Tara Singh vs State of Punjab

S.C. Datta, J.

This is an application for bail under Section 439 of the Code of Criminal Procedure. The petitioner was arrested on the basis of circumstantial evidence on 15.7.1995 and was produced before the Sub Divisional Judicial Magistrate, Kharar on 16.7.1995. According to the petitioner, the Investigating agency did not file the challan within 90 days as prescribed under Section 167(2) of the Code of Criminal Procedure but the challan was actually filed in Court in 17.10.1995 i.e. after the expiry of period of filing the challan against the petitioner. The petitioner moved an application for bail before the SubDivisional Judicial Magistrate seeking bail stating his willingness and readiness to furnish surety but the Sub Divisional Judicial Magistrate vide his order dated 21.10.1995 rejected the application for bail. The petitioner moved the learned Sessions Judge for bail. The learned Additional Sessions Judge vide order dated 4.11.1995 dismissed the application for bail with the observation that if the accused is so advised, he may file a bail application as per provisions of law. According to the learned Additional Sessions Judge once the challan is filed, the accused loses his right to be released under Section 167(2) of the Code of Criminal Procedure.

In view of the circumstances stated above, a short point which arises for consideration is whether the accused loses his right to be released on bail after the expiry of the maximum period laid down in the proviso to Section 167(2) of the Code of Criminal Procedure (hereinafter referred to as the Code), if the challan is presented before the release but after the expiry of that period.

It is well settled that the period of 90 days within the meaning of proviso to Section 167(2) of the Code is to be counted from the day the accused is first remanded to custody, whether police custody or judicial custody, and not from the date of arrest.

Learned counsel appearing for the petitioner contends that the right to be released on bail is not defeated by lapse of time or subsequent filing of challan.

Learned counsel for the State has contended that once the challan is presented, the right of the accused to be released on bail is defeated.

Learned counsel for the petitioner relies on the decision of majority is Aslam Babalal Desai v. State of Maharashtra, 1993(1) Recent CR 600 SC where their Lordships examined the relevant provisions of the Code and discussed the decided cases bearing on the subject and Ahmad, J. (as His Lordship then was), speaking for the majority view, held:

"We are, therefore, of the view that once the accused is released on bail under Section 167(2) of the Code of Criminal Procedure, he cannot be taken back in custody merely on the filing of chargesheet but there must exist special reasons for so doing besides the fact that the chargesheet reveals the commission of nonbailable crime. The ratio of Rajnikant''s case (1990 Crl.LJ. 62) to the extent it is inconsistent herewith does not, with respect, state the law correctly."

It can, therefore, be concluded that mere filing of the chargesheet 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 bail.

In view of the above discussion, the rejection of the prayer of the petitioner for bail after the expiry of the time for filing of the charge sheet had expired, especially when the petitioner was ready and willing to furnish sufficient security, was wrong. Consequently, I hold that the petitioner is entitled to be released on bail.

Petitioner is admitted to bail to the satisfaction of the learned Chief Judicial Magistrate, Ropar. Let the copy of he order be sent to the Chief Judicial Magistrate, immediately.