Heard learned counsel for applicants and learned A.G.A. for the State.
The present application has been filed challenging the order dated 16.09.2019 passed by Special Chief Judicial Magistrate, Lucknow, in Case Crime No. 418 of 2019 under Section 306 IPC, PS Ghazipur, District Lucknow whereby the bail application of the applicant has been rejected denying the benefit of Section 167(2)(a)(ii) of Cr.P.C.
The allegations leading to the filing of the present application are that for an offence under Section 306 IPC, the applicants were arrested on 25.06.2019 and was sent under remand and under judicial custody and continue to be in judicial custody. It is stated that the offences under Section 306 IPC for which the applicant was charged carries a maximum sentence of 10 years and in view thereto it was incumbent upon the investigating agencies to have filed a charge sheet within a period of 60 days. It is further submitted that in the event of default in filing the charge sheet within a period of 60 days the right of bail accrues in favor of the applicant in terms of the provisions of Section 167(2)(a)(ii) of the Cr.P.C. It is also alleged that the charge-sheet in the present case was filed on the 79th day which is the admitted position. It is further stated that the applicant filed application seeking bail under Section 167(2)(a)(ii), however, despite the fact that the court accepted position that the charge-sheet was filed on the 79th day refused to grant bail to the accused that now the charge sheet have been filed and the matter is grave in nature and the applicant is not entitled to the benefit of bail.
The counsel for the applicants has argued that the Hon'ble Apex Court had the occasion to deal with the scope of provision of 167 Cr.P.C. in the case of Uday Mohanlal Acharya vs State of Maharashtra, 2001 (5) SCC 453 wherein the Hon'ble Apex Court considered the entire gamut of the provisions of Section 167 Cr.P.C. and held as under:
'With the aforesaid interpretation of the expression "availed of" if the charge-sheet is filed subsequent to the availing of the indefeasible right by the accused then that right would not be stand frustrated or extinguished, necessarily therefore, if an accused entitled to be released on bail by application to the proviso to sub-section (2) of Section 167, makes the application before the Magistrate, but the Magistrate erroneously refuses the same and rejects the application and then the accused moves the higher forum and while the matter remains pending before the higher forum for consideration a charge-sheet is filed, the so-called indefeasible right of the accused would not stand extinguished thereby, and on the other hand, the accused has to be released on bail. Such an accused, who thus is entitled to be released on bail in enforcement of his indefeasible right will, however have to be produced before the Magistrate on a charge-sheet being filed in accordance with Section 209 and the Magistrate must deal with him in the matter of remand to custody subject to the provisions of the Code relating to bail and subject to the provisions of cancellation of bail, already granted in accordance with the law laid down by this Court in the case of Mohd. Iqbal vs State of Maharashtra.' Considering the directions and the law laid down by the Hon'ble Apex Court, I am of the view that the order dated 16.09.2019 is erroneous. The custody of the applicants after the 60th day was without any authority of law and the applicants ought to have been enlarged on bail.
In view of the submissions made herein before, the application is allowed. The order dated 16.09.2019 is hereby quashed and the applicants is enlarged on bail in the aforesaid case crime, subject to following conditions:
(i) The applicants shall file an undertaking to the effect that they shall not seek any adjournment on the dates fixed for evidence when the witnesses are present in court. In case of default of this condition, it shall be open for the trial court to treat it as abuse of liberty of bail and pass orders in accordance with law.
(ii) The applicants shall remain present before the trial court on each date fixed, either personally or through their counsel. In case of their absence, without sufficient cause, the trial court may proceed against them under Section 229-A of the Indian Penal Code.
(iii) In case, the applicants misuse the liberty of bail during trial and in order to secure their presence proclamation under Section 82 Cr.P.C. is issued and the applicants fail to appear before the court on the date fixed, then, the trial court shall initiate proceedings against them in accordance with law, under Section 174-A of the Indian Penal Code.
(iv) The applicants shall remain present, in person, before the trial court on the dates fixed for (i) opening of the case, (ii) framing of charge and (iii) recording of statement under Section 313 Cr.P.C. If in the opinion of the trial court absence of the applicants is deliberate or without sufficient cause, then it shall be open for the trial court to treat such default as abuse of liberty of bail and proceed against them in accordance with law.
Order Date :- 26.9.2019 J.K. Dinkar