# Pravin Kasana & Others v. State Of U.P

- **Citation:** (2012) 3 ILRA 1429
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2012-11-05
- **Bench:** Manoj Misra
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/pravin-kasana-others-v-state-of-u-p-42448
- **Pages:** 10

## Headnote

Code of Criminal Procedure-Section 167
(2) proviso-Bail application expressing
willingness
to
furnish
security
forrejected by Magistrate saying charge
sheet filed on same day hence right to be
released
on-extinguished-application
rejected as not maintainable-not vitiated
in
any
manner-no
illegality
or
impropriety on jurisdictional error foundrevision dismissed.

Held: Para-18

To test the aforesaid submission of the
learned counsel for the revisionists, I
have carefully read the counter-affidavit
dated 03.09.2012 filed by Devi Ram
Gautam, the Investigating Officer, on
behalf of the State. A perusal of the
counter-affidavit
indicates
that
the
investigation was completed as well as
the
charge-sheet
prepared
by
31.03.2012. Thereafter by the order of
the Senior Superintendent of Police,
Ghaziabad, the Investigating Officer was
transferred on 02.04.2012. It appears
that the Constable Pairokar, Jarman
Singh,
had
directly
submitted
the
charge-sheet in court on 02.05.2012 and
the court also took cognizance on the
said charge-sheet. From the affidavit so
filed, it cannot be said that the chargesheet was incomplete. Even otherwise,
there is no challenge to the charge-sheet
either in the revision or by way of any
collateral proceedings. As regards the
direct filing of the charge-sheet, through
a Constable, it may be an irregularity,
but it would certainly not vitiate the
charge-sheet
and
the
order
taking
cognizance thereon.
Case Law discussed:
(2001) 5 SCC 453; [2011 (72) ACC 767];
[2011 (75) ACC 134]; [2011 (75) ACC 992];
(1996) 1 SCC 432; (1994) 5 SCC 410; 1997JIC-0-127

## Text

3 All] Pravin Kasana & Others V. State of U.P.

1429
in 1979 Cr.L.J. 1439 has held that Section
446 deals with two stages. The first stage
requires the ground of satisfaction to be
recorded by the Judge or Magistrate
concerned for ordering forfeiture and after
recording such forfeiture show cause is to be
issued. An order for recovery can be made
only on fulfilling the two steps contemplated
by Section 446. Where no opportunity has
been given to show cause why he should not
be made to pay, the proceedings cannot be
said to be in accordance of law and should be
quashed.

7. In view of the above, the recovery
order is liable to be quashed and hereby
quashed.

8 The appeal is disposed of finally with
a direction to the court concerned to issue
show cause notice to the sureties to show
cause as to why their sureties bond be not
forfeited.
---------
REVISIONAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 05.11.2012

BEFORE
THE HON'BLE MANOJ MISRA, J.

Criminal Revision No. - 1557 of 2012

Pravin Kasana & Others
 ...Applicant
Versus
State Of U.P

 ...Respondents

Counsel for the Petitioner:
Sri Vijaya Prakash

Counsel for the Respondents:
Govt. Advocate
Sri Sukhendu Pal Singh
Sri Tej Pal

Code of Criminal Procedure-Section 167
(2) proviso-Bail application expressing
willingness
to
furnish
security
forrejected by Magistrate saying charge
sheet filed on same day hence right to be
released
on-extinguished-application
rejected as not maintainable-not vitiated
in
any
manner-no
illegality
or
impropriety on jurisdictional error foundrevision dismissed.

