SUKHAI Vs. STATE OF U P

JUDGEMENT

(1.) This petition has been filed with the prayer that the impugned orders dated 9.5.2011 and 6.7.2011 passed by Judicial Magistrate-I, Raebareli and Sessions Judge, Raebareli may be quashed.

(2.) The facts in short are that the Petitioners were charged under Sections 363, 366 and 504 IPC and they remained in jail since 17.2.2011. The Petitioners moved an application for bail claiming benefit of Section 167(2)(a)(ii) Code of Criminal Procedure. It was stated by the Petitioners that no charge-sheet has been filed Within a period of 60 days, therefore, the Petitioners are entitled to be released on bail. The said application was considered by the learned Magistrate and the learned Magistrate proceeded to reject the application assuming that the charge-sheet could be filed within 90 days, as such, bail could not be granted. The Petitioners filed revision before the Sessions Judge and the Sessions Judge after considering the case laws cited by the Petitioners proceeded to reject the revision by recording a finding to the effect that the date on which the application was moved i.e. 9.5.2011, on the same day charge-sheet was filed, therefore, the Petitioners cannot be given the benefit as claimed by them in the judgment rendered in the case of Uday Mohanlal Acharya v. State of Maharashtra, 2001 5 SCC 453. Learned Sessions Judge considered the aforesaid case law and came to the conclusion that dictum of law laid down in Sanjay Dutt v. State through CBI, 1994 5 SCC 410, bail cannot be granted to the Petitioners. The Petitioners feeling aggrieved with the aforesaid orders have come up to this Court by way of this petition challenging the validity of the two orders passed by the trial Court and the revisional Court.

(3.) Submission of learned Counsel for the Petitioners is that Section 167(2)(a)(ii) Code of Criminal Procedure contemplates that if the charge-sheet is not filed within 60 days in respect of the offences in which sentence can be awarded up to 10 years, then the bail was to be granted to the Petitioners. It is also submitted that if the Petitioners have claimed the benefit of Section 167(2) Code of Criminal Procedure and the order is not passed by the Magistrate or by the revisional Court releasing the Petitioners on bail, then their right was not stand forfeited and they shall be entitled to be released on bail as and when the case is heard and decided on merit by the higher Court. It has also been submitted that the trial Court has wrongly interpreted the provisions of Section 167(2) Code of Criminal Procedure and thereby recorded a finding that the sentence of 10 years can be awarded, therefore, the benefit cannot be claimed oh the assertion that the charge-sheet had not been filed within 60 days. Learned Counsel for the Petitioners has placed reliance upon the case of Uday Mohanlal Acharya and Rajeev Chaudhary v. State (NCT) of Delhi, 2001 SCC(Cri) 819.