The right to bail under S. 167(2) proviso (a) of the Code of Criminal Procedure is absolute and cannot be defeated by filing of charge-sheet or remand under S. 309(2).

( 1 ) IN the bail application moved by Dharmanand alias Mahato who has been charged u/s. 302/307 of the Indian Penal Code, Police Station Cantt, Lucknow I have been called upon to reconsider my decision on bail application in Criminal Misc. Case No. 3496 (B) of 1992 (Amar Singh v. State) which was decided on 24-11-1992, which has now been reported in 1992 LLJ 373.

( 2 ) BRIEF facts relating to the present application for bail are that one Kallu lodged a first information report on 8-9-1992 against the applicant at Police Station Cannt, Lucknow on the basis of which a case crime No. 281 of 1992 under S. 302/307 of the Indian Penal Code was registered against him. Along with him two other persons were also shown as accused in the case. The applicant was, thereafter, arrested.

( 3 ) LEARNED counsel for the applicant and the learned counsel for the State have been heard. Learned counsel for the applicant has argued that in the present case a charge-sheet has been filed in the court after the expiry of 90 days from the detention of the applicant. The applicant, as a matter of fact, surrendered in the court on 9-9-1992 and the charge-sheet was submitted on 10-12-1992 i. e. , beyond the period of 90 days which has been prescribed under S. 167 of the Code of Criminal Procedure. According to the learned counsel the applicant should have been released or bail for not filing the charge-sheet within period of 90 days in the present case.

( 4 ) ON the other hand learned Additional Government Advocate has argued that this right of bail which has been given to the accused under S. 167 (2) of the Code of Criminal Procedure can only be availed by the accused till the precognizance stage is there. After the cognizance is taken by the court the accused loses his right to be released on bail on that ground.

( 5 ) AFTER hearing the submissions of the learned counsel for the applicant and the learned Additional Government Advocate it has to be seen as to whether the applicant has a right to be released on bail under the provisions of S. 167 (2) of the Code of Criminal Procedure. This point also came for consideration before me in the case of Amar Singh v. State (1992 2 LJ 373) (All) (supra ). After considering the various decisions of this Court as well as the Honble Supreme Court I came to the conclusion that if a charge-sheet has been filed after 90/60 days, as the case may be, then the accused has a right to be released on bail and that right is not lost by filing of the charge-sheet subsequently. It was further held that it is not necessary for the accused to apply for bail after the expiry of 90 / 60 days and it is the duty of the Magistrate to pass a bail order and ask the accused persons to furnish surety bonds and personal bond before he can be remanded u/ S. 309 (2) of the Code of Criminal Procedure. It was further held that if there is a delay in furnishing the bail bonds the right of bail to the accused is not defeated.

( 6 ) NOW the learned Additional Government Advocate has placed a Full Bench decision of this Court before me and has argued that in view of the Full Bench decision of this Court the previous order passed by this Court in the case of Amar Singh v. State (supra) needs reconsideration. The case relied upon by the learned Additional Government Advocate is Criminal Misc. Case No. 944 of 1984 (Vijay Bahadur v. State) and Criminal Misc. Case No. 1191 of 1984 ( Ram Bahadur v. State) delivered on 7-11-1986 by the Full Bench. In that case a single Judge of this Court referred the matter on 20-9-1984 for consideration of the Full Bench as to whether a person is entitled to be released on bail if there is a delay in filing the charge-sheet. The Full Bench reframed question No. 2. For the sake of convenience the questions which have been answered by the Full Bench may be extracted below :- (I) Whether the right of a under-trial for bail under proviso (a) to S. 167 (2) Code of Criminal Procedure, is limited only to t