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2003 DIGILAW 666 (RAJ)

Mahaveer Prasad v. State of Rajasthan

2003-05-01

A.C.GOYAL

body2003
JUDGMENT : 1. Heard learned counsel for the accused petitioners, learned Public Prosecutor as well as counsel for the complainant. 2. The prosecution case in brief is that Smt. Anita (since deceased) was married to Vinod Kumar in May, 1995. After some time of the marriage, demands for dowry were raised by the husband and other in - laws and she died in her in - laws house on 2t.11.02. 3. F.I.R. No. 313/02 was registered under Sections 302, 406 and 498A IPC. After completion of the investigation charge sheet against four accused Vinod Kumar, husband, Mahavir Prasad, Smt. Pana Devi, Manoj Kumar, respectively father-in-law, mother-in-law and younger brother-in-law of the deceased was filed under Section 498A and 306 IPC. 4. Learned counsel for the accused persons contended that on merits both the accused persons deserve bail as there is no evidence of the offence under Section 306 IPC. Learned Public Prosecutor and learned counsel for the complainant opposed this application on merits. Keeping in view the entire evidence, both the accused persons do not deserve bail on merits. 5. Second ground tor bail is that charge sheet was submitted after 85 days and thus in view of the provisions of Section 167(2)(a)(ii) of the Cr.RC. the accused persons are entitled to bail as charge-sheet was not submitted within 60 days. Section 306 IPC provides punishment which may extend to ten years. It was held by Kerala High Court in Sreerangan v. State of Kerala, that where offence is punishable with sentence which may extend to ten years, the provisions of Section 167(2) Cr.RC. would apply and Magistrate is not competent to order detention of accused in custody exceeding 60 days. Similar view was taken by Calcutta High Court in Jayanta Majhi and others v. State of West Bengal and also by Hon'ble Apex Court in Rajeev Choudhary v. State, (NCT) of Delhi, (2001) 5 SCC 34 . Thus in the instant case the provisions of 60 days for filing the charge sheet would apply. 6. Learned Public Prosecutor and learned counsel for the complainant submitted that F.I.R. was registered for an offence under Section 302 IPC and investigation commenced for the said offence but simply on the ground that charge sheet came to be filed under Section 306 IPC, the provisions of Section 167(2)(a)(ii) would not apply. 6. Learned Public Prosecutor and learned counsel for the complainant submitted that F.I.R. was registered for an offence under Section 302 IPC and investigation commenced for the said offence but simply on the ground that charge sheet came to be filed under Section 306 IPC, the provisions of Section 167(2)(a)(ii) would not apply. Rather provisions for filing the charge sheet within 90 days from the first remand of the accused would apply. Learned counsel for the accused persons submitted that the investigation officer started investigation for the offence under Section 302 IPC when F.I.R. was registered on 23.11.02 but only after two days i.e. 25.11.02, he started investigation treating this offence under Section 306 IPC and even from that date the charge sheet was not filed within 60 days and the provisions of filing the charge sheet within 60 days would apply. I have considered the rival submissions. F.I.R. was registered on 23.11.02 under Section 302 IPC. Some of the memos were prepared on 24.11.02 and ten witnesses were examined upto 25.11.02 and all this investigation was done for the offence under Section 302 IPC. Thereafter on 25.11.02, itself statements of some of the witnesses were recorded for an offence under Section 306 IPC and further investigation was done treating this case as an offence under Section 306 IPC and not under Section 302 IPC. A perusal of the case diary dated 25.11.02 at the back of page No. 41 clearly shows that the I.O. came to this conclusion that offence under Section 302 IPC is not made out/and instead of Section 302 IPC, offence under Section 306 IPC was inserted and further investigation thus continued for an offence under Section 306 IPC. This is not a case where at the end of investigation the offence was altered to Section 306 IPC from the offence under Section 302 IPC. Rather the I.O. altered the offence from 302 to 306 IPC only after two days of registering the F.I.R. and even though he failed to submit the charge sheet within 60 days as provided under the law. in view of the particular facts of this case, in my humble opinion the charge sheet must have been filed within 60 days and not beyond that. Therefore, on this ground both the accused petitioners are entitled to bail. Thus this application is allowed. 7. in view of the particular facts of this case, in my humble opinion the charge sheet must have been filed within 60 days and not beyond that. Therefore, on this ground both the accused petitioners are entitled to bail. Thus this application is allowed. 7. It is, therefore, ordered that the petitioners Mahaveer Prasad and Smt. Mona Devi, be released on bail provided each of them furnishes a personal bond in the sum of Rs. 20,000/- (Rs. Twenty thousand) with one sound surety of Rs. 20,000/- (Rs. Twenty thousand) each to the satisfaction of trial court with the stipulation to appear in the court as and when called upon to do so during pendency of the trial against them in the case arising out of the FIR No. 313/2002 of Police Station Chirawa, District Jhunjhunu. 8. A copy of this order be sent to Director General of Police for taking action against the I.O. for not filing the charge sheet within 50 days. 9. Record of the trial court be sent back within 5 days from today with a direction to expedite the trial.Application allowed.