A.SANYASI RAO Vs. STATE OF ORISSA

JUDGEMENT

(1.) Heard Mr. J.K. Panda, learned Counsel for the petitioners and Mr. V. Narsingh learned A.G.A. for the State.

(2.) The present application under Section 482 Cr.P.C. has been filed on behalf of the petitioners, namely, A Sanyasi Rao and K. Narasimha Murty with a prayer to quash the order dated 12.10.2009 passed by the learned Additional Sessions Judge-cum-Special Judge, Malkangiri in C.T. No. 1 of 2009, by which order the learned Addl. Sessions Judge came to reject the petitioners application for bail under Section 167(2), Cr.P.C inter alia, on the ground that charge sheet had been filed on 8.10.2009 and therefore although application under Section 167(2) Cr.P.C. has been filed by the accused-petitioners on 6.10.2009, the same was no more available for consideration due to submission of charge sheet on 8.10.2009 during the pendency of the petitioners application for consideration of bail under Section 167(2) Cr.P.C.

(3.) Mr. Panda, learned Counsel for the petitioners submits that the Hon'ble Supreme Court in the case of Uday Mohanlala Acharya v. State of Maharashtra, 2001 AIR(SC) 1910, by way of majority judgment rendered by Hon'ble Justice G.B. Patnaik, J. (as his Lordship the-then was) came to hold that if "an accused has availed" of his indefeasible right under Section 167(2), Cr.P.C, such a right would not stand frustrated or extinguished merely because the petitioners' application was kept pending or was erroneously refused during which period a charge sheet has been filed. It is held therein that an indefeasible right accrued in favour of the accused, on the period prescribed under Criminal Procedure Code for filing charge sheet expiring and such an "indefeasible right" would not stand frustrated or extinguished by the factum of a charge sheet being filed and on the other hand, the accused has a right to be released on bail in enforcement of his "indefeasible right". However, the accused has to be produced before the Magistrate when a charge sheet is filed in accordance with Section 209 Cr.P.C. and the Magistrate must deal with him in the matter of remand of custody subject to the provisions of the Code relating to bail and subject to the provisions of cancellation of bail already granted in accordance with the law laid down by the apex Court in the case of Mohd Iqbal v. State of Maharashtra, 1996 1 SCC 722.