Allowed

Kausar Jahan v. State of Jharkhand

Jharkhand HC7 May 2019Cr.Rev./55/2019

Case brief

AI extract

What is this about?

The High Court allowed a criminal miscellaneous petition quashing an order rejecting default bail. The court held that since the charge-sheet was not filed within 90 days, the petitioner was entitled to bail regardless of the charge-sheet date versus filing date.

What did the court decide?

Impugned order set aside; petitioner to be released on bail on furnishing bonds of Rs.10,000 with two sureties.

Kausar Jahan Vs State of Jharkhand — Bail and Remand | Jharkhand HC (2019)

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IN THE HIGH COURT OF JHARKHAND AT RANCHI Cr.M.P. no.55 of 2019

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Ravindra Ganjhu @ Ravindar Ganjhu ………..Petitioner Versus

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State of Jharkhand ………. Opp. Party

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---------

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CORAM: HON’BLE MR. JUSTICE AMITAV K. GUPTA

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---------- For the Petitioner : Mr. Prabhash Ch. Sinha, Advocate For the Opp. Party : APP -----------

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03/Dated:07.05.2019

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This petition has been filed for quashing the order dated 29.10.2018 of the learned Sub-Divisional Judicial Magistrate, Hazaribagh, in connection with Charhi P.S. Case no. 60 of 2018 corresponding to G.R.no. 1956 of 2018 whereby the petition under Section 167 (2) Cr.P.C for release of the petitioner on bail has been rejected.

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Learned counsel has submitted that the petitioner was remanded in the aforementioned case on 31.07.2018. That the charge-sheet was not filed within 90 days and the petitioner filed the application under Section 167(2) of Cr.P.C on the 91^st day, i.e., on 29.10.2018. Thereafter, the court below called for the report whether the charge-sheet had been submitted or not. That the report was submitted, by the G.R clerk, informing that the chargesheet was submitted on 29.10.2018.

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Learned counsel has relied on the decision in the case of Achpal @ Ramswaroop Vs. State of Rajasthan ; (2018) SCC OnLine SC 1638 and the decision of this Court in the case of Jalil Ansari Vs. State of Jharkhand; (2016) 3 JBCJ 654 and submitted that the indefeasible right of the accused to get compulsive bail accrued on the 91^st day since the chargesheet was not submitted within the prescribed period of 90 days, as mandated in Section 167(2) Cr.P.C. That the court below has committed a manifest error in rejecting the prayer of the petitioner for being enlarged on bail as per provisions of Section 167(2) Cr.P.C.

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Per contra, learned APP has contended that the charge-sheet is dated 27.10.2018, but it could not be filed within 90 days since the following day i.e., 28.10.2018 was a Sunday. That the charge-sheet was filed on the 91^st day, i.e., on 29.10.2018. The court below has considered the above aspects

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-2-

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and has not committed any error in rejecting the prayer for bail under Section 167(2) of Cr.P.C.

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Having heard the counsels and on perusal of the materials on record, it appears that though the charge-sheet is dated 27.10.2018, but it was submitted in the court on 29.10.2018, on the 91^st day, after the application had been filed by the petitioner under Section 167(2) Cr.P.C. The petitioner was ready to furnish the bail bonds.

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In terms of the provisions of Section 167(2) Cr.P.C, the indefeasible right to be released on bail accrued in favour of the petitioner on the 91^st day. Since, the charge-sheet was not filed within the prescribed period of 90 days. The Apex Court in the case of Uday Mohanlal Acharya Vs. State of Maharashtra; AIR 2001 SC 1910 and in the case of Mustaq Ahmed Mohammed Isak & Others Vs. State of Maharashtra; (2009) 7 SCC 480 , has observed that the petitioner is entitled to ‘default bail’ if the charge-sheet is not filed within the statutory period of 90 days or 60 days as prescribed under Section 167(2) Cr.P.C. It is well settled that release of the accused on bail under Section 167(2) Cr.P.C does not prohibit or otherwise prevent arrest or re-release of the petitioner for cogent reasons. In case of re-arrest, the petitioner is entitled to file the petition for regular bail and necessary order is to be passed on the basis of the materials on record.

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From the exposited facts it is evident that the impugned order is in contravention of the provisions of clause 2 of Section 167 Cr.P.C. Consequently, it is, hereby, set aside and the court below is directed to enlarge the petitioner on bail on his furnishing bail bonds of Rs.10,000/ (ten thousand) with two sureties of like amount each to the satisfaction of the court below, on the terms and conditions which the court below deems fit and proper to impose. It is made clear that the court below can order for re-arrest of the petitioner by assigning cogent reasons.

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With the said direction the present criminal miscellaneous petition stands allowed.

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Let the order be communicated forthwith, to the court below.

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(Amitav K. Gupta, J.)

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Tarun/-

Kausar Jahan v. State of Jharkhand

Case brief

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Kausar Jahan v. State of Jharkhand

Case brief

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