2005 ALL MR (Cri) JOURNAL 193
(ORISSA HIGH COURT)
R.N. BISWAL, J.
Rakesh Swain Vs. State Of Orissa
Crl. Revn. No.696 of 2004
1st December, 2004
Petitioner Counsel: D. PANDA, B. P. HAL, G. R. MOHANTY, A. PARIDA , R. MOHALIK
Criminal P.C. (1973), S.167(2) - Bail - Release of accused because charge-sheet not filed within time - Right in favour of accused would be extinguished if application under S.167(2) is filed after charge-sheet was received by court - Filing of petition under S.167(2) thereafter cannot be favourably entertained. (Para 5)
Mohamed Iqbal Madar Sheikh Vs. State of Maharashtra, 1996(1) Crimes 4 (SC) [Para PARA4]
Uday Mohanlal Acharya Vs. State of Maharashtra, 2001 ALL MR (Cri) 713 (S.C.)=2001(2) Ori LR (SC) 290 [Para 4]
Ganesh Prasad Vs. State of M.P., 2001 Cri LJ 3444 [Para PARA4]
Dinesh Yadav Vs. State, 2002 Cri LJ 1067 [Para PARA4]
- In this revision the petitioner has challenged the legality and propriety of the order dated 4-10-2004 passed by the S.D.J.M., Bhubaneswar in G. R. Case No.1049 of 2004, wherein he rejected the petition under Section 167(2) Cr. P.C. filed by the petitioner.
2. The case of the petitioner is that having been arrested on 5-6-2004 in Chandaka P.S. Case No.23 of 2004 corresponding to the aforesaid G. R. Case for the offence under sections 302/307/34 1.P.C. read with Secs. 25 and 27 of the Arms Act he was remanded to judicial custody on the next date. Even though in the meantime the statutory period of 120 days expired on 3-4-2004 charge-sheet could not be submitted. On 4-10-2004 he filed the petition under Section 167(2) Cr. P.C. for his release on bail.
3. Learned trial Court rejected the petition holding that in view of the nature of allegations made, he is not inclined to admit the accused-petitioner to bail. Being aggrieved with this order the petitioner has preferred the present Revision.
4. Learned counsel for the petitioner submits that an accused has a statutory right to be released on bail if the final form cannot be submitted within the statutory period of 120 days as per proviso (a) to Section 167 (2) Cr. P.C. In the present case the petitioner having been arrested on 5-6-2004 was remanded to judicial custody on 6-6-2004 where he has been detained since then. The period of 120 days was completed on 3-10-2004. The petitioner filed the petition under Section 167 (2) Cr. P.C. on 4-10-2004. Since final form was not submitted within 120 days of the first date of remand of the petitioner to judicial custody, the trial Court ought not have rejected the petition, particularly when it was filed prior to submission of charge-sheet. In support of his submission he relied on the decisions in Mohamed Iqbal Madar Sheikh Vs. State of Maharashtra, 1996 (1) Crimes 4 (SC), Uday Mohanlal Acharya Vs. State of Maharashtra; 2001 (2) Ori LR (SC) 290 : 2001 ALL MR (Cri) 713 (S.C.), Ganesh Prasad Vs. State of M.P., 2001 Cri LJ 3444 and Dinesh Yadav Vs. State, 2002 Cri LJ 1067 (Patna High Court).
5. Mr. Rout, learned Additional Standing Counsel did not dispute the point of law as raised by learned counsel for the petitioner. However, he contended that the petition under Section 167(2) Cr. P.C. was filed only after the submission of charge-sheet on 4-10-2004, As soon as the charge-sheet was submitted the right of the petitioner to be released on bail under proviso (a) to Section 167 (2) Cr. P.C. extinguished. In view of the rival contentions of the learned counsel for the petitioner and the learned Additional Standing Counsel with regard to the time of submission of the charge-sheet and filing of petition under Sec.167 (2) Cr. P.C., it would be profitable to peruse the L.C.R. On perusal of the L.C.R. it is found that on 15-9-2004 the accused-petitioner was remanded to judicial custody till 29-9-2004. On 28-9-2004 the I.O. made an application before the S.D.J.M., Bhubaneswar for recording the statement of some witnesses u/S.164 Cr.P.C. So, the learned S.D.J.M., Bhubaneswar transferred the case to the Court of Shri. U. B. Jena, J.M.F.C., Bhubaneswar to record the statement of the witnesses under the said provision. Since the accused-petitioner could not be produced on 29-9-2004 due to shortage of escort party, the J.M.F.C. could not record the statement of witnesses on that date and remanded the accused-petitioner till 14-10-2004. After recording the statement of witnesses under Section 164 Cr. P.C. the J.M.F.C. transferred the record to the S.D.J.M., Bhubaneswar on 4-10-2004. The order sheet of that date shows that on the same date the S.D.J.M., Bhubaneswar received the charge-sheet against the accused persons under Sections 302/307/34 I.P.C. read with Sections 25 and 27 of the Arms Act, issued N.B.W. of arrest against the absentee accused, noticed the bailers and remanded the petitioner to custody. He also ordered to place the record on the date fixed i.e. 14-10-2004. On the same date i.e. 4-10-2004 later on, on the strength of an advanced petition, the record was put up and the petition for bail under S.167 (2) Cr. P.C. was filed. So, it clearly shows that the bail petition was filed after the charge- sheet was received by the learned S.D.J.M., Bhubaneswar. As such, the right, which had accrued in favour of the petitioner, was extinguished by the time charge-sheet was submitted. Filing of petition under Section 167 (2) Cr. P.C. thereafter cannot be favourably entertained.