- Bookmark
- Share
- CaseIQ
Nawal Sahni v. State Of Bihar
Structured Summary of Opinion — Nagendra Prasad Singh, J.
Factual and Procedural Background
The petitioner was accused of an offence under Section 395 of the Penal Code. The First Information Report was lodged on 18-6-1987. The petitioner was arrested and remanded to jail custody on 21-6-1987. The police report/chargesheet was submitted on 23-9-1987 and received in the court of the Sub-Divisional Judicial Magistrate on 24-9-1987.
After submission of the chargesheet, a prayer for bail was made by the petitioner on the ground that the chargesheet had not been submitted within 90 days from the date of custody, entitling him to bail under the proviso to Sub-section (2) of Section 167 of the Code. The learned Magistrate rejected the bail application; the Sessions Judge also rejected the prayer, holding that because the petitioner was in custody on the basis of an order of remand passed under Section 309(2) of the Code there was no question of releasing him under the proviso to Section 167(2). The matter was brought before this Court.
Legal Issues Presented
- Whether an accused is entitled to be released on bail under the proviso to Sub-section (2) of Section 167 of the Code if the police report/chargesheet is submitted only after the period prescribed by that proviso (i.e., after expiry of the 90-day period), when the application for bail is considered after the chargesheet has been submitted.
- Whether submission of the chargesheet after the statutory period defeats an accrued right to be released on bail under the proviso to Section 167(2), and if so, in what circumstances (for example, where an order for release had already been made before submission of the chargesheet).
Arguments of the Parties
Petitioner's Arguments
- The petitioner contended that because the chargesheet was not submitted within 90 days from the date he was taken into custody, he was entitled to be released on bail under the proviso to Sub-section (2) of Section 167.
- It was urged that the custody after expiry of the 90-day period and before submission of the chargesheet was illegal because the Magistrate had no power under Section 167(2) to remand the accused beyond that period and, until the chargesheet had been submitted, the deemed enquiry under Section 2(g) had not commenced so as to attract Section 309(2).
- Reliance was placed on a recent judgment of this Court in Md. Sharfuddin Khan v. State of Bihar (1988 Pat LJR (HC) 201) asserting that the right accrued under Section 167(2) proviso cannot be defeated merely because a chargesheet is later submitted.
Respondent's / Prosecution's Arguments and Judicial Response
- The learned Magistrate and Sessions Judge took the view that once the chargesheet was submitted the stage of applicability of Section 167(2) proviso was over, an inquiry was deemed to have commenced, and the Magistrate had power to remand the accused under Section 309(2) of the Code.
- The Sessions Judge specifically relied on the fact of remand under Section 309(2) to reject the bail prayer under Section 167(2) proviso.
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| Md. Sharfuddin Khan v. State of Bihar (1988 Pat LJR (HC) 201) | Held that the right accrued to an accused under Section 167(2) proviso of being released on bail if chargesheet is not submitted within 90 days cannot be defeated merely because a chargesheet is later submitted. | The judgement was relied upon by the petitioner before a single Judge of this Court, but the present Division Bench declined to follow it and expressly overruled that view as incorrect in light of other authorities. |
| Rabindra Rai v. The State of Bihar (Full Bench) (1984 Cri LJ 1412 / 1984 BBCJ (HC) 1) | Held that an inquiry within the meaning of Section 2(g) of the Code is deemed to have commenced with the submission of the police report/chargesheet and continues till commitment under Section 209; consequently the Magistrate has power under Section 309(2) to remand during that period. | The Court relied on this Full Bench decision to conclude that once chargesheet is filed an enquiry is deemed to have commenced and Section 167(2) proviso is not applicable; this decision was applied to distinguish and reject Md. Sharfuddin. |
| State of U.P. v. Lakshmi Brahman (1983 Cri LJ 839) (Supreme Court) | Explained that proceedings before the Magistrate from the time the accused appears with the police report under Section 170, and the Magistrate enquires under Section 207 onward, constitute an "inquiry" under Section 2(g); thus Section 309(2) can be invoked once such inquiry is in progress. | The Court relied on this Supreme Court authority to support the proposition that submission of the chargesheet triggers the commencement of an enquiry and hence the Magistrate's power under Section 309(2) to remand the accused. |
| Natabar Parida v. State of Orissa (Supreme Court) | Authority for the proposition that after expiry of the statutory period the accused must be released on bail if prepared to and does furnish bail; Section 167(2) proviso is a limitation on remand power. | The Court invoked Natabar Parida to emphasize that Section 167(2) proviso limits remand during investigation and that if the investigation has not concluded within the period the Magistrate must release the accused if bail is furnished (subject to later consequences). |
