The accused's right to default bail under Section 167(2) of the Cr.P.C. is absolute if the charge-sheet is not filed within the prescribed period. The charge-sheet submitted within the prescribed period should lead to the consideration of the accused's bail on merit.

ORDER :

1. Heard Mr. A. Islam, learned counsel appearing for the accused petitioner. Also heard Mr. B.B. Gogoi, learned Addl. P.P. appearing for the State respondent and Mr. B.K. Mahajan, learned counsel appearing for the informant.

2. By this petition under Section 439 of the Code of Criminal Procedure (‘Cr.P.C.’ for short), the accused-petitioner, namely Nur Alam @ Md. Noor Alom has prayed for grant of bail in connection with Bhangagarh P.S. Case No. 607/2021 under Sections 120B/302/34 of the Indian Penal Code (‘IPC’ for short).

3. The scanned copy of the case record along with the case diary, as called for, is placed before the Court. Perused.

4. Mr. A. Islam, learned counsel appearing for the accused petitioner, submitted that the investigating officer has submitted a part charge-sheet in the case declaring one of the accused Amir Khan as absconder stating that the investigation would continue till he is apprehended and after completion of further investigation, an additional police report/charge-sheet would be submitted under Section 173(8) of the Cr.P.C. Mr. Islam further submitted that as the charge-sheet has already been submitted against the accused petitioner within the statutory period of 90(ninety) days and cognizance of the offences is yet to be taken by the learned Court below for having initiated process for appearance of co-accused Amir Khan, the continuation of detention of the accused petitioner for an indefinite period without trial is contrary to law and justice. Mr. Islam vehemently submitted that his continuation of detention in judicial custody is per se illegal inasmuch as after filing of the charge-sheet under Section 173(2) of the Cr.P.C. remand of the accused should be governed by either Section 209 or 309 of the Cr.P.C. which again come into play only after taking cognizance of the offence. Mr. Islam submitted that the accused has been detained beyond the statutory period of 90 days even without taking cognizance of the alleged offences. Therefore, Mr. Islam submitted that subject to any condition, the bail prayer of the accused petitioner may be accepted.

5. Vehemently opposing the bail application, Mr. B.B. Gogoi, learned Additional Public Prosecutor, submitted that in fact, final charge-sheet has been submitted against the present accused and two others and part charge-sheet against one Amir Khan, who is shown as absconder under Sections 120B/302/34 of the IPC on 04.01.2022. Mr. Gogoi further submitted that the police arrested the accused on 07.10.2021, on which date itself, the learned Magistrate remanded him in police custody and thus, computing from the date of first remand, the charge-sheet was submitted on 04.01.2022, that is, on the 89th day, which was within the prescribed period of 90 days under Section 167(2) of the Cr.P.C. Therefore, Mr. Gogoi submitted that the accused petitioner is not entitled to default bail, but his case is to be considered on merit only.

6. Mr. B.K. Mahajan, learned counsel appearing for the informant, submitted that as the charge-sheet in the case has been submitted within the prescribed period of 90 days and the case being pending at the committal stage and further, considering the nature and seriousness of the offences, the accused petitioner may not be released on bail. In support of his contentions Mr. Mahajan relied on the judgments rendered by the Hon’ble Supreme Court in State of Maharashtra vs. Sharadchandra Vinayak Dongre and Others, (1995) 1 SCC 42, Serious Fraud Investigation Office vs. Rahul Modi and Others, 2022 SCC Online SC 153 and the orders passed by this Court in A.B. No. 482/2022; Bail Application No. 176/2019; Bail Application No. 2718/2019 and Bail Application No. 229/2022.

7. The prosecution case, in brief, is that on 07.10.2021, the informant Raj Kumar Ray lodged an F.I.R. before the Officer-in-Charge, Bhangagarh P.S. alleging, inter-alia, that in the evening of 06.10.2021, someone killed his nephew, namely Bipul Ray near Nemcare Hospital. Upon se