Held: Para-18

To test the aforesaid submission of the
learned counsel for the revisionists, I
have carefully read the counter-affidavit
dated 03.09.2012 filed by Devi Ram
Gautam, the Investigating Officer, on
behalf of the State. A perusal of the
counter-affidavit
indicates
that
the
investigation was completed as well as
the
charge-sheet
prepared
by
31.03.2012. Thereafter by the order of
the Senior Superintendent of Police,
Ghaziabad, the Investigating Officer was
transferred on 02.04.2012. It appears
that the Constable Pairokar, Jarman
Singh,
had
directly
submitted
the
charge-sheet in court on 02.05.2012 and
the court also took cognizance on the
said charge-sheet. From the affidavit so
filed, it cannot be said that the chargesheet was incomplete. Even otherwise,
there is no challenge to the charge-sheet
either in the revision or by way of any
collateral proceedings. As regards the
direct filing of the charge-sheet, through
a Constable, it may be an irregularity,
but it would certainly not vitiate the
charge-sheet
and
the
order
taking
cognizance thereon.
Case Law discussed:
(2001) 5 SCC 453; [2011 (72) ACC 767];
[2011 (75) ACC 134]; [2011 (75) ACC 992];
(1996) 1 SCC 432; (1994) 5 SCC 410; 1997JIC-0-127

(Delivered by Hon'ble Manoj Misra, J.)

1. I have heard Sri Vijaya Prakash for
the revisionists, Shri Sukhendu Pal Singh
for the informant and the learned A.G.A.
for the State.
1430 INDIAN LAW REPORTS ALLAHABAD SERIES [2012

2. By this revision, the revisionists
have
challenged
the
order
dated
02.05.2012 passed by Chief Judicial
Magistrate, Ghaziabad by which the
application of the revisionists seeking for
being released on bail, under the proviso to
sub-section (2) of Section 167 of the Code
of Criminal Procedure (hereinafter referred
to as 'Code'), with reference to Case Crime
No. 109 of 2012, under Sections 147 /148
/149 /34 /302 I.P.C., P.S. Sahibabad,
District Ghaziabad, has been rejected.

3. The undisputed date of first
remand was 01.02.2012 and the police did
not submit any charge-sheet by 01.05.2012
i. e. within 90 days from the date of the
first remand, accordingly, on 02.05.2012,
the revisionists applied under the proviso
to sub-section (2) of Section 167 of the
Code for being released on bail by
expressing their willingness to furnish
security for bail. The learned Magistrate
rejected the application on the same day
holding that the charge-sheet has been filed
and cognizance taken on the charge-sheet,
therefore, the right to be released on bail,
under the proviso to sub-section (2) of
Section
167
of
the
Code
stood
extinguished.

4. Challenging the aforesaid order,
the learned counsel for the revisionists,
placing reliance on certain comments/notes
/reports made on the margin of the ordersheet, contended that initially the report on
the bail application indicated that no
charge-sheet has been filed within 90 days,
whereas the subsequent report indicated
that charge sheet has just been submitted,
which suggested that after the revisionists
had availed of their right for being released
on
bail
that
the
charge-sheet
was
submitted, on 02.05.2012, which could not
defeat the right of the revisionists to be
enlarged on bail in the light of the decision
of the Apex Court in the case of Uday
Mohanlal
Acharya
v.
State
of
Maharashtra reported in (2001) 5 SCC
453. In the alternative, it was contended
that the charge-sheet was incomplete and
was not filed in the manner provided by
Regulation 122 of the U.P. Police
Regulation and, as such, it was no chargesheet in the eye of law. The alternative
submission though was made orally, but
there is no challenge to the validity of the
charge-sheet either in the memo of this
revision or by way of an appropriate
application seeking to challenge the
charge-sheet. The learned counsel for the
revisionists placed heavy reliance on
certain observations made by the Apex
Court in paragraph 13 of Uday Mohanlal
Acharya's case (supra), wherein it was
observed as follows:-

"...... A conspectus of the aforesaid
decisions of this Court unequivocally
indicates that an indefeasible right
accrues to the accused on the failure of
the prosecution to file the challan within
the period specified under sub-section (2)
of Section 167 and that right can be
availed of by the accused if he is prepared
to offer the bail and abide by the terms
and conditions of the bail, necessarily,
therefore, an order of the Court has to be
passed. It is also further clear that that
indefeasible right does not survive or
remain enforceable on the challan being
filed, if already not availed of, as has been
held by the Constitution Bench in Sanjay
Dutt's case (supra). The crucial question
that arises for consideration, therefore, is
what it the true meaning of the expression
'if already not availed of'? Does it mean
that an accused files an application for
bail and offers his willingness for being
3 All] Pravin Kasana & Others V. State of U.P.

