# Achutya Nand Mishra v. State of U.P - **Citation:** (2019) 3 ILRA 89 - **Court:** High Court of Judicature at Allahabad - **Decided:** 2019-10-23 - **Case number:** U/S 482/378/407 No. 7524 of 2019 - **Bench:** Rajesh Singh Chauhan - **Source:** https://unisonlegal.in/judgment/allahabad-high-court/achutya-nand-mishra-v-state-of-u-p-44861 - **Pages:** 3 ## Headnote A. Criminal Law-Criminal Procedure Code, 1973 - Section 167 (2) Cr.P.C.- Charge sheet not filed although mandatory period of 90 days expired. Even more than fourteen months' period has lapsed since the accused-petitioner is in judicial custody-Offences under Sections 3/4/5/9 of the Official Secret Act-Complaint under those sections has not been filed and sanction for prosecution has not been obtained-Detention of the petitioner is prima facie illegal-Matter remanded back. (Para 3,5,6,7,8) Application u/s 482 Cr.Pc disposed of (E-3) Case Law relied upon/discussed: - ## Text 3 All. Achutya Nand Mishra Vs. State of U.P. 89 offence under the Act.?Nothing in section 438 of the Code shall apply in relation to any case involving the arrest of any person on an accusation of having committed an offence under this Act." 17. In Vilas Pawar v. State of Maharashtra, (2012) 8 SCC 795 : 3 SCC (Cri) 1062, the nature and scope of Section 18 of the SC/ST Act is held as under:- "Nature and scope- Section 18 of the SC/ST Act creates a bar for invoking Section 438 Cr.P.C. However, a duty is cast on the court to verify the avernments in the complaint and to find out whether an offence under Section 3(1) of the SC/ST act has been prima facie made out. In other words, if there is a specific avernment in the complaint, namely insult or intimidation with intent to humiliate by calling with caste, name the accused persons are not entitled to anticipatory bail. When an offence is registered against a person under the provisions of the SC/ST Act, no court shall entertain an application for anticipatory bail, unless it prima facie finds that such an offence is not made out, Vilas Pawar v. State of Maharashtra, (2012) 8 SCC 795 : 3 SCC (Cri) 1062." 18. In the present case from the FIR allegations the offence under Section 3(1)(xi) SC/ST 18. Act as amended on 18.6.2019 is found prima facie constituting the offence where the court has taken cognizance and issued process for trial to the accused applicant, if he failed to appear or intentionally defied the process, whatsoever may be arresting the stay in the meantime prior to the date the accused appears/surrenders and applies for the bail shall not be permissible as the same would be dilution of the express prohibition made under Section 18 of the SC/ST Act. 19. The petition being not tenable and baseless and accordingly dismissed ---------- (2019)11ILR A89 ORIGINAL JURISDICTION CRIMINAL SIDE DATED: LUCKNOW 23.10.2019 BEFORE THE HON'BLE RAJESH SINGH CHAUHAN , J. U/S 482/378/407 No. 7524 of 2019 Achutya Nand Mishra ...Applicant Versus State of U.P. ...Opposite Party Counsel for the Applicant: Sri Mahmood Alam, Sri Abdul Ahad, Sri Gayasudden. Counsel for the Opposite Party: G.A. A. Criminal Law-Criminal Procedure Code, 1973 - Section 167 (2) Cr.P.C.- Charge sheet not filed although mandatory period of 90 days expired. Even more than fourteen months' period has lapsed since the accused-petitioner is in judicial custody-Offences under Sections 3/4/5/9 of the Official Secret Act-Complaint under those sections has not been filed and sanction for prosecution has not been obtained-Detention of the petitioner is prima facie illegal-Matter remanded back. (Para 3,5,6,7,8) Application u/s 482 Cr.Pc disposed of (E-3) Case Law relied upon/discussed: - 1. Sayed Mohd. Ahmad Kazmi Vs St. (Govt. of NCT of Delhi) and ors., (2012) 12 SCC 1 2. Suresh Kumar Bhikamchand Jain Vs St. of MH & anr., (2013) 3 SCC 77 90 INDIAN LAW REPORTS ALLAHABAD SERIES (Delivered by Hon'ble Rajesh Singh Chauhan, J. ) 1. Heard Sri Mahmood Alam, learned counsel for the petitioner/ applicant and Sri Santosh Mishra, learned AGA. 2. By means of this petition filed under Section 482 Cr.P.C., the petitioner has assailed the order dated 4.10.2019 passed by the Special Chief Judicial Magistrate (Economic Offences), Lucknow rejecting the bail application of the petitioner whereby benefit of Section 167 (2) Cr.P.C. has been prayed submitting that charge sheet has not been filed within the statutory period so prescribed, therefore, the petitioner may not be detained under judicial custody. Learned counsel for the petitioner has further submitted that this is settled proposition of law of the Hon'ble Apex Court that if statutory period prescribed under Section 167 (2) Cr.P.C. expires, the accused-applicant is entitled for bail and in that circumstances/ eventuality his/ her right for bail accrues and discretion of the court does not play any role. 3. In the present case, the petitioneraccused has been sent under judicial custody on 19.9.2018 in Crime No.5/2018, under Sections 