| Talib Hussain v. State of Jammu and Kashmir | In habeas corpus proceedings the legality of detention is to be considered on the date of hearing; a detention not unlawful at the date of hearing cannot be quashed merely because there was an earlier period without proper remand order. | The Court cited this to support the view that an order of detention is not necessarily quashed for a prior period of defective remand if by the time of hearing the accused is detained under a valid remand order. |
| Raghubir Singh v. State of Bihar (1987 Cri LJ 157) (Supreme Court) | Held that an order for release on bail made under the proviso to Section 167(2) is not defeated by lapse of time, the filing of the chargesheet, or by remand under Section 309(2); however such an order may be cancelled later under Section 437(5) or Section 439(2) on grounds like interference with administration of justice or evasion of justice. | The Court distinguished Raghubir Singh: it applies where an actual order directing release under Section 167(2) proviso has been made before chargesheet filing. The present case had no such prior order, so Raghubir Singh does not entitle the petitioner to bail after chargesheet submission. |
Court's Reasoning and Analysis
The Court proceeded in structured steps, applying statutory interpretation and authority:
- Nature of Section 167(2) proviso: The Court emphasised that the proviso to Sub-section (2) of Section 167 is not a freestanding provision "for bail" but a restriction on the Magistrate's power to authorise detention during investigation beyond the statutory period (90 days for serious offences). If investigation has not concluded within that period, the Magistrate must release the accused if he is prepared to and does furnish bail.
- Effect of filing of chargesheet: The Court relied on the Supreme Court's decision in State of U.P. v. Lakshmi Brahman and the Full Bench decision in Rabindra Rai to hold that an "inquiry" within the meaning of Section 2(g) is deemed to commence with the submission of the police report/chargesheet and continues until commitment under Section 209. Once the chargesheet is filed, the magistrate obtains power under Section 309(2) to remand the accused during the inquiry.
- Temporal effect of the proviso: Given the above, if a bail application under Section 167(2) proviso is considered after the chargesheet has been submitted, the stage in which the proviso applies is over because the enquiry has commenced; consequently the Magistrate is not precluded from remanding the accused under Section 309(2).
- Distinction from cases where an order for release was already made: The Court analysed Raghubir Singh and accepted the principle that an order of release granted under Section 167(2) proviso (i.e., a judicial order directing release before the filing of the chargesheet) will not be automatically defeated by subsequent filing of the chargesheet or remand; such an order can only be cancelled by appropriate procedure (Sections 437(5) or 439(2)). However, that principle is inapplicable where no such order for release had been made prior to the filing of the chargesheet.
- Habeas corpus consideration: The Court noted the proposition from Talib Hussain that a court considering habeas corpus examines legality of detention as on the date of hearing; a prior interval of defective remand does not automatically require quashing if a valid remand exists at hearing. The Court used this to underscore that an interim illegal custody period does not necessarily confer a continuing right when a valid remand has since been made.
- Application to the facts: Since in the present case there was no order directing release of the petitioner between the expiry of 90 days (20-9-1987) and the filing/receipt of the chargesheet (23–24-9-1987), and the bail application was considered only after the chargesheet had been submitted, the proviso to Section 167(2) was no longer the operative provision. Therefore the learned Magistrate correctly considered the bail application in the context of Section 309(2) and law applicable to inquiries after filing of a chargesheet.
Holding and Implications
Holding: DISMISSED. The application for bail was dismissed. The Court held that when a chargesheet has been submitted (even if submitted after the statutory period), and the bail application is considered after such submission, the proviso to Section 167(2) is no longer applicable because an inquiry is deemed to have commenced and the Magistrate has power to remand under Section 309(2).
Implications:
- Direct effect on the parties: The petitioner was not entitled to be released on bail under the proviso to Section 167(2) at the stage when his bail application was considered (i.e., after submission of the chargesheet). The learned Magistrate's refusal to grant bail was affirmed and the application dismissed.
- On interplay of authorities: The Court expressly declined to follow and overruled the earlier single-Judge decision in Md. Sharfuddin Khan (1988 Pat LJR (HC) 201) insofar as that decision held that a right under the proviso survives the subsequent filing of the chargesheet when the bail application is heard; instead the Court applied the principles in State of U.P. v. Lakshmi Brahman and the Full Bench Rabindra Rai decision to conclude that filing of the chargesheet commences an inquiry and invokes Section 309(2).