1431
released on bail or does it mean that a
bail order must be passed, the accused
must furnish the bail and get him
released on bail? In our considered
opinion it would be more in consonance
with the legislative mandate to hold that
an accused must be held to have availed
of his indefeasible right, the moment he
files an application for being released on
bail and offers to abide by the terms and
conditions of bail. To interpret the
expression 'availed of' to mean actually
being released on bail after furnishing the
necessary bail required would cause great
injustice to the accused and would defeat
the very purpose of the proviso to Section
167(2) of the Criminal Procedure Code
and further would make an illegal
custody to be legal, inasmuch as after the
expiry of the stipulated period the
Magistrate had no further jurisdiction to
remand and such custody of the accused
is without any valid order of remand.
That apart, when accused files an
application for bail indicating his right to
be released as no challan had been filed
within the specified period, there is no
discretion left in the Magistrate and the
only thing he is required to find out is
whether the specified period under the
statute has elapsed or not, and whether a
challan has been filed or not. If the
expression 'availed of' is interpreted to
mean that the accused must factually be
released on bail, then in a given case
where the Magistrate illegally refuses to
pass
an
order
notwithstanding
the
maximum period stipulated in Section
167 had expired, and yet no challan had
been filed then the accused could only
move to the higher forum and while the
matter remains pending in the higher
forum
for
consideration,
if
the
prosecution files a charge-sheet then also
the so called right accruing to the accused
because of inaction on the part of the
investigating agency would get frustrated.
Since the legislature have given its
mandate it would be the bounded duty of
the Court to enforce the same and it
would not be in the interest of justice to
negate the same by interpreting the
expression 'if not availed of' in a manner
which is capable of being abused by the
prosecution................... In interpreting the
expression 'if not availed of' in the
manner in which we have just interpreted
we are conscious of the fact that accused
persons in several serious cases would get
themselves released on bail, but this is
what the law permits, and that is what the
legislature wanted and an indefeasible
right to an accused flowing from any
legislative provision ought not to be
defeated by a Court by giving a strained
interpretation of the provisions of the Act.
In the aforesaid premises, we are of the
considered opinion that an accused must
be held to have availed of his right
flowing from the legislative mandate
engrafted in the proviso to sub-section (2)
of Section 167 of the Code if he has filed
an application after the expiry of the
stipulated period alleging that no challan
has been filed and he is prepared to offer
the bail, that is ordered, and it is found as
a fact that no challan has been filed
within the period prescribed from the date
of the arrest of the accused. In our view,
such interpretation would subserve the
purpose and the object for which the
provision in question was brought on to
the Statute Book. In such a case,
therefore, even if the application for
consideration of an order of being
released on bail is posted before the Court
after some length of time, or even if the
Magistrate
refuses
the
application
erroneously and the accused moves the
higher forum for getting formal order of
1432 INDIAN LAW REPORTS ALLAHABAD SERIES [2012

