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2015 DIGILAW 1535 (JHR)

Jalil Ansari v. State of Jharkhand

2015-12-09

AMITAV K.GUPTA

body2015
ORDER : This application has been filed for challenging and setting aside the order dated 30.06.2015 of the learned Principal Sessions Judge, Pakur and order dated 04.04.2015 passed by the Judicial Magistrate, respectively in G.R. No. 96 of 2015, P.S. Case No. 07 of 2015 under Section 366A I.P.C. whereby the prayer for release on bail under Section 167(2) Cr.P.C was denied. 2. Learned counsel has argued that the petitioner had surrendered in the aforesaid case on 02.02.2015 but the police did not submit the charge-sheet within 60 days i.e. till 03.04.2015 as mandated under Section 167(2) Cr.P.C. It is contended that on 04.04.2015 the application was filed by the petitioner under Section 167(2) Cr.P.C at 11:30 a.m. but the prayer for bail was rejected vide order dated 04.04.2015 on the report of the G.R. Clerk. The charge-sheet had been submitted at 3:10 PM. That the petitioner preferred revision application before the learned Sessions Judge but the learned Sessions Judge as well as learned Judicial Magistrate have erred in law by mis-interpreting the settled principles as laid down by the Hon'ble Supreme Court in the case of Uday Mohanlal Acharya Vs. State of Maharashtra reported in AIR 2001 SC 1910 . It is contended by the learned counsel that since the police had failed to submit the charge-sheet within the statutory period of sixty days as envisaged in the provisions of 162(2) of Cr.P.C, hence indefeasible right for being released on bail had accrued to the accused on the 61st day accordingly the petitioner/accused filed the application stating that he was ready to furnish suitable sureties (as per Annexure-1) for being released on bail under Section 167(2) Cr.P.C. On the above ground it is argued that the impugned order dated 30.06.2015 passed by the learned Sessions Judge, Pakur affirming the order dated 04.04.2015 of the learned Judicial Magistrate is fit to be set aside and the petitioner deserves to be enlarged on bail. 3. Per conta Mr. Ashok Kumar, learned A.P.P has argued that the chargesheet was submitted on the 61st day i.e. on the day of filing of the application by the petitioner/accused and the Sessions Judge have considered the settled proposition of law in view of the decision reported in the State of M.P. Vs. 3. Per conta Mr. Ashok Kumar, learned A.P.P has argued that the chargesheet was submitted on the 61st day i.e. on the day of filing of the application by the petitioner/accused and the Sessions Judge have considered the settled proposition of law in view of the decision reported in the State of M.P. Vs. Rustam 1995 SCC (Cri) 830 and 2014(3) J.L.J.R, SC 517 wherein it has been held that after filing of the charge-sheet right of compulsive bail does not survive, hence the impugned order does not suffer from any illegality and the present application should be dismissed. 4. Heard. Perused the impugned order. The learned Sessions Judge has rejected the prayer stating that the Hon'ble Apex Court in para 30 of the decision reported in 2014(3) J.L.J.R SC 517 has observed as follows:- In this background the expression “availed of” does not mean mere filing of the application for bail expressing there under willingness to furnish bail bond, but the stage for actual furnishing of bail bond must reach, if the challan is filed before that, then there is no question of enforcing the right, however valuable or indefeasible it may be, after filing of the challan because thereafter the right under default clause cannot be exercised.” On perusal of the order of the learned Sessions Judge and the decision reported in 2014(3) J.L.J.R, SC 517, it is evident such an observation was never made in para 30 of the decision in 2014(3) J.L.J.R 517. In fact in para 38 of the said judgment while considering and elaborating on the principle laid down in case of Uday Mohanlal Acharya Vs. State of Maharashtra (Supra) it has been held in para 38 “ -----------------------. That we may hasten to state though in Pragyna Singh Thakur's case the learned judges have referred to Uday Mohanlal Acharya's case but as stated the principle that even if an application for bail is filed on the ground that charge-sheet was not filed within 90 days but before consideration of the same and before being released on bail if the chargesheet is filed the said right to be enlarged on bail is lost. This opinion is contrary to the earlier larger Bench decision and also runs counter to the subsequent three judges Bench decision in case of Mustaq Ahmed Mohammed Isak's case Vs. This opinion is contrary to the earlier larger Bench decision and also runs counter to the subsequent three judges Bench decision in case of Mustaq Ahmed Mohammed Isak's case Vs. State of Maharashtra reported in (2009) 7 SCC 480 we are disposed to think so, as the two-judge Bench has used the words “ before consideration of the same and before being released on bail”, the said principle specifically strikes a discordant note with the proposition stated in the decision rendered by the larger Benches”. 5. It is relevant to take notice that the Hon'ble Apex while considering the dissenting opinion of one of judges in the case of Uday Mohanlal Acharya's case has observed that as long as the majority view occupies the field it is a binding precedent and the same has been followed in Sayed Mohd. Ahmad Kazmi Case reported in (2012) 12 SCC 1. 6. It is amply clear that the learned court below has mis-interpreted the principle and proposition of law and the ratio laid down by the Hon'ble Apex Court in the aforesaid decision. Looking to the facts of the present case it is evident that the charge-sheet was not filed within the prescribed period of 60 days and the accused had filed the application at 11:30 am of 04.04.2015 for being released on bail and was ready to furnish the sufficient sureties. After filing of the application at 11:30 am. the court below adjourned the matter and called for a report from the G.R. cerk who submitted the report that the chargesheet has been submitted at 3:10 PM on 04.04.2015 i.e. much after the filing of the application under Section 167(2) Cr.P.C. It is well settled that the date when the accused filed the application for benefit of default of provisions as en-grafted under Section 167(2) of the Cr.P.C, the indefeasible right to be released on bail had accrued and the prosecution cannot adopt the subterfuge of filing the charge-sheet after the expiry of the statutory period and that too after the filing of the application under Section 167(2) Cr.P.C to destroy the legal right of the accused to be enlarged on bail. 7. 7. Thus in the facts and circumstances of the case the order dated 30.06.2015 passed by the learned Sessions Judge, Pakur is hereby set aside and petitioner/accused, Jalil Ansari is directed to be released on bail on furnishing bail bond of Rs. 10,000/- (Rupees ten thousand) with two sureties of the like amount each to the satisfaction of Judicial Magistrate, Pakur in connection with Amrapara P.S. Case No. 07 of 2015 corresponding to G.R. No. 96 of 2015.