MD SHARFUDDIN KHAN SAFDAR ASHRAF Vs. STATE OF BIHAR

JUDGEMENT

(1.) This application under sections 439 and 440 of the Code of Criminal Procedure, 1973 (hereinafter to be referred as the Code) has been filed for releasing the petitioners on bail under proviso (a) (i) of Section 167 (2) of the Code.

(2.) The facts of the case need not be mentioned in detail. It will suffice for disposal of this application to mention that these two petitioners are accused in Halsi P.S. Case No. 84, 86 under Sections 302, 307 and some other Sections of the Indian Penal Code and under Section 27 of the Arms Act and they surrendered in Court in this case on 19th of November, 1986 and they were remanded to jail custody on that day. On 18th of February, 1987, a petition was filed on behalf of these two accused-petitioners before Shri B.K. Chaudhary, Judicial Magistrate, Lakhisarai at Munger for their release under the proviso of Section 167 (2) of the Code on the ground that though they have remained in jail for more than 90 days, no charge-sheet was submitted in the case. But, it appears from the order dated 18-2-1987 passed by the learned Magistrate that, that petition was not moved. On 23-2-1987 charge-sheet was submitted against these accused petitioners in that case. On 24-2-1987 the said petition for release of these two accused-petitioners was moved and it was rejected by the Judicial Magistrate stating that since the charge-sheet had been submitted in this case, these petitioners could not be released under the proviso of Section 167(2) of the Code. Thereafter, these two petitioners moved for bail on the same ground before the Sessions Judge, Munger, which too was rejected by Order dated 2-3-1987. Thereafter, the present application was filed before this Court.

(3.) The learned counsel for the petitioners submitted that the learned Judicial Magistrate ought to have released these two petitioners on bail under proviso (a)(i) of Section 167(2) of the Code. Learned Counsel for the State, on the other hand, submits that once the charge-sheet is submitted, the petitioners cannot hike advantage of proviso (a)(i) of Section 167(2) of the Code and the prayer for bail can be disposed of on merits after taking into consideration the allegations against these petitioners and these petitioners being named as the assailants of the deceased do not deserve to be enlarged on bail.