VISHWANATH YADAV Vs. STATE OF BIHAR

JUDGEMENT

(1.) The present writ application has been preferred for setting aside the order dated 06.10.2017 passed by the learned Judicial Magistrate-1st Class, Patna City (Patna) in connection with Fatuha P.S. Case No.161 of 2017 in G.R.No. 1615 of 2017 registered under Section 304(B) of the Indian Penal Code in which the petitioner, being the husband of the deceased, is one of the accused lying in judicial custody. By the impugned order, the learned Magistrate has rejected the application preferred by the petitioner under Section 167(2) of the Code of Criminal Procedure seeking his release in terms of the said provision.

(2.) From the narration of the facts appearing from the records it appears that in connection with Fatuha P.S. Case No.161 of 2017, the petitioner was arrested by police on 07.07.2017, he was produced before the learned Magistrate on the same day when he was taken to judicial custody and was remanded to jail. Since the investigating officer failed to file a charge-sheet within a period of 90 days from the date the petitioner was taken in the judicial custody, the petitioner moved an application on 06.10.2017 at 10.30 am for grant of bail in accordance with the provisions of Section 167(2) Cr.P.C. It is the case of the petitioner that bail application was moved after service of a copy on the learned APP, who was representing the State, both the parties were heard by the learned Magistrate and an order was passed directing the office clerk to submit a report as to whether or not a charge-sheet has been submitted in the case.

(3.) Learned Magistrate directed the office clerk to place the record. Thereafter, at 2.30 PM on 06.10.2017 itself, office clerk submitted a report that till 11.30 AM the charge-sheet was not submitted, but thereafter another report was submitted stating that the charge-sheet has been filed in this case at 12.30 PM. Learned Magistrate thereafter rejected the application under Section 167(2) Cr.P.C. by simply stating in one line that in view of the report submitted by the office, the application under Section 167(2) Cr.P.C. is not maintainable. The application preferred by the petitioner has been rejected holding it not maintainable, but without giving reasons thereof. It is this order dated 06.10.2017 passed by the learned Judicial Magistrate-1st Class, Patna City in Fatuha P.S. Case No.161/17 which is under challenge in the present writ application.