JUDGMENT S.N.Kapoor, J.
1. Heard. In so far as question of releasing the accused on bail under Section 167(2) Cr.P.C. on the ground that police report or charge-sheet was not filed within 90 days and the application was filed before filing of the Challan is concerned, in view of State of M.P. Vs. Rustom and Others, 1995 Supreme Court Cases (Crl.) 830, it is not possible to accept the contention of the learned Counsel for the petitioner. The relevant observation of the Supreme Court are reproduced below:
"We may also observe that the High Court's view in entertaining the bail petition after the challan was filed was erroneous. The matter now stands settled in Sanjay Dutt v. State in which case Hitendra Vishnu Thakur v. State of Maharashtra has aptly been explained away. The Court is required to examine the availability of the right of compulsive bail on the date it is considering the question of bail and not barely on the date of presentation of the petition for bail. This well-settled principle has been noticed in Sanjay Dutt case on the strength of three Constitution Bench cases - Naranjan Singh Nathawan Vs. State of Punjab, Ram Narayan Singh Vs. State of Delhi and A.K. Gopalan Vs. Govt. of India. On the dates when the High Court entertained the petition for bail and granted it to the accused-respondents, undeniably the challan stood filed in court, and the right as such was not available."
2. Firstly, record of the Trial Court shows that Challan was filed earlier in point of time than the filing of the application on the same day. Secondly, even if it is supposed that Challan was filed on the same day but after filing of the application, the Court was required to examine the right of release on bail under Section 167(2), Cr.P.C. at the time of considering the application and not at the time of filing of the application. It may be mentioned that there is no dispute that when the application was considered and rejected by the learned M.M. refusing to release the petitioner on bail under Section 167(2), Cr.P.C. Challan was pending in the Court.
3. However learned Counsel has further urged that there are a number of discrepancies in investigation and submitted that the accused met with a road accident after he was brought to the police station and it is so mentioned in the death summary by mentioning R.T.A.. The deceased has allegedly committed theft of the stereo of the car of the ccused. The deceased was brought to the police station. According to the prosecution in injured and unconscious condition and there is evidence that the accused had beaten the deceased. The submission of the learned Counsel for accused Shri Misra is that it was not so and the death had occurred in police custody and the police in order to save their own skin brought the accused from his house on false pretext of identifying the stolen stereo which they had allegedly recovered from Ramesh deceased on 11th October, 1998 at 9.30 p.m. and thereafter he was falsely implicated in this case.
4. Taking into consideration the over all facts and circumstances and without expressing any opinion on the controversial points raised I feel that it would be appropriate to release the accused on bail on furnishing a personal bound of Rs. 20,000/- with one surety of the like amount to the satisfaction of the learned Trial Court/C.M.M. /A.C.M.M. concerned.
Petition stands disposed of.