REHEMANKHA KALUKHA Vs. STATE OF MAHARASHTRA

JUDGEMENT

(1.) IN this reference, we are required to answer the issue referred to the Full Bench by the learned Single Judge. The issue referred for consideration of Full Bench is no more res integra and stands squarely covered by the judgment of the Apex Court rendered in the case of (Uday Mohanlal Acharya v. State of Maharashtra), reported in 2001 (5) Bom. C. R. (S. C.) (F. B.)577 : A. I. R. 2001 Supreme Court 1901.

(2.) THE learned Single Judge made reference for answering the issue as under :

(3.) BRIEF facts would be necessary to understand the controversy involved and the question referred. The applicant/accused Rahemankha Kalukha came to be arrested by Kholapuri Gate Police Station, Amravati on 7-7-1993 for the offence punishable under section 302 read with section 34 of the Indian Penal Code vide Crime No. 142/93 registered at the Police Station. The application seeking bail filed by the applicant, was earlier rejected. On completion of 90 years days i. e. on 91th day i. e. on 6-10-1993, an application was moved by the applicant/accused under section 167 (2) of the Criminal Procedure Code for releasing the applicant/accused on bail claiming to be the same to be his indefeasible right under the said provision. Till that time, the police had not filed the charge-sheet in the Court of the Judicial Magistrate, First Class, Amravati. The learned Judicial Magistrate, First Class, Amravati, instead of ordering the release of the applicant/accused on bail, postponed the hearing of the said application till 7-10-1993 by making endorsement on the application as "other side to say". On 7-10-1993, the charge-sheet came to be filed before the Judicial Magistrate, First Class, Amravati. The application filed by the applicant/accused came to be rejected by the learned Judicial Magistrate, First Class, Amravati, on 11-10-1993 on the ground that the applicant/accused was not entitled to be released on bail as at that moment the charge-sheet was already filed and, therefore, the accused did not have a right claimed by him under section 167 (2) of the Criminal Procedure Code. Being aggrieved by this, the Criminal Revision came to be filed before the Additional Sessions Judge, Amravati, being Criminal Revision No. 209/93 which the learned Additional Sessions Judge, Amravati, rejected and adopted the same reasonings as the learned Magistrate had.