being released on bail in enforcement of
his indefeasible right, then filing of
challan at that stage will not take away
the right of the accused. Personal liberty
is one of the cherished object of the
Indian Constitution and deprivation of
the same can be only in accordance with
law and in conformity with the provisions
thereof, as stipulated under Article 21 of
the Constitution. When the law provides
that the Magistrate could authorise the
detention of the accused in custody upto a
maximum period as indicated in the
proviso to sub-section (2) of Section 167,
any further detention beyond the period
without
filing
of
challan
by
the
Investigating
Agency
would
be
a
subterfuge
and
would
not
be
in
accordance with law and in conformity
with the provisions of the Criminal
Procedure Code, and as such, could be
violative of Article 21 of the Constitution.
There is no provision in the Criminal
Procedure Code authorising detention of
an accused in custody after the expiry of
the period indicated in the proviso to
subsection (2) of Section 167 excepting
the contingency indicated in Explanation
I, namely, if the accused does not furnish
the bail. It is in this sense it can be stated
that if after expiry of the period, an
application for being released on bail is
filed, and the accused offers to furnish
the bail, and thereby avail of his
indefeasible right and then an order of
bail is passed on certain terms and
conditions but the accused fails to furnish
the bail, and at that point of time a
challan is filed then possibly it can be said
that the right of the accused stood
extinguished. But so long as the accused
files an application and indicates in the
application to offer bail on being released
by appropriate orders of the Court then
the right of the accused on being released
on bail cannot be frustrated on the oft
chance of Magistrate not being available
and the matter not being moved, or that
the Magistrate erroneously refuses to pass
an order and the matter is moved to the
higher forum and a challan is filed in
interregnum. This is the only way how a
balance can be struck between the so
called indefeasible right of the accused on
failure on the part of the prosecution to
file challan within the specified period
and the interest of the society, at large, in
lawfully preventing an accused for being
released on bail on account of inaction on
the part of the prosecuting agency. On the
aforesaid premises, we would record our
conclusions as follows:-

1. Under sub-section (2) of Section
167, a Magistrate before whom an
accused is produced while the police is
investigating
into
the
offence
can
authorise detention of the accused in such
custody as the Magistrate thinks fit for a
term not exceeding 15 days in the whole.

2. Under the proviso to aforesaid
sub-section (2) of Section 167, the
Magistrate may authorise detention of the
accused otherwise than the custody of
police for a total period not exceeding 90
days where the investigation relates to
offence
punishable
with
death,
imprisonment for life or imprisonment for
a term of not less than 10 years, and 60
days where the investigation relates to any
other offence.

3. On the expiry of the said period of
90 days or 60 days, as the case may be, an
indefeasible right accrues in favour of the
accused for being released on bail on
account of default by the Investigating
Agency
in
the
completion
of
the
investigation within the period prescribed
3 All] Pravin Kasana & Others V. State of U.P.

1433
and the accused is entitled to be released
on bail, if he is prepared to an furnish the
bail, as directed by the Magistrate.

4. When an application for bail is
filed by an accused for enforcement of his
indefeasible right alleged to have been
accrued in his favour on account of
default on the part of the Investigating
Agency in completion of the investigation
within
the
specified
period,
the
Magistrate/Court must dispose it of
forthwith, on being satisfied that in fact
the accused has been in custody for the
period of 90 days or 60 days, as specified
and no charge-sheet has been filed by the
Investigating Agency. Such prompt action
on the part of the Magistrate/Court will
not enable the prosecution to frustrate the
object of the Act and the legislative
mandate of an accused being released on
bail on account of the default on the part
of the Investigating Agency in completing
the
investigation
within
the
period
stipulated.

5. If the accused is unable to furnish
bail, as directed by the Magistrate, then
the conjoint reading of Explanation I and
proviso to sub-section 2 of Section 167,
the continued custody of the accused even
beyond the specified period in paragraph
(a) will not be unauthorised, and
therefore, if during that period the
investigation is complete and chargesheet
is filed then the so-called indefeasible
right of the accused would stand
extinguished.

6. The expression 'if not already
availed of' used by this Court in Sanjay
Dutt's case (supra) must be understood to
mean
when
the
accused
files
an
application and is prepared to offer bail
on being directed. In other words, on
expiry
of
the
period
specified
in
paragraph (a) of proviso to sub-section
(2) of Section 167 if the accused files an
application for bail and offers also to
furnish the bail, on being directed, then it
has to be held that the accused has
availed of his indefeasible right even
though the Court has not considered the
said application and has not indicated the
terms and conditions of bail, and the
accused has not furnished the same.

