Karnataka High Court
Pintoo Singh vs The State Of Karnataka on 10 February, 2014
Author: R.B Budihal
Bench: R.B Budihal.
1
IN THE HIGH COURT OF KARNATAKA AT
BANGALORE
DATED THIS THE 10TH DAY OF FEBRUARY 2014
BEFORE
THE HON'BLE MR. JUSTICE BUDIHAL. R.B
CRIMINAL PETITION NO.7891/2013
BETWEEN:
Pintoo Singh,
Aged about 40 years,
S/o. N.P. Singh
@ Naveen Prasad Singh,
R/at 5/F, Austin Garden,
Near 8th Main,
Hesaraghatta Main Road,
Bangalore-560 057. .. PETITIONER
(By Sri. M.T. Nanaiah, Sr. Counsel
for Mrs. Rachita Nanaiah. M, Adv.)
AND:
The State of Karnataka by
Peenya Police Station,
Bangalore City-560 058. .. RESPONDENT
(By Sri. K. Nageshwarappa, HCGP)
This Criminal Petition is filed under Section 439 of
the Cr.P.C. praying to enlarge the petitioner on bail in
Spl. C.C.No.263/2013 in the file of the L Addl. City Civil
and S.J., Bangalore and Cr. No.550/2013 of Peenya
P.S., Bangalore, for the offence P/U/S 376(c), 372(2)
2
r/w Section 34 of IPC and Sections 4, 5 (J)(II), 6 of
Protection Of Children from Sexual Offences Act, 2012.
This Criminal Petition coming on for orders this
day, the Court made the following:
ORDER
This petition is filed by petitioner-accused No.1 under Section 439 of Cr.P.C. seeking his release on bail of the offences punishable under Sections 376(C), 376(2) r/w Section 34 of IPC and Sections 4, 5(J) (ii) and 6 of the Protection of Children from Sexual Offences Act registered in respondent-police station Crime No.550/2013.
2. The brief facts of the petition are that the petitioner had been produced before the Magistrate on 28.8.2013 and learned Magistrate remanded the petitioner to judicial custody. Charge sheet was not filed within 90 days. Hence, petitioner has filed an application under Section 167(2) of the Cr.P.C. on 26.11.2013 i.e., on the 91st day and requested the Court to grant him bail under the above provision of law as he 3 is entitled for statutory bail since respondent has not filed the charge sheet within the mandatory period of 90 days.
3. Heard the arguments of the learned counsel appearing for the petitioner-accused No.1 and also the learned Government Plead for the respondent-State.
4. Learned counsel for the petitioner during the course of his arguments submitted that petitioner was arrested and produced before the Magistrate on 28.8.2013 and on the same day, he was remanded to judicial custody. He has further submitted that within 90 days charge sheet was not filed and on 26.11.2013 itself the petitioner has filed the application under Section 167(2) of Cr.P.C. seeking his release on bail. But the lower Court has wrongly rejected the application. He has further submitted that when charge sheet was not filed within 90 days and on the 91st day itself petitioner has filed the application for grant of bail, 4 the lower Court ought to have released the petitioner on statutory bail forthwith. Therefore, the order passed by the lower Court that on 92nd day charge sheet was filed and that the day of remand order is to be excluded for calculation of 90 days is not correct. Accordingly, it is submitted that petitioner is having the indefeasible right and as such, he may be enlarged on bail.
5. As against this, learned Government Pleader during the course of his arguments submitted that the lower Court has considered all these aspects properly and rightly rejected the bail application and hence, there is no merit in the contention of the petitioner that he is entitled to be released on bail. Hence, he has submitted to reject the petition.
6. I have perused the averments made in the bail petition and also the decision relied upon by the learned counsel for the petitioner reported in 2013 Crl.L.J.200 of the Hon'ble Supreme Court in the case of Sayed 5 Mohd. Ahmed Kazmi Vs. State, GNCTD and Others and also the order passed by this Court dated 26.9.2012 in Crl.P.No.4160/2012. I have also perused the other decisions cited by the parties before the lower Court.
7. It is an admitted fact even according to the prosecution that the charge sheet was not filed within 90 days and on the very next day i.e., on 91st day, petitioner made an application seeking his release on bail. When the bail application was made before the Court no charge sheet was filed and when it is so, the lower Court ought to have considered the bail application and released the petitioner on bail without waiting further, since as per the relevant provisions under Section 167(2) of Cr.P.C., petitioner was having indefeasible right of his release on bail. Further, even according to the prosecution charge sheet was filed on 92nd day i.e., one day after the petitioner filing the application seeking his release on bail. Therefore, the decisions relied upon by the prosecution in Sanjay 6 Dutt's case is not applicable to the present case, since in that case bail application was filed after the filing of the charge sheet before the Court. So it has been observed by the Hon'ble Supreme Court in the said decision that once charge sheet is filed before the Court and if there is no bail application as on that day, the right of the accused to seek his release on bail under Section 167(2) of Cr.P.C. will be extinguished. Therefore, the application filed subsequent to the filing of the charge sheet will have to be considered according to the usual procedure as laid down under the Cr.P.C. In the case on hand, since on the date of filing the application charge sheet was not filed before the Court, the lower Court ought to have released the petitioner on bail forthwith. Hence, I am of the opinion that petitioner has made out a case to release him on bail.
8. Accordingly, petition is allowed. Petitioner is ordered to be released on bail as per the provisions of Section 167(2) of Cr.P.C. of the offences punishable 7 under Sections 376(C), 376(2) r/w Section 34 of IPC and Sections 4, 5(J) (ii) and 6 of the Protection of Children from Sexual Offences Act registered in respondent- police station Crime No.550/2013, now pending in Spl.C.C.No.263/2013 on the file of L Addl. City Civil and Sessions Judge (CCH-51), subject to following conditions:-
(i) Petitioner shall execute a personal bond for a sum of Rs.1,00,000/- and furnish a solvent surety for the like sum to the satisfaction of concerned Court.
(ii) Petitioner shall not intimidate or tamper with prosecution witnesses directly or indirectly.
(iii) Petitioner shall attend the concerned Court regularly.
Sd/-
JUDGE bkp