1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH : NAGPUR Criminal Application No. 1365 OF 2009 Tarun s/o Shivmurat Jaiswal, aged about 21 years, Occupation: Driver, At - BTS Plot, Ballarpur, Tahsil - Ballarpur, Dist. Chandrapur. .. APPLICANT .. Versus .. State of Maharashtra through Police Station Officer, Rajura, Tq. Rajura, District Chandrapur. .. NON-APPLICANT ... Mr. S.V. Sirpurkar, Advocate for Applicant. Mr. P.D. Kothari, APP for Non-applicant. ... CORAM : P.D. KODE, J. DATED : JULY 3, 2009 ORAL JUDGMENT 1. Heard. 2. Rule. Returnable forthwith. Heard finally by consent of parties. 3. By present petition under Section 482 of the Code of Criminal Procedure, one of the accused in Crime No. 146 of 2008 of Rajura Police Station registered for commission of offence under Section 394, 341 read with 34 of IPC and Section 2 4 read with Section 25 of the Arms Act, has prayed for quashing and setting aside order dated 5.1.2009 passed by learned Ad-hoc Additional Sessions-1, Chandrapur in Criminal Revision No. 181 of 2008 and so also order dated 22.12.2008 passed by the JMFC Rajura in the said crime upon his application for bail preferred under Section 167 (2) of the Code of Criminal Procedure i.e. order against which said application in revision was preferred. 4. In short, it is case of applicant that due to failure of investigating agency to furnish the charge sheet in the said Crime No.146/2008 within period prescribed by Section 167(2) of Cr.P.C., an indefeasible right had accrued to him to get himself released on bail and in pursuance of the said right he had duly preferred an application for releasing him on bail. However, the same was rejected by the said Court. Similarly, in spite of revisional court - Sessions Court of Chandrapur in revision preferred by him against the said order coming to conclusion that he was entitled for bail in view of chargesheet being not filed instead of allowing said prayer by observing that his said right has been extinguished in view of chargesheet being filed, having disposed the same by giving him direction for moving fresh application for bail before trial court had necessitated him to approach this court. 3 5. The facts, in brief, necessary for throwing light upon the controversy agitated can be set out as under : On 3.9.2008 one Ailayya Kumaraiya has lodged a report with Police Station Rajura regarding an incident which had occurred on 2.9.2008 in which three persons coming on a motorbike had stopped his truck and looted a sum of Rs.4,800/-, one mobile phone and one deck. The said Police Station had registered Crime No. 146/2008 upon said complaint for the offences prescribed earlier. During course of investigation, the applicant/accused came to be arrested by the said police on 9.9.2008 and was produced before the Court of JMFC at Rajura and thereafter he was remanded to custody and ultimately to the judicial custody from time to time. On failure of said Police Station to file a charge sheet within the stipulated period of 90 days under Section 167 (2) of Cr.P.C., the accused/applicant had moved an application for releasing him on bail as per provisions of Section 167(2) of Cr.P.C. However, the same was rejected by learned JMFC as narrated earlier. The applicant had preferred revision against said order on 29th December, 2008 before the Court of Session. On the same day police had also filed chargesheet against him and upon the same Criminal Case No.379/2008 was registered. 6. The application is opposed by the prosecution by 4 filing a say inter alia contending of charge sheet being filed and case being committed for a trial, the right accrued to the applicant under Section 167(2) of Cr.P.C. has been extinguished and, therefore, now he cannot be released on bail and furthermore application in revision made to Court of Sessions against order of rejection of application for bail being rejected and Court of Sessions having directed applicant to file an application for bail and thus now material being available for considering question of his custody, he is not entitled for bail for default occurred earlier. 7. Both the sides have made submissions upon line of stand taken by them respectively in application preferred and say filed opposing the application. 8. Now upon the plenary consideration of the provisions of Section 167(2) of Cr.P.C. and carefully considering the same in light of law pertaining to said provision pronounced by Hon’ble Apex Court in decision in a case of Sanjay Dutt .vs. State through CBI Bombay (II) reported in (1994) 5 Supreme Court Cases 410 and in the decision in a case of Uday Mohanlal Acharya .vs. State of Maharashtra reported in AIR 2001 Supreme Court 1910, there appears full substance in submissions canvassed by learned counsel for applicant that in the event of failure of the investigating agency 5 to submit a charge sheet within the prescribed period under Section 167(2) of Cr.P.C., the indefeasible right accrues to the concerned accused to get himself released on bail and if he duly takes steps for enforcing the said right by making an application, then merely because during the pendency of his application the chargesheet being submitted by the Police, cannot defeat his right and his right will be required to be upheld in spite of said subsequent event. The said submissions canvassed are found fully supported by matters stated in para 48 of the decision in case of Sanjay Dutt relied by him and so also matters stated in para no.8 of the majority view taken in a case of Uday Mohanlal Acharya and particularly regarding aspect of such accused availing right accrued to him by default prior to submission of chargesheet. 