Full Judgment
P.P. Naolekar, J.
1. The applicant was arrested on charges under Sections 147, 148, 149, 307, 332, 353 IPC, Section 3/25 of the Arms Act and Section 11 of the Rajasthan Dacoity Affected Areas Act, 1986. He moved application for grant of bail on the ground that challan has not been filed within sixty days of his arrest. The trial court refused bail only on the ground that by virtue of Section 5 of the Act of 1986 a person can be kept in custody for a total period of 180 days and this being a special act, shall supersede the provision of Section 167(2) Cr. P.C.
2. This court in bail application No. 2493/87 Ramveer v. The State of Rajasthan decided on 23.9.1987 has held that Section 5 of the Act of 1986 cannot be read to enlarge the period regarding detention provided under Section 167(2) Cr. P.C.
3. Section 5 of the Act of 1986 provides that no person accused or convicted of a scheduled offence, if in a custody, be released on bail unless the prosecution has been given opportunity to oppose the application for bail; and where the prosecution opposes the application for bail, the court' is satisfied that there are reasonable grounds for believing that he is not guilty of such offence. There is a proviso added to Section 5 that a person accused of a scheduled offence, who has been in custody for a total period of one hundred and eighty days, may be released on bail subject to such conditions as the court may think fit to impose. A bare reading of this provision clearly indicates that a person charged of a scheduled offence under the Act of 1986 shall not be released on bail unless the prosecution is given opportunity to oppose it and the court is satisfied that there is no reasonable ground to belief that he is guilty of such offence. The court is given authority under the proviso to release the person who is in custody for 180 days even though the aforesaid conditions are not satisfied. This section will have application when the person accused of or is convicted under the scheduled offence, whereas Section 167 Cr. P.C. is applicable where the person is in custody and no challan is filed for the period mentioned therein. Section 5 of the Act of 1986 shall not be an embargo to an application under Section 267 Cr. P.C., Proviso to Section 5 has an application where there is compliance of Section 167 Cr. P.C. but the accused is in custody for 180 days. In 1998 Cri. L.J. 16, Babu & another v. State of Karnataka it has been held that where the maximum punishment prescribed for an offence is ten years and not beyond, the chargesheet ought to be filed within sixty days and not ninety days from the date of arrest. There is no dispute that the maximum punishment which can be imposed against the applicant would be under Section 307 IPC which is for ten years alone, therefore, the chargesheet was required to be filed within sixty days and not ninety days from the date of his arrest. It is not disputed by the counsel for State that the chargesheet has not been filed within sixty days of the arrest of applicant. That being the case the applicant is entitled for bail.
4. It is, therefore, ordered that Siyaram son of Prabhu be released on bail in FIR No. 72/99 registered at police station Sarmathura, Dholpur provided he furnishes personal bond in the sum of Rs. twenty thousand with two sureties in the sum of Rs. ten thousand each, to the satisfaction of trial court.