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2000 DIGILAW 52 (PNJ)

Balkar Singh v. State Of Haryana

2000-01-14

K.S.KUMARAN

body2000
Judgment K.S.Kumaran, J. 1. F.I.R. No. 95 dated 16.5.1999 has been registered at Police Station Bawal under the N.D.P.S. Act. Petitioner-Balkar Singh approached the Special Judge, Rewari, for bail on the ground that the charge-sheet had not been filed within 90 days and, therefore, he is entitled to be released on bail under Section 167(2) Cr.P.C. His application was dismissed by the learned Special Judge, and, therefore, this petition under Sections 439 read with 167 Cr.P.C. 2. The allegation against the petitioner-Balkar Singh is that he was driving a Maruti Van and poppy husk was found in the dicky. The petitioner is not seeking bail on the merits of the case but on the ground that charge-sheet has not been filed within the specified time. The petitioner was arrested on 16.5.1999. 90 days from the date of his arrest expired on 14.8.1999. The petitioner filed bail application before the Special Judge, on 1.9.1999 but the charge-sheet was filed on 8.9.1999 only. There is no dispute with regard to these dates. 3. So, it is clear that the petitioner had filed the bail application long before the charge-sheet was filed but the learned Special Judge was of the view that though the bail application was filed on 1.9.1999, he was disposing of the said application on 10.9.1999 only, whereas the charge-sheet had been filed on 8.9.1999 itself and, therefore, the petitioner is not entitled to be released under Section 167 (2) Cr.P.C. after the charge-sheet was filed. In support of this view the learned Special Judge, relied upon the decision of the Honble Supreme Court in Sanjay Dutt v. State through C.B.I. Bombay, (1994 (3) Recent Criminal Reports 684) : [1994(3) All India Criminal Law Reporter 171 (SC)] wherein it was held that - "The indefeasible right of the accused to be released on bail in accordance with Section 20(4)(bb) of the TADA Act read with Section 167(2) of the Code of Criminal Procedure in default of completion of the investigation and filing of the challan within the time allowed, as held in Hitendra Vishnu Thakur is a right which enures to, and is enforceable by the accused only from the time of default till the filing of the challan and it does not survive or remain enforceable on the challan being filed. 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. The accused, so released on bail may be arrested and committed to custody according to the provisions of the Code of Criminal Procedure. The right of the accused to be released on bail after filing of the challan, notwithstanding the default in filing it within the time allowed, is governed from the time of filing of the challan only by the provisions relating to the grant of bail applicable at this stage." 4. The learned counsel for the petitioner contends that this decision of Honble Supreme Court does not affect the case of the petitioner, who had applied for bail even before the charge-sheet was filed though the application for bail was disposed of by the learned Special Judge after the filing of the charge-sheet. 5. I agree with the learned counsel for the petitioner in this respect. This decision of the Honble Supreme Court relates to a case under the TADA Act. The Honble Supreme Court has clearly held that this right of the accused to be released under Section 167(2) Cr.P.C. where the charge-sheet is not filed within the time allowed is an indefeasible right and is enforceable by the accused from the time of the default till the filing of the challan. If the accused does not avail of this default and filed an application for bail before the charge-sheet is filed, after filing of the charge-sheet, the accused will not be entitled to urge the ground that the charge sheet had not been filed within the time allowed. A reading of paragraph 52 of the Judgment of the Honble Supreme Court makes this aspect clear, wherein their Lordships have observed that the indefeasible right accuring 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. The Honble Supreme Court also held that 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 Cr.P.C. ceases to apply. 6. The Honble Supreme Court also held that 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 Cr.P.C. ceases to apply. 6. Therefore, the view of the learned Special Judge, that though the application had been filed earlier to the presentation of the challan, the accused is not entitled to be released on bail under Section 167(2) Cr.P.C. if the charge-sheet is filed before the disposal of the bail application is not correct. Learned counsel for the petitioner also relied upon two decisions of the Honble Supreme Court Union of India v. Thamisharasi & Ors. (1995(2) R.C.R. 531) : [1995(2) All India Criminal Law Reporter 232 (SC)] which related to a case under the N.D.P.S. Act and Hitendra Vishnu Thakur v. State of Maharashtra, (1994 (3) R.C.R. 156) : [1994(2) All India Criminal Law Reporter 739 (SC)] which related to a case under the TADA Act. These two decisions support the contention of the learned counsel for the petitioner. 7. In these circumstances, without meaning to express any opinion on the merits of the main case, I am of the view that the petitioner in this case is entitled to be released on bail under Section 167 (2) Cr.P.C. because the petitioner had moved the bail application on 1.9.1999 before the filing of the charge-sheet. As pointed out already, the 90 days period had expired on 14.8.1999 itself. Simply because the bail application was disposed of by the learned Special Judge on 10.9.1999 and the charge-sheet had been filed on 8.9.1999, the petitioners right to be released under Section 167(2) Cr.P.C. will not come to an end. The petitioner had enforced his right to be released on bail under Section 167(2) Cr.P.C. On the default of the prosecution to file the charge-sheet within 90 days he is entitled to be released on bail forthwith. The disposal of the bail application on a date subsequent to the date of filing of the charge-sheet cannot alter this situation or affect the rights of the petitioner to be released on bail under Section 167(2) Cr.P.C. 8. Petition is allowed. 9. Petitioner is ordered to be released on bail on his furnishing sufficient surety to the satisfaction of Chief Judicial Magistrate, Rewari. Bail allowed.