BABUL YADAV Vs. STATE OF BIHAR

JUDGEMENT

(1.) IN this application, the petitioner has originally prayed for grant of regular bail in connection with Dinara P.S. case No. 102 of 1998 under Sections 147, 148, 149 and 302 of the Indian Penal Code and Section 27 of the Arms Act. However, by order dated 13.11.1998 this Court permitted the petitioner to convert the bail application into Cr. Revision as the petitioner intended to challenge the order dated 8.10.1998 passed by the Sub -divisional Judicial Magistrate, Bikramgnaj in Case No. 102 of 1998 whereby he refused to release the petitioner on bail under the provision of Section 167(2) of the Code of Criminal Procedure (hereinafter referred to as 'the Code').

(2.) THE prosecution case, in brief, is that on 4.7.1998 the informant saw 8 to 10 persons coming with fire -arms and one of them fired at his father who fell down. It is alleged that the culprits came near him who concealed his face and told him that he is Pandit and fled away. The informant alleged to have identified the accused persons in the light of moon and torch -light. The petitioner surrendered in the Court of the Sub -divisional Judicial Magistrate on 9.7.1998 and he was remanded to custody. He remained in custody till 7.10.1998 which was the 90th day and an application for bail was filed on his behalf. The application for bail was moved on 8.10.1998 for his release on bail under Section 167(2) of the Code on the ground that till 7.10.1998 no charge -sheet was submitted by the police. The Sub -divisional Judicial Magistrate, however, rejected the prayer of the petitioner for bail on the ground that on 8.10.1998 i.e. on 91 days when the petitioner was moved charge -sheet was submitted and hence, the petitioner was not entitled to be released on bail under Section 167(2) of the Code.

(3.) FROM bare reading of the proviso to Sub -section (2) of Section 167 of the Code, it is manifest that the proviso casts a mandate on the ground to release the accused on bail on the expiry of 90 days where the investigation relates to an offence punishable with death, imprisonment for life or imprisonment for a term of not less than ten years. If the charge -sheet is not submitted within the said period it is well settled that the right to bail under Section 167(2) of the Code is absolute and, in fact, the Magistrate has no power to remand the accused person beyond the stipulated period of 90/60 days. In the instant case, question falls for consideration is whether after the expiry of 90 days the petitioner is entitled to be released on bail if the charge -sheet is submitted by the police after 90th day. Exactly, a similar question arose in the case of Rajnikant Jivianlal and Anr. v. Intelligence Officer : 1990CriLJ62 . The fact of that case was that on 23rd March, 1988, the petitioners were arrested by the officers of the Narcotic Control Bureau, Bombay and on 29th March, 1988 they were remanded to jail custody till 12th April, 1988 and remand order was subsequently renewed from time to time. On 20th May, 1988 the petitioners moved the Chief Metropolitan Magistrate for bail. When that petition was pending consideration, the prosecution submitted charge -sheet on 23.6.1988 and the petitioners filed application for bail on 22nd July, 1988 under Section 167(2) of the Code on the ground that the charge -sheet was filed after expiry of 90 days. The Magistrate enlarged the petitioners on bail under the provision of Section 167(2) of the Code. As the efforts of the prosecution to have the bail cancelled could not succeed before the learned Magistrate, they moved the Delhi High Court under Section 439(2) and Section 482 of the Code. In that application nature of the offence committed, the part played by the accused and gravity of the offence, etc. were all set up. The Delhi High Court cancelled the bail of the petitioners by passing the following order: