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2013 DIGILAW 1085 (PNJ)

Jatinder Kumar alias Harry v. State of Punjab

2013-08-19

Inderjit Singh

body2013
JUDGMENT Mr. Inderjit Singh, J.:- The petitioner has filed this petition under Section 439 Cr.P.C. for grant of regular bail in case FIR No.22 dated 12.7.2012 registered at Police Station Lakhewali, District Sri Muktsar Sahib, for the offence under Section 22 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as ‘the Act’). 2. Learned counsel for the petitioner contended that the petitioner in this case was in custody since 12.7.2012 and after about seven months i.e. on 12.2.2013, he filed application under Section 167(2) Cr.P.C. and under the provisions of the Act for grant of bail as challan was not presented till then. The application filed by the prosecution for extension of time was dismissed by the Court as challan was presented on 16.2.2013. Therefore, no extension of the period was granted by the Court and the application was dismissed as infructuous. Learned counsel, therefore, argued that when after 180 days, challan was not presented and the application was filed by the petitioner before the presentation of challan, then the accused-petitioner has indefeasible right to get the bail, Afterwards, presentation of challan or pendency of application for extension of time, which was not allowed by the Court, is no ground to dismiss the bail application. 3. On the other hand, learned Assistant Advocate General contended that as the application was filed earlier to the bail application, which was pending in the Court and then the challan was filed on 16.2.2013 and the application was dismissed being infructuous, the bail application cannot be allowed. 4. From the record, I find that it is not contested that the petitioner was in custody since 12.7.2012 and 180 days expired in the month of January 2013. The petitioner filed the application before the Court on 12.2.2013 and at that time challan was not presented. Challan was filed in the Court on 16.2.2013. It is also admitted fact that though the application was filed by the prosecution but no extension was granted by the Court, rather this application was dismissed as being infructuous after the presentation of the challan. So the position is that on 12.2.2013, when the application was filed by the petitioner under Section 167(2) Cr.P.C. read with the provisions of the Act, the challan was not filed and 180 days have already elapsed and further no extension of period for presentation of challan was granted by the Court. So the position is that on 12.2.2013, when the application was filed by the petitioner under Section 167(2) Cr.P.C. read with the provisions of the Act, the challan was not filed and 180 days have already elapsed and further no extension of period for presentation of challan was granted by the Court. Therefore, the accusedpetitioner gets an indefeasible right to get the bail. 5. The Hon’ble Supreme Court in Sanjay Dutt v. State through C.B.I. Bombay, 1994 (3) RCR (Cr.) 684 (5 Judges Bench), held that when investigation is not completed and challan is not put-up within 180 days under Terrorist and Disruptive Activities (Prevention) Act, 1987 read with Section 167 (2) Cr.P.C., if the accused applied for release on bail, this right is enforceable by accused only from the time of default till the filing of challan. This right does not survive on the challan being filed. In other words, the Hon’ble Supreme Court has held that if the challan has been filed after the stipulated period and no application is filed, then the accused has no right to be released on bail i.e. if the application is filed after presentation of challan and not before presentation of challan, then the accused has no right. 6. The Hon’ble Supreme Court in Uday Mohanlal Acharya v. State of Maharashtra, 2001 (2) RCR (Cr.) 452 (3 Judges Bench) has again reiterated the position in which it is stated that if charge-sheet is not filed within the period stipulated in Section 167(2) Cr.P.C., the accused gets an indefeasible right to get bail. The accused must be held to have availed this right when he filed bail application. Subsequent filing of challan will not extinguish the right of the accused to get bail. This citation also fully applies in the present case. 7. The Supreme Court in Sayed Mohd. Ahmed Kazmi v. State, GNCTD and others, [2012(6) Law Herald (SC) 5094] : 2012 (4) RCR (Cr.) 875 (3 Judges Bench), held that if charge-sheet is not filed within the period stipulated in Section 167(2) Cr.P.C., the accused gets statutory right of release on bail. However, where no application was filed for bail on expiry of 90 days and chargesheet came to be filed, the accused loses his right of statutory bail and can thereafter, only apply for regular bail. 8. However, where no application was filed for bail on expiry of 90 days and chargesheet came to be filed, the accused loses his right of statutory bail and can thereafter, only apply for regular bail. 8. Admittedly, in this case bail application has been filed after 180 days when challan was not presented and challan was presented afterward. Therefore, in view of the law laid down by the Hon’ble Supreme Court, the petitioner has a right for grant of bail under Section 167(2) Cr.P.C. 9. In view of the above facts and circumstances, I accept this criminal miscellaneous petition and admit the petitioner to bail subject to his furnishing personal bond in the sum of Rs.40,000/- with one surety in the like amount to the satisfaction of the Chief Judicial Magistrate/Duty Magistrate, Muktsar Sahib. --------0.B.S.0------------