Balwinder Singh vs State of Punjab

Surinder Gupta, J.—The question which arises in this revision petition is as to whether the petitioner is entitled to bail u/s 167(2) Cr.P.C. after the expiry of the statutory period of 180 days even if the application for seeking extension is moved on the same day on which the application seeking the bail has been filed.

The petitioner was arrested by the police of PS Begowal, District Kapurthala on 01.11.2012 and recovery of 1 kg of intoxicant powder was effected from his possession. After the expiry of 180 days he moved an application on 181st day seeking bail u/s 167(2) Cr.P.C. which was declined.

The learned counsel for the petitioner has argued that the petitioner moved application seeking bail after the expiry of 180 days. The right of petitioner to get the statuary bail is not defeated even if the prosecution had sought extension of time for filing the challan by moving application on the same day. He has placed reliance on the observations made by this Court in the case of Khazan Singh @ Kala vs. State of Punjab, CRM-M-43682 of 2013; Shinder Kaur vs. State of Punjab CRM-M-40440-2013 on 08.01.2014 and in the case of Gurvinder Singh @ Mannu Vs. State of Punjab, Reliance has also been placed on observation of Hon''ble Supreme Court in the case of Sayed Mohd. Ahmed Kazmi Vs. State, GNCTD and Others, and Suresh Kumar Bhikamchand Jain Vs. State of Maharashtra and Another,

Learned State counsel has argued that on the 181st day the prosecution had moved application seeking extension of time and on the same day the application of the petitioner, seeking statutory bail, was filed. As both the applications were moved on the same date the Court had to appreciate as to which application had merit. The mere fact as to which application was filed earlier or later on the same day is insignificant while deciding the matter. After looking into the matter the lower Court allowed extension of 30 days time from the filing of the challan, as such the right to seek bail u/s 167(2) Cr.P.C. did not survive. The challan in this case was presented on 23.05.2013 i.e. within extended 30 days period. As such the petitioner is not entitled to the right to seek bail u/s 167(2) Cr.P.C.

The stress of the learned counsel for the petitioner in this petition is on the point that the application u/s 167(2) Cr.P.C. was moved in early hours of the day on 02.05.2013 while the application seeking extension of time was moved in the later part of the day but before the application for bail was decided. His contention is that the right of bail which accrued to the petitioner cannot be defeated by moving the application seeking extension of time. I find myself unable to be persuaded with the submissions of counsel for the petitioner. In this case both the applications were moved during the working hours of the Court, as such, it is immaterial as to whether one application was moved at what time of the day. The Court has to decide the applications keeping in view the fact as if both have been filed on the same day. In the event of the application for extension of time being allowed, the same shall be considered from the date it was filed and not from a particular hour of the day on which it was filed. And the same principle applies with regard to the application u/s 167(2) Cr.P.C. Admittedly, the Judge, Special Court, Kapurthala found merit in the application seeking extension of time and extended the time by thirty days and within the extended period the challan was filed. As such the right of the petitioner to seek bail u/s 167(2) Cr.P.C. did not survive.

The observations of the coordinate bench of this Court in the case of Shinder Kaur (supra) and Gurvinder Singh @ Mannu (supra) are of no help to the petitioner in this case, as in both the cases the application seeking extension of time for investigation was filed a day after the filing of application u/s 167(2) Cr.P.C. Whereas in the case of Khazan Singh @ Kala (supra) it was observed that the application for extension of time was filed two days after the filing of the application u/s 167(2) Cr.P.C. and it was observed that subsequent filing of the application for extension of time shall not affect the statutory right that had accrued to the petitioner.

In the case of Suresh Kumar Bhikamchand Jain (supra) the Hon''ble Supreme Court was not dealing with the point of extension of period for investigation of the case and grant of bail u/s 167(2) Cr.P.C. In normal circumstances the right of bail u/s 167(2) Cr.P.C. accrues on the first day after the expiry of statutory period. The observations of the Hon''ble Supreme Court in the case of Sayed Mohd. Ahmed Kazmi (supra) are also not applicable to the facts of the current case. The observations made in this case that the right of accused to grant of statutory bail remain unaffected by subsequent filing of the application for extension of time of investigation or subsequent filing of challan do not find favour in the case of Sadhwi Pragyna Singh Thakur Vs. State of Maharashtra, In Sadhwi Pragyna Singh Thakur (supra) case it was observed by the Apex court as follows:

There is yet another aspect of the matter. The right u/s 167(2) of Cr.P.C. to be released on bail on default if charge sheet is not filed within 90 days from the date of first remand is not an absolute or indefeasible right. The said right would be lost if charge sheet is filed and would not survive after the filing of the charge sheet. In other words, even if an application for bail is filed on the ground that charge sheet was not filed within 90 days, but 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 would be lost. After the filing of the charge sheet, if the accused is to be released on bail, it can be only on merits. This is quite evident from Constitution Bench decision of this Court in Sanjay Dutt Vs. State through C.B.I., Bombay, The reasoning is to be found in paras 33 to 49.

This principle has been reiterated in the following decisions of this Court:

(1) State of M.P. vs. Rustam and Others 1995 Supp. (3) SCC 221, para 4,

(2) Dr. Bipin Shantilal Panchal Vs. State of Gujarat, . It may be mentioned that this judgment was delivered by a Three Judge Bench of this Court.

(3) Dinesh Dalmia Vs. C.B.I., and

(4) Mustaq Ahmed Mohammed Isak and Others Vs. State of Maharashtra,

From the above discussions it is clear that on 02.05.2013 the right of statutory bail had accrued to the petitioner but the Court from the same date extended the time for filing the challan. In find no infirmity in the observations of the trial Court declining the bail application of petitioner u/s 167(2) Cr.P.C.

This revision petition has no merit and the same is accordingly dismissed.