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TMI Blog2019 (11) TMI 1507X X X X Extracts X X X X X X X X Extracts X X X X ..... ourt of Sessions conducts work from the time it sits till the time it rises. No specific advantage, can be taken that a petition filed at 10.30 a.m. should be taken into consideration first and a complaint filed at 04.25 p.m. should be rejected, only because it was filed later in the evening. The entire reasoning cannot stand scrutiny - since the prosecution had filed an additional complaint, on the same date when the accused had also availed of his remedy under Section 167(2) Cr.P.C., implicating two further accused, enclosing further documents and further statements and also stating that the mobile phones had been recovered which have been forwarded to forensic the indefeasible right which had accrued to the accused, the Learned Judge was wrong in granting bail. The bail granted is cancelled - Petition allowed. - Crl. O.P. No. 9750 of 2019 - - - Dated:- 21-11-2019 - C.V. Karthikeyan, J. Shri N.P. Kumar, Special Public Prosecutor, for the Petitioner. Shri G. Murugendran, for the Respondent. ORDER This petition had been filed under Section 439(2) of Code of Criminal Procedure to cancel ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n granted the bail under Section 167(2) Cr.P.C. It was also felt that since it is a detailed order granting bail, whether the proper procedure would be to file a revision against the said order and whether an application under Section 439(2) would be maintainable. 5. Arguments were advanced on the maintainability of the petition. Finally by order dated 1-10-2019, after examining the ratio laid down in (i) AIR 1990 SC 71 = 1992 (61) E.L.T. 330 (S.C.) [Rajnikant Jivanlal Patel and Another v. Intelligence Officer, Narcotic Control Bureau, New Delhi], (ii) 2006 Supreme (Mad) 409, The Central Bureau of Investigation v. Louis Jaly @ Muthukrishna, (iii) (1978) 1 SCC 118, Gurcharan Singh and Others v. State (Delhi Administration), and (iv) (2008) 17 SCC 745, Dnyanu Khot v. State of Maharashtra, this Court had held by detailed order that the Court can exercise its jurisdiction under Section 439(2) of Cr.P.C., and examine the grounds seeking cancellation of bail. Thereafter, further arguments were advanced by Mr. N.P. Kumar, Learned Special Public Prosecutor, for DRI cases and G. Murugendran, Learned Counsel for the respondent/A11. 6. The brief facts of the case are that th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . 8. The petition under Section 167(2) of Cr.P.C., filed by the accused and the additional complaint filed by the prosecution were both taken up for consideration by the Learned Special Judge for NDPS cases for consideration and by order dated, 5-2-2019, the Learned Special Judge, granted bail to the respondent/A11 herein under Section 167(2) of Cr.P.C. The present petition has been filed seeking to cancel the bail. 9. A perusal of the order of the Learned Special Judge, shows that he was primarily concerned with the fact that the prosecution had not filed any petition seeking extension of time to file final report. However, the Learned Judge had completely overlooked to examine the contents of the additional complaint filed by the prosecution. No discussion had been made on the effect of the additional complaint, since two further accused had been included and whether process is to be served on them or not and whether additional documents can be taken into consideration or not. The Learned Judge only examined the petition under Section 167(2) of Cr.P.C., which itself was filed only on the 181st day and stating that an indefeasible right had accrued to the respond ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 and the accused is entitled to be released on bail, if he is prepared to and furnishes 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 of it 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 releas ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 the law laid down by this Court in the case of Mohd. Iqbal v. State of Maharashtra [(1996) 1 SCC 722 : 1996 SCC (Cri) 202]. [Emphasis Supplied] 12. It is argued by the Learned Counsel for the respondent that since the application had been filed in the Morning at 10.30 a.m. and since the prosecution had filed their additional complaint only in the Evening at 4.25 p.m., the bail granted is correct since the accused had already availed of his remedy to be released under Section 167(2) of Cr.P.C. However, in the Criminal Rules of Practice and Circular Orders, 1958, as made by the High Court for guidance of all criminal Courts in this State, definition of hours of sitting is as follows :- 2. Hours of sitting. - The Court shall ordinarily be from 10.00 a.m. to 5.30 p.m. with an interval for lunch from 1.15 p.m. to 2.00 p.m. Every Sessions Judge and Magistrate shall ordinarily commence the sitting not later than 11.00 a.m. each day and unless work of the day is disposed of earlier shall not rise ..... X X X X Extracts X X X X X X X X Extracts X X X X
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