IMPORTANT POINTS
(1) If an accused entitled to be released on ball by application of the proviso to sub-section (2) of Section 167, makes an application before the Magistrate, but the Magistrate erroneously refuses the same and rejects the application and then accused moves the higher forum and while the matter remains pending before the higher forum for consideration a charge-sheet is filed, the so called indefeasible fight of the accused would not stand extinguished thereby.
(2) If, however, an accused fails to enforce his right under proviso to Section 167(2) Cr.P.C. and a charge-sheet is submitted after the stipulated period in that case the indefeasible right accruing to an accused shall stand extinguished and his bail application shall considered on merits only in accordance with the relevant provisions of the Code.

JUDGMENT

Bala Krishna Narayana, J.— Heard learned counsel for the revisionist and learned AGA for the State.

This criminal revision is directed against the order dated 27.10.2010 passed by Chief Judicial Magistrate, Bareilly by which he has refused to release the revisionist on bail under proviso Section 167 (2) Cr.P.C.

2. Brief facts of the case as stated in the affidavit filed along with the memo of revision and which are relevant for deciding this revision are that on the basis of a first information report lodged by one Smt. Nemsri w/o Sompal regarding the murder of her husband Sompal by Dharampal, Chandra Pal, Brijpal and Onkar on 12.7.2010 at P.S. Vithari Chainpur, District Bareilly Case Crime No.648 of 2010, under Section 307, 302 IPC was registered against the aforementioned four persons. The revisionist Chandra Pal who is one of the accused in the aforesaid case was arrested on 27.7.2010 and sent to jail on 28.7.2010. Ninty days period stipulated under Section 167(2) of the Code of Criminal Procedure for filing of the police report was completed on 26.10.2010 but no charge-sheet was filed. Consequently, an application was moved on behalf of the revisionist before the Chief Judicial Magistrate, Bareilly with a prayer that the revisionist is ready to furnish bail bonds and as such he may be released on bail under the proviso to Section 167(2) Cr.P.C. as no police report has been submitted by the Investigating Officer within the stipulated period. By the impugned order the learned Magistrate rejected the application of the revisionist for being released on bail under proviso to Section 167(2) Cr.P.C.

3. Learned counsel for the revisionist submitted that non-filing of police report within 90 days of the revisionist’s detention entitled him to be released on bail under proviso to Section 167(2) of the Code of Criminal Procedure and the learned Magistrate committed a patent illegality in rejecting the revisionist’s bail application on the ground that the charge sheet had been submitted on the date when the revisionist had enforced his right under proviso to Section 167(2) Cr.P.C.

4. Learned counsel for the revisionist further submitted that the filing of the charge sheet after the prescribed period on the day on which the revisionist had availed his right for being enlarged on bail under the proviso to Section 167(2) of the Cr.P.C. will not extinguish the indefeasible which had accrued in his favour on account of non filing of the police report within the period envisaged under Section 167(2) Cr.P.C.

5. Per contra learned AGA submitted that the impugned order does not suffer from any perversity or infirmity warranting any interference by this Court. The court below had after considering the entire materials on record held that proviso to Section 187(2) was not attracted to the facts of the present case as the charge-sheet had been submitted against revisionist on the very date on which he had invoked the proviso to Section 167(2) Cr.P.C.

6. Learned AGA further submitted that mere failure of the prosecution to file the charge sheet within the stipulated period does not ipso facto entitle an accused under detention to being released on bail unless he avails the indefeasible right accruing to him ill a situation where charge-sheet has not been submitted within the prescribed period and offers to furnish bail bonds.

7. He further submitted that if an accused does not make any application for being released on bail notwithstanding the fact that charge sheet has not been filed within the stipulated period he will not be entitled to be released on bail under proviso to Section 167(2) after the filing of the charge-sheet, .as in the present case.

8. I have very carefully examined the submissions advanced by the learned counsel for the parties and perused the impugned order as well as the other materials brought on record.

9. So far as the law on the issue is concerned the same stands settled in view of the judgment of the Apex Cour