Matar Miyan vs State of Bihar

Mandhata Singh, J.—Heard learned Counsel for the petitioner and the State.

Petitioner''s prayer for his release u/s 167(2) of the Code of Criminal Procedure is refused on the ground that petitioner''s case falls u/s 167(2)(a) of the Code of Criminal Procedure. Section 167 of the Code of Criminal Procedure provides the period of investigation for accused persons in custody and that is limited to 90 days and 60 days according to the nature of punishment. Section 167(2) runs as follows:

(2) The Magistrate to whom an accused person is forwarded under this section may, whether he has or has not jurisdiction to try the case, from time to time, authorize the detention of the accused in such custody as such Magistrate thinks fit, for a term not exceeding fifteen days in the whole, and if he has no jurisdiction to try the case or commit it for trial, and considers further detention unnecessary, he may order the accused to be forwarded to a Magistrate having such jurisdiction: Provided that-

(a) the Magistrate may authorize the detention of the accused person, otherwise than in the custody of the police, beyond the period of fifteen days, if he is satisfied that adequate grounds exist for doing so, but no Magistrate shall authorize the detention of the accused person in custody under this paragraph for a total period exceeding,-

(i) ninety days, where the investigation relates to an offence punishable with death, imprisonment for life or imprisonment for a term of not less than ten years,

(ii) sixty days, where the investigation relates to any other offence, and, on the expiry of the said period of ninety days, or sixty days, as the case may be, the accused person shall be released on bail if he is prepared to and does furnish bail, and every person released on bail under this Sub-section shall be deemed to be so released under the provisions of Chapter XXXIII for the purposes of that chapter,

(b) no Magistrate shall authorize detention in any custody under this section unless the accused is produced before him;

(c) no Magistrate of the second class, not specially empowered in this behalf by the High Court, shall authorize detention in the custody of the police.

This section only authorizes a Magistrate to remand an accused in custody. In all cases other than given in Sub-section 2(a)(i) the maximum period of custody in course of investigation is sixty days. Sub-section (a)(i) provides the cases basing the period of punishment specifying its nature either death or imprisonment for life or imprisonment for a term of not less than ten years. Parties are at agreement that once the minimum period comes below ten years then sixty days will be the maximum period in course of investigation. For the instant case under Sections 25(1-B) and 26(2) of Arms Act, it is said that the maximum punishment which can be awarded is for a period not less than five years which may only be extended to ten years and never qualifies not less than ten years.

I agree with the learned Counsel for the parties. This right is indefeasible right, once accrues continues till submission of chargesheet or accused is not adamant for his release. But in the instant case the option to release is sought to avail, so it appears that the observation and conclusion made and reached by the learned Magistrate is not liable to be sustained.

Accordingly, the revision application is allowed. The order dated 25.7.2009 passed by the learned C.J.M., Saran in Manjhi P.S. case No. 67 of 2009 is set aside.

Let above named petitioner be released on bail on furnishing bail bond of Rs. 10,000/- (Ten thousand) with two sureties of the like amount each to the satisfaction of the C.J.M, Saran at Chapra in Manjhi P.S. case No. 67 of 2009.

Let this order be sent through fax at the cost of the petitioner.