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2012 DIGILAW 1290 (PNJ)

Jagmal Singh v. State of Haryana

2012-09-25

VIJENDER SINGH MALIK

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JUDGMENT Mr. Vijender Singh Malik, J.: - By way of this petition brought under the provisions of section 482 of the Code of Criminal Procedure, Jagmal Singh, the petitioner seeks quashing of the order dated 29.09.2011 (Annexure P-4) passed by learned Additional Sessions Judge, Gurgaon, vide which the order dated 14.09.2011 passed by learned Judicial Magistrate Ist Class, Gurgaon, was set aside. 2. The case was registered against respondent no.2 by way of FIR No.242 dated 26.12.2010 at Police Station Pataudi, District Gurgaon, for an offence punishable under sections 420, 467, 468 ,471 and 120-B IPC. In the said case, Desh Raj was arrested on 06.07.2011. The magistrate granted the concession of bail to him on 07.09.2011 under the provisions of section 167(2) Cr.P.C. 3. On application, the court of Judicial Magistrate Ist Class, Gurgaon, had passed the order dated 14.09.2011 holding that Desh Raj was not entitled to the benefit of bail. Consequently, the bail granted to him was cancelled and accused Desh Raj was taken into custody. 4. In the revision petition brought by Desh Raj, learned Additional Sessions Judge, Gurgaon has held vide order dated 29.09.2011 that although the offence under section 467 IPC is punishable with imprisonment for life or with imprisonment upto 10 years , yet the accused can be granted bail in a case for an offence punishable under section 467 IPC if challan was not put in the court within 60 days as per the provisions of section 167(2) Cr.P.C. Consequently the order dated 14.09.2011 cancelling the bail of Desh Raj was set aside, allowing the revision petition. 5. It is this order of learned Additional Sessions Judge, Gurgaon, which is questioned before me by way of this petition. 6. I have heard Mr. Ashish Yadav, learned counsel for the petitioner, Mr. Sagar Deswal, learned AAG, Haryana for the State and Mr. Atul Yadav, learned counsel for respondent no.2 at length and have gone through the documents placed on the file. 7. Learned counsel for the petitioner has submitted that the period for presenting challan in a case for an offence punishable under section 467 IPC is 90 days and not 60 days. Atul Yadav, learned counsel for respondent no.2 at length and have gone through the documents placed on the file. 7. Learned counsel for the petitioner has submitted that the period for presenting challan in a case for an offence punishable under section 467 IPC is 90 days and not 60 days. He placed reliance in this regard on a decision of Hon’ble Supreme Court of India in Bhupinder Singh and others v. Jarnail Singh and another, [2006(4) Law Herald (SC) 2684] : 2006(3) RCR (Criminal) 677 which was a case for an offence punishable under section 304-B IPC in which punishment provided is imprisonment for a term which shall not be less than 7 years but which may extend to life imprisonment. It was held therein that period for presenting the challan was 90 days and not 60 days. He has also placed reliance on two other decisions of Hon’ble Gujarat and Bombay High Courts in State of Gujarat v. Laxmansinh Chandrasinh Padhiyar 2008 Cri.L.J. 3843 and State of Maharashtra v. Ketan Sheth Kantibhai Sheth and another 2003(3) RCR (Criminal) 210. In State of Gujarat’s case, supra, the accused was charged for an offence punishable under sections 467 and 409 IPC and it was held that the period for filing chargesheet/ challan was 90 days and not 60 days. In State of Maharashtra’s case, supra, the offence was under section 409 IPC, in which the punishment provided is the same as is in section 467 IPC and it has been held that the accused, who was in custody for more than 60 days, was not entitled to bail. 8. Learned counsel for the petitioner has, thus, submitted that learned Additional Sessions Judge, Gurgaon had fallen in error in holding that the accused was entitled to bail on failure of the investigating agency to present the challan within 60 days and, therefore, the impugned order is liable to be set aside. 9. Learned State counsel supporting the submissions of learned counsel for the petitioner has submitted that the case in hand falls within the ambit of section 167(2)(a)(i) Cr.P.C. and grant of bail on default in presentation of the challan within 60 days was a wrong exercise of discretion. 10. Learned counsel for respondent no.2 has, however, submitted that the exercise of discretion by learned Additional Sessions Judge, Gurgaon has been on correct principles. 10. Learned counsel for respondent no.2 has, however, submitted that the exercise of discretion by learned Additional Sessions Judge, Gurgaon has been on correct principles. He has further submitted that there is a decision of a co-ordinate Bench of this Court in Som Nath and another v. State of Punjab 2011(3) RCR (Criminal) 515, where it was a case under section 467 IPC and it has been held that the accused is entitled to bail if the challan was not put up within 60 days. He has also placed reliance on another decision of a coordinate Bench of this Court in Karamjit Singh v. State of Punjab 2011(4) Criminal Court Cases 52 in which petitioner was held entitled for bail as challan was not presented within statutory period of 60 days. 11. The only controversy between the parties in this case is as to whether proviso (a)(i) or (ii) of section 167 (2) Cr.P.C. would be applicable to this case, registered for an offence punishable inter-alia under sections 467 IPC. The offence under section 467 IPC is punishable with imprisonment for life, or with imprisonment of either description for a term which may extend to 10 years. As per section 167 (2) Cr.P.C., the time for putting up challan is 90 days in a case where the offence is punishable with death, imprisonment for life or imprisonment for a term of not less than 10 years and for any other offence, the time for putting up the challan is 60 days, in default of which the accused becomes entitled to bail. 12. As is evident from the decided cases cited above, the matter came up for determination several times and the law seems to have been correctly laid down in Bhupinder Singh and others’ case, supra. Punishment provided in a case under section 304-B IPC, which was the offence for which the accused was charged sheeted in the reported case is imprisonment which shall not be less than 7 years but it could extend to imprisonment for life. Punishment for a term exceeding 10 years has not been provided for this offence, which shows that for this offence the punishment to be awarded is not to be less than 7 years but it may extend to life imprisonment. Punishment for a term exceeding 10 years has not been provided for this offence, which shows that for this offence the punishment to be awarded is not to be less than 7 years but it may extend to life imprisonment. In case of the offence punishable under section 467 IPC, the punishment provided is imprisonment for life, or imprisonment of either description for a term which may extend to 10 years. It clearly shows that the punishment could extend to imprisonment for life and no distinction, therefore, can be drawn between the punishments provided for the offences punishable under sections 304-B and 467 IPC. In view of the ratio of Bhupinder Singh and others’ case, supra, the decision in Som Nath and another’s and Karamjit Singh’ cases supra could not be followed. Therefore, the period provided for putting up challan in the case in hand is 90 days and learned Judicial Magistrate Ist Class, Gurgaon had been justified in rejecting the bail, which was earlier granted on misinterpretation of law. However, learned Additional Sessions Judge, Gurgaon was not justified in setting aside the said order. 13. In view of the above discussion, the petition is allowed. The order dated 29.09.2011 (Annexure P-4) passed by learned Additional Sessions Judge, Gurgaon is set aside and the order dated 14.09.2011 passed by learned Judicial Magistrate Ist Class, Gurgaon is restored.