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1998 Supreme(P&H) 1126
PUNJAB AND HARYANA HIGH COURT
S.C. Malte. J.
Ramesh Kumar - Petitioner
Versus
State of Haryana - Respondent
Criminal Misc. No. 20451-M of 1998.
Decided On : 7 September, 1998
For the Petitioner:Ms. Lisa Gill, Advocate.
For the Respondent: Mr. Gobind Dhanda, AAG, Haryana.
The accused has the right to be released on bail if the prosecution fails to file the charge sheet within the time limit, and if the accused exercises this right soon after the completion of the statutory period for filing the charge-sheet, but before the charge-sheet was submitted.
Headnote:
Bail - Section 167(2) Criminal Procedure Code - The petitioner sought bail under Section 167(2) Criminal Procedure Code on the ground that even after the conclusion of 90th day of since his arrest, challan was not presented to the Court. The court granted bail to the accused under Section 167(2) Criminal Procedure Code during the pendency of trial.
Fact of the Case:
The petitioner sought bail under Section 167(2) Criminal Procedure Code on the ground that even after the conclusion of 90th day of since his arrest, challan was not presented to the Court. The trial Court issued notice to the prosecution. During the pendency of that petition, charge-sheet was submitted.
Finding of the Court:
The trial Court relied on certain rulings and observed that if the challan is submitted before the accused is released on bail, he cannot be granted bail under Section 167(2) Criminal Procedure Code. However, the court granted bail to the accused under Section 167(2) Criminal Procedure Code during the pendency of trial.
Issues: The short question was whether the petitioner would be entitled to get the benefit of 167(2) Criminal Procedure Code in such situation.
Ratio Decidendi: The court considered the case of Dr. Bipin Shantilal Panchal v. State of Gujarat, 1996(1) Recent CR 506, where it was observed that if an accused person fails to exercise his right to be released on bail for the failure of the prosecution to file the charge sheet within the time limit, he gets a right to be released on bail. The court also noted that if the accused exercises his right to be released on bail soon after the completion of the statutory period for filing the charge-sheet, but before the charge-sheet was submitted, and if the passing of the order was postponed until reply received from the other side, that does not take away the right available to the accused to be released on bail.
Final Decision: Accused granted bail under Section 167(2) Criminal Procedure Code during the pendency of trial in FIR No. 252 dated 13.4.1998 under Sections 18/61/85 NDPS Act, registered at Police Station Shahabad, District Kurukshetra, on his executing the bail bond and surety bond in the sum of Rs. 50,000/- to the satisfaction of the trial Judge. Appeal accepted.
S.C. Malte, J. - The petitioner seeks bail under Section 167(2) Criminal Procedure Code on the ground that even after the conclusion of 90th day of since his arrest, challan was not presented to the Court. The admitted position is that soon after the conclusion of 90th day, the petitioner submitted an application for release on bail. The trial Court issued notice to the prosecution. During the pendency of that petition, charge-sheet was submitted. The short question, therefore, would be whether the petitioner would be entitled to get the benefit of 167(2) Criminal Procedure Code in such situation.
2. The trial Court has relied on certain rulings and observed that if the challan is submitted before the accused is released on bail, he cannot be granted bail under Section 167(2) Criminal Procedure Code
3. Counsel for the petitioner, on the other hand, relied on the case of Dr. Bipin Shantilal Panchal v. State of Gujarat, 1996(1) Recent CR 506. In that case Their Lordships of the Supreme Court have made an observation that if an accused person fails to exercise his right to be released on bail for the failure of the prosecution to file the charge sheet within the time limit, he gets a right to be released on bail. Ld. AAG (Haryana) relied on the case of State of Punjab v. Sukhminder Singh alias Mundri, 1998(2) RCR Criminal 513 in which case the Single Bench of this Court declined to grant bail under Section 167(2) Criminal Procedure Code On perusal of the factual aspect involved in that case, I find that in that case the accused had submitted an application for being released on bail after the charge-sheet was filed albeit after 90 days. The trial Court seems to have not appreciated that aspect. In the light of ratio as indicated in the case of Dr. Bipin Shantilal Panchal (supra), conversely it appears that if the accused exercises his right to be released on bail soon after the completion of the statutory period for filing the charge-sheet, but before the charge-sheet was submitted, and if the passing of the order was postponed until reply received from the other side, that does not take away the right available to the accused to be released on bail. I, therefore, pass the following order :-
Accused granted bail under Section 167(2) Criminal Procedure Code during the pendency of trial in FIR No. 252 dated 13.4.1998 under Sections 18/61/85 NDPS Act, registered at Police Station Shahabad, District Kurukshetra, on his executing the bail bond and surety bond in the sum of Rs. 50,000/- to the satisfaction of the trial Judge.
Appeal accepted.
