Back
2005 Supreme(P&H) 382
PUNJAB & HARYANA HIGH COURT
S.S.Saron, J.
Ravinder Singh
Versus
State Of Punjab
Criminal Miscellaneous No. 8221 of 2005,
Decided On : MARCH 15, 2005
The judgment established the principle that an accused has an indefeasible right to bail under Section 167(2) Cr.P.C. if the challan is not put up within the stipulated period, regardless of the severity of the offence.
Headnote:
Bail - Provisions of Section 167(2) Cr.P.C. - Uday Mohanlal Acharya v. State of Maharashtra, 2001(2) RCR(Crl.) 452 (SC) - Balwinder Singh v. State of Punjab, 2004(1) RCR(Crl.) 1002 - Jagdish Kumar Mehra v. State of Haryana (Cr. Misc. No. 12576-M of 2005) - Section 167(2) Cr.P.C.
Fact of the Case:
The petitioner surrendered before the Court and was taken into police remand. The petitioner filed an application for bail after the expiry of 90 days, claiming an accrued right for bail. The State contended that the offence was punishable for imprisonment up to ten years and the challan was filed within 90 days.
Finding of the Court:
The Court held that the petitioner was entitled to bail as the challan was not put up within the stipulated period under Section 167(2) Cr.P.C. The Court also clarified that the considerations for grant of bail would not be different based on the severity of the offence.
Issues: The main issue was whether the petitioner was entitled to bail under Section 167(2) Cr.P.C. after the expiry of 90 days, despite the severity of the offence.
Ratio Decidendi: The Court relied on the provisions of Section 167(2) Cr.P.C. and previous judgments such as Uday Mohanlal Acharya v. State of Maharashtra and Balwinder Singh v. State of Punjab to establish the petitioner's right to bail after the expiry of 90 days.
Final Decision: The criminal miscellaneous petition was allowed, and the petitioner was admitted to bail on furnishing personal bond and surety to the satisfaction of the trial Court.
S.S.Saron, J.
1. Learned counsel for the petitioner submits that the petitioner had surrendered before the Court of learned Chief Judicial Magistrate, Ludhiana on 9.8.2004 and he was taken into Police remand on 11.8.2004. It is contended that the period of 90 days for filing the challan expired on 7.11.2004 and the petitioner filed an application for bail in terms of Section 167(2) Cr.P.C. on 8.11.2004 which was after the expiry of 90 days. Therefore, a right accrued in favour of the petitioner for being released on bail. Even otherwise it is contended that the case is triable by a Magistrate and, therefore, the petitioner is entitled to the concession of bail as he is in custody since 9.8.2004 and his custody is not further required for the purpose of investigation.
2. In response, learned counsel for the State submits that even though the case is triable by the Magistrate, the petitioner is not entitled to the concession of bail as the offence under Section 409 IPC is punishable for imprisonment upto ten years which may extend upto life. It is contended that the petitioner was arrested on 11.8.2004 and the challan was filed within 90 days on 8.11.2004.
3. I have given my thoughtful consideration to the respective contentions. It is not in dispute that the petitioner surrendered before the Court of Chief Judicial Magistrate on 9.8.2004. Therefore, for all intents and purposes he deemed to be in custody in the case as he was subject to the control of the Court for the purpose of grant of remand and other incidental matters. The fact that his police remand was given on 11.8.2004 is inconsequential as Section 167(2) Cr.P.C. authorises the Magistrate to control the custody of an accused by granting him remand for a term not exceeding 60 or 90 days in whole. Section 167(2) Cr.P.C. reads under :-
"167. Procedure when investigation cannot be completed in twenty-four hours. - (1) xx xx xx xx
(2) The Magistrate to whom an accused person is forwarded under this section may, whether he has or has not jurisdiction to try the case, from time to time, authorise the detention of the accused in such custody as such Magistrate thinks fit, for a term not exceeding fifteen days in the whole; and if he has no jurisdiction to try the case or commit it for trial, and considers further detention unnecessary, he may order the accused to be forwarded to a Magistrate having such jurisdiction : Provided that - (a) the Magistrate may authorise the detention of the accused person, otherwise than in the custody of the police, beyond the period of fifteen days, if he is satisfied that adequate grounds exist for doing so, but no Magistrate shall authorise the detention of the accused person in custody under this paragraph for a total period exceeding - (i) ninety days, where the investigation relates to an offence punishable with death, imprisonment for life or imprisonment for a term of not less than ten years;
(ii) sixty days, where the investigation relates to any other offence,
and, on the expiry of the said period of ninety days, or sixty days, as the case may be, the accused person shall be released on bail if he is prepared to and does furnish bail, and every person released on bail under this sub- section shall be deemed to be released under the provisions of Chapter XXXIII for the purposes of that chapter;
(b) no Magistrate shall authorise detention in any custody under this section unless the accused is produced before him;
(c) no Magistrate of the second class, not specially empowered in this behalf by the High Court, shall authorise detention in the custody of the police."
4. In terms of the above provisions, it is evident that it is the Magistrate to whom an accused person is forwarded under the said section may, whether he has or has not jurisdiction to try the case, from time to time, authorise the detention of the accused in such custody as such Magistrate thinks fit. The proviso thereto envisages that where the investigation relates
