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2000 DIGILAW 53 (PNJ)

Kulwinder Kaur v. State of Haryana

2000-01-14

K.S.KUMARAN

body2000
ORDER K.S. Kumaran, J. - Heard counsel for both the sides. The allegation against the petitioner-Kulwinder Kaur is that she was travelling in the Maruti van driven by Balkar Singh alongwith one Gurdev Singh and in the dicky of the said car 5 bags of poppy husk (each containing 30 kilograms) were found in contravention of the N.D.P.S. Act. The petitioner approached the Special Court, Rewari for bail on the ground that the charge-sheet had not been presented within 90 days, but the learned Special Judge dismissed the said bail application. Therefore, the petitioner has approached this Court for bail under Section 439 Criminal Procedure Code read with section 167 Criminal Procedure Code 2. There is no dispute that the petitioner was arrested on 16.5.1999 and had moved the Special Court for bail on 1.9.1999 whereas the charge-sheet was filed on 8.9.1999. The learned counsel for the petitioner contends that the period of 90 days from the date of the petitioners arrest expired on 14.8.1999 itself and, therefore, the petitioner having filed his application for bail on 1.9.1999 and the charge-sheet having been filed only on 8.9.1999, the petitioner is entitled to be released on bail in view of the provisions contained in Section 167(2) Criminal Procedure Code In support of this contention, the learned counsel for the petitioner relied upon the decision of the Honble Supreme Court in Union of India v. Thamisharasi and others, 1995(2) Recent Criminal Reports 531. The learned counsel for the petitioner also relied upon another decision of the Honble Supreme Court in Hitendra Vishnu Thakur v. State of Maharashtra, 1994(3) Recent Criminal Reports 156. The earlier case related to an offence under the N.D.P.S. Act while the latter decision related to the offence under the T.A.D.A. Act. These two decisions do support the contention of the learned counsel for the petitioner. 3. The earlier case related to an offence under the N.D.P.S. Act while the latter decision related to the offence under the T.A.D.A. Act. These two decisions do support the contention of the learned counsel for the petitioner. 3. As against these two decisions, the learned counsel for the State relied upon another decision of the Honble Supreme Court in Sanjay Dutt v. State through C.B.I. Bombay, 1994(3) Recent Criminal Reports 684 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 challen 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. It is by relying upon this decision the learned Special Judge has held that though the bail application was filed before him on 1.9.1999, the charge-sheet had been filed on 8.9.1999, and since the bail application was disposed of by him on 10.9.1999, by which time the charge-sheet had been filed, the petitioner was not entitled to be released on bail. 5. But in this case the petitioner had moved the application for bail on 1.9.1999 itself i.e. before the filing of the charge-sheet on 8.9.1999. The petitioner was arrested on 16.5.1999. Therefore, on 14.8.1998 itself 90 days period had expired. It is after the expiry of the 90 days period but before the charge-sheet filed, the petitioner applied for bail on 1.9.1999 itself. The petitioner was arrested on 16.5.1999. Therefore, on 14.8.1998 itself 90 days period had expired. It is after the expiry of the 90 days period but before the charge-sheet filed, the petitioner applied for bail on 1.9.1999 itself. But the learned Special Judge disposed of the bail application on 10.9.1999 (of course after the charge-sheet was filed on 8.9.1999). Simply because Special Judge disposed of the application after the filing of the charge-sheet the petitioners right to be released under section 167(2) Criminal Procedure Code cannot come to an end. By filing this petition, the petitioner has enforced his right to be released on bail under Section 167(2) Criminal Procedure Code On default of the prosecution to file the charge-sheet within 90 days the petitioner is entitled to be released on bail forthwith, and the disposal of the application after filing of the charge-sheet cannot alter the situation or effect the rights of the petitioner to be released on bail under Section 167(2) Criminal Procedure Code Therefore, this petition is allowed. Petitioner is ordered to be released on bail on her furnishing sufficient surety to the satisfaction of Chief Judicial Magistrate, Rewari. Petition allowed.