Ramesh Kumar vs State of Haryana

S.C. Malte, J.

The petitioner seeks bail under Section 167(2) Cr.P.C on the ground that even after the conclusion of 90th day of since his arrest, challan was not presented to the Court. The admitted position is that soon after the conclusion of 90th day, the petitioner submitted an application for release on bail. The trial Court issued notice to the prosecution. During the pendency of that petition, chargesheet was submitted. The short question, therefore, would be whether the petitioner would be entitled to get the benefit of 167(2) Cr.P.C. in such situation.

The trial Court has relied on certain rulings and observed that if the challan is submitted before the accused is released on bail, he cannot be granted bail under Section 167(2) Cr.P.C.

Counsel for the petitioner, on the other hand, relied on the case of Dr. Bipin Shantilal Panchal v. State of Gujarat, 1996(1) Recent CR 506. In that case Their Lordships of the Supreme Court have made an observation that if an accused person fails to exercise his right to be released on bail for the failure of the prosecution to file the charge sheet within the time limit, he gets a right to be released on bail. Ld. AAG (Haryana) relied on the case of State of Punjab v. Sukhminder Singh alias Mundri, 1998(2) RCR Criminal 513 in which case the Single Bench of this Court declined to grant bail under Section 167(2) Cr.P.C. On perusal of the factual aspect involved in that case, I find that in that case the accused had submitted an application for being released on bail after the chargesheet was filed albeit after 90 days. The trial Court seems to have not appreciated that aspect. In the light of ratio as indicated in the case of Dr. Bipin Shantilal Panchal (supra), conversely it appears that if the accused exercises his right to be released on bail soon after the completion of the statutory period for filing the chargesheet, but before the chargesheet was submitted, and if the passing of the order was postponed until reply received from the other side, that does not take away the right available to the accused to be released on bail. I, therefore, pass the following order :

Accused granted bail under Section 167(2) Cr.P.C. during the pendency of trial in FIR No. 252 dated 13.4.1998 under Sections 18/61/85 NDPS Act, registered at Police Station Shahabad, District Kurukshetra, on his executing the bail bond and surety bond in the sum of Rs. 50,000/ to the satisfaction of the trial Judge.