- Scope of Raghubir Singh: The Court accepted the Raghubir Singh principle that an actual judicial order directing release under Section 167(2) cannot be defeated merely by subsequent filing of the chargesheet or remand, and such an order can only be set aside by the prescribed cancellation procedures. But the Court emphasised that Raghubir Singh applies only where such an order for release has in fact been passed prior to the filing of the chargesheet; it does not permit a belated attempt to invoke Section 167(2) proviso after the chargesheet has been submitted where no prior release order was made.
- No extension of relief where chargesheet already filed: Practically, an accused who seeks relief under Section 167(2) proviso must press such a right before the chargesheet is submitted; post-submission consideration of bail must be evaluated in the context of Section 309(2) and the inquiry process.
Note: This summary is prepared exclusively from the provided opinion and does not add information beyond what the opinion itself contains.
JUDGMENT Nagendra Prasad Singh, J.
1. Whether bail has to be granted, to an accused under proviso to Sub-section (2) of Section 167 of the Code of Criminal Procedure (hereinafter referred to as 'the Code'), even after submission of the police report chargesheet (hereinafter referred to as 'the chargesheet') if the chargesheet has been submitted after the period prescribed in the proviso to Sub-section (2) of Section 167. is the question which has to be answered.
2. The petitioner is an accused for offence under Section 395 of the Penal Code. The first information report in respect of the occurrence in question was lodged on 18-6-1987. The petitioner was arrested and remanded to jail custody on 21-6-1987. The chargesheet, however, was submitted on 23-9-1987, which was received in the court of Sub-Divisional Judicial Magistrate on 24-9-1987.
3. A prayer to release the petitioner on bail was made after submission of the chargesheet, on the ground that as the chargesheet had not been submitted, within 90 days from the date the petitioner was taken in custody, he was entitled to be released on bail in terms of proviso to Sub-section (2) of Section 167 of the Code. That prayer was rejected by the learned Magistrate. Even the Sessions Judge has rejected the said preyer saying that as the petitioner was in custody on the basis of an order of remand passed under Section 309(2) of the C ode, there was no question of releasing him on bail in accordance with Section 167(2) proviso.
4. This application was listed before a learned Judge of this Court before whom reliance was placed on a recent judgment of this Court in the case of Md. Sharfuddin Khan v. State of Bihar 1988 Pat LJR (HC) 201 holding that right accrued to an accused under Section 167(2) proviso, of being released on bail if chargesheet is not submitted within the statutory period of 90 days, cannot be defeated merely on the ground that later a chargesheet has been submitted. It appears that a Full Bench judgment of this Court in the case of Rabindra Rai… v. The State Of Bihar…Opposite Party. 1984 BBCJ (HC) 1 : 1984 Cri LJ 412 was not brought to the notice of the learned Judge, who decided the case of Md. Sharfuddin alias Safdar Ashraf (supra) as such this case was referred to a Division Bench.
5. Since very inception proviso (a) to Sub-section (2) of Section 167, which puts a limitation on the power of the Magistrate to remand an accused during investigation has been subject matter of controversy. The scope of that proviso was authoritatively considered in the; case of Natabar Parida v. State of Orissa where it was pointed out by the Supreme Court that after the expiry of the statutory period, an accused has got to be released on bail if he is prepared to and does furnish bail. This course of granting bail has to be adopted because Section 167(2) proviso prescribes a limitation on the power of the Magistrate to remand an accused to custody during investigation after expiry of the period prescribed in the said proviso to Section 167(2). If chargesheet is submitted within the statutory period prescribed proviso to Sub-section (2) of Section 167, there is no question of granting bail because such an accused thereafter can be remanded to jail custody in exercise of the power under Section 309(2) of the Code. Proviso to Section 167(2) is not a provision for grant of bail during investigation, but a restriction on the power of the magistrate to remand an accused during investigation beyond the period prescribed. As such with filing of chargesheet if an enquiry commences within the meaning of Section 2(g) of the Code the magistrate can remand the accused to custody in term of Section 309(2) and there is no question of applicability of Section 167(2) proviso in that event, the investigation having concluded.
6. In some cases where chargesheets had been submitted within the statutory period of 90 days, but there being no formal orders saying cognizance had been taken controversy arose as to whether Section 309(2) of the Code will be attracted so as to vest power in the magistrate to remand the concerned accused persons to custody. This argument was advanced on the basis of expressions used in Sub-section (2) of Section 309 of the Code. The relevant part whereof is as follows:
309(2). If the Court, after taking cognizance of an offence, or commencement of trial, finds it necessary or advisable to postpone the commencement of, or adjourn, any inquiry or trial, it may, from time to time, for reasons to be recorded, postpone or adjourn the same on such terms as it thinks fit, for such time as it considers reasonable, and may by a warrant remand the accused if in custody.
