# Dinesh Kumar Jain v. State of U.P

- **Citation:** (2001) 2 ILRA 37
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2000-12-14
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/dinesh-kumar-jain-v-state-of-u-p-39731
- **Pages:** 4

## Text

2All] Dinesh Kumar Jain V. State of U.P.

Respondent Nos. 1 and 2 are themselves
charging from which defaulting parties
who had entered an agreement with
Respondent Nos. 1 and 2, within three
months
from
today.
We
order
accordingly.

8. Since the petitioner has also been
coerced to move this Court, we are of the
view that he is also entitled to cost of this
proceedings which we in the peculiar
facts and circumstances quantify at
Rs.2,000/- only.

9. This writ petition is disposed of
accordingly.

10. The Office is directed to handover a copy of this order within one week
to Sri Ved Vyas Mishra, learned counsel
for Respondent Nos. 1 and 2, for its
intimation to and flow up action by
Respondent Nos. 1 and 2.
Petition Disposed of.

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By the Court

1. This is second bail application.
The first bail application was disposed of
19.01.2001 with a direction to move fresh
38 INDIAN LAW REPORTS ALLAHABAD SERIES [2001
bail application before learned Sessions
Judge on the ground of proviso to Section
167 (2) Cr. P.C.

2. The applicant involved in case
crime no. 820 of 2000 under sections
364/302/34 I.P.C., P.S. Loni, District
Ghaziabad,
moved
bail
applications
before
Chief
Judicial
magistrate
concerned, who rejected the same and
thereafter he moved bail application
before the Sessions Judge. The Sessions
Judge,
Ghaziabad,
rejected
his
bail
application on 03.11.2000 on merit.

3. Thereafter, the applicant moved
another bail application before Chief
Judicial
Magistrate
concerned
on
12.12.2000 on the ground that charges
sheet in the case was not submitted within
90 days from the date of first remand to
judicial
custody.
The learned Chief
Judicial Magistrate rejected the above
application,
vide
his
order
dated
14.12.2000 on the ground that first
remand by the Court was granted on
21.09.2000 and therefore period of 90
days did not complete on 12.12.2000,
when the bail application was moved
under proviso to Section 167 (2) Cr. P.C.
Thereafter, first bail application was
moved before this Court on 18.01.2001.
The above bail application was moved
before this Court on 18.01.2001. The
above bail application was disposed of
with a direction to move bail application
before Sessions Judge concerned on the
ground of proviso of Section 167 (2) Cr.
P.C. as this point was not raised before
the Sessions Judge after rejection of the
bail application on the above ground by
Chief Judicial Magistrate.

4. The applicant, accordingly,
moved
bail
application
before
the
Sessions Judge, who rejected the same on
07.02.2001.
Therefore,
this
bail
application.
5. Heard the learned counsel for the
applicant and the learned A.G.A. and
perused the record.
6. It is not disputed that initially
report of the occurrence was lodged at
P.S. Sahadara, district North East Delhi
by Sub Inspector Guru Sewak Singh and
the applicant was also arrested by the
police of P.S. Sahadara on 07.09.2000.
The applicant was remanded to judicial
custody till 22.09.2000 on 08.09.2000 by
A.C.M.M. Delhi. It is not disputed that
charge sheet in this case was submitted on
13.12.2000 and the applicant moved bail
application under proviso to Section 167
(2) Cr. P.C. on 12.12.2000. The learned
Sessions Judge has also observed that first
remand was given on 08.09.2000 and 90th
days expired on 07.12.2000 and charge
sheet was submitted on 13.12.2000. The
learned Sessions Judge rejected the bail
application on the ground that since
charge sheet right of hire could not have
been enforced. He also relied on Apex
Court decision in Mohammed Iqbal
Madar Shekh and others vs. State of
Maharashtra, 1996 (33) ACC, 136. On the
availability of right to be released on bail
under proviso to Section 167 (2) Cr. P.C.
the Apex Court has held in the case of
Sanjay Dutt Vs. State through C.B.I.
Bombay (II), 1994 (31) ACC, 702 (SC) as
follows:-
"The "indefeasible right" of the
accused to be released on bail in
accordance with Section 20 (4) (bb) of the
TADA Act read with Section 167 (2) of
the Code of Criminal Procedure in default
of completion of the investigation and
filing of the challan within the time
allowed, as held in Hitendra Vishnu
Thakur is a right which enures to, and is
2All] Dinesh Kumar Jain V. State of U.P.

enforceable by the accused only from the
time of default till the filing of the challan
and it does not survive or remain
enforceable on the challan being filed. If
the accused applies for bail under this
provision on expiry of the period of 180
days or the extended period, as the case
may be, then he has to be released on bail
forthwith. The accused, so released on
bail may be arrested and committed to
custody according to the provisions of the
Code of Criminal Procedure. The right of
the accused to be released on bail after
filing of the challan, notwithstanding the
default in filing it within the time allowed,
is governed from the time of filing of the
challan only by the provisions relating to
the grant of bail application at that stage."