9. Now with regard to submission canvassed by learned APP, no doubt that observations made in decision in case of Sanjay Dutt in terms reveals that right accrued to accused due to default committed by the investigating agency is not perpetual one, still on the basis of aspect of such accused availing said right prior to filing of chargesheet as explained in the said pronouncement and found further explained in decision in case of Uday Mohanlal Acharya, it is difficult to accept further proposition canvassed by learned APP that such right 6 accrued to such accused would get extinguished after filing of chargesheet irrespective of himself having preferred application for bail prior to filing of chargesheet but having remained pending on the date of chargesheet. Needless to add that applicant having sought to enforce his right within parameters as explained in said decision i.e. himself having taken steps to avail right accrued to him before filing of charge sheet by filing application, then merely because said application having remained to be disposed prior to filing of chargesheet will not take away right accrued to him and sought to be enforced by making application. Needless to add that in said eventuality without enforcing his said right he cannot be forced to make an application for bail as directed by Court of Session instead of allowing his revision by setting aside order of detaining him in custody without there being a material before court for justifying his detention in custody on the date of his application. 10. With regard to another submissions canvassed by the learned APP though it is true that the decision in case of Sunjay Dutt was delivered by the Constitutional Bench and the latter decision given in the case of Uday Mohanlal Acharya is of Full Bench and the observations from the same relied by the learned counsel for applicant being from majority view, still after considering both the decisions and said consideration not 7 revealing of there being any conflict in the said decision regarding relevant aspect and on the contrary the “aspect of accused availing right accrued to him prior to filing of chargesheet” observed in judgment delivered by Constitution Bench being found further elaborated explained in decision delivered by Full Bench it is difficult to accept that propositions canvassed by the learned counsel for the applicant being in derogation of the law pronounced by both the said decision. 11. At the cost of repetition it will be necessary to say that legal position about the right of accused explained by the Hon’ble Apex Court in aforesaid decisions made it amply clear that right to get a bail on default for an accused in custody is germane to non-availability of material for consideration of Court for considering the question of his custody. However, the provisions of Section 167 (2) conferring a right upon the applicant/accused to get himself released on bail in the event of default, his any such application will be required to be decided qua his right on the date on which he had preferred the application. Having regard to the same, hardly any justification can be found for rejecting his such application by the learned Magistrate. 12. Similarly even carefully considering the orders passed by the learned Ad-hoc Additional Sessions Judge-1, 8 Chandrapur upon the application in revision, the same also cannot be said to be in consonance with the legal position explained in the aforesaid two decisions. Thus the direction to the applicant for reapproaching the Court of Magistrate to make an application clearly appears to be erroneous. The same is apparent as order passed by learned Ad-hoc Additional Sessions Judge, Chandrapur does not reveal that question of detention of applicant in custody on basis of material in chargesheet was in the meanwhile considered by trial Court and thus his detention thereafter was on basis of valid legally based order of remand. Needless to add that hence both the said orders impugned in application cannot be sustained in law. 13. Thus considering all the aforesaid aspects, it is crystal clear that since 22.12.2008 in spite of the petitioner/accused having right to get himself released on bail and having taken steps for enforcing the same, he has been detained in custody. His said detention in custody cannot be said to be made on valid basis. Even say filed to present petition also does not reveal that detention of applicant in custody is on basis of legal and valid order of remand passed on any legal basis. The same is apparent in view of say filed by prosecution fails to reveal aspect of his detention in custody being considered by competent court on basis of the material 9 now said to have been available against him. 14. In the premises aforesaid, the petition will be required to be allowed for serving ends of justice. The orders impugned in the petition are hereby quashed and set aside. The applicant/accused is directed to be released on bail on furnishing a P.R. Bond in the sum of Rs.50,000/- (Rs. Fifty Thousand only) with one solvent surety in the like amount and subject to condition that he will not leave jurisdiction of the Court of Session at Chandrapur without obtaining the permission from the said Court and he shall not tamper with the prosecution evidence. 15. Rule made absolute in the aforesaid terms. (P.D. KODE, J.) ...