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2004 DIGILAW 108 (PNJ)

Balwinder Singh v. State of Punjab

2004-01-30

M.M.KUMAR

body2004
JUDGMENT M.M. Kumar, J. - This petition filed under Section 439 of the Code of Criminal Procedure, 1973 (for brevity, the Code) prays for grant of bail to the petitioner pending trial in case FIR No. 226 dated 21.11.2002 registered under Sections 307/326/323/34 Indian Penal Code at Police Station Phillaur, District Jalandhar. It is pertinent to mention that initially the case was registered under Sections 326/323/34 Indian Penal Code and Section 307 Indian Penal Code was added lateron. 2. The prosecution version as disclosed in the first information report is that on 19.11.2002, injured-complainant Amar Singh was coming back to his house. He was waylaid by Balwinder Singh accused-petitioner, who was armed with a Kirpan and Manjit Singh accused armed with a Dang alongwith two other persons. Manjit Singh exhorted all others that the injured-complainant should not be spared. The accused-petitioner Balwinder Singh is imputed with Kirpan blow from sharp side on the head of the injured-complainant. After the Kirpan blow, the injured-complainant fell down. The injured-complainant was admitted to hospital at Phillaur. A first information report was registered on 21.11.2002 under Sections 307/326/323/34 Indian Penal Code at Police Station Phillaur. The accused-petitioner surrendered before the Court on 26.11.2002. The challan was presented against the accused-petitioner amongst others on 28.2.2003. 3. The accused-petitioner filed an application for releasing him on bail which was dismissed by the learned Sessions Judge, Jalandhar on 15.3.2003. Thereafter, another application was filed on 10.4.2003. The same has also been dismissed on 5.12.2003 principally on the ground that the earlier bail application of the accused-petitioner was declined. Feeling aggrieved, the accused-petitioner has approached this Court for releasing him on bail pending trial. 4. Mr. Sanjay Gupta, learned counsel for the accused-petitioner has argued that the accused-petitioner is in custody since 26.11.2002 and he has already undergone custody as undertrial about more than 14 months. The learned counsel has also submitted that the accused-petitioner is entitled to be released on bail under Section 167(2) of the Code on the ground that the challan was presented after the expiry of 90 days and no application for extension of time was ever filed. According to the learned counsel, order dated 15.3.2003 dismissing the application of the accused-petitioner could not be challenged by him on account of acute poverty and ignorance of law. According to the learned counsel, order dated 15.3.2003 dismissing the application of the accused-petitioner could not be challenged by him on account of acute poverty and ignorance of law. In support of his submission, the learned counsel has placed reliance on two judgments of the Supreme Court in the cases of Hitendra Vishnu Thakur v. State of Maharashtra, 1994(3) Recent Criminal Reports 156 and Uday Mohanlal Acharya v. State of Maharashtra, 2001(5) SCC 453 and argued that the right of the accused-petitioner to be released on bail under Section 167(2) of the Code an account of late presentation of challan is an indefeasible right and it cannot be defeated on the basis that the accused-petitioner failed to avail the same. The learned counsel has further submitted that even on merits, the accused-petitioner has been falsely implicated because there was some quarrel between the accused-petitioner and the injured-complainant on Diwali day which had been compromised on the intervention of Panchayat. He has maintained that the injuries suffered by the injured-complainant were the result of an accident and the accused-petitioner has been falsely implicated. 5. Mr. D.S. Bishnoi, learned State counsel did not dispute the fact that the challan was presented after the statutory period of 90 days provided by Section 167(2)(a)(i) of the Code. He has, however, contested the argument that the accused-petitioner is entitled to bail at such a belated stage or on the ground that the case of the prosecution is improbable. 6. After hearing learned counsel for the parties, I am of the considered view that the judgment of the Supreme Court in the case of Uday Mohanlal Acharyas case (supra) relied on by the learned counsel on the proposition as to whether an indefeasible right extinguishes if the challan is presented before an accused is released on bail fully applies to the facts of the present case. Their Lordships of the Supreme Court after elaborate discussion and analysis of various provisions of the Code as well as judgments have recorded the following conclusions:- "1. Under sub-section (2) of Section 167, a Magistrate before whom an accused is produced while the police is investigating into the offence can authorise detention of the accused in such custody as the Magistrate thinks fit for a term not exceeding 15 days in the whole. 2. Under sub-section (2) of Section 167, a Magistrate before whom an accused is produced while the police is investigating into the offence can authorise detention of the accused in such custody as the Magistrate thinks fit for a term not exceeding 15 days in the whole. 2. Under the proviso to aforesaid sub-section (2) of Section 167, the Magistrate may authorise detention of the accused otherwise than the custody of police for a total period not exceeding 90 days where the investigation relates to offence punishable with death, imprisonment for life or imprisonment for a term of not less than 10 years and 60 days where the investigation relates to any other offence. 3. On the expiry of the said period of 90 days or 60 days, as the case may be, an indefeasible right accrues in favour of the accused for being released on bail on account of default by the Investigating Agency in the completion of the investigation within the period prescribed and the accused is entitled to be released on bail, if he is prepared to and furnish the bail, as directed by the Magistrate. 4. When an application for bail is filed by an accused for enforcement of his indefeasible right alleged to have accrued in his favour an account of default on the part of the investigating Agency in completion of the investigation within the specified period, the Magistrate/Court must dispose of it forthwith, on being satisfied that in fact the accused has been in custody for the period of 90 days or 60 days, as specified and no charge- sheet has been filed by the Investigating Agency. Such prompt action on the part of the Magistrate/Court will not enable the prosecution to frustrate the object of the Act and the legislative mandate of an accused being released on bail on account of the default on the part of the Investigating Agency in completing the investigation within the period stipulated. 5. If the accused is unable to furnish bail, as directed by the Magistrate, then the conjoint reading of Explanation 1 and proviso to sub- section (2) of Section 167, the continued custody of the accused even beyond the specified period in paragraph (a) will not be unauthorised, and, therefore, if during that period the investigation is complete and charge- sheet is filed then the so-called indefeasible right of the accused would stand extinguished. 6. 6. The expression if not already availed of used by this Court in Sanjay Dutts case (supra) must be understood to mean when the accused files an application and is prepared to offer bail on being directed. In other words, on expiry of the period specified in paragraph (a) of proviso to sub- section (2) of Section 167 if the accused files an application for bail and offers also to furnish the bail, on being directed, then it has to be held that the accused has availed of his indefeasible right even though the Court has not considered the said application and has not indicated the terms and conditions of bail, and the accused has not furnished the same." 7. If conclusions 3 and 4 are read together, it becomes evident that the petitioner has filed the application for his release on bail which was dismissed on 15.3.2003. The indefeasible right of the accused-petitioner could not be defeated by the prosecution on presentation of challan on 28.2.2003. Such a construction has to be preferred in view of the fact that the beneficial provision has to be construed by keeping in view Article 21 of the Constitution as has been observed by the Supreme Court in Uday Mohan Lal Acharyas case (supra). 8. Even otherwise, the accused-petitioner has undergone 14 months in custody as an undertrial and the prosecution has already examined the injured- complainant Amar Singh and one Chanan Singh as PW-2. There is no other eye witness which may constitute a basis for the apprehension that the accused is likely to tamper with the evidence of the prosecution. Moreover, the stringent conditions can always be imposed by the trial Court in the bail bonds. 9. In view of the above and without expressing any opinion on merits of the case, this petition succeeds. Accordingly, the petitioner is allowed bail pending trial to the satisfaction of the trial Court. Petition allowed.