IMPORTANT POINT
Maximum period of detention of an accused in custody as provided under Section 167, Cr. P.C. Should not be extended by Court's order to enable the prosecution to file charge-sheet so that right for compulsive bail would be defeated.

JUDGMENT

R.K. Dash, J. - The petitioner, accused of having committed an offence under Sections 376 and 506, IPC read with Section 3 of the Scheduled Caste and Scheduled Tribe (Prevention of Attrocities) Act has filed this petition praying for his release on bail.

2. Shri Manoj Mishra, learned counsel appearing for the petitioner, in course of argument submitted that the charge-sheet having not been filed within 120 days from the date of remand to judicial custody, the petitioner, as of right is entitled to bail as envisaged in proviso (a) of Sub-Section. (2) of Section 167 of the Code of Criminal Procedure. 1973 (for short. 'the 1973 Code'). He contended that the petitioner was remanded to custody by the learned Special Judge on 2-10-1998 and the outer limit for filing charge-sheet, that is 120 days, having expired on 1-2-1999, within which charge-sheet was not filed, the petitioner exercised his right under proviso (a) to Section 167 (2) and applied to the Court for his release. The learned Special Judge instead of passing orders on the very day, adjourned the case to next day. On the adjourned date, the prosecution field the charge-sheet, as a result the learned Court below refused to grant compulsive bail by invoking power conferred by the aforesaid provision. Shri Mishra strenuously urged that on the failure of the prosecution to file charge-sheet within the maximum time allowed by law, the petitioner exercised his indefeasible right and applied to the Court for his release on bail. The learned Special Judge instead of passing orders on the very day adjourned the matter to enable the prosecution to file charge-sheet which he ought not to have done in view of what has been ruled by the Hon'ble Supreme Court in Mohamed Iqbal Madar Sheikh and others v. State of Maharashtra1. He further urged that the learned Special Judge being a senior Judicial Officer honoured the provision of Section 167 of the 1973 code more in breach than in observance, inasmuch as charge-sheet having not been filed within the pre-scribed period further remand of the petitioner after expiry of the said period under Section 167 was not permissible. Therefore, it was obligatory of him to pass orders for release of the petitioner forthwith, as has been observed in the said section, a Magistrate to whom various judicial pronouncements of the Apex Court and of this Court. In that view of the matter, Shri Mishra urged that the petitioner s prayer for bail on the ground of default in completion of investigation Within the statutory period should be allowed.

3. Shri S.K. Nayak, learned Additional Standing Counsel, on the other hand, submitted that it has been authoritatively held by the Supreme Court in Sanjaya Dutt v. State2, Hitendra Vishnu Thakur and others v. State of Maharashtra3 and State of M.P. v. Rustam and others:4, that Court is required to examine the availability of the right of compulsive bail on the date of consideration of the prayer and not on the date of presentation of the petition. In the present case on the date of consideration of the petitioner's prayer for bail charge-sheet having been filed, the learned Special Judge was right in not admitting the petitioner to bail with the aid of proviso (a) to sub-section (2) of Section 167 of the 1973 Code.

4. In view of the submissions made by the learned counsel appearing for the parties, the question arises for consideration is whether the petitioner's right for compulsive bail which he enforced was lost in view of submission of charge-sheet after expiry of the period as envisaged by Section 167 (2) Cr. P.C.

5. Before advertising to the question posed it is necessary to trace the legislative history necessitating amendment of Section 167 of the old code of Criminal Procedure, 1898 (hereinafter referred to as ’old Code’). As provided in the said section a magistrate to whom accused was forwarded was not authorised to detain him in custody for a term exceeding 15 days in the whole. Difficulties were