Jharkhand High Court
Bajrang Mandal vs The State Of Jharkhand And Another .... ... on 5 January, 2024
Author: Sanjay Kumar Dwivedi
Bench: Sanjay Kumar Dwivedi
1
IN THE HIGH COURT OF JHARKHAND, RANCHI
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Cr.M.P. No. 3205 of 2023
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Bajrang Mandal .... Petitioner
-- Versus --
The State of Jharkhand and Another .... Opposite Parties
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CORAM: HON'BLE MR. JUSTICE SANJAY KUMAR DWIVEDI
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For the Petitioner :- Mr. Onkar Nath Tewari, Advocate
For the State :- Mr. Jai Prakash, A.A.G. (1A)
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4/05.01.2024 Heard the learned counsel for the petitioner and Mr. Jai Prakash,
the learned A.A.G. appearing on behalf of the respondent State.
2. This petition has been filed under section 482 of the Cr.P.C read
with Article 215 of the Constitution of India for modification of the order dated
17.07.2003 passed in W.P.(Cr.) No.314 of 2023.
3. The office has raised objection with regard to maintainability of
the present case. By the order dated 17.07.2023 this Court has rejected the
prayer of the petitioner relying on the minority view in Uday Mohanlal
Acharya v. State of Maharashtra, (2001) 5 SCC 453. On that day, neither
the learned counsel for the petitioner nor the learned counsel for the
respondent State were correctly apprised the Court on the law point already
settled by the Larger Bench of the Hon'ble Supreme Court in view of that the
said order has been passed relying on the minority view as on prima facie it
appears that this order was passed on the human error by this Bench. Further
the prayer was made for default bail in light of section 167(2) of the Cr.P.C.
Recently the Hon'ble Supreme Court in the case of State, through C.B.I. v. T.
Gangi Reddy @ Yerra Gangi Reddy, (2023) 4 SCC 253, held at paragraph
no.21.2, which is quoted below:
21.2. That every person released on bail under Section
167(2)CrPC shall be deemed to be so released under the
provisions of Chapter XXXIII CrPC, which includes Sections 437(5)
and 439(2).
4. The bail under section 167(2) Cr.P.C comes under the provision of
Chapter-XXXIII Cr.P.C which includes sections 437 (5) and 439(2) of the Cr.P.C.
In the case of Ramadhar Sahu v. State of Madhya Pradesh in S.L.P. (Cr.)
No.11130 of 2023, the Hon'ble Supreme Court has held that a bail plea
dismissed confers on the detailed accused a right to file fresh application for
bail on certain changed circumstances. Thus, an order rejecting the prayer for
bail does not empower the court for considering plea afresh if there is any
alteration of the circumstance. The condition of bail would also be verified if the
case is made out for such variation based on that factor and it has been held
that the provision contemplated under section 362 of the Criminal Procedure
Code would not apply in such cases. Further if a procedural review is there not
substantial review then section 362 Cr.P.C. is not attracted and that has been
held by the Hon'ble Supreme Court in the case of Ganesh Patel v. Umakant
Rajoria, 2022 Livelaw (SC) 283, wherein it has been held as under:
"This application for recall of the order was maintainable
as it was an application seeking a procedural review, and not a
substantive review to which section 362 of the Code of Criminal
Procedure, 1973, would be attracted (Grindlays Bank Ltd. v.
Central Government Industrial Tribunal and Ors. 1980
(Suppl.) SCC 420]. On the aspect of the difference between
recall and review and when an order of recall can be passed
reference can be made to Budhia Swain and Others v.
Gopinath Deb and Others, (1999) 4 SCC 396.
