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Judgment
This is first bail application under Section 439 of the Code of Criminal Procedure, 1973 filed by the applicant for grant of bail.
Applicant is in custody in connection with Crime No.55/2020 registered at Police Station Malthon, District Sagar for the offence punishable under Sections 302, 201, 120B of Indian Penal Code.
Learned senior counsel appearing for the applicant submits that the applicant was detained since 08.02.2020 and his formal arrest was made on 12.5.2020. Thereafter, the applicant was on judicial remand. During the course of investigation, it was found by the Police of Narhat, District Lalitpur (U.P) that the place of commission of offence is Malthon, District Sagar (M.P) and, therefore, the case was transferred to District Sagar (M.P) on 12.05.2020. It is also submitted by him that the applicant is in custody beyond period of 90 days and Challan has not been filed, therefore, he is entitled to get default bail or compulsive bail under provisions of Section 167(2) of Code of Criminal Procedure, 1973.
Learned senior counsel appearing for the objector as well as learned Government Advocate appearing for the State oppose the application for grant of bail. It is submitted by them that the Challan has been filed on 10.08.2020, therefore, the default is cured and the applicant does not have any right to be enlarged on bail under the provisions of Section 167(2) of the Code of Criminal Procedure, 1973.
Learned Government Advocate appearing for the State has relied on the judgment of Hon'ble the Apex Court in the case of Sanjay Dutt Versus State Through C.B.I. Bombay (II) reported in (1994) 5 SCC 410. It is submitted by him that the indefeasible right to bail is enforceable only upto filing of the charge sheet or Challan and does not survive after that when charge sheet or Challan is filed in the Court.
Learned senior counsel appearing for the applicant has relied on judgments rendered in the cases of Kasi Versus State Through the Inspector of Police Samaynallur Police Station Madurai District (Criminal Appeal No.452/2020) (Arising out of S.L.P. (Crl) No.2433/2020, Achpal Versus State of Rajasthan (2019) 14 SCC 599, Rakesh Kumar Paul Versus State of Assam (2017) 15 SCC 67, Union of India Versus Nirala Yadav (2014) 9 SCC 457, Uday Mohanlal Acharya Versus State of Maharashtra (2001) 5 SCC 453, Central Bureau of Investigation Versus Anupam J.Kulkarni (1992) 3 SCC 141, Ganesh Prasad Versus State of Madhya Pradesh 2001 (3) MPLJ 315, Akhlak S/o Asgar @ Israr & Others Versus State of Madhya Pradesh 2001 (4) MPLJ 11, Ajay Singh Versus Surendra 2005 (3) MPLJ 306.
On the strength of the aforesaid judgments, it is submitted by learned senior counsel appearing for the applicant that the right accrued in favour of the accused due to non-filing of the charge sheet after a period of 90 days from date of his arrest does not get extinguished on filing of the charge sheet after expiry of 90 days from the date of arrest and he is entitled to be admitted on bail if he is willing and ready to furnish bail for his release.
I have heard learned counsel for the parties.
The Court has to see whether the Challan has not been filed within 90 days from the date when accused was first produced before the Magistrate by the Police for remand and whether any prayer is made by the applicant for being released on compulsive bail under Section 167(2) of the Code of Criminal Procedure, 1973. If charge sheet has not been filed from the date of detention of the accused for a period of 90 days then on the date of filing of his application for being released on bail indefensible right accrues in favour of the applicant for being released on bail on his furnishing the bail bond. In this case, the applicant was produced before the Magistrate for remand on 7.2.2020. Challan in this case has been filed on 10.8.2020 as informed by learned Government Advocate for the State.
Since the prosecution has failed to file Challan within 90 days after arrest of the applicant and his production before the Magistrate for grant of remand then indefensible right is accrued in favour of the applicant for being released on bail. In the circumstances, this bail application filed by the applicant is allowed. Applicant Surendra Singh shall be released on bail on his furnishing a personal bond in sum of Rs.50000/- with one solvent surety in the like amount to the satisfaction of the Chief Judicial Magistrate concerned for his appearance before that Court on all dates fixed in the case and for complying with the conditions enumerated under Section 437(3) of the Cr.P.C.
With the aforesaid observations, this bail application stands allowed & disposed of.
Certified copy as per rules.