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2013 DIGILAW 850 (HP)

Anil Kumar @ Sethu v. State of Himachal Pradesh

2013-09-26

SANJAY KAROL

body2013
JUDGMENT : Sanjay Karol, J. - Sub Inspector Kamal Deep, P.P. City, Una, Distt. Una, H.P. is present in Court. Status report filed. Record perused and returned. 2. Petitioner is facing trial in relation to offences punishable under the provisions of Sections 302, 420 read with Section 120B of the Indian Penal Code, 1860 as also under the provisions of Section 25 of the Arms Act, 1959. F.I.R. No. 41/13 was registered on 14.2.2013 at police station Una, District Una H.P. 3. Status report placed on record indicates that with the completion of investigation, challan was filed on 16.5.2013. 4. It cannot be disputed that petitioner was arrested on 15.2.2013. Thereafter he was remanded to judicial custody from time to time. Undisputedly, prior to the date on which challan was filed, petitioner did not file any application for release on bail. This was so done only on 18.5.2013. 5. In the petition it is averred that by virtue of provisions of Section 167 of the Code of Criminal Procedure, 1973, a vested right accrued in favour of the petitioner for release on bail, for the reason that the Investigating Officer failed to file the challan within the statutory period of ninety days. 6. After the matter was heard for some time with regard to accrual of such right in favour of the petitioner, entitling him to an automatic release on bail, Mr. Anoop Chitkara, learned counsel for the petitioner, in all fairness, invited my attention to the decision rendered by the Constitution Bench of the Apex Court in Sanjay Dutt v. State through C.B.I., Bombay(II), (1994) 5 SCC 410 wherein it is held that:- "48. We have no doubt that the common stance before us of the nature of indefeasible right of the accused to be released on bail by virtue of Section 20(4)(bb) is based on a correct reading of the principle indicated in that decision. The indefeasible right accruing to the accused in such a situation is enforceable only prior to the filing of the challan and it does not survive or remain enforceable on the challan being filed, if already not availed of. Once the challan has been filed, the question of grant of bail has to be considered and decided only with reference to the merits of the case under the provisions relating to grant of bail to an accused after the filing of the challan. Once the challan has been filed, the question of grant of bail has to be considered and decided only with reference to the merits of the case under the provisions relating to grant of bail to an accused after the filing of the challan. The custody of the accused after the challan has been filed is not governed by Section 167 but different provisions of the Code of Criminal Procedure. If that right had accrued to the accused but it remained unenforced till the filing of the challan, then there is no question of its enforcement thereafter since it is extinguished the moment challan is filed because Section 167 CrPC ceases to apply. The Division Bench also indicated that if there be such an application of the accused for release on bail and also a prayer for extension of time to complete the investigation according to the proviso in Section 20(4)(bb), both of them should be considered together. It is obvious that no bail can be given even in such a case unless the prayer for extension of the period is rejected. In short, the grant of bail in such a situation is also subject to refusal of the prayer for extension of time, if such a prayer is made. If the accused applies for bail under this provision on expiry of the period of 180 days or the extended period, as the case may be, then he has to be released on bail forthwith. The accused, so released on bail may be arrested and committed to custody according to the provisions of the Code of Criminal Procedure. It is settled by Constitution Bench decisions that a petition seeking the writ of habeas corpus on the ground of absence of a valid order of remand or detention of the accused, has to be dismissed, if on the date of return of the rule, the custody or detention is on the basis of a valid order. [See Naranjan Singh Nathawan v. State of Punjab, 1952 SCR 395 : AIR 1952 SC 106 ; Ram Narayan Singh v. State of Delhi, 1953 SCR 652 : AIR 1953 SC 277 and A. K. Gopalan v. Government of India, (1966) 2 SCR 427 : AIR 1966 SC 816 ]" [Emphasis supplied] 7. The ratio decidendi is evidently clear. [See Naranjan Singh Nathawan v. State of Punjab, 1952 SCR 395 : AIR 1952 SC 106 ; Ram Narayan Singh v. State of Delhi, 1953 SCR 652 : AIR 1953 SC 277 and A. K. Gopalan v. Government of India, (1966) 2 SCR 427 : AIR 1966 SC 816 ]" [Emphasis supplied] 7. The ratio decidendi is evidently clear. In fact this view stands reiterated in subsequent decision by the apex Court in Suresh Kumar Bhikamchand Jain v. State of Maharashtra & another, (2013) 3 SCC 77 . 8. As such the contention raised by the petitioner that he had a vested right for being released on bail under the provisions of Section 167 Cr.PC cannot be said to be tenable in law. 9. In the given facts, it is evidently clear that police had filed the challan on the 91st day and prior thereto petitioner had not taken any steps of moving an application for getting himself released on bail in exercise of his statutory right. Petitioner filed application only on the 93rd day which happened to be two days after challan was filed. 10. At this stage, learned counsel for the petitioner states that he does not press the petition on merits. Request allowed. With the aforesaid observations, present petition stands disposed of accordingly. Petition disposed of.