Karamjit Singh v. State of Punjab

CORAM: HON’BLE MR. JUSTICE RAKESH KUMAR JAIN Present: Mr. Amaninder Preet, Advocate, for the petitioner. Mr. J.S.Brar, AAG, Punjab. ***** RAKESH KUMAR JAIN, J. The petitioner has applied under Section 167(2) read with Section 439 of the Code of Criminal Procedure, 1973 [for short “Cr.P.C.”] for grant of bail in a case registered vide FIR No.266 dated 08.12.2010, under Sections 420, 465, 467, 468, 471, 120-B of the Indian Penal Code, 1860 [for short “IPC”] at Police Station Kotkapura, District Faridkot on the ground that the challan has not been presented within the mandatory period of 60 days from the date of his arrest. It is contended that the application for bail under Section 167(2) Cr.P.C. was filed before the learned Judicial Magistrate 1st Class, Faridkot which has been dismissed on the ground that challan has been presented before the expiry of 90 days as the sentence under Section 467 of IPC is extendable upto 10 years, therefore, the provisions of Section 167(2)(a)(i) of the Cr.P.C. would be applicable and not Section 167(2)(a)(ii) of the Cr.P.C. Learned counsel for the petitioner has submitted that the petitioner was arrested on 15.01.2011. He was produced before the learned Magistrate on 16.01.2011. He remained in police custody upto

18.01.2011 and was thereafter sent to the judicial custody and challan was presented on 11.04.2011. It is further contended that from the date of arrest till the filing of the challan, the period of 86 days had expired CRM-M-26959-2011 [ 2 ] ::::::::: and since the punishment under Section 467 of IPC is extendable upto 10 years and is not less than 10 years, therefore, the provisions of Section 167(2)(a)(ii) would be applicable and not of Section 167(2)(a)(i) of the Cr.P.C. In support of his submission, he has relied upon an order dated

28.04.2011 passed by this Court in CRM-M-10219-2011 titled as `Som Nath and another v. State of Punjab'. Learned State Counsel, in his reply, has submitted that there is no dispute about the dates of arrest and presentation of challan, but it is contended that the decision of this Court in Som Nath and another's case (supra) relied upon by learned counsel for the petitioner is not applicable to the present case because the sentence under Section 467 of the IPC can go upto 10 years and in that eventuality, the provisions of Section 167(2)(a)(i) Cr.P.C. would be applicable and since the challan has been presented on the 86th day from the date of arrest, therefore, it is well within the statutory period and hence, the petitioner cannot claim any advantage of the default clause. I have heard both the learned counsel for the parties and perused the record with their able assistance. The petitioner was arrested on 15.01.2011 and the challan has been presented on 11.04.2011, i.e. on the 86th day from the date of arrest of the petitioner.

The question is “whether the provisions of Section 167(2)(a)(ii) of the Cr.P.C. would be applicable and the petitioner would be entitled to the benefit of default clause for the purpose of his release on bail”. The issue is no more res intergra as it has been dealt with in extenso in Som Nath and another's case (supra) and this Court while relying upon the case of Uday Mohanlal Acharya v. State of Maharashtra, (2001) 5 Supreme Court Cases, 453 has observed that non-filing of challan within the statutory period under Section 167 of the Cr.P.C. provides an indefeasible right to the accused for being released on bail and while relying upon a decision of the Allahabad High Court in the case of Sohan Lal v. State, 1991, Allahabad Criminal Reports 383 and a Division Bench judgment of this Court in the case of Om Parkash Gabbar v. State of Punjab, 1997(1) R.C.R. (Criminal) 193 has held that if the offence wherein the sentence is upto 10 years imprisonment, the challan has to be presented within 60 days and where the sentence is not less CRM-M-26959-2011 [ 3 ] ::::::::: than 10 years as provided under Sections 304 and 307 etc., the challan has to be filed within 90 days.

Thus, in my view, the decision relied upon by learned counsel for the petitioner in Som Nath and another's case (supra) fully answers the question posed in this case. Consequently the petitioner is held entitled for bail on the ground that the challan has not been presented within the statutory period of 60 days. The petition is, thus, allowed and the petitioner is ordered to be released on bail on his furnishing bail bonds alongwith two heavy sureties in the like amount to the satisfaction of the learned Trial Court. September 21, 2011 vinod* (RAKESH KUMAR JAIN) JUDGE