ORDER
1. Petitioners, being accused in Pandarak P.S. Case No. 48 of 2000, dated 4-6-2000 surrendered on 18-1-2001 and on 23-4-2001 filed an application for grant of bail under Section 167(2) of the Code of Criminal Procedure (Cr.P.C.) on the ground that no charge-sheet was submitted though 90 days’ period had already expired on 18-4-2001. It appears from the materials on record that a report was submitted before the Additional Chief Judicial Magistrate on the same day reporting that till 10 a.m. no charge-sheet had been submitted but subsequently a fresh report was submitted at about 11.45 a.m. to the effect that charge-sheet had been received in the office. The learned ACJM thus by order dated 23-4-2001 (Annexure-1) rejected the petition for grant of bail filed under Section 167(2). Cr.P.C. Petitioners, thereafter moved the learned Sessions Judge against the said order in Cr. Rev. No. 320 of 2001 which too was dismissed by order dated 4-6-2001 (Annexure 2). Petitioners thus have moved this Court by filing the instant writ application for quashing the orders as contained in Annexures 1 and 2 as also for issuance of a writ in the nature of habeas corpus for their release from custody.
2. Learned counsel for the petitioners submitted that after expiry of the period of 90 days on 18-4-2001, the petitioners on 23-4-2001 filed the application under Section 167(2), Cr.P.C. offering for furnishing bail bond and as such the requirement of law was complied with by the petitioners, But the learned Additional Chief Judicial Magistrate rejected the petition illegally on erroneous ground that since subsequently the charge-sheet was submitted, no benefit under the provision of Section 167(2), Cr.P.C. could be granted. He further submitted that the learned Sessions Judge also committed the same error while rejecting the revision application. Placing reliance on a decision of the Apex Court in the case of Uday Mohanlal Acharya v. State of Maharashtra (2001) 2 Pat LJR 182 : (2001 Cri LJ 1832), learned counsel for the petitioners submitted that since the petitioners had filed an application for bail on the ground that charge-sheet was not submitted within the specified period of 90 days, the learned Additional Chief Judicial Magistrate had no option but to release the petitioners on bail, if charge-sheet was not filed by the time of filing petition for release.
3. On the other hand, learned counsel for the respondents besides supporting the orders as contained in Annexures 1 and 2 as being in accordance with law, submitted that since on the date of filing of the petition, the charge-sheet was already submitted, petitioner’s right to be released did not survive.
4. Facts of the case are not in dispute, Admittedly, the petitioners surrendered on 18-1-2001. Petition for bail under Section 167(2), Cr.P.C. was filed on 23-4-2001 making an offer to furnish bail bonds. In the report, it has been stated that till 10 a.m. no charge-sheet was submitted. However, subsequently, a fresh report was submitted stating that charge-sheet has been submitted at 11.45 a.m. Thus, question arises as to whether in such a situation, the petitioners are entitled to be released under the provisions of Section 167(2), Cr.P.C. or not. As per the law laid down by the apex Court in the case of Sanjay Dutt v. State through C.B.I., Bombay (II) (1994) 5 SCC 410 : (1995 Cri LJ 476), if charge-sheet is already submitted before passing of the order, the accused loses his right to be released under Section 167(2), Cr.P.C. However, by a subsequent decision in the case of Uday Mohanlal Acharya v. State of Maharashtra, (2000) 2 Pat LJR 182 : (2001 Cri LJ 1832) (SC) (supra) the Apex Court considering the decision in Sanjay Dutt’s case and many other decisions, at page 198 (of Pat LJR) : (at p. 1844 of Cri LJ), came to the following conclusion :
6. The expression ‘if not already availed of used by this Court in Sanjay Dutt’s case (supra) must be understood to mean when the accused files an application and is prepared to offer bail on being directed. In other words, on expiry of the period specified in paragraph (a) of proviso to Sub-section (2) of Section 167 if the accused files an application for bail and offers also to furnish the bail, on being directed, then it has to be held that the accused has availed of his indefensible right even though the Court has not considered the said application and has not indicated the terms and conditions of bail, and the accused has not furnished the same.
5. The aforesaid proposition of law has further been explained and it has been held that in view of the conclusion as to when an accused can be said to have availed of his right, in the case in hand, it has to be held that the accused availed of his right on 17th August, 2000 by filing an application for being released on bail and offering therein to furnish bail in question.
6. From the law laid down by the Supreme Court, this becomes clear that as soon as the accused files an application and makes an offer to furnish bail, he has availed of his right under Section 167(2), Cr.P.C. and he is entitled to be released. In the instant case, the petition for release on bail under Section 167(2), Cr.P.C. was filed on 23-4-2001 i.e. after expiry of 90 days. The report was submitted on the same day that till 10 a.m. no charge-sheet was submitted. However, it appears from the subsequent report that charge-sheet was submitted at about 11.45 a.m., therefore, it is manifest that charge-sheet was submitted in the case after the petitioners had already availed of their right. In fact, by the time the petitioners had filed their application, no charge-sheet had been submitted by the investigating agency. Therefore, the instant case is squarely covered by the law laid down by the Apex Court in the case of Uday Mohanlal Acharya v. State of Maharashtra (2001 Cri LJ 1832) (SC) (supra).
7. In the result, this application is allowed and the orders as contained in Annexures 1 and 2 are quashed. Let petitioners, namely, Dinesh Yadav and Rajo Yadav be released on bail on furnishing bail bonds of Rs. 7000/- (seven thousand) each with two sureties of the like amount each in Pandarak P.S. Case No. 48 of 2000 to the satisfaction of the Additional Chief Judicial Magistrate, Barh.