Gurdas Singh vs State of Haryana

Dr. Sarojnei Saksena, J.

Petitioner''s learned counsel contended that in this case challan was not presented within 90 days, i.e., on 17.11.1996, the date on which petitioner was sent to judicial custody; therefore, under section 167(2) proviso (a) (i) of the Code of Criminal Procedure, the petitioner is entitled to be enlarged on bail. To support this contention, he has relied on Aslam Babalal Desai v. State of Maharashtra, A.I.R. 1993 Supreme Court I and Tara Singh v. State of Punjab, 1996(1) Chandigarh Criminal Cases 285.

Petitioner''s counsel further submitted that for the last 11 months, petitioner is in custody and his coaccused has already been granted bail.

Learned counsel appearing for the State of Haryana contended that since the challan was presented before the bail application of the petitioner was decided by the court, he loses his right to be released on bail under the aforementioned provision of the Code of Criminal Procedure.

Admittedly, the challan was presented after 90 days of 17.11.1996 when the petitioner was remitted to judicial custody, but the point is that after presentation of the challan whether the petitioner''s right to be enlarged on bail under Section 167(2)(a) subsists or it comes to an end. Petitioner''s learned counsel has relied on Aslam Babalal Desai''s case (supra). No doubt in that judgment the Apex Court has observed as under :

"Even if two views are possible, release under proviso (a) to S. 167 being a matter belonging to the field of criminal justice involving the liberty of an individual, the provision must be construed strictly in favour of individual liberty since even the law expects early completion of the investigation can be on pain of the accused being released on bail. The prosecution cannot be allowed to trifle with individual liberty if it does not take its task seriously and does not complete it within the time allowed by law."

In that case since the challan was not presented within the statutory period, the accused was enlarged on bail. Prosecution filed an application under Sections 437(5) and 439(2) of the Code of Criminal Procedure for cancellation of bail. The Apex Court held that "bail granted for not completing investigation within the prescribed period can be cancelled for special reasons germane to cancellation under Sections 437(5) and 439(2). Cancellation on the ground of subsequent filing of charge sheet is not permissible." Relying on this judgment, a Single Bench of this Court in Tara Singh''s case (supra) held that "it can, therefore, be concluded that mere filing of the charge sheet after the expiry of the period prescribed under the proviso to Section 167(2) of the Code does not, by itself, defeat the right of the accused to be released on bail. It is, however, open to the prosecution to move for cancellation of the bail...."

Recently in Sanjay Dutt v. State through C.B.I., Bombay, 1994(3) Recent CR 684, this legal position was again considered by the Apex Court and it is held that "The ''indefeasible right'' of the accused to be released on bail in accordance with Section 20(4) of the TADA Act read with Section 167(2) of the Code of Criminal Procedure in default of completion of the investigation and filing of the challan within the time allowed, as held in Hitendra Vishnu Thakur is a right which enures to, and is enforceable by the accused only from the time of default till the filing of the challan and it does not survive or remain enforceable on the challan being filed."

Thus, in my considered view, since the challan is already filed by the prosecution, the right to be enlarged on bail available to the petitioner under Section 167(2) (a) does not survive thereafter and on this count in my considered view, petitioner is not entitled to be enlarged on bail now.

Admittedly, the petitioner is in custody for the last 11 month and his coaccused is already enlarged on bail, but in this case petitioner''s counsel could not satisfy as to how the petitioner is entitled to be enlarged on bail, in view of the provisions contained in Section 37 of the Narcotic Drugs and Psychotropic Substance Act.

Thus, finding no merit in this petition, it is hereby dismissed.