On a plain reading, Section 309(2), applies after cognizance is taken of an offence during an enquiry or trial of such offence. Therefore, the power under Section 309(2) of the Code for remanding an accused to custody can be exercised only after commencement of the enquiry. This led to the question as to when an enquiry commences. This aspect of the matter was examined by the Supreme Court in connection with Section 309(2) read with Section 209 of the Code in the case of State of U.P. v. Lakshmi Brahman . In that connection it was held:
Thus, from the time the accused appears or is produced before the Magistrate with the police report under Section 170 and the Magistrate proceeds to enquire whether Section 207 has been complied with and then proceeds to commit the accused to the Court of Session, the proceeding before the Magistrate would be an inquiry as contemplated by Section 2(g) of the Code.
After making a reference to Sub-section (2) of Section 309 it was further observed:
If therefore, the proceedings before the Magistrate since the submission of the police report under Section 170 and till the order of commitment is made under Section 209 would be an inquiry and if it is an inquiry, during the period, the inquiry is completed, Section 309(2) would enable the Magistrate to remand the accused to the custody.
A Full Bench of this Court in Rabindra Rai's case 1984 Cri LJ 1412 (supra) after referring to the aforesaid judgment of the Supreme Court in the case of State of U.P. v. Lakshmi Brahman 1983 Cri LJ 839 (supra) pointed out:
In view of the clear enunciation of the position that an inquiry within the meaning of Section 2(g) of the Code shall deem to have commenced since the submission of the police report, and shall continue till an order of commitment is made under Section 209, it is difficult for this Court to hold that such inquiry shall commence only after a formal order is passed by the Magistrate saying that cognizance has been taken. Once it is held that inquiry commences since the submission of the police report/chargesheet there should not be any difficulty in holding that the Magistrate has during that period power to remand the accused in terms of Sub-section (2) of Section 309 of the Code.
It was also pointed out "that taking cognizance does not involve any formal action or indeed action of any kind, but occurs as soon as a Magistrate, as such applies his mind to the suspected commission of an offence." It was observed that "there has been a common practice that the Magistrate before whom chargesheet is submitted mentions on the order sheet that cognizance has been taken. But to establish in a particular case that cognizance has been taken any such order saying that cognizance has been taken is not a must. As such, an inquiry within the meaning of Section 309(2) may commence before the Magistrate no sooner chargesheet is submitted so as to vest him with power of remand under Sub-section (2) of Section 309 of the Code." In view of the aforesaid Supreme Court judgment in the case of State of U.P. v. Lakshmi Brahman (supra) and the Full Bench judgment of this Court even in a case where chargesheet has been submitted within the statutory period but no formal order has been passed saying that cognizance has been taken and enquiry as contemplated by Section 2(g) of the Code shall deem to have commenced with the filing of the chargesheet vesting power in the Magistrate to remand accused under Section 309(2) of the Code and there is no question of releasing an accused under Section 167(2) proviso.
7. But will it make any difference if chargesheet itself has been submitted after the statutory period of 90 days, but prayer for bail is being made after the submission of such a chargesheet, on the ground that as the chargesheet had not been submitted within the time prescribed, the accused is entitled to be released on bail, Whether the right which has accrued to such an accused of being released on bail due to non-submission of the chargesheet within the period fixed by the proviso to Section 167(2) of the Code can be exercised even when the prayer for grant of bail is to be considered after submission of the chargesheet.
8. The relevant part of Section 167(2) with proviso is as follows:
167(2). The Magistrate to whom an accused person is forwarded under this section may, whether he has or has not jurisdiction to try the case, from time to time authorise the detention of the accused in such custody as such Magistrate thinks fit, for a term not exceeding fifteen days in the whole; and if he has no jurisdiction to try the case or commit it for trial, and considers further detention unnecessary, he may order the accused to be forwarded to a Magistrate having such jurisdiction. Provided that-
(a) The Magistrate may authorise the detention of the accused person, otherwise than in the custody of the police, beyond the period of fifteen days, if he is satisfied that adequate grounds exist for doing so, but no Magistrate shall authorise the detention of the accused person in custody under this paragraph for a total period exceeding -
(i) ninety days, where the investigation relates to an offence punishable with death, imprisonment for life or imprisonment for a term of not less than ten years.
