Jagsir Singh @ Jaggi vs State of Punjab

M. Jeyapaul, J.—The petition is filed u/s 439 of Code of Criminal Procedure praying for grant of regular bail in a case registered u/s 22 of the NDPS Act.

It is contended by the petitioner that he was remanded to judicial custody on 25.7.2013 and the period of 180 days has expired on 20.01.2014 itself. He moved an application for statutory bail on 21.1.2014 but the final report was submitted by the investigating agency during the pendency of the application filed by the petitioner seeking statutory bail. The trial court having held that during the pendency of the application seeking statutory bail challan has been presented chose to dismiss the application for bail.

There is no dispute to the fact that the petitioner who was allegedly found in commercial quantity of contraband is entitled to statutory bail on the expiry of remand period of 180 days from the date of his remand. It is also not in dispute that he presented the petition on 181st day and the challan was presented only thereafter, of course, during the pendency of the application seeking statutory bail.

The learned counsel appearing for the petitioner would submit that an indefeasible right has accrued to the petitioner the moment the challan was not presented on the expiry of 180 days. Such an indefeasible right cannot be thwarted by filing challan during the pendency of an application seeking statutory bail. Per contra, the learned State counsel would submit that the moment challan is presented during the pendency of application seeking statutory bail, the right accrued to the petitioner u/s 167(2) stands extinguished.

In Uday Mohanlal Acharya versus State of Maharashtra 2001 (2) R.C.R. (Criminal) 452 it has been held as follows:-

With the aforesaid interpretation of the expression ''availed of'' if charge-sheeted is filed subsequent to the availing of the indefeasible right by the accused then that right would not stand frustrated or extinguished, necessarily therefore, if an accused entitled to be entitled to be released on bail by application of the proviso to sub-section (2) of Section 167, makes the application before the Magistrate, but the Magistrate erroneously refuses the same and rejects the application and then accused moves the higher forum and while the matter remains pending before the higher forum for consideration a charge-sheet is filed, the so-called indefeasible right of the accused would not stand extinguished thereby, and on the other hand, the accused has to be released on bail.

It has been held in the aforesaid decision that the indefeasible right accrued to the accused on account of the default of the investigating agency to file the charge sheet within the limitation prescribed is not extinguished. The accused is entitled to be released on bail.

In Sayed Mohd. Ahmed Kazmi versus State, GNCTD and others 2012 (4) R.C.C. (Criminal) 875 it has been observed as follows:-

In support of his submissions, Mr. Pracha referred to and relied upon a Three-Judge Bench decision of this court in Uday Mohanlal Acharya Vs. State of Maharashtra, , wherein while referring to the earlier decision of this Court in the case of Sanjay Dutt Vs. State through C.B.I., Bombay, , this court interpreted the expression "if not already availed of" to mean that the Magistrate has to dispose of an application u/s 167(2) forthwith and on being satisfied that the accused had been in custody for the specified period, that no charge-sheet had been filed and that the accused was prepared to furnish bail, the Magistrate is obliged to grant bail, even if after the filing of the application by the accused a charge-sheet had been filed.

Uday Mohanlal Acharya''s case (supra) has been followed in the aforesaid decision and it was held that the Magistrate was bound to release the accused on bail on furnishing bonds on the expiry of the period of limitation prescribed for filing the charge sheet.

This court in Sarabjit Singh @ Sabi versus State of Punjab following the decision in Uday Mohanlal Acharya''s case (supra) held that the presentation of the report u/s 173 Cr.P.C. during the pendency of an application for bail invoking the provisions of Section 167(2) Cr.P.C. does not take away the right of a person who has sought statutory bail.

The plea of the State that the accused was not entitled to statutory bail as the challan had been presented during the pendency of the application for statutory bail was rejected by this court in the aforesaid case in Sarabjit @ Sabi''s case (supra).

In Sanjay Dutt versus State through C.B.I., Bombay 1994 (3) R.C.R. (Criminal) 684 it has been held as follows:-

We have no doubt that the common stance before us of the nature of indefeasible right of the accused to be released on bail by virtue of Section 20(4)(bb) is based on a correct reading of the principle indicated in that decision. 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 Criminal Procedure Code ceases to apply. The Division Bench also indicated that if there be such an application of the accused for release on bail and also a prayer for extension of time to complete the investigation according to the proviso in Section 20(4)(bb), both of them should be considered together. It is obvious that no bail can be given even in such a case unless the prayer for extension of the period is rejected. In short, the grant of bail in such a situation is also subject to refusal of the prayer for extension of time, if such a prayer is made. If the accused applies for bail under this provision on expiry of the period of 180 days or the extended period, as the case may be, then he has to be released on bail forthwith.

It has been held in the aforesaid decision that the accused is entitled to enforce his indefeasible statutory right till the time the challan was presented but if such a right is sought to be enforced after the challan was presented such a right get extinguished.

Therefore, in my view, the aforesaid decision does not support the contention of the State.

Of course, in Pragyna Singh Thakur versus State of Maharashtra 2012 (1) R.C.R. (Criminal) 302 it was held as follows:-

There is yet another aspect of the matter. The right u/s 167(2) of Criminal Procedure Code 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 in 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.

The aforesaid decision has been pronounced by two Judges Bench of the Hon''ble Supreme court but relying upon the three judges Bench of the Hon''ble Supreme Court in Uday Mohanlal Acharya''s case (supra) and Sayed Mohd. Ahmed Kazmi''s case (supra) following the constitutional Bench decision in Sanjay Dutt''s case (supra), I am of the considered view that the indefeasible statutory right of the accused sought to be enforced immediately on the expiry of the limitation prescribed for filing the charge sheet is not annulled or voided or undone by the factum of the filing of challan or filing of an application for extension of time for filing challan during the pendency of the application seeking statutory bail.

In view of the above, I hold that the petitioner who has been in judicial custody for more than 180 days on the date when he filed the application seeking statutory bail is entitled to bail, despite filing of challan by the Investigating official during the pendency of application seeking statutory bail. Therefore, the petitioner is ordered to be released on statutory bail on his furnishing bail bonds to the satisfaction of trial court.

The petition is allowed.