The High Court Of Madhya Pradesh (RAMDAS PATEL Vs THE STATE OF MADHYA PRADESH)

11

10-12-2018 Jabalpur, Dated :

Shri Utkarsh Agrawal, learned counsel for the applicants.

Shri Ashish Tiwari, learned counsel for the Objector.

Shri V.S. Mishra, learned Deputy Government Advocate for the respondent/State.

Heard on I.A. No. 19865/2018 which is an application for modification/recall of the order dated 1/11/2018.

Submission of the applicants is that applicant nos. 1, 4 and 5 are in custody since 4/07/2018 and applicant nos. 2 and 3 are in custody since 10/07/2018. Applicants have filed an application under section 167 (2) of Cr.P.C before the learned Judicial Magistrate First Class, Katni. The said application of applicant nos. 1, 4 and 5 was rejected vide order dated 6/10/2018 and of applicant nos. 2 and 3 was rejected vide order dated 9/10/2018. In the matter of applicant nos. 1, 4 and 5 the charge sheet was filed on 8/10/2018 which shows that 90 days' period for consideration of default bail completes on 4/10/2018. Hence, relying on the judgment of Apex Court in the case of Rakesh Kumar Paul Vs. State of Assam reported in (2017) 15 SCC 67 and in the case of Achpal Vs. State of Rajasthan, SLP (Cri) 6453/2018 he has submitted that filing of default bail was not premature. Even if it is constituted to be premature then Court should not go on hyper technicalities. In the light of the above law, the application under section 167 (2) of Cr.P.C against applicant nos. 1, 4 and 5 be allowed. Learned counsel for the Objector as well as Government Advocate on behalf of State have opposed the application seeking modification.

After hearing learned counsel for both the parties, perusal of the case diary and record of the case, this Court has wrongly reached on the conclusion that applicant nos. 1, 4 and 5 were produced before the trial court on 10/07/2018. It is well settled that right of default bail accrues only after 60/90 days of the arrest which is counted excluding the date of remand as has been laid down by the Apex Court in the case of Ravi Prakash Singh alias Arvind Singh Vs. State of Bihar reported in AIR 2015 SC 1294. In this case after perusal of the case diary this Court finds that applicant nos. 1, 4 and 5 were arrested on 6/07/2018 and produced before the learned JMFC, Katni on 6/07/2018. The counting for 90 days will start from 7/07/2018 and 90 days will be completed on 5/10/2018 while the charge sheet was filed on

8/10/2018 i.e. three days after the default period.

It is also pertinent to note that applicant nos. 1, 4 and 5 have filed the application before the learned Magistrate under section 167 (2) of Cr.P.C for default bail on 4/10/2018 at 03:05 PM so the application is obviously premature. Prior to its expiry of 90 days, that application was kept pending till 9/10/2018 and was decided only on 9/10/2018 after filing of the charge sheet i.e. 8/10/2018. Thus, it is clear that the application for default bail under section 167 (2) of Cr.P.C was alive even after 90 days since it was not rejected on the same day or before expiry of 90 days. At the time when the charge sheet was filed, bail application under default provision was very much there so it was incumbent upon the learned Magistrate to decide the same in the light that prior to filing of charge sheet before him after 90 days default bail application is still pending. Since applicant nos. 1, 4 and 5 have shown their willingness for benefits of bail and they have filed appropriate application and indefeasible right did accrue in their favour.

Hon'ble Apex Court in the case of Rakesh Kumar Paul (supra) held in para 49 as under :-

"49. The petitioner is held entitled to the grant of '€˜default bail' on the facts and in the circumstances of this case. The Trial Judge should release the petitioner on '€˜default bail' on such terms and conditions as may be reasonable. However, we make it clear that this does not prohibit or otherwise prevent the arrest or re-arrest of the petitioner