Ganesh Prasad Sharma vs The State Of Madhya Pradesh
2022 Latest Caselaw 3473 MP

                                     1
       IN THE HIGH COURT OF MADHYA PRADESH AT JABALPUR
                                   BEFORE
                  HON'BLE SHRI JUSTICE ARUN KUMAR SHARMA
                            ON THE 11th OF MARCH, 2022

                     CRIMINAL REVISION No. 933 of 2022

          Between:-
          GANESH PRASAD SHARMA S/O SHRI MAHADEV
          PRASAD SHARMA , AGED ABOUT 32 YEARS,
          OCCUPATION: LABOUR R/O VILLAGE KULUAA,
          P.S. KOTWALI, DISTRICT PANNA (M.P.) (MADHYA
          PRADESH)

                                                                       .....PETITIONER
          (BY SHRI U.N. PANDEY, LEARNED COUNSEL FOR THE APPLICANT )

          AND

1.        THE STATE OF MADHYA PRADESH THROUGH
          POLICE STATION KUTHLA BY P.S. AJAAK
          DISTRICT KATNI (M.P.) (MADHYA PRADESH)

2.        VICTIM A S/O NOT MENTION THROUGH POLICE
          STATION KUTHLA, DISTRICT-KATNI (MADHYA
          PRADESH)

                                                                 .....RESPONDENTS
          (BY SHRI C.K. MISHRA, LEARNED PANEL LAWYER FOR THE
          RESPONDENT/STATE)

        T h is revision coming on for hearing this day, the court passed the

following:
                                      ORDER

T he applicant has preferred this revision petition under Section 397 read with Section 401 of Cr.P.C. against the order dated 08/03/2022 passed by Special Judge (POCSO, Act) Katni, District- Katni in Special Case No.51/2021, whereby the application filed by the applicant for grant of bail under Section 167(2) of Cr.P.C. for grant of default bail in connection with FIR bearing Crime No.610/2021 of Police Station Kuthla, District-Katni (M.P.) has been dismissed on the ground that the police has filed the challan within 90 days and therefore, the provisions of Section 167(2) not attracted in the case of applicant. (2). In the aforesaid FIR, the applicant has been charged for the offence punishable under Sections 363, 376(3), 376(2)(N), 376(D), 376(D)(A) and 506 of the IPC and Section 5(L)(I) and 5(M) read with Section 6 of the Protection of Children from Sexual Offences Act, 2012 and Section 25 of Juvenile Justice

Adhiniyam.

In the aforesaid Crime, the applicant has been arrested on 31/08/2021 and produce before the trial Court on 01/09/2021. It is borne out from the record that charge-sheet in the matter was not filed within the prescribed period of 90 days,

which prompted the applicant to lay bail application before Special Court, POCSO Act, Katni by taking shelter of sub-section 2 of Section 167 of Cr.P.C. (3). The aforesaid bail application was laid on 91 days of arrest of the applicant. When the bail application of applicant was filed on the same day, the investigation officer also submitted charge-sheet. After hearing both the parties, the learned Special Judge, rejected the application holding that the offence registered against the applicant is punishable for a period of 10 years, hence, the police can submit charge-sheet within a period of 90 days envisaged under Section 167 (2) of Cr.P.C., charge-sheet has been filed within a period of 90 days, therefore, the applicant is not entitled to be released on bail under the aforesaid provision. Being aggrieved by the aforesaid order, the applicant has preferred this revision petition. (4). Learned counsel for the applicant has submitted that the applicant was arrested on 31/08/2021 and on the next day i.e. on 01/09/2021, he was produced before the competent Court, who remanded him for the custody and therefore, the date counted for filing the challan within 90 days started from 01/09/2021. Since the police has filed challan on 30/11/2021 after expiry of stipulated time period of 90 days as provided under Section 167(2) of Cr.P.C. At that time applicant's right to obtain benefit of bail was accrued but the trial court wrongly dismissed the application holding that the police can file the charge-sheet within a period of 90 days.

(5). Per contra, learned Public Prosecutor has vehemently opposed the revision petition by submitting that the charge-sheet was filed in the matter on the same day when the bail application came up for consideration before the trial court. Therefore, the learned trial court has not committed any error in rejecting the bail application of the applicant.

(6). I have bestowed my consideration to the arguments advanced by the learned counsel for the parties and perused the impugned order as well as examine the legal position.

(7). It is not disputed that the offence for which the applicant has been arrested is punishable for a term which may be extend up to 10 years.

Section 167 (2) (A) of Cr.P.C. provided that;

(a). the Magistrate may authorise the detention of the accused person, otherwise than in the custody of the police, beyond the period of fifteen days; if he is satisfied that adequate grounds exist for doing so, but no Magistrate shall authorise the detention of the accused person in custody under this paragraph for a total period exceeding,-

(i) ninety days, where the investigation relates to an offence punishable with death, imprisonment for life or imprisonment for a term of not less than ten years;

(ii) sixty days, where the investigation relates to any other offence, on the expiry of the said period of ninety days, or sixty days, as the case may be, the accused person shall be released on bail if he is prepared to and does furnish bail, and every person released on bail under this sub- section shall b e deemed to be so released under the provisions of Chapter XXXIII for the purposes of that Chapter.

(8). From the above provision, it would be amply clear that the Magistrate is authorized to detain the accused person in custody for a total period exceeding 90 days where the investigation relates to an offence punishable with death, imprisonment for life or imprisonment for a term of not less than ten years. In the case of Rajeev Chaudhary v. State (NCT of Delhi), (2001)5 SCC 34, the Supreme Court has held that the expression not less than would mean imprisonment should be 10 years or more and would cover only those offences for which punishment could be imprisonment for a clear period of 10 years or more. (9). In light of judgment passed by the Supreme Court in the case of Rajeev (Supra), the learned Special Judge has committed error in holding that the charge sheet has been filed within a period of 90 days, therefore, the applicant is entitled for statutory bail as envisaged under Section 167 (2) of Cr.P.C.

(10). In view of the aforesaid discussion and settled proposition of law, the trial court has committed error in rejecting the application filed by the applicant. Accordingly, this revision petition is allowed and impugned order dated 01/12/2021 passed by Special Judge (POCSO Act), Katni in Special Case No. 51/2021 is hereby set aside.

It is ordered that that the applicant/accused be released on bail on his furnishing a personal bond for the sum of Rs.50,000/- (Rupees Fifty Thousand only) with one separate solvent surety in the like amount to the satisfaction of the trial Court for securing his presence before the said Court on all the dates of hearing fixed in this regard during trial and for complying with the conditions enumerated in sub-section (3) of Section 437 of Cr.P.C.

Certified copy as per rules.

(ARUN KUMAR SHARMA) JUDGE vkv /-

Signature Not Verified SAN

Digitally signed by VINAY KUMAR VERMA Date: 2022.03.14 11:05:06 IST