U.B. Saha, J.

1. The instant application is filed by Sri Tonya Ori, father of the accused Niyali Ori, for granting bail to the accused, who was arrested on 22.10.2009 in connection with Gensi PS case No. 09/09 under Sections 392/302/341/34 IPC read with Section 25/27 of the Arms Act.

2. The prosecution case in short is that one Md. Tahir Khan lodged an FIR before the O/C, Basar Police Station alleging, inter alia, that on 16.10.2009 at around 22:30 his., two unidentified persons covering their faces with clothes and armed with sophisticated weapons stopped a vehicle namely, Tata Mobile No. AS 22B-0224 on BRTF road near Ganesh Mandir, Garu, which was coming from Likabali. They dragged out the driver of the said Tata Mobile and shot him on his forehead at point blank range killing him on the spot. They also looted away Rs. 400/- from the informant and also beat him up causing injury. The said information of Md. Tahir Khan was registered as P.S. Case No. 09/09. The police after investigation arrested the present accused along with the two other main accused persons.

3. Heard Mr. K. Ete, learned Counsel for the Petitioner as well as Mr. N. Lowang, learned pp for the State.

4. Mr. K. Ete, learned Counsel for the Petitioner submits that the accused is in custody for more than 90 days and in view of the proviso to Sub-section (2) of Section 167 Code of Criminal Procedure he acquires an indefeasible right to be released on bail on his furnishing a surety as this Court thinks fit and proper; even if the charge sheet is not filed and admittedly, in this case, the investigating authority failed to file the charge sheet within a period of 90 days as is required under law. He also contended that even if the entire prosecution story is believed then also the accused is in no way involved with the alleged killing of the driver of the said vehicle as he only allowed the main accused persons to stay in his house without knowing the facts relating to the alleged crime. He also contended that there is no possibility of absconsion or tampering the witnesses, if any, by the present accused person. More so, the father of the present accused, applicant of the instant petition is the village head (Gaon Bura) of Bogdo village. He finally contended that the approach of the Court in the matter of bail should not be that the accused should be detained by way of punishment but to see whether the presence of the accused would be readily available for trial or that he is likely to abuse the discretion granted in his favour by tampering with evidence. In support of his aforesaid submission he referred to a decision of Bhagirathsinh Judeja v. State of Gujarat, AIR 1984 SC 372 wherein the Apex Court discussed what should be the approach of the Court while hearing a bail application. He also referred to the decision of this Court in the case of Thangnam Khongsai and Anr. v. Union of India and Anr. reported in 2006 (3) GLT 770 wherein this Court relying on the decision of the Apex Court in the case of Uday Mohanlal Acharya v. State of Maharashtra reported in AIR 2001 SC 1910 noted that when an accused acquires indefeasible right, under the proviso to Sub-section (2) of Section 167 Code of Criminal Procedure, to be enlarged on bail, such a right can be defeated only if the accused, on becoming so entitled, fails to offer surety for being enlarged on bail and before such right is exercised by the accused, the prosecution agency submits charge sheet against him. This Court also noted that the learned Sessions Judge, in that case committed serious error in law in not allowing the accused to go on bail.

5. Mr. N. Lowang, learned PP while resisting the contentions of Mr. Ete contended that the present accused person had earlier also moved an application for bail being No. BA 164 (AP)/2009 which was rejected on 27.11.2009 after perusing the case diary. He further contended that it would not be proper for this Court to grant bail to the present accused only on the gr