Punjab-Haryana High Court
Kulvir Singh @ Laddi vs State Of Punjab on 29 November, 2014
Author: Daya Chaudhary
Bench: Daya Chaudhary
Crl. Misc. No. M-38822 of 2014 (1)
IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH
Crl. Misc. No. M-38822 of 2014
DATE OF DECISION: 29.11.2014
Kulvir Singh @ Laddi ..........Petitioner
Versus
State of Punjab ..........Respondent
BEFORE:- HON'BLE MRS. JUSTICE DAYA CHAUDHARY
1. Whether reporters of local newspaper may be allowed to
see judgment?
2. To be referred to reporters or not?
3. Whether the judgment should be reported in the Digest?
Present:- Mr. Sumeet Puri, Advocate
for the petitioner.
Ms. Ritu Punj, Addl. A.G., Punjab.
****
DAYA CHAUDHARY, J.
The present petition under Section 439 Cr.P.C. has been filed for grant of regular bail to the petitioner in case FIR No. 124 dated 15.6.2014 registered under Sections 376, 506 IPC as well as Section 7/8 of Protection of Children from Sexual Offence Act, 2012 at Police Station Sadar Dhuri, District Sangrur.
Learned counsel for the petitioner contends that no offence is made out against the petitioner. The petitioner filed an application under Section 167 (2) of the Cr.P.C. for grant of bail as period of 90 days had expired and challan was not submitted before the trial Court. Learned counsel further submits that the petitioner is behind the bars since POOJA SHARMA 2014.12.04 10:34 I attest to the accuracy and integrity of this document Crl. Misc. No. M-38822 of 2014 (2) 23.7.2014 but the bail of the petitioner has been declined on the ground that challan has already been presented by the prosecution and in case the accused-petitioner is released on bail, it can only be on merits. Learned counsel has also relied upon the judgments of Hon'ble the Apex Court in the cases of Uday Mohanlal Acharya Vs. State of Maharashtra 2001 (2) RCR (Criminal) 452, Union of India through CBI Vs. Nirala Yadav @ Raja Ram Yadav @ Deepak Yadav 2014 (4) Recent Apex Judgements 265, of this Court in Sarabjit Singh @ Sabi Vs. State of Punjab 2014 (1) RCR (Criminal) 341 and Rajwinder Singh Vs. State of Punjab passed in Crl. Misc. No. M-36637 of 2013 on 27.10.2014, in support of his contentions.
Learned counsel for the respondent-State opposes the bail of the petitioner on the ground that the petitioner was arrested on 23.7.2014 and challan was presented on the same date when an application was moved. The present petition has been filed for grant of bail under Section 439 Cr.P.C., whereas, the revision is maintainable against the order passed in the application under Section 167 (2) Cr.P.C.
Heard the arguments advanced by learned counsel for the petitioner as well as State and have perused the order passed by the lower Court declining the bail.
Admittedly, the petitioner was arrested in the case on 23.7.2014 and period of 90 days had expired on 20.10.2014 but challan was not presented within prescribed period. The petitioner filed an application under Section 167 (2) of the Cr.P.C. for grant of bail on expiry of period of 90 days. The challan was also presented on 22.10.2014 itself at 12.30 pm . It is also an admitted fact that challan was not presented within 90 days of the arrest and it was presented on the next day after expiry of period of 90 days.
POOJA SHARMA2014.12.04 10:34 I attest to the accuracy and integrity of this document
Crl. Misc. No. M-38822 of 2014 (3) The question for consideration by this Court is as to whether the petitioner is entitled for bail under Section 167 (2) Cr.P.C. on expiry of period of 90 days even in case the challan was presented on that very day when application for grant of bail under Section 167 (2) of the Cr.P.C. was filed.
A Three Judges Bench of Hon'ble the Supreme Court in Uday Mohanlal Acharya Versus State of Maharashtra, 2001 (2) RCR (Criminal) 452 has examined the issue as to whether on filing of the application, accused is stated to have availed of his indefeasible right for being released on bail and offers to abide by the terms and conditions of the bail. The Court took the view that to interpret the expression 'availed of' means actually being released on bail after furnishing the necessary bail required would cause great injustice to the accused and would defeat the very purpose of the proviso to Section 167 (2) Cr.P.C. The relevant extract from the said judgment is reproduced herein below :-
".......... In our considered opinion it would be more in consonance with the legislative mandate to hold that an accused must be held to have availed of his indefeasible right, the moment he files an application for being released on bail and offers to abide by the terms and conditions of bail. To interpret the expression 'availed of' to mean actually being released on bail after furnishing the necessary bail required would cause great injustice to the accused and would defeat the very purpose of the proviso to Section 167 (2) of the Criminal Procedure Code and further would make an illegal custody to be legal, inasmuch as after the expiry of the stipulated period the Magistrate had no further jurisdiction to remand and such custody of the accused is without any valid POOJA SHARMA 2014.12.04 10:34 I attest to the accuracy and integrity of this document Crl. Misc. No. M-38822 of 2014 (4) order of remand."
In Uday Mohanlal Acharya's case (supra), the Hon'ble Supreme Court has culled out six conclusions, which are reproduced below:-
"1. Under sub-section (2) of Section 167, a Magistrate before whom an accused is produced while the police is investigating into the offence can authorise detention of the accused in such custody as the Magistrate thinks fit for a term not exceeding 15 days in the whole.
