Ajit Singh vs State of Punjab

A.P. Chowdhri, J.—The significant question raised in this petition is whether the accused loses the right to be released on bail after the

expiry of the maximum period laid down in the proviso to Section 167 of the Code of Criminal Procedure, (hereinafter referred to as ''the Code'')

if challan is presented before the release but after the expiry of that period.

The petitioner was arrested u/s 18 of the Narcotic Drugs and Psychotropic Substances Act, 1965, for having been found in possession of 10

kgs of contraband opium, on June 25, 1993. The accused was first produced before the Court and was remanded to custody on June 30,1993,

arid challan was presented on September 28, 1993. From the above dates, it is clear that the challan was presented on the 91st day of the date of

remand when the accused was first produced before the Magistrate.

It is settled law that period of 90 days within the meaning of the proviso to Section 167(2) of the Code is to be counted from the day the

accused is first remanded to custody, whether police custody or judicial custody, and not from the date of arrest. (See Central Bureau of

Investigation, Special Investigation Cell-I, New Delhi Vs. Anupam J. Kulkarni, . It may also be taken as settled that Section 10 of the General

Clauses Act does not apply if the 90th day or the 60th day, as the case may be, happens to be a public holiday. This is for the reason that Section

10 of the General Clauses Act lays down that something required to be done by law by a prescribed date can be done on the following working

day where the last day is a publi holiday. This provision does not apply because there is no legislative command that charge-sheet must be filed

within 90/60 days. If charge-sheet is not filed within the said time limit; all that happens is that the accused gets a right to be released on bail. (See

Powell Nwawa Ogechi Vs. The State (Delhi Administration), and Shivanna v. State 1992 (3) All ICLR 204 (Kant)).

The contention of Mr. R. P. Dhir, learned counsel for the petitioner, is that on the expiry of the prescribed time limit the accused acquires a right

to. be released on bail subject only to the condition that he furnishes bail etc. required by the Court. He has placed reliance on Surinder Kumar

and Others Vs. The State of Punjab, : in which reliance was placed on an earlier Full Bench in Baldev Singh Vs. State of Punjab, . He has also

relied on Powell Nawawa Ogechi''s case (supra), and Imam v. C.B.I., New Delhi 1993 (1) CLR 101, in which reliance was placed on Rajnikant

Jivanlal and Another Vs. Intelligence Officer, Narcotic Control Bureau, New Delhi, . He has further contended that right to be released on bail is

not defeated by lapse of time or subsequent filing of challan. For this proposition, Mr. Dhir has placed reliance on Raghubir Singh and Others Vs.

State of Bihar, , in which an earlier decision of the Apex Court in Bashir and Others Vs. State of Haryana, was followed. Lastly, it has been

argued that mere filing of challan has not been, by itself considered enough to justify cancellation of bail. Reference in this behalf has been made to

Aslam Babalal Desai Vs. State of Maharashtra, .

Mr. S. S. Shergill, learned Deputy Advocate-General, Punjab on the other hand, has contended that once the challan is presented, the right of

the petitioner to be released on bail is defeated. He has placed reliance on Shardulbhai Lakhmanbhai Pancholi and Another Vs. State of Gujarat, .

It was held by a Full Bench of the Gujarat High Court in the above decision that if the investigation reveals that (i) the accused has committed a

serious office; and (ii) charge-sheet is filed, the bail granted under proviso (a) to Section 167(2) of the Code could be cancelled. If the accused has

not made application for his release on bail, after expiry of the period prescribed by the proviso (a) to Section 167(2) and before filing of the

charge-sheet, he had no right to claim his release on bail, after filing of the charge-sheet, solely on the ground that the charge-sheet was not

submitted within the prescribed period. 6. The main question under consideration in this case stands directly covered by the majority decision in

Aslam Babalal Desai''s case (supra). Their Lordships analysed the relevant provisions of the Code of Criminal Procedure and referred to the

decided cases bearing on the subject, including Bashir''s case (supra), Raghbir Singh''s case (supra) and Rajnikant Jivanlal Patel''s case (supra),

and Ahmadi, J., speaking for the majority view, stated the law in these words:-

...We are, therefore, of the view that once an accused is released on bail u/s 167(2) he cannot be taken back in custody merely on the filing of a

charge-sheet but there must exist special reasons for so doing besides the fact that the charge-sheet reveals the commission of a non-bailable

crime. The ratio of Rajnikant Jivanlal and Another Vs. Intelligence Officer, Narcotic Control Bureau, New Delhi, to the extent it is inconsistent

herewith does not, with respect, state the law correctly.

It can, therefore, be stated that the Full Bench of the Gujarat High Court relied on by Mr. Shergill must be taken to stand overruled.

To conclude, therefore, the mere filing of the charge-sheet, after the expiry of the period prescribed in the proviso to Sub-section (2) of Section

167 of the Code, does not, by itself, defeats the right of the accused to be released on bail. It is, however, open to the prosecution to move for

cancellation of bail.

Before parting with this order, it would be useful to recall that in Ragbir Singh''s case (supra), the Apex Court, after a review of the case law,

laid down in general terms the grounds which would justify cancellation of bail. The relevant observations are as under:-

...Generally the grounds for cancellation of bail, broadly, are, interference or attempt to interfere with the due course of administration of justice,

or evasion or attempt to evade the course of justice, or abuse of the liberty granted to him. The due administration of justice may be interfered with

by intimidating or suborning witnesses, by interfering with investigation, by creating or causing disappearance of evidence etc. The course of justice

may be evaded or attempted to be evaded by leaving the country or going underground or otherwise placing himself beyond the reach of the

sureties. He may abuse the liberty granted to him by indulging in similar or other unlawful acts.

It bears repetition that if the prosecution] wants the bail of the accused to be cancelled, it is open to it to maker an application for cancellation of

bail on one or more of the above grounds or showing facts and circumstances justifying the cancellation of bail, which would be in addition to the

fact that challan or charge-sheet has since been filed.

For the foregoing reasons, the petitioner shall be admitted to bail to the satisfaction of the Chief Judicial Magistrate/ Duty Magistrate, Sangrur,

be accepted after notice to the prosecution, without any unnecessary delay involved in the process.