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1988 Supreme(P&H) 13
PUNJAB & HARYANA HIGH COURT
Ujagar Singh, J.
Gurmit Kaur
Versus
State Of Punjab
Criminal MISCELLANEOUS No. 7900 of 1987,
Decided On : JANUARY 7, 1988
The right to bail under Section 167(2) of the CrPC is not extinguished upon the filing of the charge sheet or by the passage of time.
Headnote:
BAIL - SECTION 167(2) OF THE CODE OF CRIMINAL PROCEDURE, 1973 - RIGHT TO BAIL - EXTINGUISHMENT - FILING OF CHARGE-SHEET - EFFECT - SECTION 437(5) AND 439(2) OF THE CODE OF CRIMINAL PROCEDURE, 1973 - CANCELLATION OF BAIL.
Fact of the Case:
Petitioner sought bail under Section 439 of the Code of Criminal Procedure (CrPC) in a case where the charge sheet had not been filed within the stipulated period of 90 days. The lower court denied bail, relying on a Division Bench judgment that held the right to bail under Section 167(2) of the CrPC is extinguished upon the filing of the charge sheet. The petitioner argued that this decision contradicted an earlier Full Bench judgment, which held that the accused is entitled to bail as a matter of right after 60 days in custody, irrespective of whether a charge sheet has been filed.
Finding of the Court:
The court held that the Division Bench judgment relied upon by the lower court was incorrect and that the Full Bench judgment was the binding precedent. The court found that the magistrate had failed to release the petitioner on bail as required by Section 167(2) of the CrPC and that the subsequent remand order was illegal. The court also held that the right to bail under Section 167(2) of the CrPC is not extinguished by the filing of the charge sheet or by the passage of time.
Issues: 1. Whether the right to bail under Section 167(2) of the CrPC is extinguished upon the filing of the charge sheet? 2. Whether the magistrate erred in denying bail to the petitioner?
Ratio Decidendi: 1. The court held that the right to bail under Section 167(2) of the CrPC is not extinguished upon the filing of the charge sheet. The court relied on the Full Bench judgment in Surinder Kumar v. The State of Punjab, which held that the accused is entitled to bail as a matter of right after 60 days in custody, irrespective of whether a charge sheet has been filed. 2. The court found that the magistrate had failed to release the petitioner on bail as required by Section 167(2) of the CrPC and that the subsequent remand order was illegal.
Final Decision: The court allowed the petition and granted bail to the petitioner.
1. This petition has been filed for grant of bail under Sec.439 of the Criminal P.C. (hereinafter referred to as Cr. P.C.) in case FIR No. 108 dt. 23rd July, 1987, Police Station Qadian, under Sec.302/449/34/120-B, Penal Code, after the bail was declined to the petitioner by the Additional Sessions Judge with the observations that she could not be admitted to bail on the sole ground that the charge-sheet had not been filed within the stipulated period of 90 days.
2. The learned Additional Sessions Judge has relied on a Division Bench judgement of this Court in Criminal Misc. No. 447/M/1976 (State of Punjab V/s. Nand Singh) decided on 17th Sept. 1976, and has ignored the verdict of a Full Bench of this Court in Surinder Kumar V/s. The State of Punjab, (1976) 78 Pun LR 643 : (1977 Cri LJ 1266), and has held that the right to be released on bail under the provisions of Sec.167(2) of the Cr. P.C., 1973 (No. 2 of 1974) gets extinguished on the filing of the charge-sheet.
3. For ready reference, the relevant part of Sec.167, Cr. P.C., is reproduced here :-
"167 (1)..............................
(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 authorize 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 authorize detention of the accused person, otherwise than in 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 authorize the detention of the accused person in custody, under this Section for a total period of exceeding sixty days, and on the expiry of the said period of sixty days, 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 Section shall be deemed to be so released under the provisions of Ch. XXXIII for the purposes of that Chapter; ................................................"
While considering the above provisions, the Full Bench in Surinder Kumars case (1977 Cri LJ 1266) (Punj and Hry) (supra) referred to the case Baldev Singh V/s. State of Punjab. (1975) 77 Pun LR 534 : (1975 Cri LJ 1662), decided by a Full Bench of this Court and noticed the observations made by S.S. Sandhawalia, J. (as he then was) to the following effect (at P. 1665) :-
"The arrest and detention of an accused person for the purposes of investigation of the crime forms an integral part of the process therefor. Section 167 of the new Code provides a step therein, being the judicial sanction for the custody of an accused person, either with the police or what is conveniently called judicial custody. This Section, in general, and Sub-S. (2) with the proviso thereto, directly relates to the arrest, custody or release of an accused person, and, therefore, it is clearly a procedural provision embedded firmly in the scheme of investigative process."
The attention of the learned Judges of the Full Bench was drawn to the following further observations made in Baldev Singhs case (supra) :-
"A bare reading of Sec.167 of the new Criminal P.C. would indicate that under this provision there need be no application for bail by the accused at all. This provision goes to the power and the very jurisdiction of the Magistrate to grant judicial or police custody of the person of the accused irrespective of the moving of an application on his behalf. In no uncertain terms, the statute provides that the accused person must be released on bail if he is prepared to furnish the same in case he has already been in custody for a period of sixty days. The presentation of an app
