The main legal point established in the judgment is that the right to be released on bail under Section 167(2) of the Cr.P.C. accrues when the charge-sheet is not filed within the statutory period and remains enforceable even if the charge-sheet is filed subsequently.

RONGON MUKHOPADHYAY, J.

1. Heard Mr. Arvind Kumar Choudhary, learned counsel for the petitioner and Ms. Vandana Bharti, learned A.P.P. for the State.

2. In this application the petitioner prays for quashing of the order dated 04.01.2017 passed by the learned 1st Additional Sessions Judge-cum-Special Judge, Deoghar in POCSO Case No. 55 of 2016, arising out of Chitra P.S. Case No. 81 of 2016, G.R. No. 746 of 2016, whereby and where under the application preferred by the petitioner for being granted bail under the Provision of Section 167 (2) of the Cr.P.C. has been rejected.

3. A written complaint was made by the informant on 23.06.2016 against the petitioner and one Wasim Ansari that they had forcibly taken her near the bushes and had committed rape upon her and had also threatened her not to disclose about the incident. On hearing the cry of alarm of the informant several persons assembled pursuant to which the accused persons fled away.

4. Based on the aforesaid allegation Chitra P.S. Case No. 81 of 2016 was instituted for the offences punishable u/s 376/34 of the Indian Penal Code and 3/4 of the POCSO Act. The petitioner had surrendered in the case on 05.10.2016 and since then he is in judicial custody. Since investigation into the offence was not completed within the statutory period of 90 days the petitioner filed an application on 04.01.2017 at 11:00 A.M. for his release on bail. The report was called for from the learned trial court, pursuant to which the office had submitted a report that charge-sheet was not submitted till 2:10 P.M. However, the charge-sheet was submitted immediately thereafter on 04.01.2017 itself at 2:30 P.M., and the application u/s 167(2) of the Cr.P.C. was deferred to be heard on 05.01.2017 on the prayer made by the Special Public Prosecutor. However on 04.01.2017 itself the learned trial court had rejected the application u/s 167(2) of the Cr.P.C. on the ground that charge-sheet had already been filed by the Investigating Officer. It has been submitted by the learned counsel for the petitioner that 90 days got completed on 02.01.2017 itself and admittedly when the application for release of the petitioner on default bail u/s 167(2) of the Cr.P.C. was filed the charge-sheet having not been submitted by the Investigating Officer, the indefeasible right accruing to the petitioner could not have been extinguished by virtue of the subsequent filing of the charge-sheet.

5. It has been submitted that the learned court below also committed an illegality in passing the order on 04.01.2017 itself whereas the matter was posted for hearing on 05.01.2017. Learned counsel for the petitioner has therefore submitted that the impugned order being not based on proper appreciation of law as well as the fact deserves to be quashed and set aside.

6. Learned A.P.P. for the State has opposed the prayer made by the petitioner and has submitted that once the charge-sheet has been submitted the right of the accused to be released on compulsive bail u/s 167(2) of the Cr.P.C. gets extinguished. It has been submitted that charge-sheet was submitted on the same date on which the application u/s 167(2) of the Cr.P.C. was preferred by the petitioner and since it is a settled principle of law that once the charge-sheet is submitted the right of the accused to be released on compulsive bail does not subsists and the bail application of the petitioner has to be considered only on merits. The impugned order does not merit interference.

7. It is an admitted fact that the petitioner had surrendered on 05.10.2016 and the statutory period of 90 days to complete the investigation had expired on 02.01.2017. The application u/s 167(2) of the Cr.P.C. was preferred by the petitioner on 04.01.2017 at 11:00 A.M. which would be evident from the noting made in the said application. The order sheet of the learned trial court reveals that the report of the office discloses that till 2:10 P.M. on 04.01.2017 no charge-sheet has been submitted by