The High Court was therefore right in recalling the order and
listing MCRC No.6576 of 2017 for hearing and decision on merits"
5. By a Full Bench of this Court in the case of Court On Its Own
Motion v. K.K. Jha Kamal, 2007 SCC Online Jhar. 521 a petition under
Article 215 of the Constitution of India was entertained by the Court and was
decided on merit and in the said judgment, certain judgments of Hon'ble
Supreme Court was considered at paragraph nos.5,7,8 and 9 of the said
judgment, which are as under:
"5. In Re. M.M. Thomas v. State of Kerala reported in
(2000) 1 SCC 666 : AIR 2000 SC 540, the Hon'ble Supreme Court
dealt with the power of review under Article 21.5 of the Constitution
of India in paras 14 to 17 of the said Judgment. From the said
decision of the Apex Court, it is evident that the High Court has
power to review its own Judgment/Order if there are errors
apparent on the face of the record.
(Emphasis supplied)
7.In re. K.C. Thapar& Brothers v. State of Uttar Pradesh,
reported in (1976) 4 SCC 257 : AIR 1976 SC 2101, the Hon'ble
Supreme Court in Para 10 defined "apparent error" as follows:
There is no dispute that an apparent error means a patent
mistake; an error which one could point out without any elaborate
argument.
8. Elaborating "error apparent on face of record" further the
Apex Court in Re. Smt. Meera Bhanja v. Smt. Nirmala Kumari
Choudhury, (1995) 1 SCC 170 : AIR 1995 SC 455 held: An error
apparent on the face of the record must strike one on 'mere looking
at the record and would not require any long drawn process of
reasoning on points where there may conceivably be two opinions.
9. A Division Bench of Gujarat High Court held in Re. State of
Gujarat v. Consumer Education & Research Centre as follows:
An error apparent on the face of the record must be such as
can be seen by one who runs and reads, that is, an obvious and
patent mistake which does not need long drawn process of
reasoning to discover."
6. In the above judgment it has been held that an error which could
point out without any elaborate argument. In the case in hand also an
elaborate argument is not required in view of well settled provision of law by a
Larger Bench of the Hon'ble Supreme Court in the case of Uday Mohanlal
Acharya(supra). Further, for doing justice, the High Court under Article 226 of
the Constitution of India and section 482 of the Cr.PC is not required to give its
decision based only on the letter of law. A reference may be made to the case
ofVishnu Agarwal v. State of Uttar Pradesh,(2011) 14 SCC 813 , wherein
at paragraph no.6 it has been held as under:
6. In our opinion, Section 362 cannot be considered in
a rigid and overtechnical manner to defeat the ends of
justice. As Brahaspati has observed:
"Kevalam shastram ashritya na kartavyo vinirnayah
yuktiheeney vichare tu dharmahaani prajayate" which
means:
"The court should not give its decision based only on the
letter of the law.
For if the decision is wholly unreasonable, injustice will
follow."
7. In the case in hand, since correct proposition of law of the
majority view was not pointed out by the learned counsel for the petitioner as
well as the respondent State that order was passed. Thus, certainly for the
ends of justice the High Court can exercise its power under Article 226 of the
Constitution of India as well as section 482 of the Cr.P.C and particularly
considering that no elaborate argument is required to pass such order. Further,
the case is under Article 215 of the Constitution of India. The High Court can
pass the appropriate order. A reference may be made to the case of Municipal
Corporation of Greater Mumbai and Another v. Pratibha Industries
Limited and Others, (2019) 3 SCC 203, wherein at paragraph no.10 and 13
it has been held as under:
"10. Insofar as the High Courts' jurisdiction to recall its own
order is concerned, the High Courts are courts of record, set up
under Article 215 of the Constitution of India. Article 215 of the
Constitution of India reads as under:
"215. High Courts to be courts of record.--Every High
Court shall be a court of record and shall have all the powers of
such a court including the power to punish for contempt of
itself."
It is clear that these constitutional courts, being courts of record,
the jurisdiction to recall their own orders is inherent by virtue of
the fact that they are superior courts of record. This has been
recognised in several of our judgments.
