BIRENDRA YADAV Vs. STATE OF JHARKHAND

JUDGEMENT

(1.) This writ application is directed against the order dated 23.3.2010 passed by the learned Special Judicial Magistrate (Railway), Dhanbad in Koderma G.R.P.S case No. 3 of 2009 whereby Special Judicial Magistrate (Railway), Dhanbad has rejected the petition dated 23.3.2010 wherein prayer had been made to grant the petitioner compulsive bail in terms of Section 167(2) of the Code of Criminal Procedure.

(2.) The facts leading to filing of this case are that a dacoity was committed in Howrah-Dehradun Express on 12.2.2009 as soon as it left Hazaribagh Road Station and for that a case was lodged which was registered as Koderma G.R.P.S. case No. 3 of 2009 under Section 395 of the Indian Penal Code against 7-8 unknown persons. In course of investigation, involvement of this petitioner and other accused persons got transpired, upon which two persons were arrested against whom charge sheet was submitted on 22.5.2009 and the investigation was kept open for other accused persons. On submission of the charge sheet, cognizance of the offence was taken against the accused, who were sent up for trial and the case was committed to the court of sessions after splitting the case of the other co-accused. Subsequently, a petition was filed on 14.12.2009 by the Investigating Officer before the Judicial Magistrate (Railway), Dhanbad praying therein to remand the petitioner, who has been in judicial custody in connection with Markacho P.S case No. 68 of 2009, in the present case. On the said application, learned Judicial Magistrate on the same day, i.e, 14.12.2009 issued a production warrant for production of the petitioner on 21.12.2009 from Koderma Jail but in stead of producing the petitioner on 21.12.2009, he was produced in the court on 21.2.2010 and then he was remanded to jail custody. Thereafter on 23.3.2010, a petition was filed under Section 167(2) of the Code of Criminal Procedure praying therein to grant him compulsive bail he has been in custody for 97 days but the charge sheet has not been submitted. That petition was rejected on the ground that though production warrant was issued on 14.12.2009 but, in fact, the petitioner was produced in the court on 21.2.2010 and from this day if computation is made statutory period of 90 days has not expired.

(3.) Learned Counsel appearing for the petitioner while assailing the order submitted that from the day, i.e. 14.12.2009, when the order was passed for production of the petitioner in the court, the petitioner would be deemed to in custody and as such, if the computation is made from that date, the petitioner would certainly be entitled to be released on bail, on the date when the application for bail was filed, as admittedly no charge sheet had been submitted on that date.