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2007 Supreme(Pat) 1110
PATNA HIGH COURT
Ghanshyam Prasad, J.
Sanjay Singh
Versus
State Of Bihar
Criminal Miscellaneous No. 11331 of 2007 ;
Decided On : JULY 10, 2007
The right to bail under default clause of Sec. 167(2) of the Code of Criminal Procedure is indefeasible but is extinguished if not exercised before filing of charge-sheet.
Headnote:
Sec. 167(2) - Bail - Sec. 167(2) of the Code of Criminal Procedure - Sec. 366/363/120B/34 of the Indian Penal Code - 1994 (5) SCC 410 - AIR 1996 SC 2897 - AIR 2001 SC 1910 - The court discussed the right to bail under default clause of Sec. 167(2) of the Code of Criminal Procedure and concluded that the right is extinguished if not exercised before filing of charge-sheet. The accused may still move for bail on merit under the provisions relating to grant of bail.
Fact of the Case:
The accused filed an application to quash the order rejecting his release under Sec. 167(2) of the Code of Criminal Procedure, arguing that the right to be released under default clause of Sec. 167(2) is indefeasible and survives even after submission of charge-sheet.
Finding of the Court:
The court found that the right to bail under default clause of Sec. 167(2) is extinguished if not exercised before filing of charge-sheet, and the accused may seek bail on merit under other provisions.
Issues: The main issue was whether the right of bail under default clause of Sec. 167(2) of the Code of Criminal Procedure survives even after submission of charge-sheet, even if not availed earlier.
Ratio Decidendi: The court held that the right to get bail under default clause of Sec. 167(2) of the Code of Criminal Procedure is indefeasible but is extinguished if not exercised before filing of charge-sheet.
Final Decision: The application to quash the order rejecting the release of the accused under Sec. 167(2) of the Code of Criminal Procedure was dismissed.
GHANSHYAM PRASAD, J.
1. This application under Sec. 482 of the Code of Criminal Procedure has been filed to quash the Order dated, 20th January, 2007 passed by the Sessions Judge, Patna in Criminal Revision No. 45/2007 thereby the learned Sessions Judge has confirmed the Order dated, 8th January, 2007 passed by the Chief Judicial Magistrate. Patna in Kotwali RS. Case No. 504/2004 whereunder the prayer for release of the Petitioner under Sec. 167(2) of the Code of Criminal Procedure has been rejected. Heard learned Counsel for the Petitioner as well as the State.
2. The Petitioner is one of the accused in the aforesaid police case registered under Sections 366/363/120B/34 of the Indian Penal Code. The Petitioner surrendered before the Court of the Chief Judicial Magistrate, Patna on 14th May, 2005 and was remanded to jail custody on the same day. However, even after lapse of sixty days no charge- sheet was submitted by the police. It was submitted only on 22nd July, 2005. Thereafter, the Petitioner on 16th August, 2005 filed a Petition for bail under Sec. 167(2) of the Code of Criminal Procedure which was rejected on the same day. Again it was filed on 5th January, 2007 which was rejected by the Chief Judicial Magistrate vide Order dated, 8th January, 2007. The learned Sessions Judge also confirmed the said Order.
3. Submission of learned Counsel for the Petitioner is that as the police did not submit charge-sheet within sixty days of remand of the Petitioner, he was entitled to be released under default clause of Sec. 167(2) of the Code of Criminal Procedure Code. The right to be released under default clause of Sec. 167(2) of the Code of Criminal Procedure is indefeasible right of the accused which cannot be extinguished by subsequent filing of charge-sheet. It is further submitted that exercise of right to get the bail under default clause is not required. It is the duty of the Court to release the accused on bail, if the police fails to file charge-sheet within sixty days. Subsequent filing of the charge-sheet will not disentitle the accused to be released on bail. In support of submission learned Counsel for the Petitioner relied on several decisions of different High Courts as well as Supreme Court including 1992 CRI.L.J. 3712 (Aslam babalal Desai V/s. State of Maharashtra), 1993 (3) Crimes Page 873 (-4. Narayan Reddy V/s. State of Andhra Pradesh), 1994 CRI.L.J. 730 (Dharmanand alias Mahto v. The State and AIR 2001 SC 1910 (Uday Mohanlal Acharya V/s. State of Maharashtra).
4. From the above submission it is quite clear that the only question to be decided in this case is as to whether the right of bail under default clause of Sec. 167(2) of the Code of Criminal Procedure survives even after submission of charge-sheet, even if not availed earlier. As said above, learned Counsel for the Petitioner has filed catena of decisions of different Courts, However, it would be sheer wastage of time and energy to deal with those decisions. The matter has already been settled by the Constitution Bench of the Apex Court in 1994 (5) SCC 410 {Sanjay Dutta V/s. State through C.B.I.) which has also been followed in several other decisions including AIR 1996 SC 2897 (Dr. Bipin Shantilal Panchal V/s. State of Gujrat) as well as AIR 2001 SC 1910 (Supra).
5. The above cited decision reported in 1994(5) SCC 410 the case is under TADA Act, However, in that case the scope of default clause of Sec. 167(2) of the Code of Criminal Procedure has also been discussed along with Sec. 20 of TADA Act In paragraph 48 of the Judgment it has been held as follows:
We have no doubt that the common stance before us of the nature of indefeasible right of the accused to be released on bail by virtue of Section 20(4)(bb) is based on a correct reading of principle indicated in that decision. The indefeasible right accruing to the accused in such a situation is enforceable only prior to the filing of the Challan and it does not survive or remain enforceable