With the aforesaid interpretation of
the expression 'availed of' if charge-sheet
is filed subsequent to the availing of the
indefeasible right by the accused then that
right would not stand frustrated or
extinguished, necessarily therefore, if an
accused entitled to be released on bail by
application of the proviso to sub-section
(2) of Section 167, makes the application
before the Magistrate, but the Magistrate
erroneously refuses the same and rejects
the application and then accused moves
the higher forum and while the matter
remains pending before the higher forum
for consideration a charge-sheet is field,
the so-called indefeasible right of the
accused would not stand extinguished
thereby, and on the other hand, the
accused has to be released on bail. Such
an accused, who thus is entitled to be
released on bail in enforcement of his
indefeasible right will, however, have to
be produced before the Magistrate on a
charge-sheet being filed in accordance
with Section 209 and the Magistrate must
deal with him in the matter of remand to
custody subject to the provisions of the
Code relating to bail and subject to the
provisions of cancellation of bail, already
granted in accordance with law laid down
by this Court in the case of Mohd. Iqbal
vs. State of Maharashtra (supra)."
1434 INDIAN LAW REPORTS ALLAHABAD SERIES [2012

5.

Relying
on
the
aforesaid
observations made by the apex court, and
on conclusion Nos. 4 and 6, in particular,
the learned counsel for the revisionists
contended that since the revisionists had
applied for bail and by that time no chargesheet was filed, and the revisionists had
also offered to furnish bail bonds, they had
availed of their right under the proviso to
sub-section (2) of Section 167 of the Code,
therefore,
their
right
had
become
indefeasible and, even if the charge-sheet
was submitted later in the day, the
revisionists were entitled to be given
statutory benefit and be enlarged on bail.

6. Per contra, the learned A.G.A as
also the learned counsel for the informant
submitted that it has not come on the
record that at what time the charge-sheet or
the bail application was filed. It has been
contended that as per the Conclusion No. 4
in the case of Uday Mohanlal Acharya's
case (supra), when an application for bail
is filed by an accused for enforcement of
his right provided under the proviso to sub
section (2) of Section 167 of the Code, the
Magistrate / Court must dispose it of
forthwith, on being satisfied that in fact
the accused has been in custody for the
period of 90 days or 60 days, as specified
and no charge-sheet has been filed by the
Investigating
Agency.
It
has
been
contended that in the instant case, the
learned Magistrate on the application
apparently called for report and was
satisfied that the charge-sheet had already
been filed, accordingly, it rejected the
application for bail. It has been contended
that the satisfaction of the learned
Magistrate was based on the appreciation
of the reports placed before him and, as
such, satisfaction is not amenable to
scrutiny by the revisional Court. It was
contended that the comments/ notes made
on the order-sheet that the charge-sheet has
just been filed cannot be taken as a basis to
assume that the charge-sheet was filed
after the filing of the bail application.
Moreover, since the time of presentation of
the bail application and the time of filing
of the charge-sheet was not entered on
record, therefore, in such as situation, the
satisfaction of the learned Magistrate
cannot be said to be against the record so
as to justify interference with the order.

7. Learned A.G.A. as also the learned
counsel for the informant placed reliance
on a decision of this court in the case of
Chandra Pal v. State of U.P. : [2011 (72)
ACC 767] as well as in the case of Sukhai
and another v. State of U.P. : [2011 (75)
ACC 134], wherein it was held that if the
charge-sheet was filed on the same day
when the bail application was presented
then, in such a situation, the right to be
released on bail under the proviso to subsection (2) of Section 167 of the Code
stands extinguished. Relying on the
decision of this court in the case of
Chandra Pal v. State of U.P.(supra), it
was contended that in that case also there
were two reports, one with regard to filing
of the charge-sheet and the other with
regard to non-filing of the charge-sheet,
but as it was proved that on the same day
charge sheet was filed, the court took the
view that the applicant was not entitled to
the benefit of the proviso to sub-section (2)
of Section 167 of the Code.

8. The learned counsel for the
informant had also drawn the attention of
the court to the decision of the Apex Court
in the case of Sadhwi Pragyna Singh
Thakur v. State of Maharashtra : [2011
(75) ACC 992]. In paragraph 23 of the
judgment, the Apex Court after noticing
the various decisions observed as follows:-
3 All] Pravin Kasana & Others V. State of U.P.

