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TMI Blog2017 (4) TMI 136X X X X Extracts X X X X X X X X Extracts X X X X ..... again said that ‘mere making of an application for bail would amount to availing of the right accrued to an accused under the said proviso irrespective of whether the Court has actually passed a bail order’ or not, there was no question of refusing to release the petitioner on bail when an order for bail had actually been passed - bail granted - revision allowed - decided in favor of revisionist-petitioner. - Application No. 6188 of 2016 - - - Dated:- 27-9-2016 - Abhay Mahadeo Thipsay, J. Shri Shubham Tripathi, Counsel, for the Appellant. Shri Rajesh Singh Chauhan, Counsel, for the Respondent. ORDER Heard the learned counsel for the petitioner and the learned counsel for the Union of India, opposite party. 2. By con ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ioner with 2 sureties in the like amount. While the process of furnishing the sureties and the verification of their solvency was going on, a complaint came to be filed before the Magistrate on 11-7-2016. On 13-7-2016 when the sureties were offered, the Magistrate observed that since the complaint had been filed by that time, there was no occasion to furnish the sureties. The Magistrate was of the view that the bail granted by him to the petitioner earlier under the First proviso to Section 167(2) of the Code was no longer effective as a complaint had been filed before the petitioner was actually released from custody. Holding so, he refused to release the petitioner on bail and treated the earlier bail order as inconsequential and ine ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ically and that even sureties were being offered by the petitioner which should be accepted and the petitioner should be released on bail. It was argued on behalf of the prosecution that the right to be released on bail accrued to an accused under the said proviso to Section 167(2) of the Code, if not already availed of, gets extinguished on the filing of the charge-sheet/complaint and cannot thereafter be enforced. 14. In this regard, the Special Chief Judicial Magistrate observed that an accused is entitled to be released on bail on the failure of the investigation agency to complete the investigation within the period stipulated by Section 167(2) of the Code, but the process of his furnishing the sureties, bail bonds, etc. should be o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is filed. That, however, does not mean that just because an accused is not actually released from custody, in spite of having secured a bail order, till the time a charge-sheet/complaint is filed, the bail order automatically gets cancelled. 18. The Special Chief Judicial Magistrate has emphasized that the right of the accused does not survive or does not remain enforceable after filing of the charge-sheet, if not already availed of - a phrase used by Their Lordships of the Supreme Court of India - ignoring that simply making an application for his release on bail, has been held to amount to availing of the said right . 19. The cases can be classified in 2 categories. The first would be those in which the accused makes an applicati ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r, it was patently illegal on his part to have said that the right of the accused was 'not availed of' by him, merely because he was not actually released from custody. 22. Even otherwise, the facts of this case are quite gross. The process of the actual release of the petitioner was unreasonably delayed, without any fault on his part. In the first place, the Magistrate stipulated the bail amount to be ₹ 25,00,000/- (Twenty five lakhs) which was unreasonable. He insisted on not one, but two local sureties in the like amount, and that too from Lucknow only. The petitioner had to move the Sessions Court to get the unreasonable conditions modified and the Sessions Judge also did not reduce the amount of bail, though, he modifi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e Court of India has time and again said that mere making of an application for bail would amount to availing of the right accrued to an accused under the said proviso irrespective of whether the Court has actually passed a bail order or not, there was no question of refusing to release the petitioner on bail when an order for bail had actually been passed. 25. The impugned order is patently illegal, contrary to law, justice and equity. This has resulted in undue hardship to the petitioner. 26. The revision application is allowed. 27. The impugned order is set aside. Consequently, the original bail order dated 28-6-2016 as passed by the Magistrate and as modified by the Court of Sessions stands revived. - - TaxTMI - TMITax - ..... X X X X Extracts X X X X X X X X Extracts X X X X
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