BISHUNDEO SAO Vs. STATE OF BIHAR

JUDGEMENT

(1.) BY this writ petition in the nature of habeas corpus the petitioner seeks direction for his release. He is in custody in connection with Lakhisarai P.S.Case No. 85/2001.

(2.) THE case of the petitioner is that chargesheet in the case was submitted after expiry of the period of 90 days and, therefore, an indefeasible right accrued to him for his release no sooner than he filed the application for bail. Reliance is placed on decision of the Supreme Court in Uday Mohanlal Acharya vs. State of Maharashtra, (2001)5 SCC 453 [: 2001(3) PLJR (SC)81]. On behalf of the State it has been submitted that in the aforesaid case the Supreme Court has also held, vide conclusion no.5 of the majority judgment (page 473 of the report) that the so called indefeasible right of the accused would stand extinguished where the accused is unable to furnish the bail as directed by the Magistrate, and therefore inasmuch as the bail bonds filed by the petitioner were not accepted by the court his right to get compulsive bail in terms of section 167(2) proviso stands extinguished after submission of the chargesheet and no writ can be issued for his release.

(3.) IN the case of Uday Mohanlal Acharya (supra) the Court observed, "In the aforesaid premises, we are of the considered opinion that an accused must be held to have availed of his right flowing from the legislative mandate engrafted in the proviso to sub -section (2) of Section 167 of the Code if he has filed an application after the expiry of the stipulated period alleging that no challan has been filed and he is prepared to offer the bail that is ordered, and it is found as a fact that no chailan has been filed within the period prescribed from the date of the arrest of the accused". It may be mentioned that as regards the interpretation of "availed of" on which point there was difference of opinion, even as per the minority judgment (page 481 of the report) "the expression "availed of" does not mean mere filing of an application for bail expressing thereunder willingness to furnish bail bond, but the stage for actual furnishing of bail bond must reach". it would thus appear that where after bail under section 167(2) Cr.P.C is granted by the court on the ground that chargesheet has not been submitted within stipulated period and pursuant thereto the accused files bail bonds, nothing further remains to be done by him and in such a case it must be held that he has availed of his indefeasible right. Conclusion no.5 (page 473 of the report) relied on by the State counsel can be pressed into service where despite favourable order by the Magistrate, granting bail to the accused under section 167(2), he fails to file the bail bond as directed by the Magistrate and chargesheet is submitted in the meantime before filing of the bail bonds. In such a case his so called indefeasible right to get bail under section 167(2) gets extinguished.