ORDER
1. The right of an accused to be enlarged on bail under Section 167(2) of the Cr. P.C. after the charge-sheet is filed, is the matter in issue in this petition filed under Section 482 of the Cr. P.C.
2. In furtherance of a complaint filed in October 2001 against the accused alleging that by inducing the complainant’s minor daughter to go with him he kidnapped her, a case was registered against the accused. In that case, 11/2 years after the complaint, the accused (the petitioner) is stated to have surrendered before the police on 22-4-2003. He was remanded to judicial custody and that custody was extended from time to time. Since the police did not file a charge-sheet against him within 90 days, i.e., on or before 21-7-2003, he became entitled under Section 167(2) of the Cr. P.C. to apply for his release on bail. Such an application was filed on 23-7-2003. It is stated by the prosecution that charge-sheet was also submitted on the same day i.e. on 23-7-2003. The application for bail under Section 167(2) of the Cr, P.C. was taken up for consideration on 24-7-2003, and at the request of the learned Additional State Public Prosecutor, the matter was adjourned to 25-7-2003 and thereafter to 26-7-2003. On 26-7-2003 the learned Magistrate directed that the charge-sheet be registered. The matter was heard and in the order passed by him, the learned Magistrate came to the conclusion that charge-sheet having been filed on the same day, the indefeasible right of the accused stood extinguished and that therefore the prayer of the accused for his release on bail had to be considered on merits and not under Section 167(2) of the Cr. P.C. It is that order which has been challenged in this petition and the petitioner seeks an order to quash the order dated 29-7-2003 passed by the learned Judicial Magistrate First Class, Hangal, declining to release the petitioner on bail under Section 167(2) of the Cr. P.C.
3. Sri C.H. Jadhav, the learned Counsel for the petitioner submits that in fact the charge-sheet was not filed on 23-7-2003, but that it was filed only on 26-7-2003 as is evident from the copy of the order sheet, and that therefore even on facts, the application for bail submitted by the petitioner was earlier in time to the submission of the charge-sheet. In this regard he points out to the entry in the certified copy of the order sheet in C.C. No. 165 of 2003. On a perusal of the same, it is seen that the application for bail was taken up for consideration on 24-7-2003, but that it was adjourned to 25-7-2003 at the request of the Additional State Public Prosecutor. On 25-7-2003 the Additional State Public Prosecutor filed objections and after hearing the matter in part, the learned Magistrate adjourned the matter to 26-7-2003. Endorsement of the Sheristedar that the PSI, Hangal had submitted a charge-sheet against the accused for the offences under Sections 366A, 344, 346, 376, 323, 504 and 506 read with Section 34 of the IPC is found after this order dated 25-7-2003 and the order of the learned Civil Judge (Senior Division) and Judicial Magistrate First Class, Hangal, directing registration of the case is dated 26-7-2003. The observation of the learned Judicial Magistrate First Class in the impugned order shows that the charge-sheet was in fact filed on 23-7-2003. In all probability that charge-sheet might have been filed by the Investigating Officer on 23-7-2003, but some time was taken to examine the papers on administrative side before the charge-sheet was placed for orders of the learned Magistrate. Therefore, for consideration of the present petition, the date 23-7-2003 is taken as the date on which the charge-sheet was filed.
4. It is argued by Sri C.H. Jadhav, the learned Counsel for the petitioner that on the failure of the investigating Officer to file charge-sheet within the prescribed period, an indefeasible right accrued to the accused for being released on bail and subsequent filing of the charge-sheet does not extinguish that right. In this regard he refers to the decision in the case of Uday Mohanlal Acharya v. State of Maharashtra That decision exhaustively considers the impact of the charge-sheet filed subsequent to the date of accrual of the right of bail in favour of the accused under Section 167(2) of the Cr. P.C. and on consideration of many decisions particularly, the decision of the Constitution Bench in the case of Sanjay Dutt v. State through C.B.I., Bombay (II), drew the following conclusions;
“1. Under Sub-section (2) of Section 167, a Magistrate before whom an accused is produced while the police is investigating into the offence can authorize detention of the accused in Such custody as the Magistrate thinks fit for a term not exceeding 15 days on the whole.
2. Under the proviso to the aforesaid Sub-section (2) of Section 167, the Magistrate may authorize detention of the accused otherwise than in the custody of police for a total period not exceeding 90 days where the investigation relates to offence punishable with death, imprisonment for life or imprisonment for a term of not less than 10 years, and 60 days where the investigation relates to any other offence.
3. On the expiry of the said period of 90 days or 60 days, as the case may be, an indefeasible right accrues in favour of the accused for being released on bail on account of default by the investigating agency in the completion of the investigation within the period prescribed and the accused is entitled to be released on bail, if he is prepared to and furnishes the bail as directed by the Magistrate.
