Shah Alam vs State of Bihar Ors.

Narayan Roy and P.K. Sinha, JJ.—Heard Counsel for the parties.

By this application, the petitioner has prayed for issuance of a writ of habeas corpus directing the respondents to release him from illegal detention as he has wrongfully been confined in connection with Kadwa P.S. case No. 127/2001.

Learned Counsel for the petitioner submits that the petitioner, pursuant to Kadwa P.S. case No. 127/2001, was taken into custody and remanded to judicial custody vide order dated 27-9-2001 for an offence under Sections 399,402 and 307 of the Indian Penal Code read with Sections 25(1-a), (1-B), 26(2), 27 and 35 of the Arms Act and Sections 3/4 of the Explosive Substances Act and till 25-12-2001 charge-sheet was not submitted in the Court of the Chief Judicial Magistrate, Kathiar and after expiry of a period of 90 days, the petitioner was entitled to be reJeased on bail under the proviso (a) to Section 167(2) of the Code of Criminal Procedure (hereinafter referred to as "the Code"). It is further submitted that the petitioner in this respect filed an application for grant of bail to him in terms of proviso (a) to Section 167(2) of the Code of 4-1-2002 and Pursuant to the petition filed by the petitioner, the learned Chief Judicial Magistrate noticing the submission and considering the fact that charge-sheet was not submitted even after expiry of a period of 90 days, directed for release of the petitioner under proviso (a) to Section 167(2) of the Code.

It appears that immediately after passing of the direction for release of the petitioner under proviso (a) to Section 167(2) of the Code, the learned Magistrate on the same date i.e. on 4-1-2002 was informed by the Officer Incharge of Kadwa Police Station that charge-sheet in the case was already filed and he accordingly, called for charge-sheet and perused the same and put his signature, as would be evident from the final form as contained in Annexure-2. From the latter part of the order dated 4-1-2002, it appears that the charge-sheet was issued on 21-12-2001 and the day the prayer of the petitioner for grant of bail in terms of proviso (a) to Section 167(2) of the Code was allowed, the charge-sheet was received by the Chief Judicial Magistrate and accordingly, he endorsed his signature on the same on 4-1-2002 and accordingly recalled order dated 4-1-2002 granting bail to the petitioner in terms of proviso (a) to Section 167(2) of the Code Learned Counsel for the petitioner, further submitted that since 90 days had expired on 25-12-2001 and even though charge-sheet was received by the Chief Judicial Magistrate on 4-1-2002, the petitioner was entitled for bail under proviso (a) to Section 167(2) of the Code.

It is true that after expiry of 90 days in the given facts and circumstances of the case, the petitioner was entitled to be released on bail under proviso (a) to Section 167(2) of the Code in case charge-sheet was not submitted by that time but in this case it appears that the prayer for release of the petitioner in terms of proviso (a) to Section 167(2) of the Code was made on 4-1-2002 and by that time charge-sheet was already filed by the Officer Incharge concerned and the same was received in the office by the Chief Judicial Magistrate and ultimately the case was even perused by the Chief Judicial Magistrate on 4-1-2002. It further appears from the order dated 4-1-2002 that by the time the charge-sheet was seen by the learned Chief Judicial Magistrate, the petitioner was not released on bail and merely because he had furnished bail-bonds prior to filing of the charge-sheet, right will not accrue to him to be released on bail under proviso (a) to Section 167(2) of the Code. Submission of the charge-sheet and receipt of the same by the learned Chief Judicial Magistrate on the day the prayer for bail was made by the petitioner, waives his right and the petitioner thus forfeited his right to be released on bail under proviso (a) to Section 167(2) of the Code.

It is almost settled that if the accused fails to apply for bail in terms of proviso (a) to Section 167(2) of the Code when such right accrued, he cannot exercise his right after charge-sheet was filed and cognizance was taken. In this connection, reference may be made to the case of Mohamed Iqbal Madar Sheikh and Others Vs. State of Maharashtra, .

It appears that on 4-1-2002 the learned Magistrate perused the charge-sheet and thus, took cognizance of the offence. In this view of the matter, detention of the petitioner cannot be said to be illegal not would be without jurisdiction.

In the result, we find no merit in this application. It is, accordingly, dismissed.