Patna High Court
Case Details
Patna High Court Cr.Misc. No.40777 of 2012 (2) dt.18-04-2013 IN THE HIGH COURT OF JUDICATURE AT PATNA Criminal Miscellaneous No.40777 of 2012 ====================================================== Tappu Singh & Ors. Versus .... .... Petitioner/s The State Of Bihar .... .... Opposite Party/s ====================================================== Appearance : For the Petitioner/s : Mr. Shiva Shankar Prasad Sharma, Advocate. For the Opposite Party/s: Mr.Amrendra Prasad,A.P.P. ====================================================== CORAM: HONOURABLE MR. JUSTICE GOPAL PRASAD ORAL ORDER 2 18-04-2013 This is a petition for quashing the order dated 21.9.2012 passed by Sessions Judge, East Champaran, Motihari, in Cr.Rev.
Legal Reasoning
No.271/12 whereby he has been he confirmed the order dated 14.8.2012 passed by the C.J.M., East Champaran, Motihari in Paharpur P.S. Case No.28 of 2011 rejecting the prayer for bail of the petitioners. The case of the petitioners, in narrow compass, is that the petitioners were arrested in this case on 11.5.2012. The petitioners filed joint petition for release on bail on the ground that even after lapse of 93 days final form had not been submitted and, hence, they are required to be released on bail in view of Section 167 (2) Cr.P.C. as they had been remanded for offence under Section 302 of I.P.C. On the said petition a report was called for and it was reported by the Office clerk that the charge sheet (final form) has not been received till 4.30 P.M. and, hence, since 90 days have Patna High Court Cr.Misc. No.40777 of 2012 (2) dt.18-04-2013 already been elapsed and charge sheet has not been received so far and in such circumstance the petitioners are entitled for benefit under Section 167 (2) of Cr.P.C. and, accordingly, the petitioners were ordered to be released on bail on furnishing bail bond of
Legal Reasoning
Rs.10000/- each with two sureties of the like. Learned counsel for the petitioners, however, contends that on the next date a petition was filed by the petitioners which was accepted. However, from perusal of the certified copy of the order sheet filed by the petitioners dated 14.8.2012 shows that the police submitted supplementary charge sheet along with case diary on the same day for the offence under sections 147,148, 149 and 302 of I.P.C. However, later on as per order dated 13.8.2012 bail bonds of the petitioners Tappu Singh, Jwala Puri, Ashok Puri and Kanahar Puri @ Lulha had been filed but the same was rejected as charge sheet had been received. However, in the certified copy of the order dated 14.8.2012 the word ‘accepted’ has been deleted and the word ‘rejected’ has been inserted. However, in the margin there is endorsement that said correction in order has been made in view of order vide order dated 19.9.2012 and, hence, it appears that the word ‘accepted’ has wrongly been typed and subsequently by order dated 19.9.2012 accepted has been corrected by deleting the word accepted and substituted by word rejected. Patna High Court Cr.Misc. No.40777 of 2012 (2) dt.18-04-2013 Hence, the fact remains that the bail bond filed by the petitioner on 14.9.2012 was rejected in view of the fact that charge sheet submitted by the police on 14.8.2012 and, hence, the question for consideration whether the right accrued to the accused on non-submission of the final form within 90 days having been accrued by filing the petition for bail and report that chargee sheet not submitted and order passed for release on bail whether extinguished or submission of charge sheet during the period he tried to file bail bond. However, the petitioners challenged the order rejecting the bail bonds before the District and Sessions Judge, Motihari, and the same was rejected on the ground that the Magistrate has not committed any error. Learned counsel for the petitioner has relied on a decision of Apex Court in the case of Uday Mohan Lal Acharya, reported in A.I.R. 2001 S.C. 1910 wherein it has been held that the indefeasible right of the accused being released on bail does not get extinguished by subsequent filing of charge sheet under section 167 (2) of Cr.P.C after expiry of 90 days once the petitioner accrued his right to be released and, hence, the petitioners are required to be released on bail, if they preferred bail and abide by the terms and conditions. Patna High Court Cr.Misc. No.40777 of 2012 (2) dt.18-04-2013 However, having regard to the facts and circumstances the petitioners have exercised their right by filing a petition and the bail bond and subsequently he filed the bail bond. However, in the meantime charge sheet had been submitted. It appears that even the court has not considered the said application and has not accepted the terms and conditions. Hence, having regard to the fact that the petitioners have file application exercising their right on the ground of non-submission of the charge sheet within 90 days the subsequent filing of the charge sheet does not extinguished his right. In case reported in A.I.R.2001SC 1910 the accused filed petition that the time 90 days lapse and charge sheet not submitted, so, he may be released on bail. However, the said petition was rejected and so the accused challenged the order in revision and while he was pursuing remedy before the superior Court the charge sheet filed. In that circumstance it was held that once the petitioner accrued his right for release if charge sheet not filed within 60 days or 90 days as the case may be in pursuance of Section 167 (2) then the petitioner required to be released on bail irrespective of the charge sheet is filed subsequently. Hence, having regard to the facts and circumstances of the case, since the petitioner has accrued his right to be released on bail under section 167(2) hence required to be granted benefit Patna High Court Cr.Misc. No.40777 of 2012 (2) dt.18-04-2013 under section 167 (2) Cr.P.C. Hence, having regard to the facts and circumstances of the case, the order impugned dated 21.9.2012 is hereby set aside and the petitioners are ordered to be released on bail on such terms and conditions to the satisfaction of the learned Magistrate and the learned Magistrate would be entitled to deal with accused in accordance with law. Let the order be faxed at the cost of the petitioners. AnilKrSinha/- (Gopal Prasad, J)