ATIQ Vs. STATE OF U P

JUDGEMENT

(1.) M. K. Mittal, J. Accused applicants Atiq and Jafer have prayed for release on bail in Case Crime No. 49 of 2004 under Sections 302/307 of IPC and Section 7 of Criminal Law Amendment Act P. S. Patwai, District Rampur on the ground that charge-sheet was not submitted within 90 days of their custody. The applicants were arrested in this matter on 12-3-2004 and were sent to District Jail Rampur. They moved an application under Section 167 (2) Cr. P. C. on 19-6-2004 at 11. 30 a. m. Learned C. J. M. directed the Prosecuting Officer to give report and the application was taken up for hearing same day at 2. 30 p. m. Before the application came up for hearing, charge-sheet was submitted against the applicants. Learned Magistrate rejected the application on the ground that the charge-sheet had been submitted and therefore, the applicants could not be released under Section 167 (2) Cr. P. C. The applicants thereafter moved an application for their bail in Sessions Court and the same was rejected by order dated 3-7-2004. Learned Sessions Judge has held that although the learned Magistrate is required to proceed with the application under Section 167 (2) Cr. P. C. without any delay but in the instant case the bail application of the co-accused Ashif Khan under Section 167 (2) Cr. P. C. was also fixed in his Court and after hearing of that application the case diary was returned and then the charge-sheet was filed in the Court of learned Magistrate. He further held that there was no delay on the part of the learned Magistrate in the disposal of the application and therefore, the accused were not entitled to be released under Section 167 (2) Cr. P. C.

(2.) LEARNED Counsel for the applicants has contended that learned Sessions Judge has wrongly rejected the bail application and that the accused were entitled to be released under Section 167 (2) Cr. P. C. as they had availed there right before the charge-sheet was submitted in the Court. In this connection, he has placed reliance on the case of Udai Mohan Lal Acharya v. State of Maharashtra, 2001 SCC (Crl.) 760. In this case Hon'ble Supreme Court by majority judgment has held that when the application for bail is filed by an accused for enforcement of his indefeasible right alleged to have accrued in his favour on account of default on the part of the investigating agency in completion of the investigation within the specified period, the Magistrate/court must dispose of it forthwith, on being satisfied that in fact that accused has been in custody for the period of 90 days or 60 days, as specified and no charge-sheet has been filed by the investigating agency. Such prompt action on the part of the Magistrate/court will not enable the prosecution to frustrate the object of the Act and the legislative mandate of an accused being released on bail on account of the default on the part of the investigating agency in completing the investigation within the period stipulated. It has also been observed in this case that if the accused does not avail the indefeasible right and the charge-sheet is filed such right does not survive. It has further been held that the crucial question, that arises for consideration, therefore, is what is the true meaning of the expression "if already not availed of"? Does it mean that an accused files an application for bail and offers his willingness for being released on bail or does it mean that a bail order must be passed, the accused must furnish the bail and get him released on bail? In our considered opinion it would be more in consonance with the legislative mandate to hold that an accused must be held to have availed of his indefeasible right, the moment he files an application for being released on bail and offers to abide by the terms and conditions of bail. To interpret the expression "availed of" to mean actually being released on bail alter furnishing the necessary bail required would cause great injustice to the accused and would defeat the very purpose of the proviso to Section 167 (2) of the Cr. P. C. and further would make an illegal custody to be legal, in as much as after the expiry of the stipulated period the Magistrate had no further jurisdiction to remand and such custody of the accused is without any valid order of remand. That apart, when an accused files an application for bail indicating his right to be released as no challan had been filed within the specified period, there is no discretion left in the Magistrate and the only thing he is required to find out is whether the specified period under the statute has elapsed or not, and whether a challan has been filed or not.

(3.) LEARNED Counsel for the complainant contended that the learned Magistrate, had decided the bail application same day, therefore, the accused are not entitled to get any benefit out of the case of Udai Mohan Lal Acharya (supra ). But this contention cannot be accepted. In the above noted case Hon'ble Apex Court has clearly held that the time when the application is moved, is important to see whether the accused has availed of his right or not. LEARNED Counsel for the complainant also referred to the case of Inayat Ullah and Ors. v. State of U. P. and Anr. , 1999 (1) JIC 302, and the case of Tinnu v. State of U. P. , 1999 (1) JIC 112. In these cases charge-sheet was submitted the same day when the application was field by the accused but in view of the law as laid down in the case of Udai Mohan Lal Acharya (supra) these rulings do not help the complainant.