1435

"23. From the discussion made above,
it is quite clear that even if an application
for bail is filed on the ground that charge
sheet was not filed within 90 days, before
the consideration of the same and before
being released on bail if charge sheet is
filed, the said right to be released on bail,
can be only on merits. So far as merits are
concerned the learned counsel for the
appellant has not addressed this Court at
all and in fact bail is not claimed on merits
in the present appeal at all."

9.

Relying
on
the
aforesaid
observation of the Apex Court, the learned
counsel for the informant submitted that
even if it is accepted that the charge sheet
was filed after filing of the bail application,
though on the same day, since no orders
were passed on the bail application of the
revisionists and in the meantime the
charge-sheet was filed, the revisionists
could only seek for bail on merits and their
right to obtain bail under the proviso to
sub-section (2) of Section 167 of the Code
stood extinguished.

10. The learned counsel for the
revisionists in reply to the observations of
the Apex Court made in paragraph 23 of
Sadhwi Pragyna Singh Thakur's case
(supra), submitted that it cannot be taken
as a binding precedent as it is contrary to
the view expressed by a larger Bench of
the apex court in the case of Uday
Mohanlal Acharya (supra), where in
conclusion Nos. 4 and 6 the apex court had
clearly pointed out that after the right is
availed of then it becomes indefeasible
irrespective of whether any orders have
been passed on the application or not.

11. Having considered the rival
submissions of the learned counsel for the
parties, the fact that is undisputed is that
the charge-sheet was laid after 90 days and
on the same day when the application
seeking bail, under the proviso to subsection (2) of Section 167 of the Code, was
presented. During the proceedings before
this court, by order dated 13.09.2012 the
Chief Judicial Magistrate, Ghaziabad was
directed to appear in person. Pursuant to
the order dated 13.9.2012, the Chief
Judicial Magistrate, Ghaziabad appeared in
person on 01.10.2012. He made a
statement before the Court that there was
no record to disclose as to at what time the
charge-sheet was received in the court and
as to what time the bail application was
filed. He submitted that from the record it
does appear that the charge-sheet as well as
the bail application were both filed on the
same day. The record is, therefore, silent as
to whether the charge-sheet had been laid
prior to the filing of the bail application or
not.

12. The learned counsel for the
revisionists laid much stress on the
comments/ notes made in the margin of the
order-sheet, containing the order dated
02.05.2012, wherein certain remarks were
made purportedly by the APO, as well as
the concerned clerk, indicating that the
initial impression was that the charge-sheet
had not been filed, but the subsequent
report indicated that the charge-sheet was
filed and cognizance was taken. Relying
on the discrepancy in the remarks, the
learned
counsel
for
the
revisionists
submitted that the charge-sheet was
hurriedly filed after the bail application
was presented, just to defeat the right of
the revisionists.

13. Since there is no reliable or
concrete material on record to show that
the charge-sheet was filed after filing of
1436 INDIAN LAW REPORTS ALLAHABAD SERIES [2012

the bail application, the remarks that were
made by the concerned clerks or the APO
could only be taken as material for the
Magistrate concerned to draw satisfaction
with regards to the filing or non filing of
the charge sheet. As the learned Magistrate
had taken these contradictory remarks into
consideration and formed an opinion, on
the same day itself, that the charge-sheet
was filed and that cognizance was taken,
the satisfaction of the learned Magistrate in
this regard is not open to scrutiny by the
revisional court. In the case of State
through C.B.I. v. Mohd. Ashraft Bhat
and Another : (1996) 1 SCC 432, the
Apex Court was confronted with a similar
sort of a situation. In that case, the apex
court found that while the claim for bail
was being examined the police report stood
filed. Relying on the decision of the
Constitution Bench in the case of Sanjay
Dutt v. State through CBI : (1994) 5
SCC 410, the Apex court held that the
right to seek for bail stood extinguished
consequent to the filing of the chargesheet. The judgment of the apex court in
the State through C.B.I. v. Mohd.
Ashraft Bhat and Another (supra) was
noticed by the larger Bench in the case of
Uday Mohanlal Acharya (supra) as
would be evident from reading of
paragraph No.9 of the report, wherein it
was observed, as follows:-

"9. In State through CBI vs. Mohd.
Ashraft Bhat : (1996) 1 SCC 432, the
Presiding Officer of the Designated Court
granted bail to the accused on a finding
that the prosecution had failed to submit
the police report within the period
prescribed. This Court set aside the order
on a conclusion that on the date the
Designated Court granted bail to the
respondent/accused, the prosecution had
already submitted the Police Report and,
therefore, as held by the Constitution
Bench in Sanjay Dutt (supra) the right of
the accused stood extinguished."

