Research › Search › Judgment

Rajasthan High Court · body

2021 DIGILAW 902 (RAJ)

Vinay Kumar v. State of Rajasthan

2021-04-29

CHANDRA KUMAR SONGARA

body2021
ORDER 1. Instant application has been filed under Section 439 (2) of Code of Criminal Procedure, 1973 seeking cancellation of bail granted to the accused-respondent under Section 439 Cr.P.C. by this Court in S.B. Criminal Miscellaneous 2nd Bail Application No.9306/2020 vide its order dated 11.09.2020 in F.I.R. No.236/2020 registered at Police Station 2. Brahmpuri District Jaipur City (North) for offences punishable under Section 376 of I.P.C. and under Sections 3, 4, 5-D and 6 of POCSO Act. Submissions of learned counsel appearing for the petitioner/ complainant are that : (I) accused-respondent- Rohit Kumar was arrested on 09.04.2020 and was produced before the learned trial Court on 10.04.2020. Police filed charge-sheet on 09.07.2020 for offences punishable under Sections 5-E and 6 of POCSO Act and under Sections 376-AB & 202 of I.P.C. A bail application to this effect was filed by accused seeking benefit under Section 167 (2) Cr.P.C. on the ground that the charge-sheet was not filed within the period of 90-days and, therefore, accused was entitled for grant of statutory bail under Section 167 (2) Cr.P.C. However, the learned trial Court, vide its order dated 09.07.2020 (Annexure-2), dismissed the aforesaid application by holding that the charge-sheet was filed within a period of 90-days. (II) accused-respondent- Rohit Kumar had challenged the aforesaid order of rejection of bail before this Court in S.B. Criminal Miscellaneous 2nd Bail Application No.9306/2020 and the said application was allowed, vide its order dated 11.09.2020 (Annexure-3). (III) in the present case, the accused was arrested on 09.04.2020 and was produced before the Court of Magistrate on 10.04.2020, therefore, the period was to start from the intervening night of 10.04.2020 & 11.04.2020, it means the calculation was to start from 11.04.2020 and the filing of charge-sheet on 09.07.2020 was within the period of 90-days, therefore, the accused was not entitled to bail on the ground mentioned under Section 167 (2) of Cr.P.C. and (IV) the impugned bail order dated 11.09.2020 was not passed on merits or demerits of the case but solely on the technical ground mentioned under Section 167 (2) Cr.P.C., therefore, the impugned order is liable to be quashed. 3. Learned Public Prosecutor appearing for the State has not opposed the present bail cancellation application. 4. Learned counsel appearing for the accused-respondent has opposed the submissions made by learned counsel appearing for the petitioner/complainant and submitted that bail cancellation application may kindly be dismissed. 5. 3. Learned Public Prosecutor appearing for the State has not opposed the present bail cancellation application. 4. Learned counsel appearing for the accused-respondent has opposed the submissions made by learned counsel appearing for the petitioner/complainant and submitted that bail cancellation application may kindly be dismissed. 5. Hon?ble Supreme Court in Chaganti Satyanarayana and Others Vs. State of Andhra Pradesh, reported in A.I.R. 1986 S.C. 2130, observed as under:- "25. Thus, in any view of the matter i.e. construing proviso (a) either in conjunction with sub-section (2) of Section 167 or as an independent paragraph, we find that the total period of 90-days under Clause (i) and the total period of 60-days under Clause (ii) has to be calculated only from the date of remand and not from the date of arrest." (Emphasis supplied) 6. Heard learned counsel appearing for the parties and perused the impugned order and the material made available on record. In the light of aforesaid judgment of Hon?ble Apex Court, the period of 90-days envisaged by proviso to Section 167 (2) Cr.P.C. had to be computed only from the date of remand. Thus, learned counsel appearing for the petitioner/complainant, has rightly submitted that in the present case, the accused was produced before the Court of Magistrate on 10.04.2020 and the filing of charge-sheet on 09.07.2020 was within the period of 90-days, therefore, the accused was not entitled to bail on the ground mentioned under Section 167 (2) Cr.P.C., Hence, the aforesaid bail cancellation application deserves to be granted. 7. Since this Court had granted bail vide its impugned order dated 11.09.2020 to the accused-respondent before expiry of 90-days of remand period permitted under the law, the impugned order dated 11.09.2020 will not tantamount to one passed under the provisions of Chapter XXXIII of Code and, hence, it is made clear that after the accused-respondent surrenders himself to custody or taken into custody by re-arrest, he would be at liberty to file afresh bail application under Section 437/439 Cr.P.C. as per law. 8. Accordingly, the bail cancellation application is allowed and the impugned order dated 11.09.2020 (Annexure-3) is hereby quashed and set aside. The bail granted to accused-respondent- Rohit Kumar is hereby cancelled and he is directed to surrender himself before the concerned trial Court on or before 07.05.2021. 8. Accordingly, the bail cancellation application is allowed and the impugned order dated 11.09.2020 (Annexure-3) is hereby quashed and set aside. The bail granted to accused-respondent- Rohit Kumar is hereby cancelled and he is directed to surrender himself before the concerned trial Court on or before 07.05.2021. In case, the accused respondent fails to surrender himself before the trial Court on or before the date fixed, the trial Court shall initiate proceedings against the accused-respondent, as per law. It is, however, made clear that nothing contained in this order will restrict the right of accused-respondent to seek regular bail and in the event of his applying the same, his application will be decided on merits without referring to any observation made herein. 9. Let a copy of this order be sent to the concerned trial Court.