KANHAIYA MAHTO Vs. STATE OF BIHAR

JUDGEMENT

(1.) A Division Bench in Cr. W.J.C. No. 94 of 1998(R) has referred the following question relating to interpretation and scope of Proviso(a) to Sub -section (2) of Section 167 of the Code of Criminal Procedure (hereinafter referred to as the Code) for decision by the Full Bench: Whether the right of an accused for release on bail on an application made under Section 167(2)(a)(i) of the Code remains enforceable even after filing of the belated charge -sheet though filed after the said application but: before passing of the order for bail and/or before execution of the bail bond? The reason for referring the said question to the Full Bench is the different views, regarding the interpretation and scope of Proviso (a) to Section 167(2) of the Code, expressed by two different Division Benches of this Court in Dr. Braj Nandan Sharma @ Dr. B.N. Sharma v. The State of Bihar and Ors. 1997 BCCR 69 and in Chutar Mahto v. The State of Bihar and Anr. Cr. W.J.C. No. 02/98(r). Pending the above reference, a learned Single Judge in Cr. W.J.C. No. 176/98(R) has also referred the following question to the Full Bench:

(2.) Section 167 of the Code, in so far as it is relevant for the present controversy, is reproduced below: 167. Procedure when investigation cannot be completed in twenty -four hours. -

(3.) The controversy, which has been referred to the Full Bench, is no more res intergra. It has already been decided by the apex Court. In Sanjay Dutt v. State through C.B.I., Bombay (II) , the apex Court has laid down that the right of an accused to bail under the proviso to Section 167(2) is enforceable only prior to the tiling of the charge -sheet and once the charge -sheet is filed the question of granting bail under the said proviso does not arise. It was further held that after the charge -sheet is filed, the prayer for bail has to be considered and decided on merits in accordance with the provisions relating to grant of bail to an accused. Paragraph '48' of the apex Court decision in Sanjay Dutt's case, being relevant is reproduced below: