Monday, 1 May 2017

When accused should not be released on default bail?

The petitioner was taken in judicial custody on 1st of
February, 2016. He sought compulsive bail in terms of Section 167(2)
of the Code of Criminal Procedure on 10th of May, 2016 on the ground
that the charge-sheet has not been put up before the Court within 90
days. The learned Trial Court passed an order on the same day at 11.50
A.M. allowing the bail to the petitioner but at 12:30 P.M. before the
petitioner could be released, an application was filed by the
Investigating Officer for extension of time to submit charge-sheet in
terms of the provisions of the Act which grants 180 days time for 
submission of the charge-sheet if sufficient cause is shown to the
Court. It is on the said application, the Court passed an order granting
15 days more time to the Investigating Officer to file charge-sheet.
Admittedly, the charge-sheet has since been filed within the time so
granted.
In Nirala Yadav‟s case (supra) it has been held that
right of the bail has to be seen on the day when the application for bail
is filed. The Court said to following effect:
“ 47. ……………….In the instant case, the day the accused filed the
application for benefit of the default provision as engrafted under proviso to
sub-section (2) of Section 167 CrPC the Court required the accused to file a
rejoinder-affidavit by the time the initial period provided under the statute
had expired. There was no question of any contest as if the application for
extension had been filed prior to the expiry of time. The adjournment by the 

learned Magistrate was misconceived. He was obliged on that day to deal
with the application filed by the accused as required under Section 167(2)
CrPC. We have no hesitation in saying that such procrastination frustrates
the legislative mandate. A court cannot act to extinguish the right of an
accused if the law so confers on him. Law has to prevail. The prosecution
cannot avail such subterfuges to frustrate or destroy the legal right of the
accused. Such an act is not permissible. If we permit ourselves to say so, the
prosecution exhibited sheer negligence in not filing the application within
the time which it was entitled to do so in law but made all adroit attempts to
redeem the cause by its conduct.”
7. A further perusal of the reported judgment would
show that the accused was sent to the judicial custody on 05.12.2006
and on 14th of March, 2007, an application for release of bail under
Section 167(2) Cr. P.C. was filed. It was on 15th of March, 2007, i.e.
on the next day, an application was filed for extension of time by the
Investigation Officer. In Nirala Yadav‟s case, the Court interfered as
the application for extension of time was filed after the right for
compulsive bail accrued to the petitioner. In the present case, though
the application for compulsive bail was filed prior in time, but it was
on the same day, the Investigating Officer sought extension in time and
the extension in time was granted on the same day. Therefore, the rigor
of law laid down in Nirala Yadav‟s case (supra) cannot be extended to
the facts of the present case.
IN THE HIGH COURT OF JUDICATURE AT PATNA
Criminal Writ Jurisdiction Case No.550 of 2016

Suresh Kora,V
The State of Bihar,
CORAM: MR. JUSTICE HEMANT GUPTA

Date: 20-09-2016
Citation: 2017 CRLJ(NOC)85 Pat

The petitioner is an accused in Piri Bazaar P. S. Case
No.04 of 2016 registered for the offences punishable under Sections
147, 148, 149, 332, 333, 353, 307, 302 of the Indian Penal Code as
well as Sections 16, 18, 19, 20, 23 of the Unlawful Activities
(Prevention) Act, 1967 (hereinafter referred to as „the Act‟).
2. The allegation against the petitioner in the FIR is that
on 30th of January, 2016, information was given by the informant
Navin Kumar that at Lathia Kol Hill, the dreaded terrorist Arjun Koda
and Arbind Koda along with 20-25 armed persons have assembled.
They are planning to attack the policy party. In a combing operation, 

the informant reached the hiding places at around 12 at Noon starting
at 7 A.M.. They saw one person, who ran after seeing the police party.
He was apprehended and was in the process of investigation when
alarm was raised in the Lathiakol village. In the meantime, a crowd of
hundreds of people along with bow and arrow, axe, Lathi etc. started
coming towards the police. Children and women were placed in front
and thereafter there were Naxalites armed with weapons, who were
raising slogans. Such crowd attacked the police party. The said crowd
was successful in getting free Lalan Koda. Arjun Koda, Arbind Yadav,
Suresh Koda and other Naxalites started firing on the police with intent
to kill and take the arms. One Bhawesh Kumar got a bullet injury and
fell down. On firing being ordered, the crowd and the Naxalites went
towards forest. The injured was taken to the hospital where he was
declared dead.
3. The petitioner was taken in judicial custody on 1st of
February, 2016. He sought compulsive bail in terms of Section 167(2)
of the Code of Criminal Procedure on 10th of May, 2016 on the ground
that the charge-sheet has not been put up before the Court within 90
days. The learned Trial Court passed an order on the same day at 11.50
A.M. allowing the bail to the petitioner but at 12:30 P.M. before the
petitioner could be released, an application was filed by the
Investigating Officer for extension of time to submit charge-sheet in
terms of the provisions of the Act which grants 180 days time for 
submission of the charge-sheet if sufficient cause is shown to the
Court. It is on the said application, the Court passed an order granting
15 days more time to the Investigating Officer to file charge-sheet.
Admittedly, the charge-sheet has since been filed within the time so
granted.
4. Learned counsel for the petitioner relies upon
Supreme Court order in the case of Union of India through C.B.I.
Versus Nirala Yadav @ Raja Ram Yadav @ Deepak Yadav, (2014) 9 SCC 457, to contend that once the petitioner has filed an application
for bail and admittedly the charge-sheet was not filed at that time, the
petitioner is entitled to compulsive bail in view of the said judgment.
5. I have heard learned counsel for the parties and find
that the said judgment is not applicable to the facts of the present case
as on the same day when the bail was applied, the learned Trial Court
granted 15 days‟ time to file charge-sheet. The act of bail and of
extension of time both have taken place on the same day.
6. In Nirala Yadav‟s case (supra) it has been held that
right of the bail has to be seen on the day when the application for bail
is filed. The Court said to following effect:
“ 47. ……………….In the instant case, the day the accused filed the
application for benefit of the default provision as engrafted under proviso to
sub-section (2) of Section 167 CrPC the Court required the accused to file a
rejoinder-affidavit by the time the initial period provided under the statute
had expired. There was no question of any contest as if the application for
extension had been filed prior to the expiry of time. The adjournment by the 

learned Magistrate was misconceived. He was obliged on that day to deal
with the application filed by the accused as required under Section 167(2)
CrPC. We have no hesitation in saying that such procrastination frustrates
the legislative mandate. A court cannot act to extinguish the right of an
accused if the law so confers on him. Law has to prevail. The prosecution
cannot avail such subterfuges to frustrate or destroy the legal right of the
accused. Such an act is not permissible. If we permit ourselves to say so, the
prosecution exhibited sheer negligence in not filing the application within
the time which it was entitled to do so in law but made all adroit attempts to
redeem the cause by its conduct.”
7. A further perusal of the reported judgment would
show that the accused was sent to the judicial custody on 05.12.2006
and on 14th of March, 2007, an application for release of bail under
Section 167(2) Cr. P.C. was filed. It was on 15th of March, 2007, i.e.
on the next day, an application was filed for extension of time by the
Investigation Officer. In Nirala Yadav‟s case, the Court interfered as
the application for extension of time was filed after the right for
compulsive bail accrued to the petitioner. In the present case, though
the application for compulsive bail was filed prior in time, but it was
on the same day, the Investigating Officer sought extension in time and
the extension in time was granted on the same day. Therefore, the rigor
of law laid down in Nirala Yadav‟s case (supra) cannot be extended to
the facts of the present case.
8. Similar issue has been examined by this Court in
Cr.W.J.C. No.79 of 2016 (Upendra Yadav @ Munshi Yadav alias
Munshi Yadav Versus The State of Bihar) decided on 02nd March, Patna High Court Cr. WJC No.550 of 2016 dt. 20-09-2016

2016, wherein this Court has held to the following effect:
“8. In the present case, the Magistrate has decided the application
on the same day, but after obtaining the report from G.R. Clerk. This
was no attempt to frustrate the right of the petitioner to be released on
bail, but to verify whether the petitioner has completed 90 days; and that
whether the charge-sheet has been filed or not. Since the charge-sheet
has been filed on the same day on which date the application for
“compulsive bail” was filed, the judgment in Nirala Yadav case (supra)
will not be applicable to the facts of the present case as in the aforesaid
case, there was a request by the investigating agency for extension of
time for filing of the charge-sheet In the present case, no time sought for
filing of the charge-sheet. The charge-sheet was filed on the same day
though after the application for bail was filed.”
9. In view of the above, I do not find any error in the
order passed by the learned Trial Court and to allow the application of
the petitioner for compulsive bail.
10. The writ petition stands dismissed.
 Sunil
(Hemant Gupta, J.)

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