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IN THE HIGH COURT OF JUDICATURE AT BOMBAY

NAGPUR BENCH : NAGPUR

Criminal Application No. 1365 OF 2009

Tarun s/o Shivmurat Jaiswal,

aged about 21 years,

Occupation: Driver,

At - BTS Plot, Ballarpur,

Tahsil - Ballarpur, Dist. Chandrapur.

.. APPLICANT

.. Versus ..

State of Maharashtra through

Police Station Officer, Rajura,

Tq. Rajura, District Chandrapur.

.. NON-APPLICANT

...

Mr. S.V. Sirpurkar, Advocate for Applicant.

Mr. P.D. Kothari, APP for Non-applicant.

...

CORAM :

P.D. KODE, J.

DATED : JULY 3, 2009

ORAL JUDGMENT

1.

Heard.

2.

Rule. Returnable forthwith. Heard finally by consent

of parties.

3.

By present petition under Section 482 of the Code of

Criminal Procedure, one of the accused in Crime No. 146 of

2008 of Rajura Police Station registered for commission of

offence under Section 394, 341 read with 34 of IPC and Section

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4 read with Section 25 of the Arms Act, has prayed for quashing

and setting aside order dated 5.1.2009 passed by learned

Ad-hoc Additional Sessions-1, Chandrapur in Criminal Revision

No. 181 of 2008 and so also order dated 22.12.2008 passed by

the JMFC Rajura in the said crime upon his application for bail

preferred under Section 167 (2) of the Code of Criminal

Procedure i.e. order against which said application in revision

was preferred.

4.

In short, it is case of applicant that due to failure of

investigating agency to furnish the charge sheet in the said

Crime No.146/2008 within period prescribed by Section 167(2)

of Cr.P.C., an indefeasible right had accrued to him to get

himself released on bail and in pursuance of the said right he

had duly preferred an application for releasing him on bail.

However, the same was rejected by the said Court. Similarly, in

spite of revisional court - Sessions Court of Chandrapur in

revision preferred by him against the said order coming to

conclusion that he was entitled for bail in view of chargesheet

being not filed instead of allowing said prayer by observing that

his said right has been extinguished in view of chargesheet

being filed, having disposed the same by giving him direction

for moving fresh application for bail before trial court had

necessitated him to approach this court.

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5.

The facts, in brief, necessary for throwing light upon

the controversy agitated can be set out as under :

On 3.9.2008 one Ailayya Kumaraiya has lodged a

report with Police Station Rajura regarding an incident which

had occurred on 2.9.2008 in which three persons coming on a

motorbike had stopped his truck and looted a sum of Rs.4,800/-,

one mobile phone and one deck. The said Police Station had

registered Crime No. 146/2008 upon said complaint for the

offences prescribed earlier. During course of investigation, the

applicant/accused came to be arrested by the said police on

9.9.2008 and was produced before the Court of JMFC at Rajura

and thereafter he was remanded to custody and ultimately to

the judicial custody from time to time. On failure of said Police

Station to file a charge sheet within the stipulated period of 90

days under Section 167 (2) of Cr.P.C., the accused/applicant

had moved an application for releasing him on bail as per

provisions of Section 167(2) of Cr.P.C. However, the same was

rejected by learned JMFC as narrated earlier. The applicant had

preferred revision against said order on 29^th December, 2008

before the Court of Session. On the same day police had also

filed chargesheet against him and upon the same Criminal Case

No.379/2008 was registered.

6.

The application is opposed by the prosecution by

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filing a say inter alia contending of charge sheet being filed

and case being committed for a trial, the right accrued to the

applicant under Section 167(2) of Cr.P.C. has been extinguished

and, therefore, now he cannot be released on