- (1.) Vide this judgment, the above-mentioned two petitions would be disposed of as the petitioners have challenged the order dated 3.10.2013, whereby application moved by them for bail under Section 167(2) of the Code of Criminal Procedure, 1973 ('Cr.P.C.' for short), was dismissed.
(2.) Learned counsel for the petitioners has submitted that the petitioners had moved an application under Section 167(2) Cr.P.C. seeking bail as challan had not been presented within the requisite period. The trial Court had erred in rejecting the bail application moved by the petitioners on the ground that before the decision of the application moved by the petitioner, challan had already been filed. In support of his arguments, learned counsel has placed reliance on Union of India through CBI vs. Nirala Yadav @ Raja Ram Yadav @ Deepak Yadav, 2014 3 RCR(Cri) 534. Paras 4 and 41 of the judgment read as under:- "4. In course of investigation, the respondent was arrested and was sent to the judicial custody on 5.12.2006. As the charge-sheet was not 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 completion of ninety days from his date of arrest. 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 no order 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 not pass any order on the application for grant of bail. 41. Coming to the facts of the instant case, we find that prior to the date of expiry of 90 days which is the initial period for filing the chargesheet, the prosecution neither had filed the charge-sheet nor had it filed an application for extension. Had an application for extension been filed, then the matter would have been totally different. After the accused respondent filed the application, the prosecution submitted an application seeking extension of time for filing of the charge-sheet. Mr. P.K. Dey, learned counsel for the appellant would submit that the same is permissible in view of the decision in Bipin Shantilal Panchal but on a studied scrutiny of the same we find the said decision only dealt with whether extension could be sought from time to time till the completion of period as provided in the Statute i.e., 180 days. It did not address the issue what could be the effect of not filing an application for extension prior to expiry of the period because in the factual matrix it was not necessary to do so. In the instant case, the day the accused filed the application for benefit of the default provision as engrafted under proviso to sub-Section (2) of Section 167 CrPC the Court required the accused to file a rejoinder affidavit by the time the initial period provided under the statute had expired. There was no question of any contest as if the application for extension had been filed prior to the expiry of time. The adjournment by the learned Magistrate was misconceived. He was obliged on that day to deal with the application filed by the accused as required under Section 167(2) CrPC. We have no hesitation in saying that such procrastination frustrates the legislative mandate. A Court cannot act to extinguish the right of an accused if the law so confers on him. Law has to prevail. The prosecution cannot avail such subterfuges to frustrate or destroy the legal right of the accused. Such an act is not permissible. If we permit ourselves to say so, the prosecution exhibited sheer negligence in not filing the application within the time which it was entitled to do so in law but made all adroit attempts to redeem the cause by its conduct."
(3.) Learned State counsel, on the other hand, has opposed the petition and has submitted that in the present case, challan was presented on the same day when the application was moved by the petitioners under Section 167(2) Cr.P.C. Therefore, the trial Court had rightly dismissed the application moved by the petitioners. In the present case, petitioners had moved an application under Section 167(2) Cr.P.C on 3.10.2013. Ahlmad made a report that the challan had not been presented till 10.00 a.m. However, the challan was presented thereafter on the same day.;