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2019 DIGILAW 240 (RAJ)

Manoj Kumar v. State of Rajasthan

2019-01-19

PANKAJ BHANDARI

body2019
JUDGMENT : Pankaj Bhandari, J. 1. Petitioner has preferred this writ petition aggrieved by orders dated 06.06.2018 passed by Revisional Court and remand orders dated 14.02.2018 & 28.03.2018 passed by the trial Court in Criminal Case No. 78/2018. Prayer made in the writ petition is that the petitioner be released on bail. 2. It is contended by counsel for the petitioner that the petitioner was arrested on 02.01.2018, charge-sheet was not filed within sixty days, the term expired on 02.03.2018. Charge-sheet was filed in the Court on 06.03.2018, copy of which was supplied to the petitioner on 14.03.2018. It is also contended that the petitioner was not produced in Court on 17.01.2018, 31.01.2018, 14.02.2018 & 28.02.2018 and in his absence, judicial custody was extended. It is further contended that the petitioner was not informed of his valuable rights to default bail by the Court as proceedings were drawn in his absence. 3. Counsel for the petitioner has placed reliance on 2017 (3) R.C.R. (Criminal) 996 : 2017 (2) WLC (SC) Criminal 651 "Rakesh Kumar Paul v. State of Assam", 1989 (2) R.C.R. (Criminal) 412 : AIR 1990 SC 71 "Rajnikant Jivanlal Patel v. Intelligence Officer, Narcotic Control Bureau, New Delhi", 1991 Cr.L.R. (Raj.) 330 "Raju Nayak v. State of Rajasthan" and judgment of Allahabad High Court, 1994 Cri.L.J. 730 "Dharmanand @ Mahato v. State". 4. Learned Public Prosecutor has opposed the writ petition. His contention is that the charge-sheet was supplied to the petitioner on 06.03.2018, as per the impugned order. The petitioner never applied for default bail, hence there was no question of releasing the petitioner on bail. It is also contended that the petitioner's right to be released on bail, was eclipsed by filing of the charge-sheet and the only course available to the petitioner to apply for regular bail. 5. Learned Public Prosecutor has placed reliance on "Sayed Mohd. Ahmad Kazmi v. State (Government of NCT of Delhi) and Ors." (2012) 12 SCC 1 . 6. I have considered the contentions. 7. The Apex Court in "Rajnikant Jivanlal Patel v. Intelligence Officer, Narcotic Control Bureau, New Delhi" (supra) has held that the right to bail under Section 167(2) proviso (a) thereto is absolute. It is a legislative command and not Court's discretion. Magistrate has no power to remand a person beyond the stipulated period of 60 days. 7. The Apex Court in "Rajnikant Jivanlal Patel v. Intelligence Officer, Narcotic Control Bureau, New Delhi" (supra) has held that the right to bail under Section 167(2) proviso (a) thereto is absolute. It is a legislative command and not Court's discretion. Magistrate has no power to remand a person beyond the stipulated period of 60 days. He must pass an order of bail and communicate the same to the accused to furnish the requisite bail bonds. 8. The Apex Court in "Rakesh Kumar Paul v. State of Assam" (supra) while dealing with a similar situation held that it is the duty and responsibility of a court on coming to know that the accused person before it is entitled to 'default bail', to at least apprise him or her of the indefeasible right and that a contrary view would diminish the respect for personal liberty, on which so much emphasis has been laid by the Courts. 9. From the order-sheet of the Court below, it is revealed that the petitioner was not produced before the Court, consecutively for four occasions and the period of judicial remand was extended in his absence on 17.01.2018, 31.01.2018, 14.02.2018 and finally on 28.02.2018. It is apparent that the period of sixty days was to expire on 02.03.2018, the Court on 28.02.2018 extended the period of custody till 14.03.2018 which it was not entitled under law to extend as that date was falling beyond the period of sixty days. The period of judicial custody was extended in absence of the accused, hence it is evident that the accused was not informed of his right to default bail. 10. The judgment referred to by learned Public Prosecutor "Sayed Mohd. Ahmad Kazmi v. State (Government of NCT of Delhi) and Ors." (supra), wherein the Apex Court has held that if an accused does not exercise his right to grant of statutory bail before the charge-sheet is filed, he losses his right to such benefit, has no applicability to the facts of this case as the accused was in judicial custody and without producing him before the Magistrate, his judicial remand was extended thus he was not afforded any opportunity to exercise his right to grant of statutory bail, consequently, the writ petition deserves to be allowed. 11. 11. The writ petition is, accordingly, allowed and it is directed that accused-petitioner shall be released on bail provided he furnishes a personal bond in the sum of Rs. 50,000/- (Rupees Fifty thousand) together with two sureties in the sum of Rs. 25,000/- (Rupees twenty five thousand) each to the satisfaction of the trial Court with the stipulation that he shall appear before that Court and any Court to which the matter be transferred, on all subsequent dates of hearing and as and when called upon to do so. 12. Stay application stands disposed.