4. When an application for bail is filed by an accused for enforcement of his indefeasible right alleged to have been accrued in his favour on account of default on the part of the investigating agency in completion of the investigation within the specified period, the Magistrate/Court must dispose of it forthwith, on being satisfied that in fact the accused has been in custody for the period of 90 days or 60 days, as specified and no charge-sheet has been filed by the investigating agency. Such prompt action on the part of the Magistrate/Court will not enable the prosecution to frustrate the object of the Act and the legislative mandate of an accused being released on bail on account of the default on the part of the investigating agency in completing the investigation within the period stipulated.
5. If the accused is unable to furnish the bail as directed by the Magistrate, then on a conjoint reading of Explanation I and the proviso to Sub-section (2) of Section 167, the continued custody of the accused even beyond the specified period in para (a) will not be unauthorised, and therefore, if during that period the investigation is complete and the charge-sheet is filed then the so-called indefeasible right of the accused would stand extinguished.
6. The expression “if not already availed of used by this Court in Sanjay Dutt’s case 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 para (a) of the 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 indefeasible 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 learned Additional State Public Prosecutor submits that in the present case charge-sheet having been filed on the same day of the application for bail by the accused, it has to be held that the right of the accused to be released on bail under Section 167(2) of the Cr. P.C. stood extinguished.
6. In reply to it, two decisions have been relied upon by the learned Counsel for the petitioner. The first decision is in the case of Ganesh Prasad v. State of Madhya Pradesh, 2001 Cri. L.J. 3444 (MP) wherein, on consideration of the fact that the application for bail under Section 167(2) of the Cr. P.C. was placed before it for consideration at 1.15 p.m. and on the same day charge-sheet was filed at 1.25 p.m., it was held by the Madhya Pradesh High Court that the accused had availed of his indefeasible right before the charge-sheet was filed, though the Court had not yet considered the application. The second decision is of Patna High Court. In the said decision i.e., Dinesh Zadav and Anr. v. State and Ors., 2002 Cri. L.J. 1067 (Pat.) under similar circumstances, on facts the Patna Court came to the conclusion that by the time the petitioners had filed their application, no charge-sheet had been submitted by the investigating agency and that therefore the matter was covered by the law laid down by the Supreme Court in Uday Mohanlal Acharya’s case, supra.
7. The reason for successive decisions of the Supreme Court describing the right of an accused to be released on bail under Section 167(2) of the Cr. P.C. as indefeasible is because that right is mandatory in nature and no option
is left to the Court but to release the accused on bail if he offers and furnishes bail. In the Constitution, personal liberty is recognised as a valuable right which can be deprived of only in accordance and in conformity with the provisions of law. The power of the Magistrate to authorize the detention of the accused in custody otherwise than in police custody under Clause (a) of the proviso to Section 167(2) of the Cr. P.C., comes to an end on the expiry of the period prescribed therein. Consequently, a right accrues in favour of the accused for being released on bail and that right continues to subsist until the investigating agency files the charge-sheet. Therefore, the right which accrues in favour of the accused for being released on bail on account of default by the investigating agency in the completion of the investigation within the prescribed period gets extinguished only if the charge-sheet is filed before the accused avails of the right under Section 167(2) of the Cr. P.C. When an application for bail is filed by an accused for enforcement of his indefeasible right and he is prepared to offer bail on being directed, before the charge-sheet is filed, then the accused has availed of his indefeasible right even though the Court is yet to determine his application for bail. Therefore, where the charge-sheet is filed on the same day, if it is subsequent in time to the application for bail, the indefeasible right available to the accused does not get extinguished.
8. On a perusal of the certified copy of the order sheet produced on record, I do not find that the charge-sheet had been filed before the application for bail was filed. It is not disputed that the present petitioner offered surety and was ready to furnish surety. The principles laid down in the decision of Uday Mohanlal Acharya ‘s case referred to above clearly show that the expression “if not already availed of used by the Supreme Court in Sanjay Dutt ‘s case must be understood to mean that the accused files the application and was prepared to furnish bail on being directed. If that is taken into consideration, then in the present case the charge-sheet was filed only after the accused had availed of the right to bail.
9. For the above said reasons, I find that the learned Civil Judge (Senior Division) and Judicial Magistrate First Class, Hangal was not right in rejecting the bail application. Consequently, the order dated 29-7-2003 passed by the Civil Judge, Hangal in C.C. No. 165 of 2003 is set aside and it is directed that the accused shall be released on bail under Section 167(2) of the Cr. P.C. for such security and such terms and conditions as may be imposed by the said Court, or if the case has already been committed to the Court of Session, by the latter Court.