Bazeer Khan alias Lalla Khan vs State of M.P.

Brij Kishore Dube, J.—This petition u/s 482 of Cr.PC, is preferred by the petitioner herein/accused for quashing the order dated 2-1-13 passed by the Additional Sessions Judge (FTC), Sabalgarh, District Morena in Criminal Revision No. 303/12 affirming the order dated 14-12-12 passed by the Additional Chief Judicial Magistrate, Sabalgarh in Criminal Case No. 1096/12 whereby an application u/s 167(2) of Cr.PC, filed by the petitioner/accused has been dismissed. Learned Counsel for the petitioner submitted that the petitioner/accused has been arrested on 13-10-12 in connection with Crime No. 411/12 under Sections 306 and 498-A read with Section 34 of IPC registered at Police Station, Kailaras, District Morena and produced before the Court on the same day. The learned Magistrate has granted judicial remand against the petitioner and lastly, it was granted till 17-12-12. The police authority has not filed challan within sixty days, therefore, the petitioner is entitled to be released on bail as per the statutory provisions of Section 167(2), Cr.PC, accordingly, he has submitted an application on 13-12-12. The learned Magistrate fixed the case for 14-12-12 for hearing on the said application. Before that the police submitted the challan on 13-12-12, and, therefore, the application was rejected on the ground that the challan has been filed in the matter. Learned Counsel further submitted that the police did not submit the challan within statutory period, i.e., sixty days but it was submitted on sixty-first day, i.e., after filing of the application u/s 167(2) of Cr.PC, by the petitioner/accused. In such circumstances, the petitioner is entitled for grant of statutory bail and merely by filing challan subsequently by the police his right of bail remains unaffected and, therefore, the impugned orders deserves to be quashed. He placed reliance on three Judge Bench decision of the Apex Court in Sayed Mohd. Ahmed Kazmi Vs. State, GNCTD and Others,

In response, learned Panel Lawyer argued in support of the impugned orders and submitted that since challan has been filed, therefore, the right of the petitioner/accused to be released on bail wiped out. He has cited in support of his contention two Judge Bench decision of the Apex Court in the case of Sadhwi Pragyna Singh Thakur Vs. State of Maharashtra, wherein it has been held as under:--

From the discussion made above, it is quite clear that even if an application for bail is filed on the ground that charge-sheet was not filed within 90 days, before the consideration of the same and before being released on bail if charge-sheet is filed, the said right to be released on bail, can be only on merits. So far as merits are concerned the learned Counsel for the appellant has not addressed this Court at all and in fact bail is not claimed on merits in the present appeal at all.

It is transpired from a perusal of the record that on 24-9-12, the Police, Kailaras registered the FIR at Crime No. 411/12 under Sections 306 and 498-A read with Section 34 of the IPC against the petitioner and the mother of the petitioner. At 10.30 a.m., on 13-10-12, the police apprehended the petitioner, Bazeer Khan alias Lalla Khan and produced before the learned Magistrate on the same day, i.e., on 13-10-12 who remanded the petitioner/accused for 15 days in judicial custody, i.e., till 19-10-12. Subsequently, the period of remand was extended, by extending the period of investigation and the custody of the petitioner from time to time. On 12-12-12, the learned Magistrate further extended the period of investigation and the custody of the petitioner by another 15 days, i.e., till 17-12-12. On 13-12-12, an application had been made u/s 167(2) of Cr.PC, seeking default bail on the ground that charge-sheet was not filed within the prescribed statutory period of sixty days of the petitioner''s custody. The learned Magistrate adjourned the hearing and fixed 14-12-12 for consideration of the aforesaid application. Subsequently, on the same day, i.e., on 13-12-12, the police submitted the challan. The order dated 13-12-12 passed by the learned Magistrate reads as under:--

The learned Magistrate declined to allow the application filed by the petitioner on the ground that the charge-sheet has been submitted by the police. The aforesaid order was affirmed by the Revisional Court.

It is apparent from the record that the police has not submitted the charge-sheet within the statutory prescribed period of sixty days of the petitioner''s custody. The charge-sheet was submitted on 13-12-12, i.e., on sixty-first day of the custody of the petitioner. Admittedly, before submitting the charge-sheet by the police, the petitioner had submitted an application u/s 167(2) of Cr.PC.

Now, the core question is whether the right of the petitioner/accused to be released on bail u/s 167(2) of Cr.PC, is defeated by filing of the charge-sheet by the police?

A three Judge Bench of the Apex Court in Uday Mohanlal Acharya Vs. State of Maharashtra, while considering the earlier judgments on the point of right of accused being released on bail observed as under:--

Where after expiry of period of 60 days for filing challan the accused filed an application for being released on bail and was prepared to offer and furnish bail, however, the Magistrate rejects application on erroneous interpretation about non-application of Section 167(2) of Cr.PC, to case pertaining to MPID Act of 1999 and accused approaches higher forum and in meanwhile charge-sheet is filed, the indefeasible right of accused being released does not get extinguished by subsequent filing of charge-sheet. The accused can be said to have availed of his right to be released on bail on date he filed application for being released on bail and offers to furnish bail. Such an accused, who thus is entitled to be released on bail in enforcement of his indefeasible right will, however, have to be produced before the Magistrate on a charge-sheet being filed in accordance with Section 209 of Cr.PC, and the Magistrate must deal with him in the matter of remand to custody subject to the provisions of the Code relating to bail and subject to the provisions of cancellation of bail.

A three Judge Bench of the Apex Court in Sayed Mohd. Ahmed Kazmi (supra), has ruled that filing of the charge-sheet during pendency of application for statutory bail does not affect the right of the accused to bail u/s 167(2) of Cr.PC.

Considering the submissions of the learned Counsel for the parties and facts of the case as well as the law laid down of the Apex Court referred to hereinabove, it is held that the petitioner/accused rightly availed the benefit to be released on bail u/s 167(2) of Cr.PC, and therefore, this petition deserves to be and is hereby allowed.

Consequently, the impugned orders dated 2-1-13 passed by the Additional Sessions Judge (FTC), Sabalgarh, District Morena in Criminal Revision No. 303/12 and the order dated 14-12-12 passed by the Additional Chief Judicial Magistrate, Sabalgarh in Criminal Case No. 1096/12 rejecting the application of the petitioner/accused u/s 167(2) of Cr.PC, stand set aside. The petitioner/accused is directed to be released on bail on his furnishing a personal bond in the sum of Rs. 20,000/- (Rupees Twenty thousand only) with one solvent surety of the like amount to the satisfaction of the learned Magistrate on the condition that he shall remain present before the Court concerned during the trial. With the aforesaid, petition stands allowed and disposed of.