14. In the case of Uday Mohanlal
Acharya (supra), the apex court while
laying down guidelines, in conclusion No.
4, in particular, took the view that when an
application for bail is filed by an accused
for enforcement of his right alleged to have
been accrued in his favour on account of
default on the part of the Investigating
Agency in completion of the investigation
within the specified period, the Magistrate
/ Court must dispose it of forthwith, on
being satisfied that in fact the accused has
been in custody for the period of 90 days
or 60 days, as specified, and no chargesheet has been filed by the Investigating
Agency. From above, it is clear that
before disposing of the bail application,
under
the
above
provision,
the
Magistrate has to be satisfied on two
counts: (a) with regard to the period of
the custody of the applicant; and (b)
whether any charge-sheet has been filed
by the Investigating Agency.

15. In the instant case, the Magistrate
applied its mind to the record available
before it and on the day of presentation of
the bail application, upon examining the
parameters required for grant of such bail,
found that the charge-sheet had already
been filed and cognizance had been taken,
therefore, it rejected the application as not
maintainable. In the given circumstances,
the satisfaction of the learned Magistrate
that charge sheet had already been filed
and, therefore, the relief under the proviso
to sub section (2) of Section 167 of the
Code cannot be granted, is a view
permissible in law and is not vitiated in
any manner, particularly, in the light of the
judgment of the apex court in the case of
3 All] Pravin Kasana & Others V. State of U.P.

1437
State through C.B.I. v. Mohd. Ashraft Bhat
and Another (supra), which was noticed by
the larger Bench in the case of Uday
Mohanlal Acharya (supra).

16. The contention on behalf of the
revisionists,
by
relying
on
certain
comments made on the margin of the order
sheet or the bail application as the case
may be, that the charge sheet was filed
after the revisionists had availed of their
right, cannot be accepted inasmuch as
those comments/ remarks are made only to
enable the Magistrate concerned to draw
his satisfaction. It is for the Magistrate to
be satisfied on the basis of such material.
Once the Magistrate takes notice of the
remarks/ comments and records his
satisfaction, on the day of presentation of
the bail application itself, that the charge
sheet has been filed, the revisional court
cannot scrutinize the merit of such
satisfaction. Accordingly, I do not find any
illegality in the order impugned.

17. The learned counsel for the
revisionists, in the alternative, contended
that the charge-sheet submitted was
incomplete inasmuch as it does not
disclose any other eye witness than the
informant even though the presence of
other witnesses was also shown in the first
information report. It was submitted that
the charge-sheet was submitted through a
Constable, and not an officer authorized as
provided by Regulation 122 of the U.P.
Police Regulation, therefore, the said
charge-sheet is liable to be ignored and, as
such, its filing cannot defeat the right of
the revisionists to obtain bail under the
proviso to sub-section (2) to Section 167 of
the Code.

18. To test the aforesaid submission
of the learned counsel for the revisionists, I
have carefully read the counter-affidavit
dated 03.09.2012 filed by Devi Ram
Gautam, the Investigating Officer, on
behalf of the State. A perusal of the
counter-affidavit
indicates
that
the
investigation was completed as well as the
charge-sheet prepared by 31.03.2012.
Thereafter by the order of the Senior
Superintendent of Police, Ghaziabad, the
Investigating Officer was transferred on
02.04.2012. It appears that the Constable
Pairokar, Jarman Singh, had directly
submitted the charge-sheet in court on
02.05.2012 and the court also took
cognizance on the said charge-sheet. From
the affidavit so filed, it cannot be said that
the charge-sheet was incomplete. Even
otherwise, there is no challenge to the
charge-sheet either in the revision or by
way of any collateral proceedings. As
regards the direct filing of the chargesheet, through a Constable, it may be an
irregularity, but it would certainly not
vitiate the charge-sheet and the order
taking cognizance thereon.

