DODHA CHAINSCI Vs. STATE OF M P

JUDGEMENT

(1.) The applicant was arrested on charge of murder on 15/9/1991. On 10/12/1991, he was to be produced before the Court under orders of the remand but was not so produced and the charge-sheet was presented. Copies of challan papers were supplied to him on 26/12/1991 i.e. beyond the period of 90 days. In these circumstances, the applicant applied for bail under Section 167(2) of the Code of Criminal Procedure but the same was rejected. He filed revision No. 277192 which was rejected by Sixth AddI. Judge to the Court of Sessions Judge, Bilaspur, before whom on commitment sessions trial against the applicant was pending. Now the applicant has applied for grant of bail to this Court under Section 439 read with section 167(2) ibid.

(2.) It was not disputed that the applicant was not produced on 10.12.1991 when the charge-sheet was presented in the Court The reason for his non-production is said to be non-availability of escort guards. In Rajkumar and others v. State of M.P. and others1 a Division Bench of this Court, has held that non-availability of Police guard is not an abnormal circumstance to justify grant of remand by a Magistrate when the accused is not produced before him. In Rajnikant Jivanlal Patel and another v. Intelligence Officer, Narcotic Central Bureau, New Delhi2, the Supreme Court has held:An order for release on bail under proviso (A) to Section 167(2) may appropriately be termed as an order-on-default. Indeed, it is a release on bail on the default of the prosecution in filing charge-sheet within the prescribed period. The right to bail under Section 167(2) proviso (a) thereto is absolute. It is a legislative command and not Court's discretion. If the investigating agency fails to file charge-sheet before the expiry of 90/60 days, as the case may be, the accused in custody should be released on bail. But at that stage, merits of the case are not to be examined. Not at all. In fact, the Magistrate has no power to remand a person beyond the stipulated period of 90/60 days. He must pass an order of bail and communicate the same to the accused to furnish the requisite bail bonds. Thus, it appears that the revisional Court was in error in holding that since an accused who was admitted to bail u/s 167(2) ibid could as held by the Supreme Court in the above case, be rearrested where the facts disclosed a serious crime against him u/s 439 Cr. P.C. and since the allegations against the present applicant were of serious nature and the accused was already committed to the Court of Session, the Magistrate was competent to exercise his discretion in the matter and reject the petition for bail U/S 167(2) ibid. As the above ratio of Rajnikants case (supra) will not be attracted when the charge-sheet has been presented against the accused. It appears that the revisional Court had further erred in holding that the grant of remand without the accused being produced in the Court for non-availability of escort guards was proper.

(3.) In view of the admitted position that copies of charge-sheet were supplied to the applicant well beyond 90 days, even though the charge-sheet was presented in the Court on a date when the accused was not produced for reasons, which were wholly insufficient, the applicant is entitled to be released on bail u/s. 167(2) ibid. Accordingly, this petition is allowed. It is hereby ordered that applicant be released on bail on his furnishing personal bond in the sum of Rs. 10,000.00 (Rs. Ten thousand only) with-one surety in the like amount to the satisfaction of C.J.M., Bilaspur, for his appearance before the trialJudge on each date of the hearing till the trial concludes.