7. Thus, the settled position is that
the right to be released on bail in
accordance with Section 167 (2) Cr. P.C.
in default of completion of investigation
and filing of the challan within the
allowed enures to, and is enforceable by
the accused only from the time of default
till the filing of the challan and it does not
survive or remain enforceable on challan
being filed. In the case of Mohammed
Iqbal Madar Sheikh (supra) though the
charge sheet was submitted beyond the
statutory period of Section 20(4(b) of
TADA Act were applied in respect of
appellants. It was admitted position in the
said case that no application for bail on
the said ground was made on behalf of the
appellant and therefore, it was held that
unless applications had been made on
behalf of the appellants, there was no
question of their being released on ground
of
default
in
completion
of
the
investigation within the statutory period.

8. In the instant case, the position
different. As mentioned above right of the
applicant to be released on bail under
Section 167 (2) Cr. P.C. "accrued" on
08.12.2000 and remained enforce till
12.12.2000 as the period of 90 days
expired on 07.12.2000 and charges sheet
was
submitted
on
13.12.2000.
The
applicant "availed" his right to be released
on bail under said Section on 12.12.2000
by moving an application before the Chief
Judicial Magistrate concerned. No doubt
the bail application before the Sessions
Judge on the direction of this court was
moved much later, but it cannot be said
that the applicant had no "availed" his
right to be released on bail under Section
137 (2) Cr. P.C. when at actually
"accrued" to him. The observation of the
learned Sessions Judge in this regard in
thus
erroneous,
as
it
defeats
the
indefeasible
right
of
accused
under
Section 167 (2) Cr. P.C.

9. It is, therefore, clear form the
record as well as admitted position that
the right of the applicant to be released on
bail accrued between 08.12.2000 and
12.12.2000 and the applicant availed the
same on 12.12.2000 by moving bail
application before the initial Court i.e.
C.J.M., but his bail application was
wrongly rejected. Thus, the applicant is
entitled to be released on bail under
proviso to Section 167(2) Cr. P.C.

10. Let the applicant Dinesh Kumar
Jain involved in case crime no. 820 of
2000 under Section 364/302/34 I.P.C.,
P.S. Lone, District Ghaziabad be enlarged
on bail on his furnishing a personal bond
and two sureties each in the like amount
to the satisfaction of Chief Judicial
Magistrate, Ghaziabad
Application Allowed.
40 INDIAN LAW REPORTS ALLAHABAD SERIES [2001
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By the Court

1. This appeal is directed against the
judgement and order dated 10.7.1980
passed by Sri V.K. Sircar, the then IV
Additional Session Judge, Allahabad in
Session Trial No. 286 of 1997, whereby
appellant Sartaj Mohammad has been
convicted
and
sentenced
to
life
imprisonment under Section 302 I.P.C.
Appellants Vakilwa, Lal Mohammad and
Imamuddin have been convicted and
sentenced to life imprisonment under
Section 302 I.P.C. read with Section 34
I.P.C. Appellants Sartaj Mohammad, Lal
Mohammad and Imamuddin have also
been convicted and sentenced to 2 years
rigorous imprisonment and a fine of Rs.
300/- each under Section 324 read with
Section 34 I.P.C. Appellant Vakilwa is
further convicted and sentenced to 2 years
rigorous imprisonment and a fine of Rs.
300/-
under
Section
324
I.P.C.
Appellants
Lal
Mohammad
and
Imamuddin have further been convicted
and sentenced to two years rigorous
imprisonment under Section 323 read
with
34
I.P.C.
However,
Sartaj
Mohammad and Vakilwa have been
acquitted for the offence punishable under
Section 323 read with Section 34 I.P.C.

2. The wood-cut profile of the
prosecution case is that appellants Sartaj
Mohammad and Lal Mohammad are real
brothers being sons of Yar Mohammad
Appellant
Imamuddin
is
uncle
of
Appellant Vakilwa. They all belonged to
one group.

3. Some time before the occurrence
in question Anisuddin, brother of accused
Vakilwa had been murdered. Shamim,
maternal uncle of Aftab, P.W. 2 was an
accused in that case. Aftab Ahmad was
doing pairvi for Shamim.

4. It is stated that on 27.5.79 at about
6.20 P.M. in day light Masroorul Haque,
P.W. 1 alongwith Aftab Ahmad, P.W. 2
and Mazharul Haque, deceased of the