19. The learned counsel for the
revisionists placed reliance on a decision
of this court in the case of Dharmendra
Tripathi v. State of U.P.: 1997-JIC-0127, wherein this court had quashed the
charge-sheet which was hurriedly filed just
to avoid the benefit of the proviso to subsection (2) of Section 167 of the Code to
the accused. Since in the instant case, there
is no challenge to the charge-sheet, as was
in the case of Dharmendra Tripathi
(supra), the charge-sheet cannot be
ignored, particularly, in view of the
statement of the Investigating Officer
made on affidavit.

20. For the reasons aforesaid, I do not
find
any
illegality,
impropriety
or
jurisdictional error in the order passed by
the
court
below.
The
revision
is,
1438 INDIAN LAW REPORTS ALLAHABAD SERIES [2012

accordingly, dismissed. This shall be
without prejudice to the right of the
revisionists to seek for bail on merits.
---------
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 13.09.2012

BEFORE
THE HON'BLE RAJES KUMAR, J.

Criminal Appeal U/S 374 CR.P.C. No. -
1840 of 1982

Goonga

 ...Applicant
Versus
State of U.P.

 ...Respondents

Counsel for the Petitioner:
Sri S.A.N. Saha

Counsel for the Respondents:
A.G.A.

Criminal Appeal-against conviction with
3
years
rigorous
imprisonment
for
offence under section 307 I.P.C. On
ground with similar facts with identical
rule-other 3 accused-given benefit of
doubt-Appellant be also treated likelyotherwise
considering
30
years
old
matter-by
conversing
offence
under
section 307 into 324 I.P.C.-be released
on
probation-held-considering
crime
should not go unpunished-not a fit case
for conversion-conviction by Trial Courtupheld.

Held: Para-11

However, the fact remains that when all
the four accused persons have been
identified to be involved in the incident
and named in the First Information
Report, the view of the Trial court in
giving benefit of doubt to three accused
does not appear to be reasonable, but
since the matter is quite old, it would not
be appropriate to reopen the case
against three accused persons, who have
been acquitted, but on the basis of the
evidences on record, there is no doubt
that the fire was shot by the appellant
Goonga @ Noor Ilahi, which caused
serious injuries, fatal in nature and may
result into the death of the injured, Altaf
Husain, therefore, the appellant has
rightly been convicted under Section 307
of the IPC by the Trial court.

(Delivered by Hon'ble Rajes Kumar, J.)

1. This is an Appeal by the accused
Goonga @ Noor Ilahi, who has been
convicted by the Trial court for three
years rigorous imprisonment by the
judgement dated 14.7.1982, passed in
Session Trial No. 150 of 1982.

2. The brief facts of the case are that
on 16.1.1982, on the date of occurrence,
at 11:00 A.M., four persons, namely,
Aijaj Husain @ Sabu, Raja Miyan, Parvez
Akhtar, who are real brother and Goonga
@ Noor Ilahi, who is brother-in-law of
accused Raja Miyan and is also brotherin-law of the son of the injured, Altaf
Husain, came to the house of Altaf
Husain. Altaf Husain was sitting on a cot
in front of the door of his House. It is the
case of the prosecution that while Altaf
Husan was sitting on a cot in front of the
door of his house, accused, Aijaj Husan
@ Sabu gave a cartridge to Goonga and
on extortion of Raja Miyan and Parvez
Akhtar, accused, Goonga, who was armed
with pistol, fired a shot at Altaf Husain,
which hit him. The incident said to have
been witnessed by Irshad Husain, Zida
Husain and Idrish, who also tried to
apprehend the culprits, but the accused
persons made their escape good. Zafar
Husain, son of Altaf Husain, lodged a