GOUSEMOHIDDIN MARADANSAB MASANAKATTI Vs. STATE OF KARNATAKA

JUDGEMENT

(1.) THE right of an accused to be enlarged on bail u/s. 167 (2) of the Cr. P. C. after the charge-sheet is filed, is the matter in issue in this petition filed u/s. 482 of the cr. P. C.

(2.) IN furtherance of a complaint filed in october, 2001 against the accused alleging that by inducing the complainants minor daughter to go with him he kidnapped her, a case was registered against the accused. In that case, 1 ? years after the complaint, the accused (the petitioner) is stated to have surrendered before the police on 22-4-2003. He was remanded to judicial custody and that custody was extended from time to time. Since the police did not file a charge-sheet against him within 90 days, i. e. , on or before 21-7-03, he became entitled u/s. 167 (2)of the Cr. P. C. to apply for his release on bail. Such an application was filed on 23-7-03. It is stated by the prosecution that charge-sheet was also submitted on the same day i. e. on 23-7-03. The application for bail u/s. 167 (2) of Cr. P. C. was taken up for consideration on 24-7-03, and at the request of the learned APP, the matter was adjourned to 25-7-03 and thereafter to 26-7-03. On 26-7-03 the learned Magistrate directed that the charge-sheet be registered. The matter was heard and in the order passed by him, the learned Magistrate came to the conclusion that charge-sheet having been filed on the same day, the indefeasible right of the accused stood extinguished and that therefore the prayer of the accused for his release on bail had to be considered on merits and not u/s. 167 (2) of the Cr, P. C. It is that order which has been challenged in this petition and the petitioner seeks an order to quash the order dated 29-7-03 passed by the learned J. M. F. C. , Hangal, declining to release the petitioner on bail u/s. 167 (2)of the Cr. P. C.

(3.) SRI. C. H. Jadhav, the learned Counsel for the petitioner submits that in fact the charge-sheet was not filed on 23-7-03. but that it was filed only on 26-7-03 as is evident from the copy of the order sheet, and that therefore even on facts, the application for bail submitted by the petitioner was earlier in time to the submission of the charge-sheet. In this regard he points out to the entry in the certified copy of the order sheet in C. C. No. 165/03. On a perusal of the same, it is seen that the application for bail was taken up for consideration on 24-7-03, but that it was adjourned to 25-7-03 at the request of the A. P. P. On 25-7-03 the A. P. P. filed objections and after hearing the matter in part, the learned Magistrate adjourned the matter to 26-7-03. Endorsement of the sheristedar that the PSI Hangal had submitted a charge-sheet against the accused for the offences under Sections 366-A, 344, 346, 376, 323, 504, 506 r/w 34, I. P. C. is found after this order dated 25-7-03 and the order of the learned Civiljudge (Sr. Dn.) and j. M. F. C. , Hangal, directing registration of the case is dated 26-7-03. The observation of the learned J. M. F. C. in the impugned order shows that the charge-sheet was in fact filed on 23-7-03. In all probability that charge-sheet might have been filed by the investigating Officer on 23-7-03, but some time was taken to examine the papers on administrative side before the charge-sheet was placed for orders of the learned Magistrate. Therefore, for consideration of the present petition, the date 23-7-03 is taken as the date on which the charge-sheet was filed.