Vishnu Soni vs State of Chhattisgarh

Sunil Kumar Sinha, J.—Heard.

This a revision directed against the order dated 15-3-2007, passed by the Special Judge, Janjgir in Special Criminal Case No. 05/2007, whereby, the said Court dismissed the application filed u/s 167(2), Cr.PC for grant of compulsive bail to the applicant.

The brief facts are that this applicant was arrested on 12-1-2007. He was sent to judicial custody on 13-1 -2007 and the charge-sheet could not be filed by the prosecution upto 14-3-2007, therefore, on 15-3-2007, an application for releasing on compulsive bail u/s 167(2), Cr.PC was filed by the applicant as the applicant was ready and willing to furnish the bail bond for his release. It is stated that on the same day, after filing of the application, subsequently, a charge-sheet was filed by the prosecution.

The learned Special Judge dismissed the application of the applicant, saying that since the charge-sheet has subsequently been filed by the State on the same day, though after filing of the application u/s 167(2), Cr.PC, therefore, the right accrued in favour of the applicant has been extinguished and the applicant would not be entitled to be released on compulsive bail.

The position of law in this regard is well settled. In Uday Mohanlal Acharya Vs. State of Maharashtra, , the Apex Court said that the power u/s 167 is given to detain a person in custody while the police goes on with the investigation and before the Magistrate starts the enquiry. Section 167, therefore, authorises the Magistrate to permit detention of an accused in custody and prescribes the maximum period for which such detention could be ordered. Having prescribed the maximum period what would be the consequences thereof has been indicated in the proviso to Sub-section (2) of Section 167. It has been held that on the expiry of the said period of 90 days or 60 days, as the case may be, an indefeasible right accrues in favour of the accused for being released on bail on account of default by the investigating agency in the completion of the investigation within the period prescribed and the accused is entitled to be released on bail, if he is prepared to and does furnish the bail as directed by the Magistrate. The Supreme Court has held that the proviso is unambiguous and clear and stipulates that the accused shall be released on bail if he is prepared to and does furnish the bail which has been termed by judicial pronouncement to be "compulsive bail" and such bail would be deemed to be a bail under Chapter 33. It has further been held that the proviso to Sub-section (2) of Section 167 is a beneficial provision for curing the mischief of indefinitely prolonging the investigation and thereby affecting the liberty of a citizen. The Supreme Court also held that even though the Magistrate does not possess any jurisdiction to refuse the bail when no charge-sheet is filed after expiry of the period stipulated under the proviso to Sub-section (2) of Section 167 and even though the accused may be prepared to furnish the bail required, but such furnishing of bail has to be in accordance with the order passed by the Magistrate. Therefore, without an order of Magistrate, the legislative mandate engrafted in the proviso to Sub-section (2) of Section 167 cannot be given effect to. The Supreme Court said that necessarily, therefore, an order of Court has to be passed. In Para 13 of the aforesaid judgment, the Supreme Court held that if the accused is unable to furnish the bail as directed by the Magistrate, then on a conjoint reading of Explanation I and the proviso to Sub-section (2) of Section 167, the continued custody of the accused even beyond the specified period in para (a) will not be unauthorised, and, therefore, if during that period the investigation is complete and the charge is filed then the so called indefeasible right of the accused would stand extinguished. The Supreme Court has also held in this judgment that the indefeasible right to the accused does not survive or remain enforceable on the challan being filed, if already not availed of, as has been held by the Constitution Bench of the Supreme Court in the matter of Sanjay Dutt Vs. State through C.B.I., Bombay, . The Supreme Court held that the expression "if not already availed of" used in Sanjay Dutt case (supra), must be understood to mean when the accused files an application and is prepared to offer bail on being directed. That means if the accused files an application after the expiry of the statutory period u/s 167(2), Cr.PC, stating that he is prepared to offer bail that is ordered, and it is found that no challan has been filed within the period prescribed from the date of arrest of the accused, then it has to be held that the accused has availed of his indefeasible right even though the Court has not considered the said application and has not indicated the terms and conditions of bail and the accused has not furnished the same. The Supreme Court finally held that with the aforesaid interpretation of the expression "availed of", if the charge-sheet is filed subsequent to availing of the indefeasible right by the accused then that right would not stand frustrated or extinguished.

The present case relates to NDPS Act, in which, Ganja in quantity of 31/2 kg was said to be seized from the possession of the applicant, therefore, it was more than small quantity and less than the commercial quantity and the punishment would be 10 years, therefore, the statutory period for filing of the charge-sheet would be 60 days.

Admittedly, the accused has availed his right by filing an application u/s 167(2), Cr.PC, which was filed before filing of the charge-sheet, therefore, the subsequent filing of the charge-sheet will not frustrate the indefeasible right, which has already been accrued in favour of the accused and the accused has availed the said right and in such facts and circumstances of the case, the Court below was not justified in dismissing his application, saying that after filing of the charge-sheet, the right so accrued, in favour of the accused is extinguished.

In the result, the revision is allowed.

The impugned order passed by the Court below is set aside.

It is directed that the applicant shall be released on bail on his furnishing a personal bond in sum of Rs. 10,000/- with one surety in like amount to the satisfaction of the Trial Court for his appearance before the said Court on each date of hearing till the disposal of the trial.

Certified copy as per rules.