2. Under the proviso to the aforesaid sub-section (2) of Section 167, the Magistrate may authorise detention of the accused otherwise than in the custody of police for a total period not exceeding 90 days where the investigation relates to offence punishable with death, imprisonment for life or imprisonment for a term of not less than 10 years, and 60 days where the investigation relates to any other offence.
3. On the expiry of the said period of 90 days or 60 days, as the case may be, an indefeasible right accrues in favour of the accused for being released on bail on account of default by the Investigating Agency in the completion of the investigation within the period prescribed and the accused is entitled to be released on bail, if he is prepared to and furnish the bail, as directed by the Magistrate.
4. When an application for bail is filed by an accused for enforcement of his indefeasible right alleged to have accrued in his favour on account of default on the part of the Investigating Agency in completion of the investigation within POOJA SHARMA 2014.12.04 10:34 I attest to the accuracy and integrity of this document Crl. Misc. No. M-38822 of 2014 (5) the specified period, the Magistrate/Court must dispose of it forthwith, on being satisfied that in fact the accused has been in custody for the period of 90 days or 60 days, as specified and no charge-sheet has been filed by the Investigating Agency. Such prompt action on the part of the Magistrate/Court will not enable the prosecution to frustrate the object of the Act and the legislative mandate of an accused being released on bail on account of the default on the part of the Investigating Agency in completing the investigation within the period stipulated.
5. If the accused is unable to furnish the bail as directed by the Magistrate, then on a conjoint reading of Explanation I and the proviso to subsection (2) of Section 167, the continued custody of the accused even beyond the specified period in paragraph
(a) will not be unauthorised, and therefore, if during that period the investigation is complete and the charge-sheet is filed then the so-called indefeasible right of the accused would stand extinguished.
6. The expression "if not already availed of" used by this Court in Sanjay Dutt's case (supra) must be understood to mean when the accused files an application and is prepared to offer bail on being directed. In other words, on expiry of the period specified in para (a) of the proviso to sub-section (2) of Section 167 if the accused files an application for bail and offers also to furnish the bail on being directed, then it has to be held that the accused has availed of his indefeasible right even though the Court has not considered the said application and has not indicated the terms and conditions of bail, and the accused POOJA SHARMA 2014.12.04 10:34 I attest to the accuracy and integrity of this document Crl. Misc. No. M-38822 of 2014 (6) has not furnished the same."
The matter has recently been examined by the Apex Court in Union of India through CBI Versus Nirala Yadav @ Raja Ram Yadav @ Deepak Yadav, 2014 (3) RCR (Criminal) 534. In Nirala Yadav's case (supra), after the filing of the application by the accused under Section 167 (2) Cr.P.C. for release on bail, the prosecution moved an application on the next day under Section 49(2)(b) of the Prevention of Terrorist Activities Act (in short 'POTA') seeking extension of time for a period of 30 days. However, the learned Special Judge did not pass any order on the said application on the said day and sought reply of the opposite party and later on, rejected the application of the accused for grant of bail. In the said case, the Apex Court also examined the Constitutional Bench decision in Sanjay Dutt Versus State, (1994) 5 SCC 410. The Apex Court has also referred to the authority of Hitendra Vishnu Thakur Versus State of Maharashtra, (1994) 4 SCC 602. The relevant extract from para-48 of the said judgment is reproduced herein below :-
"48. 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 POOJA SHARMA 2014.12.04 10:34 I attest to the accuracy and integrity of this document Crl. Misc. No. M-38822 of 2014 (7) 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 CrPC 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."
In Nirala Yadav's case (supra), the six conclusions drawn by the Full Bench of the Apex Court in Uday Mohanlal Acharya's case (supra), were reproduced and relied upon.
It is clear from the facts as well as law position as explained above that once the statutory period for filing challan was over but challan was not presented within that period, then the accused has the right under Section 167 (2) of the Cr.P.C to furnish bail bonds, if directed by the Court, the subsequent filing of the challan, may be on the same day but after expiry of statutory period, will not defeat the statutory right of the accused accured to him under Section 167 (2) of the Cr.P.C. Admittedly, the period of 90 days had expired on 20.10.2014 and accused-petitioner exercised his POOJA SHARMA 2014.12.04 10:34 I attest to the accuracy and integrity of this document Crl. Misc. No. M-38822 of 2014 (8) indefeasible right of grant of bail under Section 167 (2) of the Cr.P.C. on 22.10.2014. The challan was also presented on the same very day subsequently after moving of the application by the petitioner and as such the same cannot defeat his indefeasible right.
Accordingly, this petition is allowed and petitioner-Kulvir Singh @ Laddi is directed to be released on bail under Section 167 (2) of the Code subject to his furnishing bail/surety bond to the satisfaction of the trial Court subject to the following conditions:-
i) that the accused will not indulge in any criminal activity particularly under NDPS Act;
ii) that the accused will surrender his passport before the learned Judge, Special Court, Ludhiana, and will not leave the country without prior permission of the Court;
iii)that the accused will not directly or indirectly make any contact with any of the witnesses acquainted with the facts of the case, so as to influence them.
29.11.2014 (DAYA CHAUDHARY) pooja JUDGE POOJA SHARMA 2014.12.04 10:34 I attest to the accuracy and integrity of this document