13. Also, in M.M. Thomas v. State of Kerala [M.M.
Thomas v. State of Kerala, (2000) 1 SCC 666] , this Court has
held as follows: (SCC pp. 672-73, para 14)
"14. The High Court as a court of record, as envisaged in
Article 215 of the Constitution, must have inherent powers to
correct the records. A court of record envelops all such powers
whose acts and proceedings are to be enrolled in a perpetual
memorial and testimony. A court of record is undoubtedly a
superior court which is itself competent to determine the scope
of its jurisdiction. The High Court, as a court of record, has a
duty to itself to keep all its records correctly and in accordance
with law. Hence, if any apparent error is noticed by the High
Court in respect of any orders passed by it, the High Court has
not only power, but a duty to correct it. The High Court's power
in that regard is plenary. In Naresh Shridhar Mirajkar v. State of
Maharashtra [Naresh Shridhar Mirajkar v. State of Maharashtra,
AIR 1967 SC 1 : (1966) 3 SCR 744] , a nine-Judge Bench of
this Court has recognised the aforesaid superior status of the
High Court as a court of plenary jurisdiction being a court of
record."
8. In the above judgment, it has been held that the Constitutional
Courts being the Court of Record that the jurisdiction to recall own order is
inherent by virtue of the fact that they are superior Courts.
9. In view of above law position, the office objection is disposed of
accordingly and the High Court can exercise its power for ends of justice and
where elaborate argument is not required to pass such order.
10. The said order dated 17.07.2023 passed in W.P.(Cr.) No.314 of
2023 was passed relying on a minority view of the case of Uday Mohanlal
Acharya (supra) case as the learned counsels for the petitioner as well as the
respondent State were not pointed out the correct ratio of that judgment and in
view of that, it was a human error in passing such order where majority view
was held in paragraph nos.13 and 14 of the said case, which are quoted below:
"13. In State of M.P. v. Rustam [1995 Supp (3) SCC 221 :
1995 SCC (Cri) 830] this Court set aside the order of the High
Court where the High Court had released the accused on bail,
charge-sheet not having been filed within the period stipulated
in Section 167(2) of the Code of Criminal Procedure, as by the
time the High Court entertained the bail application, challan had
already been filed, this Court had observed that the court is
required to examine the availability of the right to 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
Court came to the conclusion: (SCC p. 223, para 4)
"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 then the right as such was not
available."
A conspectus of the aforesaid decisions of this Court unequivocally
indicates that an indefeasible right accrues to the accused on the
failure of the prosecution to file the challan within the period
specified under sub-section (2) of Section 167 and right can be
availed of by the accused if he is prepared to offer the bail and
abide by the terms and conditions of the bail, necessarily,
therefore, an order of the court has to be passed. It is also further
clear that that indefeasible right does not survive or remain
enforceable on the challan being filed, if already not availed of, as
has been held by the Constitution Bench in Sanjay Dutt
case [(1994) 5 SCC 410 : 1994 SCC (Cri) 1433] . The crucial
question that arises for consideration, therefore, is what is the true
meaning of the expression "if already not availed of"? Does it mean
that an accused files an application for bail and offers his
willingness for being released on bail or does it mean that a bail
order must be passed, the accused must furnish the bail and get
him released on bail? In our considered opinion it would be more in
consonance with the legislative mandate to hold that an accused
must be held to have availed of his indefeasible right, the moment
he files an application for being released on bail and offers to abide
by the terms and conditions of bail. To interpret the expression
"availed of" to mean actually being released on bail after furnishing
the necessary bail required would cause great injustice to the
accused and would defeat the very purpose of the proviso to
Section 167(2) of the Criminal Procedure Code and further would
make an illegal custody to be legal, inasmuch as after the expiry of
the stipulated period the Magistrate had no further jurisdiction to
remand and such custody of the accused is without any valid order
of remand. That apart, when an accused files an application for bail
indicating his right to be released as no challan had been filed
