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2014 DIGILAW 732 (RAJ)

Vijendra @ Pintu v. State

2014-03-19

KANWALJIT SINGH AHLUWALIA

body2014
JUDGMENT : - Hon'ble AHLUWALIA, J.—Instant application has been preferred under Sec. 439 Cr.P.C. for grant of regular bail to the petitioner in a case arising out of FIR No.621/2013, registered at Police Station, Shiprapath, Jaipur Metropolitan, Jaipur, for offences punishable under Sections 498-A and 304-B I.P.C. 2. In the instant case, the petitioner was married with one Ms. Poonam Singh on 24.02.2012. 3. It is a case of prosecution that Ms. Poonam Singh committed suicide in her matrimonial home. 4. As per complainant, Ms. Poonam Singh was harassed and maltreated for not giving an adequate dowry. 5. This Court need not dilate this case on the merits, as Mr. Anil Upman, the learned counsel appearing for the petitioner, submitted that in the present case the petitioner was arrested on 15.11.2013 and his remand was obtained on 16.11.2013. 6. Counsel appearing for the petitioner submitted that the petitioner had filed an application under Section 167 (2) Cr.P.C. seeking bail on the ground that within the prescribed period of 90-days charge-sheet has not been filed. 7. The trial Court has declined bail to the petitioner holding that the right of the petitioner stood defeated by filing of the charge-sheet. 8. The learned Public prosecutor for the State has relied upon Pragyna Singh Thakur vs. State of Maharashtra, reported in (2011) 10 S.C.C. 445 to contend that even though application for bail was pending by filing of the charge-sheet, the right of the petitioner stood defeated. 9. In support of his contention, the learned counsel has relied upon the following portion of the judgments:- "54. 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. 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. 56. In Uday Mohanlal Acharya vs. State of Maharashtra a three-Judge Bench of this Court considered the meaning of the expression "if already not availed of" used by this Court in the decision rendered in Sanjay Dutt in para 48 and held that if an application for bail is filed before the charge-sheet is filed, the accused could be said to have availed of his right under Section 167 (2) even though the court has not considered the said application and granted him bail under Section 167 (2) CrPC. This is quite evident if one refers to para 13 of the reported decision as well as the conclusion of the Court at p.747. 58. 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." 10. This Court had requested Mr. V.R. Bajwa, the learned counsel of this Court to assist as an amicus curiae and analysis the entire case law for consideration of the Court. 11. Mr. Bajwa, the learned counsel has very diligently in a very elucid manner has dealt with the case law touching controversy raised before this Court. 12. This Court had requested Mr. V.R. Bajwa, the learned counsel of this Court to assist as an amicus curiae and analysis the entire case law for consideration of the Court. 11. Mr. Bajwa, the learned counsel has very diligently in a very elucid manner has dealt with the case law touching controversy raised before this Court. 12. In the case of Chaganti Satyanarayana and others vs. State of Andhra Pradesh, reported in AIR 1986 SC 2130 , their Lordships has observed that the period of 90-days/60-days shall commence from the date of remand order. 13. It is apposite to reproduce here Para 18 of the said judgment. "18. The words used in proviso (a) are "no Magistrate shall authorise the detention of the accused person in custody", "under this paragraph", "for a total period exceeding i.e. 90 days/60 days". Detention can be authorised by the Magistrate only from the time the order of remand is passed. The earlier period when the accused is in the custody of a police officer in exercise of his powers under Section 57 cannot constitute detention pursuant to an authorisation issued by the Magistrate. It, therefore, stands to reason that the total period of 90 days or 60 days can begin to run only from the date of order of remand." 14. Thereafter, in the case of State of M.P. vs. Rustam and Ors., reported in 1996 Cr.L.R. (SC) 56, it was held that the date on which remand was granted is to be excluded in view of application of above judgment, if the date of remand is excluded. 15. It is apparent that the period of more than 90-days has already elapsed when application for bail under Section 167(2) Cr.P.C. was filed on behalf of the petitioner i..e. on 17.02.2014, as in the present case, charge-sheet was filed on 18.02.2014. 16. Thus, the question arises as to whether or not the right of the petitioner stood defeated in view of the recent judgment rendered by the Hon'ble Supreme Court in the case of Pragyna Singh Thakur (supra). 17. A Constitutional Bench in the case of Sayed Mohd. 16. Thus, the question arises as to whether or not the right of the petitioner stood defeated in view of the recent judgment rendered by the Hon'ble Supreme Court in the case of Pragyna Singh Thakur (supra). 17. A Constitutional Bench in the case of Sayed Mohd. Ahmad Kazmi vs. State (Government of NCT of Delhi) and Others, reported in (2012) 12 S.C.C. 1, had held that if before filing of the charge-sheet application under Section 167 (2) Cr.P.C. has filed and same is pending the right of the petitioner-accused will not be defeated, even if the charge-sheet is filed afterwards. In other words, if after expiry of 90-days, application is filed for grant of bail and charge-sheet is filed later the right of accused to seek bail under Section 167 (2) Cr.P.C. shall remain in vogue. 18. The view taken in the case of Sanjay Dutt vs. State through C.B.I. Bombay (II), reported in (1994) 5 S.C.C. 410 has also been followed by three-Judges Bench of the Hon'ble Supreme Court in the case of Sayed Mohd. Ahmad Kazmi (supra). 19. Thus, it is apparent that the law propounded in Pragyna Singh Thakur (supra) is per-incuriam to the ratio of law laid down by the Constitutional Bench in Sanjay Dutt's case (supra) and the subsequent judgment of three-Judges Bench of the Hon'ble Supreme Court in Sayed Mohd. Ahmad Kazmi' s case (supra), which followed Sanjay Dutt's case (supra). 20. This Court need not notice the ratio of law laid down in the case of Uday Mohanlal Acharya vs. State of Maharashtra, reported in 2001 Cr.L.R. (SC) 472, as the law laid down in that case was distinct. It was held in that case that if the bail is granted under Section 167(2) Cr.P.C. and accused fail to furnish bail bonds till filing of the charge-sheet the order granting bail shall cease to operate. 21. Considering the ratio of law laid down by the Constitutional Bench in the case of Sanjay Dutt (supra) and in the case of Sayed Mohd. Ahmad Kazmi, which is three-Judges Bench, this Court is of the view that the right for grant of bail to the petitioner accrued on 93rd day i.e. on 17.02.2014 because of pendency of bail application and same will not be defeated by filing of the charge-sheet on 94th day. 22. Ahmad Kazmi, which is three-Judges Bench, this Court is of the view that the right for grant of bail to the petitioner accrued on 93rd day i.e. on 17.02.2014 because of pendency of bail application and same will not be defeated by filing of the charge-sheet on 94th day. 22. Consequently, the present application is accepted and the petitioner is ordered to be released on bail during the pendency of the trial, to the satisfaction of the trial Court.