Md. Sharfuddin Khan @ Safdar Ashraf VS State of Bihar - Supreme Today AI
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1988 1 Crimes(HC) 662

Bindendu Narayan Sinha, J.
Md. Sharfuddin Khan
@ Safdar Ashraf and another - Appellants
State of Bihar - Respondent
Criminal Case No. 1056 of 1987
Decided on 25-8-87
M/s. Tara Kant Jha, Sr. Adv. with Chittranjan Sinha and N.A. Ansari, Advocates - For the Petitioners.
L. Kailash Behari Prasad, Advocate - For the Respondent.

Mere non-filing of charge-sheet within prescribed time u/s. 167 is sufficient for claim of right of accused to be released on bail.

Criminal Procedure Code, 1973 - Section 167(2), proviso (a)(i) and 439, 440 - Application u/ss. 439-440 for release of petitioner on Bail under proviso (a)(i) of section 167(2) after expiry of 90 days - Charge sheet filed after application - Whether non-filing of charge sheet within 90 days is sufficient for claim of right to be released on bail? (Yes)

       Held, in my view that right if accrued cannot be denied to the accused and the command of the Legislature cannot be frustrated merely on the ground that charge-sheet stood submitted on the date on which the petition on behalf of the accused-petitioners on such ground was being considered by the Judicial Magistrate. The Code does not empower the Magistrate to detain the accused in custody beyond the period of 60 or 90 days, as the case may be, if charge-sheet has not been submitted in the case. In the instant case, the petition for bail was filed on behalf of the accused petitioners on 18-2-1986, the charge-sheet was submitted in the case on 23rd of February, 1987 and the petition for bail was considered on 24-2-1987, which was rejected. The accused petitioners had been in jail beyond the period of 90 days on 18-2-1986 without any charge-sheet being submitted in the case, and hence the accused-petitioners were entitled to be released on bail on that day and that right cannot be denied to him simply because subsequent thereto charge-sheet was submitted. (Para 7)


Act Referred :
CRIMINAL PROCEDURE CODE : S.439, S.167(2), ., S.440

Cases Referred:
Natabar Parida and others v. State of Orissa, A.I.R. 1975 S.C. 1465. - Referred
Babubhai Parshottam Das Patel v. State of Gujarat, 1982 Cr. L.J. 284. - Referred


JUDGMENT B.N. Sinha, J. -This application under sections 439 and 440 of the Code of Criminal Procedure, 1973 (hereinafter to be referred as 'the Code') has been filed for releasing the petitioners on bail under proviso (a) (i) of Section 167 (2) of the Code.

2. The facts of the case need not be mentioned in detail. It will suffice for disposal of this application to mention that these two petitioners are accused in Halsi P.S. Case No. 84, 86 under Sections 302, 307 and some other Sections of the Indian Penal Code and under Section 27 of the Arms Act and they surrendered in Court in this case on 19th of November, 1986 and they were remanded to jail custody on that day. On 18th of February, 1987, a petition was filed on behalf of these two accused-petitioners before Shri B.K. Chaudhary, Judicial Magistrate, Lakhisarai at Munger for their release under the proviso of Section 167 (2) of the Code on the ground that though they have remained in jail for more than 90 days, no charge-sheet was submitted in the case. But, it appears from the order dated 18-2-1987 passed by the learned Magistrate that, that petition was not moved. On 23-2-1987 charge-sheet was submitted against these accused petitioners in that case. On 24-2-1987 the said petition for release of these two accused-petitioners was moved and it was rejected by the Judicial Magistrate stating that since the charge-sheet had been submitted in this case, these petitioners could not be released under the proviso of Section 167(2) of the Code. Thereafter, these two petitioners moved for bail on the same ground before the Sessions Judge, Munger, which too was rejected by Order dated 2-3-1987. Thereafter, the present application was filed before this Court. 2. 3. The learned counsel for the petitioners submitted that the learned Judicial Magistrate ought to have released these two petitioners on bail under proviso (a)(i) of Section 167(2) of the Code. Learned Counsel for the State, on the other hand, submits that once the charge-sheet is submitted, the petitioners cannot hike advantage of proviso (a)(i) of Section 167(2) of the Code and the prayer for bail can be disposed of on merits after taking into consideration the allegations against these petitioners and these petitioners being named as the assailants of the deceased do not deserve to be enlarged on bail.

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