Deepak Mandal Alias Deepu Mandal Alias ... vs The State Of Jharkhand on 5 January, 2015

[Cites 4, Cited by 2]

Jharkhand High Court

Deepak Mandal Alias Deepu Mandal Alias ... vs The State Of Jharkhand on 5 January, 2015

Bench: Amitav K. Gupta

    IN THE HIGH COURT OF JHARKHAND AT RANCHI
            Cr. Revision. No.1184 of 2014

    Deepak Mandal @ Deepu Mandal @ Chhootu
    S/o late Rudal Mandal,
    Resident of village - Gadaidiara,
    P.O. - Maharajpur (Bhatta)& P.S. - Taljhari,
    District - Sahebganj.                  .... Petitioner

                           Versus

    The State of Jharkhand                ....   Opposite Party
                           ---------

CORAM:   HON'BLE MR. JUSTICE AMITAV K. GUPTA
                      ---------
    For the Petitioner     : Mr. Anil Kumar, Advocate
    For the State          : Mr. Anjani Kumar Toppo, A.P.P.
                           ---------
02/Dated: 05th January, 2015

         This Revision application is directed against the order
    dated 13.11.2014 passed by the learned A.C.J.M., Rajmahal
    in Rajmahal P.S. Case No.354 of 2012, corresponding to
    G.R. No.634 of 2012, whereby the application of the
    petitioner under Section 167(2)(a)(i) of the Cr.P.C for
    releasing him on bail was rejected.
    2.   Mr. Anil Kumar, learned counsel, for the petitioner
    has submitted that the petitioner is not named in the F.I.R.
    That his name transpired in course of investigation
    accordingly he was remanded in this case on 14.08.2014;
    that the petitioner completed 90 days in custody on
    11.11.2014

whereafter in terms of Section 167(2)(a)(i) of the Cr.P.C the petitioner filed an application for bail on the 91st day as charge-sheet was not submitted within the statutory period of 90 days. That after filing of the said bail application as would transpire from Annexure - 2, a report was called for from the office and the office reported that the charge-sheet has been filed at 01:00 P.M. i.e. after the filing of the application for bail in terms of Section 167(2)

(a)(i) of the Cr.P.C. It is argued by the learned counsel for the petitioner that the court below failed to appreciate and consider the fact that the right of the petitioner to be admitted on bail had accrued on the 91 st day as the charge- sheet was not filed by the investigating officer within the stipulated and mandated period of 90 days and subsequent filing of charge-sheet on 91st day at 01:00 P.M. cannot

- 02 -

extinguish the right of bail to the petitioner as mandated under the provisions of Section 167(2) of the Cr.P.C. In support of his contention, learned counsel for the petitioner has relied on the decision in a case of Uday Mohanlal Acharya Vs. State of Maharashtra, 2001 (2) East Cr C 256 (SC).

3. Mr. Anjani Kumar Toppo, learend A.P.P has not controverted the submissions advanced by the petitioner's counsel.

4. Having heard the submissions, it is well settled that under Section 167 (2)(a)(i) of the Cr.P.C the accused is entitled to bail if the charge-sheet is not filed within the period of 60 days or 90 days when the accused has remained in custody. Admittedly, in the instant case, as is evident from the impugned order, the charge-sheet was received in the office of the court at 01:00 P.M on 12.11.2014 on 91st day after the filing of the bail application by the petitioner. In the case of Uday Mohanlal Acharya (Supra) as cited by the learned counsel in paragraph 15 it is held as under :-

"15. The question posed has been answered by the Hon'ble Supreme Court in following terms :

" In our 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 Code of Criminal Procedure 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."

- 03 -

Apparently the accused filed bail application and was ready to furnish the bail bonds thus, in such circumstances, indefeasible right for release on bail had accrued as till that time no charge-sheet was filed and subsequently the charge-sheet was filed at 01:00 P.M. Such filing of charge-sheet cannot extinguish or defeat the right of the accused as mandated under Section 167(2) of the Cr.P.C.

Thus, in the facts and circumstances, the above named petitioner is directed to be released on bail on his furnishing bail bond of Rs.10,000/- (Rupees Ten Thousand) to the satisfaction of learned A.C.J.M., Rajmahal in connection with Rajmahal P.S case No.354 of 2012, corresponding to G.R. No.634 of 2012 on the terms and condition which the trial court deems fit and proper to impose.

5. Accordingly, the impugned order dated 13.11.2014 passed by the learned A.C.J.M., Rajmahal in Rajmahal P.S. Case No.354 of 2012, corresponding to G.R. No.634 of 2012 is, hereby, set aside.

6. Let a copy of this order be communicated by FAX, at the cost of the petitioner.

(AMITAV K. GUPTA, J.) Chandan/-

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