TIKKU Vs. STATE OF M.P.

JUDGEMENT

(1.) THIS is a petition under Section 439 read with proviso to Section 167 (2) Cr.P.C. for releasing the petitioner on bail.

(2.) THE petitioner was arrested on 23.3.1998 in Crime No. 92 of 1998 under Sections 147, 148, 294 and 302/149 Indian Penal Code and produced before the Additional chief Judicial Magistrate, Katni. He was remanded to judicial custody on the same date. The charge -sheet was filed on 22.6.1998 before Shri R.K Shrivastava, Judicial Magistrate First Class, Katni as the Chief Judicial Magistrate was on leave. The petitioner submitted his application under proviso to Section 167 (2) Cr P.C for bail on the same date before Shri R.P. Soni, Judicial Magistrate First Class, Katni. This application was fixed for hearing on 24.6.1998. It was rejected by order dated 25.6.1998 by Shri R.K. Shrivastava, JMFC, He has mentioned in his order that as per distribution memo he was looking after the work of the Court of Chief Judicial Magistrate on 22.6.1998 and therefore, the application under Section 167 (2) proviso could not be submitted before Shri R.P. Soni, JMFC.

(3.) THE submission of the application for bail before the filing of the charge -sheet is not of much significance if no order has been passed on that application till the time of filing of the charge -sheet. In this case it cannot be said that there was any inaction on the part of the Magistrate who was competent to deal with the application as it was not submitted before him. By the time it could come up for consideration by him the charge -sheet had been filed. The right which had accrued to the accused remained unenforced till the filing of the challan and therefore it was extinguished the moment the challan was filed and Section 167 Cr.P.C. ceased to apply. The lawyer appearing on behalf of the accused must assert that the accused is entitled to be released "forthwith" and the Magistrate should also see that the right which has been conferred upon the accused is not defeated by his failure or inaction as that right comes to an end when the charge -sheet is filed. In the present case the application was filed before the Magistrate who was not competent to deal with it and therefore no order could be passed on it before the filing of the challan.