IN THE HIGH COURT OF JUDICATURE AT PATNA Cr.Misc. No.25196 of 2009 Brahmdeo Rabidas @ Brahmdeo Ravidas son of Late Ugan Rabidas R/o village- Mahulliya Tarh P.S. Kouakol Dist. Nawada. --- Petitioners Versus The State of Bihar --- Opp.Party. For the Petitioner : Mr. Ajit Kumar , Advocate. For the State : Mr. Mayanand Jha, Advocate. ----------- 02 28.06.2010 Heard both sides. Petitioner is aggrieved by the order dated 10.09.2008, whereby the bail bond(s) furnished by the petitioner has not been accepted on the ground that during the interregnum the charge sheet came to be filed. The petitioner had approached the Court for grant of compulsive bail in terms of Section 167(2) (i) of the Code of Criminal Procedure (hereinafter referred to as the ‘Code’). The matter was carried in revision before the learned District and Sessions Judge, Jamui in criminal revision no. 87 of 2008. Learned revisional Court referring to the judgment rendered in the case of Uday Mohanlal Acharya vs. State of Maharashtra 2001(5) SCC 453, and an order of learned Single Judge of this Court relying on the said judgment has refused to grant any relief to the petitioner. Factual profile of the case emerging from the records are as under:- An F.I.R. against few persons named therein (not the petitioner) was lodged sometimes in the year 2003, under diverse Sections of the Penal Code, including Section 302 of the Penal Code, Section 27 of the Arms Act and Section ¾ of the Explosive Substance Act. Petitioner, it 2 appears, was facing charge in connection with another case. He was, therefore, lodged in custody in connection with the said case. Records indicate that the petitioner was remanded in the present case on 08.06.2008. On completion of 90 days of custody an application was filed, and moved on his behalf on 09.09.2008, seeking bail in terms of the aforesaid provisions of the Code. Admittedly 09.09.2008, was the 91st day of his continued incarceration in connection with the present case. The said application was considered on 09.09.2008, and the learned Chief Judicial Magistrate passed the following order:- “From perusal of record, it appears that it is a case u/s 302 I.P.C. besides other ancillary sections. Petitioner has been remanded in this case on 08.06.2008 and since then, he is languishing in jail. On calculation, it comes up that petitioner remained more than 90 days in jail custody and no charge sheet has been submitted by the I.O. of this case for the reasons best known to him. Hence, the petitioner is entitled for bail u/s 167(2) Cr. P.C. Accordingly, petitioner is directed to furnish bail bond of Rs. 10,000/-with two sureties of”. The bail bond(s) was/were furnishing on behalf of the petitioner on the following day i.e. on 10.09.2008. The learned Chief Judicial Magistrate refused to accept the same and passed the following order: “After order dated 9.9.08 bail bond has been furnished on behalf of the accused Brahmdeo Ravidas which is rejected as charge sheet has already received and the accused has not filed the bail bond in time.” Learned counsel for the petitioner submits that filing of the application would itself indicate the intention of the accused to furnish bail bond(s). It is next contended that once the petitioner approached the Court seeking permission to furnish bail bond(s), and the same, on verification, was found to be justified in terms of the aforesaid provision of the Code, and the learned Magistrate passed an order granting bail to 3 the petitioner, and thereby permitting him to furnish bail bond(s) the subsequent filing of the charge sheet shall not defeat the indefeasible right of the petitioner. He relies on a judgment rendered in the case of Uday Mohanlal Acharya vs. State of Mharashtra, 2001(2) PLJR. 182. He places particular emphasis on conclusions no.6 recorded by the Hon’ble Apex Court (at page no. 198 of the report). This Court deems it appropriate to extract the aforesaid conclusion: “6. The expression’ if not already availed of’ used by this Court in Sanjay Dutt’s case (supra) must be understood to mean when the accused files an application and is prepared to offer bail on being directed. In other words, on expiry of the period specified in paragraph (a) of proviso to sub-section (2) of Section 167 if the accused filed an application for bail and offers also to furnish the bail, on being directed, then it has to be held that the accused has availed of his indefeasible right even though the Court has not considered the said application and has not indicated the terms and conditions of bail, and the accused has not furnished the same.” It is next contended that a Division Bench of this Court, in the case of Karu Manjhi vs. State of Bihar (2005(3) PLJR 757) in almost identical circumstance, relying on the aforesaid judgment of the Supreme Court, has granted the relief and directed for release of the petitioner. It was held in the said case that the accused acquired an indefeasible right to bail in terms of 167(2) of the Code of Criminal Procedure which cannot be defeated on the ground that subsequent to the order passed on the bail application the charge sheet came to be filed. He also relies on the judgment of this Court rendered in the case of Vikash Kumar @ Vikash Singh vs. State of Bihar 2009 (4) PLJR 596. In the facts and circumstances of the case, I am inclined to quash 4 the impugned orders passed by both the learned Court below. Accordingly, the application is allowed. The order dated 10.09.2008, passed by the learned Chief Judicial Magistrate, Jamui as well as order dated 22.12.2008, passed by learned District and Sessions Judge, Jamui in Cr. Rev. no. 87 of 2008, in connection with Khaira P.S. case no. 65 of 2003, is hereby set aside. Learned Chief Judicial Magistrate is directed to accept the bail bond(s) furnished by the petitioner. It appears that the petitioner is facing a serious charge and the matter is old one. In that view of the matter, the following two conditions is imposed by this Court:- (i) One of the bailors should be the own/close family member of the petitioner. (ii) Petitioner shall continue to appear in person on the date fixed at the trial. In case of default in such appearance on two consecutive dates the Court below shall have liberty to cancel the bail bond(s) of the petitioner and secure his arrest in accordance with law. Sym ( Kishore K. Mandal, J.)