ASHWANI KUMAR SINGH, J.

1. By way of the present writ petition under Articles 226 and 227 of the Constitution of India, the petitioner challenges the impugned order dated 22.07.2015 passed by the learned Chief Judicial Magistrate, Gopalganj in connection with Gopalganj Town P.S. Case No. 96 of 2015 whereby the application under Section 167(2) of the Code of Criminal Procedure (for short Cr. P.C.) filed by the petitioner was dismissed.

2. At the outset it is necessary to state that the facts of the case are not in dispute. On 20.03.2015, the informant Satya Narayan Pal lodged a written report on the basis of which Gopalganj Town P.S. Case No. 96 of 2015 was registered under Sections 304-B read with 34, 201 and 120-B of the Indian Penal Code. On 21st March, 2015, the petitioner having been made accused in the aforesaid police case was arrested and remanded to judicial custody. Though the statutory period of detention of the petitioner for a total period of 90 days under section 167(2)(a)(i) Cr. P.C. expired on 20th June, 2015, the petitioner filed an application for being released on bail on default under the proviso (a)(ii) to Section 167(2) Cr. P.C. on 21st July, 2015 and offered to furnish bail bond with local and sound sureties to the satisfaction of the court. On the same day, i.e. on 21st July, 2015, the learned Magistrate called for a report from the G.R. Clerk as to whether or not the charge-sheet has been filed by the investigating agency in the case. The G.R. Clerk submitted his report to the court stating therein that no charge-sheet has been filed in the court by the police. It would be evident from the impugned order that on 21st July, 2015 itself at 4.00 p.m. the learned Magistrate granted bail to the petitioner on furnishing bail bond of Rs. 10,000/- (Rupees ten thousand) with two sureties of the like amount. It would further appear from the record that on 21st July, 2015 itself, at 4.30 p.m. charge-sheet with original case diary was filed by the Investigating Officer of the case in the court of the Magistrate. On the next day, i.e. on 22nd July, 2015, bail bond was furnished by the accused as directed by the learned Magistrate vide order dated 21st July, 2015 at 4.00 p.m., but the same was rejected and the petitioner was not released on bail because by then charge sheet had already been filed by the Investigating Officer of the case.

3. Mr. Alok Kumar Sinha, learned counsel for the petitioner has submitted that the application for bail was filed on 21st July, 2015 in the forenoon and the learned Magistrate after making an enquiry from the office regarding non-filing of the charge-sheet granted bail to the petitioner at 4.00 p.m. subject to the condition of furnishing bond and sureties to the satisfaction of the court. The subsequent filing of charge-sheet at 4.30 p.m. would not disentitle the petitioner from being released on bail. In this regard, he has relied upon judgments of the Supreme Court in the case of Hitendra Vishnu Thakur & Others vs. State of Maharashtra & Others, (1994) 4 SCC 60; Sanjay Dutt vs. State through C.B.I. Bombay, (1994) 5 SCC 410; Uday Mohanlal Acharya vs. State of Maharashtra, (2001) 5 SCC 453; Syed Md. Ahmad Kazmi vs. State (Govt. of NCT of Delhi) & Others, (2012) 12 SCC 1 and Union of India vs. Nirala Yadav, (2014) 9 SCC 457.

4. Relying upon the aforesaid judgments of the Supreme Court, he has submitted that after the lapse of statutory period of 90 days and before filing of the charge sheet an indefeasible right had accrued in favour of the petitioner to be granted and released on bail under the proviso (a)(ii) to Section 167(2) Cr. P.C. as before filing of charge-sheet the petitioner had availed of that right by filing bail application and offering to furnish bail bond as directed by the court. He submits that the law is settled by the Supreme Court that if the accused has availed of the indefeasible right under the proviso (a)(ii) to Section 167(2) Cr. P.C. it would remain