- (1.) The petitioner has moved this bail application under S. 439 read with 167(2) Cr. P.C. solely on legal ground. He moved an application before learned Sessions Judge, Jodhpur, who rejected the same on 2-5-98.
(2.) Brief facts may be summarised as under :- The petitioner was arrested on 25-1-98 in case FIR No. 37/98, Police Station, Shastri Nagar, Jodhpur under Ss. 304-B, 498A and 323, IPC. He was produced before the learned Magistrate on 26-1-1998 and the learned Magistrate remanded the petitioner in judicial custody. The charge-sheet was produced on 27-4-1998 in the Court of Additional Chief Judicial Magistrate No. 1, Jodhpur. The petitioner also submitted an application to release him on bail under S. 167(2) Cr. P.C. The learned Additional Chief Judicial Magistrate passed the order on the charge-sheet on 28-4-98 to register the case under Ss. 304B, 498A and 323, IPC and committed the case to the Court of Sessions Judge, Jodhpur. The application under S. 167(2) Cr. P.C. was rejected by the learned Additional Chief Judicial Magistrate on 29-4-98. The petitioner preferred an application under S. 439 read with S. 167(2), Cr. P.C. before the learned Sessions Judge, Jodhpur who also rejected the same taking the view that the charge-sheet was submitted on 27-4-1998 the same day when the application was filed by the petitioner and relying upon Hon'ble Supreme Court decision reported in 1996 Cri LJ 1652 : (AIR 1996 SC 2897), (Dr. Bipin Shantilal Panchal v. State of Gujarat that after filing the charge-sheet the accused is not entitled to be released on bail under S. 167(2) Cr. P.C. The learned Sessions Judge also relied upon 1996 Cr LR (SC) 56, State of M.P. v. Rustam, wherein it was held that it was erroneous to entertain the bail petition after the challan was filed. The right to release on bail under S. 167(2) Cr. P.C. was not available to the accused as the challan stood filed in Court on the day when the High Court entertained the petition for bail. It may be mentioned here that while filing application for bail under S. 167(2), the petitioner also filed two applications to take the file in the Court for hearing and to decide the bail application on the same day i.e. 27-4-98.
(3.) I have heard the learned counsel for both the parties and the learned Public Prosecutor. It is vehemently argued on behalf of the petitioner that the charge-sheet was filed in the Court on 27-4-1998 i.e. on 92nd day. The petitioner submitted the application under S. 167(2), Cr. P.C. to exercise his right of bail, but it was kept pending despite the applications filed to call for the record and decide the bail application. The application was kept pending and the police filed charge-sheet at 12-45 p.m. It is contended that the petitioner had already filed the aforesaid application before the submission of the charge-sheet, he was entitled to be released on bail. It is further submitted that the learned Sessions Judge has not correctly applied the law laid down by Hon'ble Supreme Court in State of M.P. v. Rustam and Bipin Shantilal Panchal v. State of Gujarat (supra). The learned counsel for the petitioner also sought support from 1986 Cr. L.J. 2081 (Delhi) (Powell Nawawa Ogechi v. The State (Delhi Administration)) for his contention that S. 10 of the General Clauses Act is not applicable in such a situation arising under S. 167(2), Cr. P.C. He further referred to 1984 RLR 474, Shishpal v. State of Rajasthan, 1982 Raj Cri C 315 : (1982 Cri LJ 2319) (Narayan and Co. v. The State of Rajasthan and 1998 (1) RCD 184 (Raj), Roop Chand v. State of Rajasthan to support his contention that the learned Additional Chief Judicial Magistrate even after filing the challan took cognizance on 28-4-98 and, therefore, the petitioner was entitled to be released on bail because the cognizance was taken after 90 days i.e. on 92nd day.;