BIHARILAL MINATILAL YADAO Vs. STATE OF MAHARASHTRA

JUDGEMENT

(1.) - Heard the learned counsel for the parties.

(2.) THE applicants/accused are prosecuted for having committed murder of one Kanahyasing Thakur on 10-10-1998 at about 9. 30 p. m. An offence under section 302 read with section 34 of Indian Penal Code came to be registered against the applicants/accused, vide Crime No. 388/1998, by gadgenagar Police Station, Amravati. The applicant/accused-Biharilal Minatilal Yadao was arrested on 10-10-1998 and was produced before the Judicial Magistrate, First Class on 11-10-1998; whereas the applicant No. 2-Laxmikant Biharilal yadao; applicant No. 3-Dadu @ Krushnakumar Biharilal Yadao; and applicant No. 4-Nandu Hiralal Yadao, came to be arrested on 13-10-1998 and were remanded to custody. The Police filed charge-sheet on 8-1-1999 in the Court, on which date, the accused were not produced by the jail authorities and, therefore, the Magistrate issued a Production Warrant and case was adjourned to 22-1-1999. On 22-1-1999, the applicants/accused persons moved an application for bail, which came to be registered as Application No. 3/1999. The applicants/accused sought bail on the ground of default, as contemplated in Proviso a (ii) to sub-section (2) of section 167 of the Criminal Procedure Code. The learned Magistrate on the very day rejected their application for bail on the ground that charge-sheet is filed within 90 days and as the magistrate has taken cognizance of the case by issuing production warrant, the provisions of section 167 (2) are not applicable.

(3.) AGGRIEVED by the order of the learned Magistrate, rejecting their application, for bail, the applicants/accused preferred Criminal Revision Petition No. 17/1999 before the Court of Sessions at Amravati and sought bail on the ground that the applicants/accused were not produced when the charge-sheet was filed on 8-1-1999 and, therefore, they are entitled to be released on bail and placed reliance on the case of the Iqbal Zahoor Shaikh and ors. vs. State of Maharashtra reported in (1994) IV CCR 2607 and Khimbhadhur Palshiram Thapa vs. State of Maharashtra, reported in 1989 (2) Crimes 543. The learned Additional sessions Judge dismissed the Revision Petition on the ground that the Police filed the Charge-sheet on 8-1-1999, which was within limitation of 90 days, as contemplated in section 167 (2) Proviso a (i); and as there was no default in filing the charge-sheet, within the prescribed time, the applicants/accused were not entitled for bail. The learned additional Sessions Judge also observed that : It is not a case where the accused persons were never produced before the Magistrate during the period of remand. It is only on 8-1-1999 that they were not produced prior to that the applicants/accused were produced before the Court on 4-1-1999 from jail and they were in Magisterial custody and their remand was extended and, therefore, the authorities relied upon by the learned counsel for the applicants are different than the facts of the present case.