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1995 Supreme(P&H) 940
PUNJAB & HARYANA HIGH COURT
Sarojnei Saksena, J.
Dara Singh Alias Raja
Versus
State Of Haryana
Criminal Miscellaneous No. 9985 of 1995,
Decided On : AUGUST 23, 1995
The accused's right to be released on bail under Section 167(2) Cr. P.C. is enforceable only from the time of default till the filing of the challan and does not survive or remain enforceable on the challan being filed.
Headnote:
Bail - Enforcement of Right under Section 167(2) Cr. P.C. - The court held that the accused's right to be released on bail under Section 167(2) Cr. P.C. in default of completion of the investigation and filing of the challan within the time allowed endures only from the time of default till the filing of the challan and it does not survive or remain enforceable on the challan being filed.
Fact of the Case:
The bail petition was filed before the presentation of challan, but the challan was presented before the petition could be decided. The court also considered the petitioner's entitlement to bail under Section 37 of the NDPS Act.
Finding of the Court:
The court found that the petitioner cannot claim to be released on bail under Section 167(2) Cr. P.C. as the right is not enforceable after the filing of the challan. The petitioner's counsel could not satisfy the court regarding his entitlement to bail under Section 37 of the NDPS Act. Therefore, the petition was dismissed.
Issues: Enforceability of bail right under Section 167(2) Cr. P.C. after the filing of the challan and the petitioner's entitlement to bail under Section 37 of the NDPS Act.
Ratio Decidendi: The accused's right to be released on bail under Section 167(2) Cr. P.C. in default of completion of the investigation and filing of the challan within the time allowed endures only from the time of default till the filing of the challan and it does not survive or remain enforceable on the challan being filed.
Final Decision: The petition for bail was dismissed.
1. The only point for consideration in this petition is whether even after the presentation of challan on July 20, 1995, the petitioner can claim that he be released on bail under Section 167 (2) Cr. P.C. No doubt, the bail petition was filed on June 1, 1995, but before this petition could be decided on July 20, 1995., challan is presented against the accused. In Sanjay Dutt V/s. The State, 1995 Cri LJ 477, the Apex Court has held "The indefeasible right" of the accused to be released on bail in accordance with Section 20 (4) (bb) of TADA, 1987 read with Section 167 (2) Cr. P.C. in default of completion of the investigation and filing of the challan within the time allowed is a right which endures to, and is enforceable by the accused only from the time of default till the filing of the challan and it does not survive or remain enforceable on the challan being filed." The facts of Raghubir Singh V/s. State of Bihar, AIR 1987 SC 149 : (1987 Cri LJ 157) are slightly distinguishable because in that case the accused was already enlarged on bail and thereafter charge sheet was filed. The point for consideration was whether that order stands defeated by filing of the charge sheet. The answer was given in the negative. This judgement was relied on by a Single Bench of this Court in Gurmit Kaur V/s. State of Punjab, 1988 (1) Recent C. R. 258 : (1989 Cri LJ 1609). The ratio of Rajnikants case AIR 1990 SC 71 : 1990 Cri LJ 62 to the extent of law elucidated in Aslam Babalal Desai V/s. State of Maharashtra, AIR 1993 SC 1 : (1992 Cri LJ 3712) was overruled.
2. In view of the judgement of the Apex Court in Sanjay Dutts case, since in this case challan is filed on July 20 1995, before this bail petition could be decided, the petitioner cannot claim that he is released on bail under Section 167(2) Cr. P.C. His that right is not enforceable now. Even otherwise, the petitioners counsel could not satisfy this Court as to how under Section 37 of the NDPS Act he is entitled to bail. Accordingly, the petition is hereby dismissed.