(ii) sixty days, where the investigation relates to any other offence, and on the expiry of the said period of ninety days, or sixty days, as the case may be, the accused person shall be released on bail if he is prepared to and does furnish bail, and every person released on bail under this subsection shall be deemed to be so released under the provisions of Chap. XXXIII for the purposes of that Chapter.
As already pointed out Sub-section (2) of Section 167, is not a provision for bail, but puts a limitation on the power of the Magistrate to authorise detention of an accused person in custody during investigation beyond the period prescribed. If investigation continues beyond that period, then a Magistrate has no option but to release the accused on bail if he is prepared and furnishes bail to the satisfaction of the Magistrate. It was pointed out in the aforesaid Full Bench judgment of this Court in the case of Rabindra Rai 1984 Cri LJ 1412 (supra) that although the. proviso aforesaid is mandatory in nature leaving no discretion in the Magistrate while considering the question of grant of bail if investigation has not concluded within the period fixed, but the said proviso to Section 167(2) does not conceive an outright release of an accused person, his custody itself having become illegal after the expiry of the period. That is why, it was observed that the said proviso does not conceive release of an accused even if such an accused does not furnish bail.
9. In this background if the prayer for grant of bail is to be considered after the submission of the chargesheet under Section 170 of the Code, although submitted after the period prescribed, can it be said that the right to be released on bail under that proviso continues when the investigation itself has come to an end, In my view, even in a case where chargesheer. has been submitted beyond the statutory period but if the prayer for grant of bail is being considered after submission of such chargesheet then the stage of applicability of Section 167(2) proviso is over. With the submission of the chargesheet an enquiry shall be deemed to have commenced, as such, there is no question of lack of power in the Magistrate to remand such an accused; he can remand in exercise of power under Section 309(2), Of course, if the prayer for bail is being considered after the expiry of the statutory period and before the submission of the chargesheet. there is no option with the Magistrate except to release the accused on bail if he furnishes bail bond.
10. On behalf of the petitioner it was urged that if chargesheet is submitted after the statutory period of 90 days then at least after the expiry of the statutory period and before the submission of the chargesheet such accused is in illegal custody in absence of a valid order of remand. In other words, the Magistrate having no power to remand such an accused to custody under Section 167(2) after the expiry of the period, and in absence of the chargesheet even the deemed enquiry having not commenced so as to attract the provisions of Section 309(2) of the Code the accused is in custody without a legal order of remand. In my view, this position cannot be contested. But as was pointed out in the aforesaid Full Bench judgment that such situations are not uncommon even while hearing applications for writ of habeas corpus under Article 226 of the Constitution. An order of detention is not to be quashed on the ground that for some period the person in question was in custody without any valid order of remand, if it is found that when such writ application is being heard he is in custody on the basis of a proper order of remand. In the case of Talib Hussain v. State of Jammu and Kashmir it was observed:
In regard to the submission that the petitioner was arrested and deprived of his personal liberty long before the order of his arrest and this invalidated his detention, it is sufficient to point out that in habeas corpus proceedings the Court has to consider the legality of the detention on the date of hearing. If on the date of hearing it cannot be said that the aggrieved party has been wrongfully deprived of his personal liberty and his detention is contrary to law, a writ of habeas corpus cannot issue.
