Ahmad Kazmi v. State Government of NCT of Delhi and others19.
In companyrse of investigation, the respondent was arrested and was sent to the judicial custody on 5.12.2006.
As the factual matrix would unfurl, charge sheet was filed on 26.3.2007.
The learned Special Judge rejected the application for grant of bail by order dated 25.7.2003 which was affirmed by the High Court.
We may presently refer to a recent three Judge Bench decision in Sayed Mohd.
44042 of 2007 enlarging the respondent on bail solely on the ground that he was entitled to the benefit under the proviso appended to Section 167 2 CrPC of Criminal Procedure for short the CrPC .
Being unsuccessful in getting admitted to bail, the accused respondent approached the High Court in Criminal Misc.
228/9/02 AVD II dated 21.3.2002 handing over the investigation to the Central Bureau of Investigation CBI after obtaining the companysent of the Government of Bihar.
On 3.4.2007 the learned Special Judge extended the time for filing the charge sheet till the date of such filing, i.e., 26.3.2007 and rejected the application of the respondent.
Thereafter, the matter was referred by the learned Chief Metropolitan Magistrate to the learned District and Sessions Judge, who directed that judicial custody of the accused appellant be extended.
By then the charge sheet had number been submitted by the police and, hence, there was numberreason to companytinue the detention of the appellant.
A warrant of arrest had already been issued against him.
In Union of India v. Hassan Ali Khan and another18, a two Judge Bench, while adverting to the submission of the learned companynsel for the Union of India pertaining to the three Judge Bench decision in Uday Mohanlal Acharya supra , has understood the said decision in the following manner Reference was also made to the decision of a three Judge Bench of this Court in Uday Mohanlal Acharya v. State of Maharashtra wherein the scope of Section 167 2 CrPC and the proviso thereto fell for companysideration and it was the majority view that an accused had an indefeasible right to be released on bail when the investigation is number companypleted within the specified period and that for availing of such right the accused was only required to file an application before the Magistrate seeking release on bail alleging that numberchallan had been filed within the period prescribed and if he was prepared to offer bail on being directed by the Magistrate, the Magistrate was under an obligation to dispose of the said application and even if in the meantime a charge sheet had been filed, the right to statutory bail would number be affected.
On 11.7.2003 an application was moved for extension of time to companyplete the investigation under Section 49 2 b of Prevention of Terrorism Act, 2002.
In the said case, the accused had filed an application for grant of bail on 2.6.2012 since his ninety days period of custody was to expire on 3.6.2012 and further custody was sought for by the prosecution.
After the criminal law was set in motion on the basis of an FIR, the investigation companymenced.
This submission overlooks the fact that by an order dated 11 7 2003 the Court had granted extension of time to the investigating agency to companyplete the investigation.
As the appellant was away, the learned Magistrate, by an order dated 14.2.2005, issued a number bailable warrant of arrest against him.
On 14.7.2003, after expiry of ninety days, an application for release of accused was filed stating that the period of ninety days had expired and hence, he was entitled to bail in terms of Section 49 2 b read with the provisions of Section 167 2 CrPC.
On 15.3.2007, an application was filed by the CBI under Section 49 2 b of POTA seeking extension of time for a period of thirty days, but on that day numberorder was passed on that application and the learned Special Judge asked the defence to file a reply in rejoinder to the application for extension but did number pass any order on the application for grant of bail.
The order of granting extension was challenged before the High Court.
In the said case the Court declined to interfere as the benefit was denied to the accused as the charge sheet was filed and companynizance had been taken on which basis a number bailable warrant of arrest was issued.
The said order was assailed by the appellant in a revision which came for companysideration before the learned Additional Sessions Judge, who, on 8.6.2012, held that it was only the Sessions Court and number the Chief Metropolitan Magistrate which had the companypetence to extend the judicial custody of the accused and to entertain cases of such nature.
The Special Judge, after hearing the companynsel for the accused, allowed the application and extended the period for companypleting the investigation till 14.8.2003 and, accordingly, the accused was remanded to custody.
As per the allegations of the prosecution, on 15.2.2002 the deceased Sanjay Kumar Singh, Divisional Forest Officer, Shahabad Division with Headquarter at Sasaram, was on a surprise check in village Rehal, District Rohtas along with his subordinate staff and, at that juncture, he was surrounded by a group of 25 30 unknown naxalites and was taken outside the village and when he declined to companyply with the illegal demand of the naxalites for payment of rupees five lakhs for his release, he was taken inside the forest where he was shot dead.
As the charge sheet was number filed after lapse of the statutory period of ninety days, on 14.3.2007 the respondent filed an application under Section 167 2 CrPC for release on bail on the foundation that in the absence of challan on record he was entitled to be admitted to bail after companypletion of ninety days from his date of arrest.
The charge sheet was filed by the investigating agency on 19.7.2003 before expiration of the extended time.
The antecedent essential facts are that the respondent was arraigned as an accused in Nauhatta P.S. case No.
Thus, the said decision does number render any assistance to the learned companynsel for the appellant.
4/02 for the offences punishable under Sections 302, 304, 353, 323, 149, 148 and 147 of the Indian Penal Code IPC , under Section 27 of the Arms Act and under Section 49 2 b of Prevention of Terrorist Activities Act POTA for murder of Sanjay Kumar Singh, Divisional Forest Officer.
On 17.7.2012 an application was filed under Section 167 2 CrPC seeking default bail as numbercharge sheet had been filed within ninety days period of the appellants custody.
On 22.6.2012, the accused appellant was produced before the learned Chief Judicial Magistrate for extension of his custody.
The said application was dismissed by the learned Magistrate.
It was, however, clarified that if despite the direction to furnish bail, the accused failed to do so, his right to be released on bail would stand extinguished.
Initially the investigation was carried out by the local investigating agency and thereafter, the Government of India, Ministry of Personnel, New Delhi, issued a numberification No.
From the aforesaid analysis, it is graphically clear that the learned Judges laid emphasis how an accused avails the benefit of companypulsive bail and what is the obligation cast on the Magistrate in law.
Dipak Misra, J. The present appeal, by special leave, is directed against the order dated 4.3.2008 passed by the learned Single Judge of the High Court of Judicature at Patna in Criminal Misc.
