Research › Search › Judgment

Jharkhand High Court · body

2016 DIGILAW 788 (JHR)

Md. Rabibul Sk. v. State of Jharkhand

2016-05-05

RAVI NATH VERMA

body2016
ORDER : 1. The sole petitioner has questioned the legality of the order impugned dated 08.04.2016 passed by the learned Judicial Magistrate, 1st Class, Rajmahal in Rajmahal (Radhanagar) P.S. Case No. 270 of 2015 whereby and whereunder the petition filed by the petitioner under Section 167(2)(a)(i) of the Code of Criminal Procedure (in short “the Code”) to release him on bail, has been rejected though the charge sheet was filed after 93 days of his custody i.e. after expiry of the statutory period of 90 days. 2. Bereft of unnecessary details, suffice it to refer to the factual matrix, in short, is that at the instance of the informant Serina Khatoon, the aforesaid case was lodged under Section 376 of I.P.C. with the allegation that she was sitting on a machan and looking after the Mango Garden taken by her father when at about 12.00 noon, the petitioner came there from behind and closed her mouth and dragged her in a nearby field and forcibly committed rape upon her and when she tried to object, the petitioner threatened her with hasua (sickle) and reminded her not to tell anyone on the assurance to marry her. On another occasion, the petitioner again wanted to establish physical relationship with her but she anyhow escaped and narrated the incidence to her parents. The parents of the informant contacted the family members of the petitioner and requested them to marry their son with the informant, but they refused. 3. The petitioner when came to know of the lodging of the case, surrendered in court below on 05.01.2016. After expiry of 93 days, the petitioner filed a petition under Section 167(2)(a)(i) of the Code on 08.04.2016 with prayer that since the statutory period of 90 days has already expired and the charge-sheet has not been submitted, petitioner has acquired indefeasible right to be released on bail. Thereafter, a report was called for from the office and a report was submitted that even after expiry of 93 days, I.O. has not submitted the charge-sheet in this case. The learned court below vide order dated 08.04.2016 allowed the petition filed by the petitioner holding that an indefeasible right to be released on bail has accrued to the petitioner. Accordingly, bail was granted to the petitioner on his furnishing bail bond of Rs.20,000/- with two sureties of like amount each. The learned court below vide order dated 08.04.2016 allowed the petition filed by the petitioner holding that an indefeasible right to be released on bail has accrued to the petitioner. Accordingly, bail was granted to the petitioner on his furnishing bail bond of Rs.20,000/- with two sureties of like amount each. The petitioner furnished the bail bonds before the court below for acceptance but on the same date i.e. on 08.04.2016, the office clerk of the said court submitted second report disclosing the fact that I.O. has submitted the charge-sheet at 11:40 a.m. on the same day. The court below considering the fact of filing of the charge-sheet held that till 11:40 a.m. on 08.04.2016 since no bail bond has been filed but the charge-sheet has been submitted before furnishing the bail bonds, the indefeasible right of the petitioner has extinguished and refused to accept the bail bond. Aggrieved by the said order, the petitioner has preferred this revision. 4. Learned counsel Mr. Gautam Kumar appearing for the petitioner assailing the order impugned as bad in law and perverse and against the mandates of the Hon’ble Supreme Court given in Uday Mohanlal Acharya vs. State of Maharashtra, (2001) 5 SCC 453 submitted that the right accrued to the petitioner after expiry of the statutory period cannot be defeated by subsequent filing of the charge-sheet. It was seriously argued that when the application for grant of bail was filed on the ground that charge-sheet has not been filed within 90 days even if no order is passed or a report is called and subsequent to that bail was allowed but the bail bonds were not filed, if during this period, charge-sheet has been submitted, that will not curtail or annul the right of the petitioner. 5. Contrary to the aforesaid submission, learned counsel representing the State submitted that since the bail bond filed by the petitioner was not accepted and in the meantime, the charge-sheet was filed, the indefeasible right that vested in accused-petitioner, got totally destroyed. 6. At the outset, it is necessary to state that the facts are not in dispute and, therefore, I am obliged to advert to the law and adjudge whether the court below has rightly applied the legal principles. 6. At the outset, it is necessary to state that the facts are not in dispute and, therefore, I am obliged to advert to the law and adjudge whether the court below has rightly applied the legal principles. In the case Union of India through C.B.I. vs. Nirala Yadav @ Raja Ram Yadav @ Deepak Yadav, (2014) 9 SCC 457 while considering a similar issue, the Hon’ble Supreme Court relying upon the judgment of three Judges corum [Uday Mohanlal Acharya (supra)], held in paragraph-22 as follows:- “22. In Uday Mohanlal Acharya the majority, after referring to the Constitution Bench decision in Sanjay Dutt case, posed the question about the true meaning of the expression of the following lines: “3.… 48.