within the specified period, there is no discretion left in the
Magistrate and the only thing he is required to find out is whether
the specified period under the statute has elapsed or not, and
whether a challan has been filed or not. If the expression "availed
of" is interpreted to mean that the accused must factually be
released on bail, then in a given case where the Magistrate illegally
refuses to pass an order notwithstanding the maximum period
stipulated in Section 167 had expired, and yet no challan had been
filed then the accused could only move to the higher forum and
while the matter remains pending in the higher forum for
consideration, if the prosecution files a charge-sheet then also the
so-called right accruing to the accused because of inaction on the
part of the investigating agency would get frustrated. Since the
legislature has given its mandate it would be the bounden duty of
the court to enforce the same and it would not be in the interest of
justice to negate the same by interpreting the expression "if not
availed of" in a manner which is capable of being abused by the
prosecution. A two-Judge Bench decision of this Court in State of
M.P. v. Rustam [1995 Supp (3) SCC 221 : 1995 SCC (Cri) 830]
setting aside the order of grant of bail by the High Court on a
conclusion that on the date of the order the prosecution had
already submitted a police report and, therefore, the right stood
extinguished, in our considered opinion, does not express the
correct position in law of the expression "if already not availed of",
used by the Constitution Bench in Sanjay Dutt [(1994) 5 SCC 410 :
1994 SCC (Cri) 1433] . We would be failing in our duty if we do not
notice the decisions mentioned by the Constitution Bench
in Sanjay Dutt case [(1994) 5 SCC 410 : 1994 SCC (Cri) 1433]
which decisions according to the learned counsel, appearing for
the State, clinch the issue. In Makhan Singh Tarsikka v. State of
Punjab [1951 SCC 1140 : AIR 1952 SC 27 : 1952 Cri LJ 321 :
1952 SCR 368] an order of detention had been assailed in a
petition filed under Article 32, on the ground that the period of
detention could not be indicated in the initial order itself, as under
the provisions of the Preventive Detention Act, 1950, it is only
when the Advisory Board reports that there is sufficient cause for
detention, the appropriate Government may confirm the detention
order and continue the detention of the detenu for such period, as
it thinks fit. On a construction of the relevant provisions of the
Preventive Detention Act, as it stood then, this Court accepted the
contention and came to hold that the fixing of the period of
detention in the initial order was contrary to the scheme of the Act
and could not be sustained. We fail to understand as to how this
decision is of any assistance for arriving at a just conclusion on the
issue, which we are faced with in the present case. The next
decision is the case of Ram Narayan Singh v. State of Delhi [AIR
1953 SC 277 : 1953 Cri LJ 1113 : 1953 SCR 652] . In this case on
a habeas corpus petition being filed under Article 32, the Court was
examining the legality of the detention on the date the Court was
considering the matter. From the facts of the case, it transpires that
there was no material to establish that there was a valid order of
remand of the accused. The Court, therefore, held that even if the
earlier order of remand may be held to be a valid one, but the
same having expired and no longer being in force and there being
no valid order of remand, the detention was invalid. It is in this
context, an observation has been made that in a question of
habeas corpus, lawfulness or otherwise, custody of the person
concerned will have to be examined with reference to the date of
the return and not with reference to the institution of the
proceedings. There cannot be any dispute with the aforesaid
proposition, but in the case in hand, the consequences of default
on the part of the investigating officer in not filing the charge-sheet
within the prescribed period have been indicated in the provisions
of the statute itself and the language is of mandatory character,
namely the accused shall be released on bail. In view of the
aforesaid language of the proviso to sub-section (2) of Section 167
and in view of the expression used in Sanjay Dutt case [(1994) 5
SCC 410 : 1994 SCC (Cri) 1433] to the effect "if not availed of", the
aforesaid decision will be of no assistance. The third decision
referred to in Sanjay Dutt case [(1994) 5 SCC 410 : 1994 SCC
(Cri) 1433] is the case of A.K. Gopalan v. Govt. of India [AIR 1966
SC 816 : 1966 Cri LJ 602 : (1966) 2 SCR 427] . This was also a
case for issuance of a writ of habeas corpus, filed under Article 32.
