Judgment :

Dipak Misra, J.

The present appeal, by special leave, is directed against the order dated 4.3.2008 passed by the learned Single Judge of the High Court of Judicature at Patna in Criminal Misc. No. 44042 of 2007 enlarging the respondent on bail solely on the ground that he was entitled to the benefit under the proviso appended to Section 167(2) CrPC of Criminal Procedure (for short “the CrPC”).

The antecedent essential facts are that the respondent was arraigned as an accused in Nauhatta P.S. case No. 4/02 for the offences punishable under Sections 302, 304, 353, 323, 149, 148 and 147 of the Indian Penal Code (IPC), under Section 27 of the Arms Act and under Section 49(2) (b) of Prevention of Terrorist Activities Act (POTA) for murder of Sanjay Kumar Singh, Divisional Forest Officer. Initially the investigation was carried out by the local investigating agency and thereafter, the Government of India, Ministry of Personnel, New Delhi, issued a notification No. 228/9/02-AVD/II dated 21.3.2002 handing over the investigation to the Central Bureau of Investigation (CBI) after obtaining the consent of the Government of Bihar.

As per the allegations of the prosecution, on 15.2.2002 the deceased Sanjay Kumar Singh, Divisional Forest Officer, Shahabad Division with Headquarter at Sasaram, was on a surprise check in village Rehal, District Rohtas along with his subordinate staff and, at that juncture, he was surrounded by a group of 25-30 unknown naxalites and was taken outside the village and when he declined to comply with the illegal demand of the naxalites for payment of rupees five lakhs for his release, he was taken inside the forest where he was shot dead. After the criminal law was set in motion on the basis of an FIR, the investigation commenced.

In course of investigation, the respondent was arrested and was sent to the judicial custody on 5.12.2006. As the charge-sheet was not filed after lapse of the statutory period of ninety days, on 14.3.2007 the respondent filed an application under Section 167(2) CrPC for release on bail on the foundation that in the absence of challan on record he was entitled to be admitted to bail after completion of ninety days from his date of arrest. On 15.3.2007, an application was filed by the CBI under Section 49(2)(b) of POTA seeking extension of time for a period of thirty days, but on that day no order was passed on that application and the learned Special Judge asked the defence to file a reply in rejoinder to the application for extension but did not pass any order on the application for grant of bail.

As the factual matrix would unfurl, charge-sheet was filed on 26.3.2007. On 3.4.2007 the learned Special Judge extended the time for filing the charge-sheet till the date of such filing, i.e., 26.3.2007 and rejected the application of the respondent. Being unsuccessful in getting admitted to bail, the accused-respondent approached the High Court in Criminal Misc. No. 44042 of 2007 and the learned single Judge who dealt with the application, after referring to the decision in Hitendra Vishnu Thakur v. State of Maharahstra [(1994) 4 SCC 602] and placing reliance on the dictum in Uday Mohanlal Acharya v. State of Maharahstra [(2001) 5 SCC 453], came to hold that the right had already accrued to the respondent on 14.3.2007 when he had moved the application for grant of bail and, accordingly, admitted him to bail on certain conditions.

We have heard Mr. P.K. Dey, learned counsel for the appellant and Ms. Prerna Singh, learned counsel for the respondent.

Calling in question the legal acceptability of the order, it is submitted by Mr. Day that the High Court has been totally misguided by placing reliance upon the law laid down in Harindra Vishnu Thakur (supra) without apprising itself about the Constitution Bench decision in Sanjay Dutt v. State [(1994) 5 SCC 410] which makes the order unsustainable. It is urged by him that when the application for bail was filed on the ground that the ch