11. Different considerations, however, will arise in a case where after the expiry of the statutory period of 90 days and before submission of the chargesheet an order directing the release of an accused person in terms of Section 167(2)(a) of the Code has been passed by the Court. That order granting bail cannot be nullified merely on the ground that before such an accused is released the chargesheet has been submitted. It need not be pointed out that in such a case, the right has accrued to such an accused of being released on bail, on the basis of a judicial order. Because of the specific provisions of Section 167(2) proviso (ii) saying that
"every person released on bail under this sub-section shall be deemed to be so released under the provisions of Chap. XXXIII for the purposes of that Chapter", it has to be held that such an accused has been released on bail within the meaning of Chap. XXXIII of the Code. If such order is recalled or not given effect to it shall amount to cancellation of the order granting bail. This question has recently been considered by the Supreme Court in the case of Raghubir Singh v. State of Bihar . In that case an order directing release of the accused in question had been passed by the Magistrate because the chargesheet had not been submitted within the statutory period. There was some delay on the part of the accused in furnishing the bail bond. Later, one of the sureties appeared before the court and prayed that he may be discharged from the suretyship as he did not want to be a surety for the accused person. The Magistrate discharged such a surety. At that time the accused concerned was in custody also in connection with an order of detention issued under the National Security Act. When the order of detention was quashed, a prayer for releasing the accused on bail was made. In the meantime, chargesheet had been submitted in the court of the Judicial Magistrate concerned. The prayer to be released on bail was opposed by the prosecution saying that although an order directing release on bail had been passed but before such accused person was released chargesheet had been submitted. That argument was repelled by the Supreme Court saying:
The result of our discussion and the case-law is this : an order for release on bail made under the proviso to Section 167(2) is not defeated by lapse of time, the filing of the chargesheet or by remand to custody under Section 309(2). The order for release on bail may however be cancelled under Section 437(5) or Section 439(2). Generally the ground for cancellation of bail, broadly, are, interference or attempt to interfere with the due course of administration of justice, or evasion or attempt to evade the course of justice, or abuse of the liberty granted to him. The due administration of justice may be interfered with by intimidating or suborning witnesses, by interfering with investigation, by creating or causing disappearance of evidence etc. The course of justice may be evaded or attempted to be evaded by leaving the country or going underground or otherwise placing himself beyond the reach of the sureties. He may abuse the liberty granted to him by indulging in similar or other unlawful acts. Where bail has been granted under the proviso to Section 167(2) for the default of the prosecution in not completing the investigation in sixty days, after the defect is cured by the filing of a chargesheet, the prosecution may seek to have the bail cancelled on the ground that there are reasonable grounds to believe that the accused has committed a non-bailable offence and that it is necessary to arrest him and commit him to custody....
12. But the principle enunciated by the Supreme Court in the aforesaid judgment in the case of Raghubir Singh 1987 Cri LJ 157 (supra) cannot be applied to a case where there is no order directing release of the accused on the ground that the chargesheet had not been submitted within 90 days from the date the accused was remanded to custody. In my view, on the basis of the aforesaid judgment an accused cannot make prayer for bail in a case where chargesheet has been submitted after the statutory period, but the Magistrate is to consider the question of grant of bail after the submission of the chargesheet In such a case there being no order directing release of the accused, there is no question of cancelling any such order by not releasing the petitioner.
13. In the instant case, admittedly, no order directing release of the petitioner had been passed after the expiry of the period of 90 days and before submission of the chargesheet on 24-9-1987. As such, while considering the prayer for bail of the petitioner on or after 24-9-1987 the Magistrate had not to examine that prayer in the background of Section 167(2) proviso but in the light of Section 309(2) of the Code. With the filing of the chargesheet an enquiry shall be deemed to have commenced, the Magistrate had power to remand such an accused and there was no question of enforcing on that day any right which had accrued to such an accused between 21-9-1987 and 24-9-1987. If such right cannot be enforced in an application for a writ of habeas corpus; in my view, that right cannot be enforced before the Magistrate after the submission of the chargesheet although submitted after the period fixed in proviso to Section 167(2).
14. A learned Judge of this Court in the aforesaid case of Md. Sharfuddin Khan 1988 Pat LJR (HC) 201 (supra) has observed:
In my view that right accrued cannot be denied to the accused and the command of the Legislature cannot be frustrated merely on the ground that chargesheet stood submitted on the date on which the petition on behalf of the accused-petitioners on such ground was being considered by the Judicial Magistrate....The accused petitioners had been in jail beyond the period of 90 days on 18-2-1986 without any chargesheet being submitted in the case, and hence the accused petitioners were entitled to be released on bail on that day and that right cannot be denied to him simply because subsequent thereto chargesheet was submitted in the case....
Unfortunately, the attention of the learned Judge was not drawn to the Supreme Court judgment in the case of State of U.P. v. Lakshmi Brahman 1983 Cri LJ 839 (supra) and to the Full Bench decision of this Court in the case of Rabindra Rai 1984 Cri LJ 1412 (supra), where it has been held that after the chargesheet is submitted an enquiry commences and Magistrate gets power to remand an accused to custody under Section 309(2) of the Code and at that stage there is no question of applicability of Section 167(2) proviso. I respectfully differ with the view expressed by the learned Judge and the said judgment is overruled.
15. The prayer for bail has been made only on the ground that the period of 90 days expired on 20-9-1987 and chargesheet was submitted on 24-9-1987, but as the prayer for bail was made and considered admittedly after the submission of the chargesheet, the learned Magistrate rightly took the view that at that stage there was no question of releasing the petitioner under proviso (a) to Sub-section (2) of Section 167. This application is, accordingly, dismissed.
Alert