In this case the Constitution Bench observed: (SCR p. 430 C-D)
"It is well settled that in dealing with a petition for habeas
corpus the court has to see whether the detention on the date on
which the application is made to the court is legal, if nothing more
has intervened between the date of the application and the date of
hearing."
In that case, the detenu was detained by orders passed on 4-3-
1965 and the earlier order of detention passed on 29-12-1964 was
no longer in force, when the detenu filed the application in the
Supreme Court. The Court, therefore observed that it is not
necessary to consider the validity of the detention order made on
29-12-1964 and the Court is only concerned with the validity of the
order of detention dated 4-3-1965. The observations made by the
Court and the principles enunciated referred to earlier would
support our conclusion that the rights whether accrued or not to an
accused, will have to be considered on the date he filed the
application for bail and not with reference to any later point of time.
In Abdul Latif Abdul Wahab Sheikh v. B.K. Jha [(1987) 2 SCC 22 :
1987 SCC (Cri) 244] where the final order of detention had been
assailed, this Court had observed that in a habeas corpus
proceeding it is not a sufficient answer to say that the procedural
requirements of the Constitution and the statute have been
complied with, before the date of hearing and, therefore, the
detention should be upheld. The aforesaid observation had been
made when there was no Advisory Board in existence to whom a
reference could be made and whose report could be obtained, as
required by the Constitution. Further the representation filed by the
detenu had not been disposed of within the stipulated period, but
an argument had been advanced that by the date of hearing of the
petition the representation had been disposed of. This Court did
not accept the plea of the State and interfered with the order of
detention. In interpreting the expression "if not availed of" in the
manner in which we have just interpreted we are conscious of the
fact that accused persons in several serious cases would get
themselves released on bail, but that is what the law permits, and
that is what the legislature wanted and an indefeasible right to an
accused flowing from any legislative provision ought not to be
defeated by a court by giving a strained interpretation of the
provisions of the Act. In the aforesaid premises, we are of the
considered opinion that an accused must be held to have availed
of his right flowing from the legislative mandate engrafted in the
proviso to sub-section (2) of Section 167 of the Code if he has filed
an application after the expiry of the stipulated period alleging that
no challan has been filed and he is prepared to offer the bail that is
ordered, and it is found as a fact that no challan has been filed
within the period prescribed from the date of the arrest of the
accused. In our view, such interpretation would subserve the
purpose and the object for which the provision in question was
brought on to the statute-book. In such a case, therefore, even if
the application for consideration of an order of being released on
bail is posted before the court after some length of time, or even if
the Magistrate refuses the application erroneously and the accused
moves the higher forum for getting a formal order of being released
on bail in enforcement of his indefeasible right, then filing of challan
at that stage will not take away the right of the accused. Personal
liberty is one of the cherished objects of the Indian Constitution and
deprivation of the same can only be in accordance with law and in
conformity with the provisions thereof, as stipulated under Article
21 of the Constitution. When the law provides that the Magistrate
could authorise the detention of the accused in custody up to a
maximum period as indicated in the proviso to sub-section (2) of
Section 167, any further detention beyond the period without filing
of a challan by the investigating agency would be a subterfuge and
would not be in accordance with law and in conformity with the
provisions of the Criminal Procedure Code, and as such, could be
violative of Article 21 of the Constitution. There is no provision in
the Criminal Procedure Code authorising detention of an accused
in custody after the expiry of the period indicated in proviso to sub-
section (2) of Section 167 excepting the contingency indicated in
Explanation I, namely, if the accused does not furnish the bail. It is
in this sense it can be stated that if after expiry of the period, an
application for being released on bail is filed, and the accused
offers to furnish the bail and thereby avail of his indefeasible right
and then an order of bail is passed on certain terms and conditions
but the accused fails to furnish the bail, and at that point of time a
challan is filed, then possibly it can be said that the right of the
accused stood extinguished. But so long as the accused files an
application and indicates in the application to offer bail on being
released by appropriate orders of the court then the right of the
accused on being released on bail cannot be frustrated on the off
chance of the Magistrate not being available and the matter not
being moved, or that the Magistrate erroneously refuses to pass an
order and the matter is moved to the higher forum and a challan is
filed in interregnum. This is the only way how a balance can be
struck between the so-called indefeasible right of the accused on
failure on the part of the prosecution to file a challan within the
specified period and the interest of the society, at large, in lawfully
preventing an accused from being released on bail on account of
inaction on the part of the prosecuting agency. On the aforesaid
premises, we would record our conclusions as follows:
1. Under sub-section (2) of Section 167, a Magistrate before
whom an accused is produced while the police is investigating into
the offence can authorise detention of the accused in such custody
as the Magistrate thinks fit for a term not exceeding 15 days on the
whole.
