Kawarlal Limbaji Gari and ors. Vs. State of Madhya Pradesh - Court Judgment

Excerpt:

.....is not retrospective. scheme already finalised will not lapse and has to be completed within the time span provided under proviso. no vested right accrues in favour of authority on commencement of process of preparation of scheme, which cannot be impaired by introducing proviso. section 50(4) proviso (as inserted by act of 2004): [dipak misra, krishn kumar lahoti & rajendra menon, jj] preparation of town development scheme held, proviso uses the term shall be deemed to have lapsed. it does not convey that scheme gets automatically lapsed. - 6. as the accused-applicants were represented by a counsel before the court below, failure of the magistrate on expiry of 90 days to inform them of their right to be released on bail under the proviso as stipulated in hussainara's (supra) has not caused them any prejudice, would not help them. in doing so, it relied on full bench decision of gujarat high court in shardulbhai's case (supra). 7. there appear no good reasons to depart from the decisions of the different high courts referred to above......acquired by the applicants to be admitted to bail could not be taken away even though challan may have been filed later. he also submitted that mere fact that the accused applicants later on filed applications and the same were rejected on merits in m. cr. cs. 1976/92 and 2048/92 both would not take away accrued right of applicants of being released on bail under the proviso (supra). in support of his submissions shri gupta referred to a latest decision of the supreme court in aslam babalal desai v. state of maharashtra in cri. a. no. 559 of 1992 reported in 1992 vol. ii svlr (cr.) at page 205.4. opposing shri gupta's contentions shri desai learned dy. government advocate argued that the applicants after expiry of 90 days till challan in the case was filed did not present any application. this forfeited their right to be released on bail under the proviso referred to above. in support of his contentions shri desai referred to the following decisions : -- (1) nawal sahani v. state of bihar, 1989 cri.l.j. 733 division bench of patna high court, (2) shardulbhai v. state of gujarat, 1990 cri.l.j. 1275 full bench of gujarat high court, (3) abdul wahid v. state of maharashtra, 1992.....

Judgment:

ORDER

S.D. Jha, J.

1. By this application under Section 439, Criminal Procedure Code the applicants urge that they are entitled to be released on bail under proviso to Section 167(2)(a), Criminal Procedure Code.

2. The contention of the applicants is that challan in the case was presented on the 91st day of their being produced for remand before the Judicial Magistrate and the same having not been done within 90 days, they acquired a right to be released on bail and that they are willing to furnish surety as ordered by this Court and, therefore, they be admitted to bail.

3. At the hearing, Shri T. R. Gupta, learned counsel representing the applicants submitted that a report under Section 173, Criminal Procedure Code not having been filed within 90 days of arrest of the applicants, the right acquired by the applicants to be admitted to bail could not be taken away even though challan may have been filed later. He also submitted that mere fact that the accused applicants later on filed applications and the same were rejected on merits in M. Cr. Cs. 1976/92 and 2048/92 both would not take away accrued right of applicants of being released on bail under the proviso (supra). In support of his submissions Shri Gupta referred to a latest decision of the Supreme Court in Aslam Babalal Desai v. State of Maharashtra in Cri. A. No. 559 of 1992 reported in 1992 Vol. II SVLR (CR.) at page 205.

4. Opposing Shri Gupta's contentions Shri Desai learned Dy. Government Advocate argued that the applicants after expiry of 90 days till challan in the case was filed did not present any application. This forfeited their right to be released on bail under the proviso referred to above. In support of his contentions Shri Desai referred to the following decisions : --

(1) Nawal Sahani v. State of Bihar, 1989 Cri.L.J. 733 Division Bench of Patna High Court,

(2) Shardulbhai v. State of Gujarat, 1990 Cri.L.J. 1275 Full Bench of Gujarat High Court,

(3) Abdul Wahid v. State of Maharashtra, 1992 Cri.L.J. 1900 Division Bench of Bombay High Court at Nagpur,

(4) Hari Om v. State of U.P., 1992 Cri.L.J. 182 Single Bench of Allahabad High Court.

Reference was also made to a decision of Supreme Court in Hussainara Khatoon v. Home Secretary, State of Bihar, AIR 1979 SC 1052 as to the duty of the Magistrate before making order of further remand to judicial custody to point out to the undertrial prisoner that he is entitled to be released on bail under proviso to Section 167(a), Criminal Procedure Code.

5. The Supreme Court decision relied on by Shri Gupta in Aslam's case (supra) is on different points. The decision deals with the question whether the accused once released on bail under the proviso to Section 167(2)(a) can be taken back in custody merely on filing of charge-sheet and when there are no special reasons for doing so, though the charge-sheet reveals commission of non-bailable offence. This decision would not support the applicants.

6. As the accused-applicants were represented by a counsel before the Court below, failure of the Magistrate on expiry of 90 days to inform them of their right to be released on bail under the proviso as stipulated in Hussainara's (supra) has not caused them any prejudice, would not help them. The Full Bench decision of Gujarat High Court in Shardulbhai's case (supra) inter alia holds that the accused does not have right to be released on bail under proviso (a) to Sub-section (2) of Section 167, Criminal Procedure Code once the investigation- comes to an end by filing charge-sheet. Patna High Court in Nawal Sahani s case (supra) inter alia holds that where prayer for bail is to be considered after submission of charge-sheet, the question of granting bail under proviso (a) to Sub-section (2) of Section 167 does not arise. Bombay High Court in Abdul Wahid's case (supra) holds that right accrued to the accused under the proviso can be exercised only before charge-sheet is filed. Once charge-sheet is filed, the Magistrate's power can be exercised only under Section 437, Criminal Procedure Code. The Single Judge of Allahabad High Court in Hari Om's case (supra) holds that the accused had no right to claim release on bail even after filing of charge-sheet on sole ground that charge-sheet was filed after prescribed period. In doing so, it relied on Full Bench decision of Gujarat High Court in Shardulbhai's case (supra).

7. There appear no good reasons to depart from the decisions of the different High Courts referred to above.

8. As a result of the aforesaid discussion, the present application for bail is hereby dismissed.