaction of the Court are furnished. As already said, an application is required to be filed by the accused before charge-sheet is filed, if wants to get benefit of the aforesaid provision and on the same analogy it is to be held that the requisite bail bonds are required to be furnished by the accused before charge-sheet is filed and if he fails to do so, the right accrued in his favour stands extinguished. 11. In the case of Uday Mohanlal Charya vs. State of Maharashtra reported in (2001) 5 SCC 453 , Hon'ble Supreme Court has held that if the accused is unable to furnish the bail bonds as directed by the Magistrate, then on the conjoint reading of explaination-I and proviso to sub-section (2) of Section 167, the continued custody of the accused even beyond the specified period will not be unauthorised and, therefore, if during that period the investigation is complete and the charge-sheet is filed then so called indefeasible right of the accused would stand extinguished. Thus, the observation made by Hon'ble Apex Court also supports the view that the requisite bail bonds as ordered by the Magistrate are required to be filed before charge-sheet is filed and if by any reason the accused fails to do so and in the meanwhile the charge-sheet is filed then the indefeasible right of the accused would stand extinguished. In the present case, in view of the admitted fact that the bail bonds as ordered by the learned Magistrate were not filed and in the meanwhile the charge-sheet was filed and even the case was committed for trial to the Court of Sessions, no illegality or impropriety can be said to have been committed by the learned trial Court if it refused to attest the bail bonds offered by the petitioners and to enlarge them on bail in compliance of the order passed by the learned Magistrate. 12. So far as the decision relied upon on behalf of the petitioners is concerned, it has been reiterated in it by Hon'ble Supreme Court that the right accrued in favour of the accused to be released on bail did not stand extinguished if the application filed by him is not considered and decided by the Court and before any order could be passed charge-sheet was filed. The question raised in the present case was neither under consideration nor it was decided by Hon'ble Supreme Court in the aforesaid decision and, therefore, it is of no help to the petitioners. Consequently, the revision petition being meritless is, hereby dismissed. The stay application also stands dismissed.