2. Under the proviso to the aforesaid sub-section (2) of Section
167, the Magistrate may authorise detention of the accused
otherwise than in the custody of police for a total period not
exceeding 90 days where the investigation relates to offence
punishable with death, imprisonment for life or imprisonment for a
term of not less than 10 years, and 60 days where the investigation
relates to any other offence.
3. On the expiry of the said period of 90 days or 60 days, as the
case may be, an indefeasible right accrues in favour of the
accused for being released on bail on account of default by the
investigating agency in the completion of the investigation within
the period prescribed and the accused is entitled to be released on
bail, if he is prepared to and furnishes the bail as directed by the
Magistrate.
4. When an application for bail is filed by an accused for
enforcement of his indefeasible right alleged to have been accrued
in his favour on account of default on the part of the investigating
agency in completion of the investigation within the specified
period, the Magistrate/court must dispose of it forthwith, on being
satisfied that in fact the accused has been in custody for the period
of 90 days or 60 days, as specified and no charge-sheet has been
filed by the investigating agency. Such prompt action on the part of
the Magistrate/court will not enable the prosecution to frustrate the
object of the Act and the legislative mandate of an accused being
released on bail on account of the default on the part of the
investigating agency in completing the investigation within the
period stipulated.
5. If the accused is unable to furnish the bail as directed by the
Magistrate, then on a conjoint reading of Explanation I and the
proviso to sub-section (2) of Section 167, the continued custody of
the accused even beyond the specified period in para (a) will not
be unauthorised, and therefore, if during that period the
investigation is complete and the charge-sheet is filed then the so-
called indefeasible right of the accused would stand extinguished.
6. The expression "if not already availed of" used by this Court
in Sanjay Dutt case [(1994) 5 SCC 410 : 1994 SCC (Cri) 1433]
must be understood to mean when the accused files an application
and is prepared to offer bail on being directed. In other words, on
expiry of the period specified in para (a) of the proviso to sub-
section (2) of Section 167 if the accused files an application for bail
and offers also to furnish the bail on being directed, then it has to
be held that the accused has availed of his indefeasible right even
though the court has not considered the said application and has
not indicated the terms and conditions of bail, and the accused has
not furnished the same.
With the aforesaid interpretation of the expression "availed of" if the
charge-sheet is filed subsequent to the availing of the indefeasible
right by the accused then that right would not stand frustrated or
extinguished, necessarily therefore, if an accused entitled to be
released on bail by application of the proviso to sub-section (2) of
Section 167, makes the application before the Magistrate, but the
Magistrate erroneously refuses the same and rejects the
application and then the accused moves the higher forum and
while the matter remains pending before the higher forum for
consideration a charge-sheet is filed, the so-called indefeasible
right of the accused would not stand extinguished thereby, and on
the other hand, the accused has to be released on bail. Such an
accused, who thus is entitled to be released on bail in enforcement
of his indefeasible right will, however, have to be produced before
the Magistrate on a charge-sheet being filed in accordance with
Section 209 and the Magistrate must deal with him in the matter of
remand to custody subject to the provisions of the Code relating to
bail and subject to the provisions of cancellation of bail, already
granted in accordance with the law laid down by this Court in the
case of Mohd. Iqbal v. State of Maharashtra [(1996) 1 SCC 722 :
