CHUNNI Vs. STATE OF UTTAR PRADESH

JUDGEMENT

(1.) This is the fourth bail application on behalf of the applicant, Chunni, and it is being pressed on the ground that charge-sheet was not submitted within 90 days as required under Section 167(2) Cr. P.C. It is also submitted that the applicant has been in jail for a long time and no charge has yet been framed. It was contended by the learned counsel that right of bail in default of submission of charge sheet within the stipulated period is an absolute one and it may not be defeated by an order under Section 309(2) of the Cr. P.C. In this connection, learned counsel relied on a decision given by me in the case of Shaukeen v. State of U.P. Cr1. Misc Bail Application No. 11896 of 1995. An opinion was expressed in that case that Section 167(2) Cr. P.C. gives an absolute right of bail to the accused in case of non-submission of charge - sheet within the stipulated period, and the applicant was granted bail. In response to this submission, it was submitted by the learned AGA that the court in the case of Shaukeen had not looked to the decision of the Supreme Court as reported in 1995 Cr1. Law Journal at page 477 (Sanjai Dutt v. State). It was a case under the TADA Act and a similar prayer was made on the ground that charge - sheet was not submitted despite passage of the permissible time and an indefeasible right had accrued to the accused for being released on bail. In paragraph 50 of the judgment (as reported), the Supreme Court expressed its views to say that once challan had been filed, the question of grant of bail had to be considered only with reference to the merits of the case under the provisions relating to grant of bail to accused. The custody of the accused, after the challan had been filed, was not governed by Section 167 Cr. P.C. but by different provisions of the Code of Criminal Procedure. The court also opined that if that right had accrued to the accused but it remained uninformed till filing of the challan, then there was no question of enforcement thereafter since it was extinguished the moment the challan was filed because Section 167 of Cr. P.C. cease to apply: In paragraph 55 the court further opined that even if bail is granted under Section 20(4) (bb) of the TADA Act, read with Section 167(2) Cr. P.C. in default of completion of investigation and filing of challan within the time allowed, the accused so released on bail may be arrested and committed to custody according to the provisions of Code of Criminal Procedure. It was observed: The right of the accused to be released on bail after filing of the challan notwithstanding the default in filing it within the time allowed is governed from the time of filing of the challan only by the provisions relating to the grant of bail applicable at that stage.T My judgment in Shaukeen s case made no reference to this decision of the Supreme Court and I must hold, therefore, that the said judgment was a judgment per inqurium and may not, therefore, be held as a precedent. The Supreme Court decision makes it clear that the bail application is to be seen on its merits in terms of the procedure laid down in the Code of Criminal Procedure. The view expressed by the Supreme Court regarding, the true interpretation of Section 167(2) of the Cr. P.C. was reiterated by a three-judge bench of the Supreme Court in the case of Mohd. Iqbal Madar She i kh2.

(2.) It was contended further that the accused had a constitutional right to get an expeditious trial and the bare fact that no charge has yet been framed, is sufficient to direct an order for his release on bail. Reliance in this regard was placed on a decision of the Allahabad High Court in the case of Dilip Kumar v. State of U.P.. The applicant in that case was in jail for more than one year and charges were not framed. It was thought to be a fit case for grant of bail although offence was a serious one. A similar view was taken by the Allahabad High Court in the case of Prithvi Pal v. State of U.P.

(3.) The records indicate that commitment has recently been made and the Sessions Judge is yet to take up the matter for framing of charge, Under these circumstances, it is felt necessary and sufficient that the Sessions Judge should be directed to expedite framing of charge if materials for charge are there.