… The indefeasible right accruing to the accused in such a situation is enforceable only prior to the filing of the challan and it does not survive or remain enforceable on the challan being filed, if already not availed of. Answering the said question the Court observed thus: “13. … Does it mean that an accused files an application for bail and offers his willingness for being released on bail or does it mean that a bail order must be passed, the accused must furnish the bail and get him released on bail? In our considered opinion it would be more in consonance with the legislative mandate to hold that an accused must be held to have availed of his indefeasible right, the moment he files an application for being released on bail and offers to abide by the terms and conditions of bail. To interpret the expression availed of to mean actually being released on bail after furnishing the necessary bail required would cause great injustice to the accused and would defeat the very purpose of the proviso to Section 167(2) of the Criminal Procedure Code and further would make an illegal custody to be legal, inasmuch as after the expiry of the stipulated period the Magistrate had no further jurisdiction to remand and such custody of the accused is without any valid order of remand. That apart, when an accused files an application for bail indicating his right to be released as no challan had been filed within the specified period, there is no discretion left in the Magistrate and the only thing he is required to find out is whether the specified period under the statute has elapsed or not, and whether a challan has been filed or not. If the expression availed of is interpreted to mean that the accused must factually be released on bail, then in a given case where the Magistrate illegally refuses to pass an order notwithstanding the maximum period stipulated in Section 167 had expired, and yet no challan had been filed then the accused could only move to the higher forum and while the matter remains pending in the higher forum for consideration, if the prosecution files a charge-sheet then also the so-called right accruing to the accused because of inaction on the part of the investigating agency would get frustrated. Since the legislature has given its mandate it would be the bounden duty of the court to enforce the same and it would not be in the interest of justice to negate the same by interpreting the expression if not availed ofin a manner which is capable of being abused by the prosecution. A two-Judge Bench decision of this Court in State of M.P. vs. Rustam setting aside the order of grant of bail by the High Court on a conclusion that on the date of the order the prosecution had already submitted a police report and, therefore, the right stood extinguished, in our considered opinion, does not express the correct position in law of the expression if already not availed of, used by the Constitution Bench in Sanjay Dutt.” The Hon’ble Supreme Court considering the similar other judgments like Sanjay Dutt vs. State, (1994) 5 SCC 410 and State of M.P. vs. Rustam, 1995 Supp (3) SCC 221 further held in paragraph-25 as follows:- 25. Elaborating further, the Court held that: “13.… if the charge-sheet is filed subsequent to the availing of the indefeasible right by the accused then that right would not stand frustrated or extinguished necessarily, therefore, if an accused is entitled to be released on bail by application of the proviso to sub-section (2) of Section 167 CrPC, makes the application before the Magistrate, but the Magistrate erroneously refuses the same and rejects the application and then the accused moves the higher forum and while the matter remains pending before the higher forum for consideration a charge-sheet is filed, the so-called indefeasible right of the accused would not stand extinguished thereby, and on the other hand, the accused has to be released on bail.” 7. It is true that earlier in the case Pragyna Singh Thakur vs. State of Maharashtra, (2011) 10 SCC 445 , the Hon’ble Supreme Court had taken the view in paragraph-54 in the following manner:- “54. There is yet another aspect of the matter. The right under Section 167(2) CrPC to be released on bail on default if charge-sheet is not filed within 90 days from the date of first remand is not an absolute or indefeasible right. The said right would be lost if charge-sheet is filed and would not survive after the filing of the charge-sheet. In other words, even if an application for bail is filed on the ground that charge-sheet was not filed within 90 days, but before the consideration of the same and before being released on bail, if charge-sheet is filed, the said right to be released on bail would be lost. After the filing of the charge-sheet, if the accused is to be released on bail, it can be only on merits. This is quite evident from the Constitution Bench decision of this Court in Sanjay Dutt vs. State [paras 48 and 53(2)(b)]. The reasoning is to be found in paras 33 to 49.” The Hon’ble Supreme Court in Union of India vs. Nirala Yadav (supra) upon consideration of the above view taken in Pragyna Singh Thakur (supra) held as follows: “Keeping in view the principle stated in Sayed Mohd. Ahmad Kazmi vs. State (Govt. The reasoning is to be found in paras 33 to 49.” The Hon’ble Supreme Court in Union of India vs. Nirala Yadav (supra) upon consideration of the above view taken in Pragyna Singh Thakur (supra) held as follows: “Keeping in view the principle stated in Sayed Mohd. Ahmad Kazmi vs. State (Govt. of NCT of Delhi), (2012) 12 SCC 1 , which is based on three Judges Bench decision in Uday Mohanlal Acharya (supra), we are obliged to conclude and hold that the principle laid down in paras 54 and 58 of Pragyna Singh Thakur (supra) case, does not state the correct principle of law. It can clearly be stated that in view of the subsequent decision of a larger Bench that cannot be treated to be a good law. Our view finds support from the decision in Union of India vs. Aviva Industries India Ltd. (2014) 3 SCC 159.” 8. In view of the discussions made above, there is no doubt that the indefeasible right accrued to the petitioner cannot be defeated even if after expiry of statutory period of 90 days, charge-sheet has been filed by the I.O. before filing of the bail bonds. In that view of the matter, the order impugned cannot sustain and it is fit to be set aside. 9. Accordingly, this revision application is allowed. The order impugned dated 08.04.2016 passed by the learned Judicial Magistrate, 1st Class, Rajmahal in Rajmahal (Radhanagar) P.S. Case No. 270 of 2015 is, hereby, set aside and the petitioner is directed to be released on bail on furnishing fresh bail bonds as earlier directed by the court below. Revision allowed.