1996 SCC (Cri) 202] .
14. Having indicated the position of law, as above, and applying
the same to the facts and circumstances of the present case, it
appears that the prescribed period under para (a) of the proviso to
sub-section (2) of Section 167 expired on 16-8-2000 and the
accused filed an application for being released on bail and offered
to furnish the bail on 17-8-2000. The Magistrate, however,
erroneously refused the bail prayer on the ground that the proviso
to sub-section (2) of Section 167 has no application to cases
pertaining to the MPID Act. The accused then moved the High
Court. While the matter was pending before the Division Bench of
the High Court, the learned Public Prosecutor took an adjournment
and the case was posted to 31-8-2000 and just the day before the
charge-sheet was filed on 30-8-2000 and thus the indefeasible
right of the accused stood frustrated and the High Court refused to
release the accused on bail on a conclusion that the accused
cannot be said to have availed of his indefeasible right, as held
in Sanjay Dutt case [(1994) 5 SCC 410 : 1994 SCC (Cri) 1433]
since, he has not yet been released on bail. But in view of our
conclusion as to when an accused can be said to have availed of
his right, in the case in hand, it has to be held that the accused
availed of his right on 17-8-2000 by filing an application for being
released on bail and offering therein to furnish the bail in question.
This being the position, the High Court was in error in refusing that
right of the accused for being released on bail. We, therefore,
direct that the accused should be released on bail on such terms
and conditions to the satisfaction of the learned Magistrate, and
further the Magistrate would be entitled to deal with the accused in
accordance with law and observations made by us in this
judgment, since the charge-sheet has already been filed."
11. The petitioner filed a petition under section 167(2)(a)(1) of the
Cr.P.C. on 21.03.2023 for grant of default bail. On that day, the learned court
has been pleased to grant default bail by order dated 21.03.2023 on condition
that the bail bond should be filed at the earliest. The petitioner has not been
able to file the bail bond on 21.03.2023, however, the petitioner has filed the
said bail bond on the very next date i.e. on 22.3.2023 on opening of the court.
In the meantime, on 22.3.2023 the charge sheet was submitted and the
learned court on the same day at 10.15 a.m has been pleased to take
cognizance against the petitioner. In view of this fact, it is crystal clear that the
charge sheet was not filed and a petition was already filed under section 167(2)
Cr.P.C which was also allowed and thereafter the cognizance has been taken.
In view of this fact, the case of the petitioner is fully covered in view of majority
view of the case of Uday Mohanlal Acharya (supra). The order dated
17.07.2023 in W.P.(Cr.) No.314 of 2023 was passed on wrong submission of
the learned counsels for the petitioner as well as the respondent State and in
view of that and considering the provision of law with regard to section 362
Cr.P.C as has been discussed hereinabove, this petition is allowed.
12. Accordingly, the order dated 22.03.2023 in connection with
Jarmundi P.S. Case No.13 of 2020, corresponding to G.R. No.190 of 2023
passed by the learned Judicial Magistrate, First Class, Dumka whereby he has
been pleased to cancel the default bail granted to the petitioner on 21.03.2023,
pending before the court of learned Judicial Magistrate, First Class, Dumka, is
set-aside.
13. The petitioner shall be provided the benefit of the default bail
under section 167(2) Cr.P.C. subject to the condition put by the learned trial
court in view of Explanation 1 of section 167(2) of the Cr.P.C.
14. This petition is allowed in the above terms and disposed of.
15. Pending petition if any also stands disposed of accordingly.
( Sanjay Kumar Dwivedi, J.)
SI/,
