GOUSEMOHIDDIN Vs. STATE BY HANGAL POLICE

JUDGEMENT

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

(2.) IN furtherance of a complaint filed in October 2001 against the accused alleging that by inducing the complainant's minor daughter to go with him he kidnapped her, a case was registered against the accused. In that case, 11/2 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 -2003, he became entitled under Section 167(2) of the Cr. P.C. to apply for his release on bail. Such an application was filed on 23 -7 -2003. It is stated by the prosecution that charge -sheet was also submitted on the same day i.e. on 23 -7 -2003. The application for bail under Section 167(2) of the Cr, P.C. was taken up for consideration on 24 -7 -2003, and at the request of the learned Additional State Public Prosecutor, the matter was adjourned to 25 -7 -2003 and thereafter to 26 -7 -2003. On 26 -7 -2003 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 under Section 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 -2003 passed by the learned Judicial Magistrate First Class, Hangal, declining to release the petitioner on bail under Section 167(2) of the Cr. P.C.

(3.) IT is argued by Sri C.H. Jadhav, the learned Counsel for the petitioner that on the failure of the investigating Officer to file charge -sheet within the prescribed period, an indefeasible right accrued to the accused for being released on bail and subsequent filing of the charge -sheet does not extinguish that right. In this regard he refers to the decision in the case of Uday Mohanlal Acharya Vs. State of Maharashtra, AIR 2001 SC 1910 That decision exhaustively considers the impact of the charge -sheet filed subsequent to the date of accrual of the right of bail in favour of the accused under Section 167(2) of the Cr. P.C. and on consideration of many decisions particularly, the decision of the Constitution Bench in the case of Sanjay Dutt Vs. State through C.B.I., Bombay, (1995) CriLJ 477 drew the following conclusions;