419, 420, 121, 121A IPC read with Section 66D I.T. Act relating to Police Station - ATS Lucknow. Perusal of the impugned order dated 4.10.2019 clearly reveals that the charge sheet has not been filed since 19.9.2018 when the present petitioner-accused has been sent for judicial custody, therefore, the mandatory period of 90 days has already expired, even more than fourteen months' period has lapsed since the accused-petitioner is in judicial custody. Therefore, he has contended that in these circumstances, the present applicant may not be denied bail and therefore, the order dated 4.10.2019 is patently illegal, unwarranted and has been passed in utter violation of the settled proposition of law. 4. Learned counsel for the petitioner has drawn attention of the dictum of Hon'ble Apex Court in re; Sayed Mohd. Ahmad Kazmi v. State (Government of NCT of Delhi) and others, (2012) 12 SCC 1 and Suresh Kumar Bhikamchand Jain v. State of Maharashtra and another, (2013) 3 SCC 77, contending that if the charge sheet is not filed within the statutory period so prescribed under Section 167 (2) Cr.P.C., the accused-petitioner is legally entitled to be released from jail/ judicial custody. The impugned order dated 4.10.2019 further provides that besides crime case wherein the petitioner has been sent for judicial custody, the culpability of the present petitioneraccused has been seen under Sections 3/4/5/9 of the Official Secret Act; however even the complaint under those sections have not been filed and sanction for prosecution is required in that case and admittedly till the passing of impugned order dated 4.10.2019 sanction for prosecution has not been obtained. The impugned order dated 4.10.2019 further reveals that the learned court below has passed the order in compliance of the order dated 13.5.2019 passed by this Court in Bail No.1191 of 2019 whereby this Court while rejecting the bail of the petitioner granted six months' time to conclude the trial. Since those sections in Crime No.5/2018 have already been expunged, therefore, no trial can be conducted and concluded in such crime case i.e. Crime No.5/2018. 3 All. Ramesh Chandra Dutta Vs. The State 91 5. I have also noted one fact that wrong fact regarding submission of the charge sheet has been placed before this Court when Bail No.1191 of 2019 was being opposed inasmuch as the charge sheet was not filed on 13.5.2019, even the charge sheet has not been filed till date and now since those sections have been expunged, there is no question of filing charge sheet. 6. It appears that in the given circumstances, detention of the present petitioner is prima facie illegal and while rejecting the application of the present petitioner, learned court below should have considered these facts and circumstances vis-a-vis the legal provision including the dictums of the Hon'ble Supreme Court carefully. Prima facie, it appears that no such things have been considered and perused by the learned court below while rejecting the application of the petitioner on 4.10.2019, therefore, I find that the order dated 4.10.2019 is not sustainable in the eyes of law and liable to be set aside. 7. Accordingly, I hereby set aside the order dated 4.10.2019 passed by the learned court below in Case Crime No.5/2018, Police Station - ATS, Lucknow. 8. I hereby remand this matter to the learned court below to pass a fresh order considering the aforesaid facts and circumstances as well as the legal proposition of law including the dictum of the Hon' ble Apex Court on the subject and reasoned and speaking order be passed, with expedition, preferably within a period of fifteen days from the date of production of certified copy of the order of this Court. 9. The petition is accordingly disposed of. ---------- (2019)11ILR A91 ORIGINAL JURISDICTION CRIMINAL SIDE DATED: LUCKNOW 24.10.2019 BEFORE THE HON'BLE RAJESH SINGH CHAUHAN , J. U/S 482/378/407 No. 7614 of 2019 Ramesh Chandra Dutta ...Applicant Versus The State ...Opposite Party Counsel for the Applicant: Sri Pranshu Agarwal, Sri Raghvendra Pandey. Counsel for the Opposite Party: A.S.G. A. Criminal Law-Criminal Procedure Code, 1973 - Section 223 Cr.P.C.; Section 13(1)(d) of the Prevention of Corruption Act, 1988 - Summoning for framing of charge against a non-public servant, with the aid of Section 120-B of IPC - who has not committed any offence under Section 13 (2) read with Section 13 (1) (d) of the Prevention of Corruption Act,1988 along with coaccused Public Servant who is said to have committed such offence - No charge framed earlier under the P.C. Act - Matter remanded back to the trial court which shall consider the settled proposition of law as per the Cr.P.C. and judgement of Hon'ble Supreme Court in State through CBI New Delhi vs. Jitender Kumar Singh, (2014) 11 SCC724. (Para 9) Application u/s 482 Cr.Pc accordingly disposed of. (E-3) List of cases cited: - 1. St. through CBI New Delhi Vs Jitender Kumar Singh, Criminal Appeal No.943 of