Punjab-Haryana High Court
Rashpal Singh Alias Pala vs State Of Punjab on 15 May, 2014
Author: Tejinder Singh Dhindsa
Bench: Tejinder Singh Dhindsa
Criminal Misc. No.M-15907 of 2014 ::1::
IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH
Criminal Misc. No.M-15907 of 2014
Date of Decision: May 15, 2014
Rashpal singh alias Pala
......Petitioner
Versus
State of Punjab
......Respondent
CORAM:- HON'BLE MR. JUSTICE TEJINDER SINGH DHINDSA
Present: Mr. D.S. Pheruman, Advocate, for the petitioner.
Mr. K.S. Sidhu, DAG, Punjab.
*******
Tejinder Singh Dhindsa, J.
This order shall dispose of the present petition preferred under Section 167(2) of the Code of Criminal Procedure seeking the concession of regular bail to the petitioner in case FIR No176 dated 31.08.2013, under Sections 21/61/85 of the Narcotic Drugs and Psychotropic Substances Act and Sections 25/27/54/59 of the Arms Act, registered at Police Station Sadar Tarn Taran District Tarn Taran.
There would be no requirement to go into the merits of the case, since the petitioner is seeking bail under proviso to Section 167(2) of the Code of Criminal Procedure.
Learned counsel for the parties have been heard. Kaur Sukhpreet 2014.05.19 10:08 I attest to the accuracy and integrity of this document Chandigarh
Criminal Misc. No.M-15907 of 2014 ::2::
The admitted facts of the case are that the petitioner was produced by way of production warrants on 16th September, 2013.
As the statutory period of 180 days for presentation of challan was expiring on 14th March, 2014, the prosecution preferred an application under Section 36(A) of the Narcotic Drugs and Psychotropic Substances Act on 6th March, 2014. The petitioner had preferred an application under Section 167(2) of the Code of Criminal Procedure seeking bail on 25th March, 2014.
By way of a composite order dated 26th March, 2014, passed by the Judge, Special Court, Tarn Taran, an extension of 60 days' time for filing report under Section 173 of the Code of Criminal Procedure was granted and the bail application dated 25th March, 2014 preferred by the petitioner was held to be not maintainable.
The Hon'ble Apex Court, in Sayed Mohd. Ahmed Kazmi versus State, GNCTD and others, 2012 (4) RCR (Criminal) 875 has held as follows:
"Having carefully considered the submissions made on behalf of the respective parties, the relevant provisions of law and the decision cited, we are unable to accept the submissions advanced on behalf of the State by the learned Additional Solicitor General, Mr.Raval. There is no denying the fact that on 17th July, 2012, when CR No.86 of 2012 was allowed by the Additional Sessions Judge and the custody of the Kaur Sukhpreet Appellant was held to be illegal and an application 2014.05.19 10:08 I attest to the accuracy and integrity of this document Chandigarh Criminal Misc. No.M-15907 of 2014 ::3::
under Section 167 (2) Cr.P.C. was made on behalf of the Appellant for grant of statutory bail which was listed for hearing. Instead of hearing the application, the Chief Metropolitan Magistrate adjourned the same till the next day when the Public Prosecutor filed an application for extension of the period of custody and investigation and on 20th July, 2012 extended the time of investigation and the custody of the Appellant for a further period of 90 days with retrospective effect from 2nd June, 2012. Not only is the retrospectivity of the order of the Chief Metropolitan Magistrate untenable, it could not also defeat the statutory right which had accrued to the Appellant on the expiry of 90 days from the date when the Appellant was taken into custody. Such right, as has been commented upon by this Court in the case of Sanjay Dutt (supra) and the other cases cited by the learned Additional Solicitor General, could only be distinguished once the charge-sheet had been filed in the case and no application has been made prior thereto for grant of statutory bail. It is well established that if an accused does not exercise his right to grant of statutory bail before charge-sheet is filed, he loses his right to such benefit once such charge-sheet is filed and can, thereafter, only apply for regular bail. The circumstances, in this case, however, are different in that the Appellant had exercised his Kaur Sukhpreet 2014.05.19 10:08 I attest to the accuracy and integrity of this document Chandigarh Criminal Misc. No.M-15907 of 2014 ::4::
right to statutory bail on the very same day on which his custody was held to be illegal and such an application was left undecided by the Chief Metropolitan Magistrate till after the application filed by the prosecution for extension of time to complete investigation was taken up and orders were passed thereupon. We are unable to appreciate the procedure adopted by the Chief Metropolitan Magistrate, which has been endorsed by the High Court and we are of the view that the Appellant acquired the right for grant of statutory bail on 17th July, 2012, when his custody was held to be illegal by the Additional Sessions Judge since his application for statutory bail was pending at the time when the application for extension of time for continuing the investigation was filed by the prosecution. In our view, the right of the Appellant to grant of statutory bail remained unaffected by the subsequent application and both the Chief Metropolitan Magistrate and the High Court erred in holding otherwise."
By applying the dictum of law laid down by the Hon'ble Apex Court in Sayed Mohd. Ahmed Kazmi case (supra), the petitioner in the present case having filed the bail application on the expiry of the stipulated period as per Section 167(2) of the Code of Criminal Procedure had acquired an indefeasible right for the grant of bail, notwithstanding the presentation of the challan subsequently i.e. Kaur Sukhpreet 2014.05.19 10:08 I attest to the accuracy and integrity of this document Chandigarh Criminal Misc. No.M-15907 of 2014 ::5::
on 5th May, 2014.
As such without expressing any opinion on the merits of the case, the present petition is accordingly, allowed.
Bail to the satisfaction of the trial court. Disposed of.
(TEJINDER SINGH DHINDSA) JUDGE May 15, 2014 sukhpreet Kaur Sukhpreet 2014.05.19 10:08 I attest to the accuracy and integrity of this document Chandigarh