Radhe Shyam Yadav v. The State Of Bihar

Heard Mr. Pathak for the petitioner and Mr. Umesh Lal Verma learned APP for the State. Aggrieved by order dated .30.11.2012 passed by the learned Chief Judicial Magistrate, Jehanabad in connection with Jehanabad P.S. Case No. 206/2012 instituted under diverse provisions of Unlawful Activities (Prevention), Act (for short „the Act‟) the present application has been filed. The facts giving rise to the case are as follows:- The petitioner along with others was made accused in the case which was lodged on 2.6.2012. The petitioner was apprehended on the same day (2.6.2012) and was remanded to judicial custody on 3.6.2012. The investigation as per the provisions contained in the Act is required to be completed within 90 days. Proviso to section 43-D (2) thereof however, enables the Investigating Agency to seek extension of time by another 90 days for filing challan/charge sheet. Relevant part of section 43-D reads as under:- “43-D. Modified application of certain provisions of the Code.- (1) Notwithstanding anything contained in the Code or any other law, every offence punishable under the Act 2 Patna High Court Cr.Misc. No.177 of 2013 (2) dt.17-01-2013 shall be deemed to be a cognizable offence within the meaning of clause (c) of section 2 of the Code, and “cognizable case” as defined in that clause shall be construed accordingly. (2) Section 167 of the Code shall apply in relation to a case involving an offence punishable under this Act subject to the modification that in sub-section (2)- (a) the reference to “fifteen days”, “ninety days” and “sixty days”, wherever they occur, shall be construed as reference to “thirty days”, “ninety days” and “ninety days” respectively; and (b) after the proviso, the following provisos shall be inserted, namely:- “Provided further that if it is not possible to complete the investigation within the said period of ninety days, the Court may if it is satisfied with the report of the Public Prosecutor investigation and the specific reasons for the detention of the accused beyond the said period of ninety days, extend the said period up to one hundred and eighty days: Provided also that if the police officer making the investigation under this Act, requests, for the purposes of investigation, for police custody from judicial custody of any person in judicial custody, he shall file an affidavit stating the reasons for doing so and shall also explain the delay, if any, for requesting such police custody…….” the progress of indicating On an application filed by the Investigating Agency the court by order dated 30.8.2012 extended the time by another 90 days. The extended time for completion of investigation expired on 29.11.2012. Since the final form/charge sheet was not submitted till then the petitioner made an application on 30.11.2013 for his release on compulsory bail in terms of the provisions of the Act. A report was called for on the said application from the concerned office wherefrom it was disclosed that till the date of consideration of the application filed on behalf of the petitioner seeking bail charge sheet was not submitted. Accordingly, Chief Judicial Magistrate by an order passed on the said application on the same day directed for his release on furnishing bail bond of Rs. 10,000/- with two sureties of the like amount each. The bail bond was thereafter furnished by the petitioner. While 3 Patna High Court Cr.Misc. No.177 of 2013 (2) dt.17-01-2013 accepting the bail bond furnished by the petitioner subsequent to the order directing his release on furnishing bail bond it was found/detected that charge sheet has been submitted in the case. Accordingly, by subsequent order dated

30.11.2012 passed in the said case the learned Chief Judicial Magistrate declined to accept the bail bond on the ground that at the time of acceptance of the bail bond the charge sheet was filed. The petitioner is aggrieved by the aforesaid denial of his release on bail by not accepting the bail bond pursuant to the order directing his release on bail. Learned counsel for the petitioner submits that facts are not in dispute that 30th of November, 2012 was the 181st day of his incarceration. The petitioner did avail of his right of being released on bail in terms of the Act by filing an application seeking his release which was considered and in the light of the report submitted thereon by the office about non submission of the charge sheet the court was pleased to direct his release on furnishing bail bond(s). Once the petitioner availed of his right subsequent filing of charge sheet would not defeat his claim which already stood crystallized by grant of bail. It is contended that acceptance of bail bonds is only a subsequent ministerial act. He submits that this position in law has been clarified by the Apex Court in the case of Uday Mohanlal Acharya vs. State of Maharashtra (2001(2) PLJR (SC) 182) which has been taken note of by a Division Bench of this Court in granting relief in somewhat identical fact situation in the case of Dinesh Yadav vs. State of Bihar since reported in 2001 (3) PLJR 732. Learned counsel for the State has not controverted the facts of the present case. He has, however, supported the impugned order on the plea that at the time of acceptance of the bail bonds the charge sheet was 4 Patna High Court Cr.Misc. No.177 of 2013 (2) dt.17-01-2013 submitted by the Investigating Agency. This Court in Dinesh Yadav (supra) considered the earlier view of the Apex Court in the case of Sanjay Dutt vs. State through C.B.I. Bombay (ii) (1994) 5 SCC 410 and the ratio laid down in Uday Mohanlal Acharya (supra). Having considered the two views of the Apex Court this Court held as under in para 6 of the report which reads as under:- “6. From the law laid down by the Supreme Court, this becomes clear that as soon as the accused files an application and makes an offer to furnish bail, he has availed of his right under section 167 (2) Cr. P.C. and he is entitled to be released. In the instant case, the petitioner for release on bail under section 167(2) Cr. P.C. was filed on 23.4.2001 i.e. after expiry of 90 days. The report was submitted on the same day that till 10 a.m. no charge sheet was submitted. However, it appears from the subsequent report that charge sheet was submitted at about 11.45 a.m., therefore, it is manifest that charge sheet was submitted in the case after the petitioners had already availed of their right. In fact, by the time the petitioners had filed their application, no charge sheet had been submitted by the investigating agency. Therefore, the instant case is squarely covered by the law laid down by the Apex Court in the case of Uday Mohanlal Acharya vs. State of Maharasthtra (supra).” From the facts noted hereinabove, it appears that petitioner had already availed of his right and filed an application which was considered and allowed directing his release on bail by furnishing bail bonds. Once the petitioner availed of the said statutory right, subsequent filing of the charge sheet/challan in the light of the ratio laid down by the Apex Court, as noticed in Dinesh Yadav (supra), would not defeat his legal rights which had already been exercised and accepted by the court. Resultantly, the application is allowed. Subsequent order passed by 5 Patna High Court Cr.Misc. No.177 of 2013 (2) dt.17-01-2013 the learned Chief Judicial Magistrate on 30.11.2012 declining acceptance of bail bonds furnished by the petitioner in the light of the earlier order passed on his bail application is quashed and set aside. Learned Magistrate shall now proceed to accept the bail bonds furnished by the petitioner after due verification. (Kishore Kumar Mandal, J) HR/-