Gurdev Singh vs State of Haryana

K.S. Kumaran, J.

F.I.R. No. 95 dated 16.5.1999 has been registered under Sections 15, 61 and 85 of the N.D.P.S. Act at Police Station Bawal. (For the purpose of this petition, it is not necessary for us to go into the allegations found in the F.I.R.). The petitionerGurdev Singh moved an application for bail before the Special Judge, Rewari, by relying upon the provisions of Section 167(2) Cr.P.C. only. According to the learned counsel for the petitioner, the petitioner was arrested on 16.5.1999 and 90 days from thereof expired on 14.8.1999 itself. By then charge sheet had not been filed, therefore, the petitioner made an application for bail on 1.9.1999. During the pendency of that bail application before the Special Judge, Rewari, the charge sheet was filed on 8.9.1999 but the bail application was disposed of by the learned Special Judge, Rewari, on 10.9.1999. The learned Special Judge, by relying upon the decision of the Hon''ble Supreme Court in Sanjay Dutt v. State through C.B.I., Bombay, 1994(3) RCR 684 held that the petitioner is not entitled to bail since the challan had been filed on 8.9.1999 before the disposal of the bail application. Therefore, he dismissed the petition for bail. Aggrieved, the petitioner has approached this Court under Section 439 Cr.P.C. for bail.

I have heard the counsel for both the sides and perused the records on file.

There is no dispute between both the sides with regard to the dates mentioned above. The learned counsel for petitioner relied upon the decision of the Hon''ble Supreme Court in Aslam Babalal Desai v. State of Maharashtra, 1993(1) RCR(Crl.) 600 : AIR 1993 SC 1 in support of his contention that he is entitled to be released on bail. But, that decision does not help the learned counsel for the petitioner. The Hon''ble Supreme Court in that decision held that once the accused is released on bail under Section 167(2) Cr.P.C., he cannot be taken back into custody merely because subsequently the charge sheet has been filed. But in this petition on our hand, we are concerned with the question whether, in the circumstances where the charge sheet had not been filed within 90 days and an application for bail was pending consideration by the Court, bail can be granted under Section 167(2) Cr.P.C. on the ground that the charge sheet had not been filed within 90 days in spite of the fact that the charge sheet had been filed subsequent to the above said period of 90 days but before the disposal of the bail application ?

I have had the occasion to consider this question in Balkar Singh v. The State of Haryana, Crl. Misc. No. 32882M of 1999 decided on 14.1.2000. I had also taken note of the decision in Sanjay Dutt''s case. I had referred to paragraph 52 of the Judgment of the Hon''ble Supreme Court in Sanjay Dutt''s case, which is as follows :

"The indefeasible right accruing to the accused in such a situation is enforceable only prior to the filing of the challan and it does not survive or remain enforceable on the challan being filed, if already not availed of. Once the challan has been filed, the question of grant of bail has to be considered and decided only with reference to the merits of the case under the provisions relating to grant of bail to an accused after the filing of the challan. The custody of the accused after the challan has been filed is not governed by Section 167 but different provisions of the Code of Criminal Procedure. If that right had accrued to the accused but it remained unenforced till the filing of the challan, then there is no question of its enforcement thereafter since it is extinguished the moment challan is filed because Section 167 Cr.P.C. ceases to apply......"

Therefore, it is clear from these observations of the Hon''ble Supreme Court that if the accused does not avail of the default on the part of the prosecution to file the charge sheet within the prescribed period and if he does not file an application for bail before the charge sheet is filed, then the accused will not be entitled to urge this ground that the charge sheet has not been filed within the time allowed, after the charge sheet is filed even though after the expiry of the prescribed period. But where the prescribed period of 90 days or 60 days as the case may be had expired, and if the accused files an application for bail on the ground that the charge sheet had not been filed within the prescribed period, then it means that he has availed this right conferred upon him under Section 167(2) Cr.P.C. Therefore, the subsequent filing of the charge sheet will not affect his right. Therefore, I have held that the accused in such circumstances is entitled to be released on bail under Section 167(2) Cr.P.C.

But, the learned counsel for the State relied upon another decision of the Hon''ble Supreme Court in State of M.P. v. Rustam and others, 1995 SCC (Cri) 830, wherein, the Hon''ble Supreme Court has held that the Court has to examine the availability of the right of compulsive bail on the date it is considering the question of bail and not barely on the date of the presentation of the petition for bail. Relying upon this decision, the learned counsel for the State contended that since in the present case the Court was considering the question whether the accusedpetitioner is entitled to bail subsequent to the filing of the charge sheet, the Court had rightly held that after the filing of the charge sheet the benefit of Section 167(2) Cr.P.C. is not available to the petitioner. But, we have to understand the decision of the Hon''ble Supreme Court in the context in which it was rendered. In Rustam''s case referred to above, the accused were sent to judicial custody on 3.9.1993. The charge sheet had been filed on 2.12.1993. It is only thereafter the accused filed an application for bail under Section 167(2) Cr.P.C. claiming that the charge sheet had not been filed within 90 days. The High Court agreeing with the plea of the accused granted them bail, but the Hon''ble Supreme Court found that the period of 90 days had not been properly computed in that case. The Hon''ble Supreme Court held that clear 90 days have to expire before the right begins i.e. one of the days on either side has to be excluded in computing the prescribed period of 90 days. By so doing, the Hon''ble Supreme Court held that 90 days period had not expired on 2.12.1993 on which date the charge sheet was filed. Therefore, the Hon''ble Supreme Court held that the charge sheet was not filed after the expiry of 90 days. The accused had contended before the Hon''ble Supreme Court that 90 days period had expired on 1.12.1993 that the charge sheet was filed on 2.12.1993 and, thereafter, the bail has to be allowed. But, the Hon''ble Supreme Court held that the application for bail had been filed only after 2.12.1993 i.e. after the filing of the charge sheet. It is in those circumstances, the Hon''ble Supreme Court held that if the bail application is filed after the filing of the charge sheet, the accused cannot be released under Section 167(2) Cr.P.C. inasmuch as the right of the accused to be released under Section 167(2) expires once the charge sheet is filed. Therefore, we have to bear in mind the fact that in the case before the Hon''ble Supreme Court, the bail application was filed after the charge sheet was filed into Court by which time, the right of the accused to get himself released on bail under Section 167(2) Cr.P.C. had already expired.

Whereas in the present case on our hand, the petitioner had filed the bail application before the charge sheet was filed and the Court took time for consideration and disposal of the said bail application. In para 57 of the judgment in Sanjay''s Dutt''s case, the Hon''ble Supreme Court has held that if the accused applies for bail under this provision on the expiry of the prescribed period, then he has to be released on bail forthwith. But, in the case on our hand, by the time the application was considered and disposed of by the learned Special Judge, Rewari, the charge sheet had been filed. Therefore, the learned Special Judge, Rewari held that the petitioner in the circumstances, cannot be granted bail under Section 167(2) Cr.P.C. But in view of the discussions above, I am of the view that the since the petitioner had already availed of the right conferred upon him under Section 167(2) Cr.P.C. before the charge sheet is filed, the subsequent filing of the charge sheet cannot affect his rights. Therefore, the decision in Rustam and others cited (supra), is not applicable to the facts of this case.

Ultimately, the petition is allowed.

The petitioner is ordered to be released on bail on his furnishing sufficient surety to the satisfaction of Chief Judicial Magistrate, Rewari.