Parshotam Chand vs The State of H.P.

D.B. Lal, J.—Parshotam Chand applies to this Court u/s 439 of the Code of Criminal Procedure for bail. He is indicated for the offence u/s 302 of the I.P.C. Before his case can be considered on merit it is submitted on his behalf by the learned Counsel that he was arrested on 28-10-1975 and the challan was put up before the Court on 20-1-1976 i.e. beyond the period of 60 days. The argument proceeds on the basis of Section 167(2) proviso (a) that any period of detention of Parshotam Chand exceeding 60 days was illegal and he is entitled as of right to be released on bail. In support of that contention the learned Counsel relies on Prem Raj and Another Vs. The State of Rajasthan, A learned Judge of Rajasthan High Court was faced was a similar situation. The challan was put up in Court after sixty days'' period of detention of the accused. When the bail matter came up before the High Court for decision (although the bail application in the High Court was moved before the challan was put up in Court), the challan was already there before the Court. Even then the learned Judge held that the accused derived a light to be released on bail under proviso (a) to Section 167(2). At against this case the learned Advocate General placed reliance on Heeraman Vs. State of U.P., , where a learned Judge of the Allahabad High Court observed with reference to a hypothetical case that no sooner the charge sheet is presented before the Court the effect of Section 167 pales into insignificance. The case for bail will have to be considered on merit u/s 439 and no right for bail can be claimed by the accused.

The other two cases relied upon by the learned Counsel, Lakshmi Brahman and Another Vs. State, and The Superintendent and Remembrancer of Legal Affairs, West Bengal Vs. Md. Samsuddin and Others, with respects to the learned Judges, are beside the point. In the Allahabad case it is only observed that remand order by a Magistrate beyond sixty days does not render the detention of the accused illegal because he can only be released provided he applies for bail and his bonds are accepted. The Supreme Court was faced entirely with a different situation and their Lordships observation, with respects, are not pertinent to the question at issue.

It is abundantly clear that no sooner the challan is put up in the Court Section 167 will not have any application. That section only applies to a situation where investigation is pending and an order of remand is solicited from the Magistrate for the purpose of investigation. If the investigation is over and the Police sends the challan to the Magistrate Section 167 ceases to apply and the question of bail will depend upon the merit of the case. It is only during investigation when the period of sixty days expires and the accused applies for bail and his bonds are accepted the he can be released as of right on bail. It is absolutely right to hold that after the expiry of sixty days period of remand the accused does not just walk out of the jail and claim to be a free person. He has to apply for bail and his bonds are to be accepted before he can be released. It is totally immaterial if the bail application is moved and before the order is made by the Court the challan is put up in the Court and if the bail application is moved after the challan is put up in the Court. Both the situations give rise to the non-application of Section 167 because the challan is already before the Court and the case of bail is beyond the scope of section 167.

In the present case the bail has been refused on merit by the learned Sessions Judge. The accused has applied for bail to the High Court u/s 439 and will have to satisfy his case on merit before he can be released. No assistance can be obtained from Section 167 and the accused cannot claim bail as of right.

I have otherwise considered the case on merit for bail. The facts as these appear from the judgment of the learned Sessions Judge are that an altercation took place between the accused and his deceased brother Kuldeep Singh on the one side and Bishan Singh Lamberdar and his son Jagdish Chand on the other side. In this altercation some injuries were received by the respective parties. During the course of that altercation the accused asked his brother Kuldeep Singh to bring a sickle and both of them are reported to have left for some place. Later on Kuldeep Singh was found dead. His body was discovered by the accused himself and he shouted for help. The First Information Report was instituted by Anant Ram father of the accused and Bishan Singh and Jagdish Chand were suspected to be the murderers. Subsequently the accused was arrested and he discovered the sickle and also his own blood stained clothes. This is all what has been stated against the accused, prima facie the sickle was utilized in the altercation which took place between the accused and Bishan Singh and the blood stains on the clothes of the accused may be due to that altercation. There is no motive for the crime as submitted by the learned defence Counsel. In these circumstances I find it a fit case to release the Petitioner accused on bail which I do subject to his furnishing a personal bond in the sum of Rs. 5,000/- accompanied by two surety bonds each in the like sum to the satisfaction of the Chief Judicial Magistrate concerned.