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2012 DIGILAW 753 (PNJ)

Sajjan Singh v. State of Haryana

2012-05-28

RANJIT SINGH

body2012
JUDGMENT Mr. Ranjit Singh, J.: - The petitioner has prayed for his release on bail under Section 167(2) Cr.P.C. in a case registered against him under various Sections of Narcotic Drugs and Psyshotropic Substances Act, 1985. Thus, the petitioner is praying for his release on the ground that challan has not been presented within the stipulated period in terms of Section 167(2) Cr.P.C and, thus, he has acquired an indefeasible right to be freed on bail. 2. The FIR No.151 dated 8.9.2011 is registered against the petitioner on account of recovery of polythene bag containing opium. Subsequently, on a disclosure statement, some poppy husk was also recovered. The petitioner was arrested in this case on 8.9.2011. The police was required to complete investigation within 180 days. No challan, however, was presented within the stipulated period. The petitioner accordingly applied for being released on bail by operation of Section 167 (2) Cr.P.C. It is alleged that the petitioner has filed a bail application on 10.3.2012 and thereafter challan was presented on 13.3.2012. As per the counsel, the petitioner had acquired an indefeasible right to be released on bail and filing of a challan subsequent to the filing of bail application by him would not defeat his indefeasible right to be released on bail. 3. In support, the petitioner has placed heavy reliance on Uday Mohanlal Acharya Vs. State of Maharashtra, AIR 2001 Supreme Court 1910. In this case, it is observed that where charge sheet is not filed within the stipulated period as mentioned in Section 167(2) Cr.P.C., then the accused gets an indefeasible right to get bail and that the accused must be held to have availed this right, when he filed bail application and subsequent filing of challan will not extinguish the right of the accused to get bail. No doubt, some such observations have been made but this issue has also been considered in number of other judgements subsequent to the case of Udey Mohanlal Acharya (supra). While rejecting the prayer of the petitioner on this ground for being released on bail, a reference and reliance has been placed on the case of Pragyna Singh Thakur Vs. State of Maharashtra, 2012 (1) RCR (Criminal) 302. While dealing with somewhat similar a situation, the Hon’ble Supreme Court has held as under:- “There is yet another aspect of the matter. State of Maharashtra, 2012 (1) RCR (Criminal) 302. While dealing with somewhat similar a situation, the Hon’ble Supreme Court has held as under:- “There is yet another aspect of the matter. The right under Section 167(2) of Cr.P.C. to be released on bail on default if charge sheet is not filed within 90 days from the date of first remand is not an absolute or indefeasible right. The said right would be lost if charge sheet is filed and would not survive after the filing of the charge sheet. In other words, even if an application for bail is filed on the ground that charge sheet was not filed within 90 days, but before the consideration of the same and before being released on bail, if charge sheet is filed, the said right to be released on bail would be lost. After the filing of the charge sheet, if the accused is to be released on bail, it can be only on merits. This is quite evident from Constitution Bench decision of this Court in Sanjay Dutt vs. State (1994) 5 SCC 410 [Paras 48 and 53(2)(b)]. The reasoning is to be found in paras 33 to 49.” 4. This principle, as noted above, has been followed in various decisions of Hon’ble Supreme Court, namely, State of M.P. Vs. Rustam and others, 1995 Supp. (3) SCC 221, Dr. Bipin Shantilal Panchal V. State of Gujarat, 1996 (1) R.C.R. (Criminal) 505, Dinesh Dalmia V. C.B.I., [2007(4) Law Herald (SC) 3348] : 2007 (4) R.C.R. (Criminal) 283 and Mustaq Ahmed Mohammed Isak and others Vs. State of Maharashtra, 2010 (5) RCR (Criminal) 122. Further, the Hon’ble Supreme Court in the case of Pragyna Singh Thakur (Supra) has duly considered the case of Udey Mohanlal Acharya (supra) and has finally observed as under:- “From the discussion made above, it is quite clear that even if an application for bail is filed on the ground that charge sheet was not filed within 90 days, before the consideration of the same and before being released on bail if charge sheet is filed, the said right to be released on bail, can be only on merits. So far as merits are concerned the learned counsel for the appellant has not addressed this Court at all and in fact bail is not claimed on merits in the present appeal at all.” 5. So far as merits are concerned the learned counsel for the appellant has not addressed this Court at all and in fact bail is not claimed on merits in the present appeal at all.” 5. In fact, in Pragyna Singh Thakur’s case (supra), the Court has clearly held that right of the accused to be released on bail is not an absolute or indefeasible and this right to be released on bail would be lost if the charge sheet is filed before the application for bail is considered and allowed. The Court has taken this view after going through various judgements, including that of Sanjay Dutt’s case (supra). 6. In view of the law laid down by the Hon’ble Supreme Court, a view is possible that the petitioner in this case does not get any indefeasible right in the facts of the present case. Even in Gayasuddin and another versus State of Jharkhand 2006 (1) RCR (Criminal) 360, Jharkand High Court has observed that when charge sheet is filed by the police after order of grant of bail but before filing of bail bonds by the accused, then he will not be entitled to grant of bail under Section 167(2) Cr.P.C. Accordingly, I am not inclined to direct release of the petitioner on bail as his right certainly got defeated by filing of the challan before the Magistrate could pass any order on his bail application and no case of his release on merit is made out. 7. The petition is accordingly dismissed. ---------0.B.S.0------------