DINESH YADAV Vs. STATE

JUDGEMENT

(1.) Petitioners, being accused in Pandarak P.S. Case No. 48 of 2000, dated 4-6-2000 surrendered on 18-1-2001 and on 23-4-2001 filed an application for grant of bail under Section 167(2) of the Code of Criminal Procedure (Cr.P.C.) on the ground that no charge-sheet was submitted though 90 days' period had already expired on 18-4-2001. It appears from the materials on record that a report was submitted before the Additional Chief Judicial Magistrate on the same day reporting that till 10 a.m. no charge-sheet had been submitted but subsequently a fresh report was submitted at about 11.45 a.m. to the effect that charge-sheet had been received in the office. The learned ACJM thus by order dated 23-4-2001 (Annexure-1) rejected the petition for grant of bail filed under Section 167(2), Cr.P.C. Petitioners, thereafter moved the learned Sessions Judge against the said order in Cr. Rev. No. 320 of 2001 which too was dismissed by order dated 4-6-2001 (Annexure 2). Petitioners thus have moved this Court by filing the instant writ application for quashing the orders as contained in Annexures 1 and 2 as also for issuance of a writ in the nature of habeas corpus for their release from custody.

(2.) Learned counsel for the petitioners submitted that after expiry of the period of 90 days on 18-4-2001, the petitioners on 23-4-2001 filed the application under Section 167(2), Cr.P.C. offering for furnishing bail bond and as such the requirement of law was complied with by the petitioners. But the learned Additional Chief Judicial Magistrate rejected the petition illegally on erroneous ground that since subsequently the charge-sheet was submitted, no benefit under the provision of Section 167(2), Cr.P.C. could be granted. He further submitted that the learned Sessions Judge also committed the same error while rejecting the revision application. Placing reliance on a decision of the Apex Court in the case of Uday Mohanlal Acharya v. State of Maharashtra (2001) 2 Pat LJR 182, learned counsel for the petitioners submitted that since the petitioners had filed an application for bail on the ground that charge-sheet was not submitted within the specified period of 90 days, the learned Additional Chief Judicial Magistrate had no option but to release the petitioners on bail, if charge-sheet was not filed by the time of filing petition for release.

(3.) On the other hand, learned counsel for the respondents besides supporting the orders as contained in Annexures 1 and 2 as being in accordance with law, submitted that since on the date of filing of the petition, the charge-sheet was already submitted, petitioner's right to be released did not survive.