Brij Mohan vs State of Punjab and Another

Nirmaljit Kaur, J.—This is a petition u/s 439(2) Cr.P.C for cancellation of regular bail of Respondent No. 2 granted by the Court of Judicial Magistrate Ist Class, Ludhiana vide order dated 08.07.2010 (P-1) in case FIR No. 158 dated 10.04.2010 under Sections 304-B/34 IPC registered at Police Station Civil Lines, Amritsar.

The facts, in short, are that the daughter of the Petitioner was found dead in her matrimonial house. She had dupatta marks on her neck and half of the chunni was hanging with the fan and the other half was lying on the bed near her dead body. The matter was informed to the police. Her statement was recorded and accordingly, FIR No. 158 dated 10.04.2010 under Sections 304B/34 IPC was registered at Police Station Civil Lines, Amritsar against Respondent No. 2 and his parents. The Respondent No. 2 was arrested in this case on 03.05.2010 and the police did not make a request for his police remand and rather prayed for sending the accused, Sunil Kumar, in judicial remand and accordingly, he was sent to judicial custody on 03.05.2010. The challan in the said case was not filed within 60 days. The application of the accused-Sunil Kumar was moved on 08.07.2010 praying for grant of bail under the provisions of Section 167(2) Cr.P.C on the ground that a period of sixty days had expired after the accused was sent in judicial custody and the challan was not presented in the court. This bail application came up for hearing before the Judicial Magistrate Ist Class, Amritsar on 08.07.2010 and the accused was ordered to be released on bail.

It is contended that the Court below has wrongly granted the bail to Respondent No. 2 u/s 167(2) Cr.P.C by wrongly taking the permissible period for presentation of challan as 60 days in the offence u/s 304B, whereas, the law in this regard, is well settled that the period for presenting the challan is 90 days and not 60 days for offence u/s 304B IPC. Therefore, the benefit of bail to Respondent No. 2 u/s 167(2) Cr.P.C could only have been granted for non-presentation of challan even after 90 days and not 60 days. In the present case, the Respondent No. 2 has been released by giving benefit of Section 167(2) Cr.P.C after a custody of only 66 days (i.e. from 03.05.2010 to 08.07.2010). Thus, the bail was granted to Respondent No. 2 by wrongly invoking the provisions of Section 167(2) Code of Criminal Procedure It is further contended that the challan was filed after two days of the grant of bail to him which shows that the investigating agency had illegally connived with the accused and had deliberately caused the delay in presentation of challan so that he may get the concession of bail u/s 167(2) Cr.P.C., despite the fact that the challan had already been prepared and submitted by the SHO for filing before the Court on 01.06.2010 i.e. about 40 days earlier.

Learned Counsel for the Respondent, however, did not dispute the fact but submitted that the Respondent has not misused the concession of bail. Hence, he should not be taken back in custody. He further relied on the judgment rendered in the case titled as V.D. Chaudhary Vs. State of U.P. and Another, to push home his point.

In the case of Bhupinder Singh v. Jarnail Singh reported as 2006(3) RCR 677, the following two questions were under consideration :

(a) In a case involving offence punishable u/s 304B is the period for filing challan 90 days or 60 days ?

(b) Does mere filing of challan without relevant documents satisfy the requirement of filing the challan within a stipulated period for the purpose of Section 167(2)(a) ?

After hearing, Hon''ble the Supreme Court held that the period of filing of the challan was 90 days is the correct view. Accordingly, the Appellants were directed to surrender forthwith to custody and file an application on merits.

Similar view is held by this Court in the case of Kuldeep Singh v. State of Punjab reported as 2005(3) RCR 599 as under :

Under these circumstances this petition is accepted and order dated 10.1.2004 is set aside. The accused-Respondents shall surrender before the trial Court immediately, in any case on or before the next date of hearing. They shall be taken into custody. Since the earlier bail was u/s 167(2) Cr.P.C and not on merits, these accused-Respondents shall be at liberty to file regular application for bail before the trial Court after they surrender and are taken into custody.

The fact that the Respondent did not misuse the the concession of bail shall have no bearing. His bail was not allowed on merits. It was an illegal order. The same cannot be sustained and accordingly will have to be set aside.

Thus, in view of the above, this Court has no option but to direct the accused-Respondent No. 2 to surrender before the trial Court immediately. He shall be taken into custody. However, it shall be open to him to move for bail on merits which shall be considered and whatever is said herein shall have no bearing on the merits of the case.

Allowed in the above said terms.