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IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH
Daya Chaudhary, J.
Master Bholu through his father and natural guardian Vinod Kumar – Appellant
Versus
Central Bureau of Investigation – Respondent
Criminal Appeal No. S-646-SB of 2018
Decided On : 06-06-2018
JUVENILE JUSTICE ACT - SECTION 167(2) CR.P.C. - DEFAULT BAIL - TIME PERIOD FOR FILING CHALLAN - COMPUTATION - EXCLUSION OF DAY OF REMAND TO JUDICIAL CUSTODY - MAXIMUM PUNISHMENT FOR OFFENCE - LIFE IMPRISONMENT - PERIOD OF 90 DAYS FOR FILING CHALLAN - PRESENTATION OF CHALLAN BEFORE COURT - NOT BEFORE AHLMAD - INDEFEASIBLE RIGHT TO BAIL - ACCRUES ON EXPIRY OF PRESCRIBED PERIOD - CANNOT BE FRUSTRATED BY SUBSEQUENT FILING OF CHALLAN - APPLICATION FOR BAIL FILED PRIOR TO FILING OF CHALLAN ON SAME DAY - RIGHT TO BAIL NOT EXTINGUISHED.
Fact of the Case:
The appellant, a juvenile in conflict with law, was arrested on 07.11.2017 and produced before the Juvenile Justice Board on 08.11.2017. He was remanded to police custody for three days. On 05.02.2018, the challan was filed before the Court. The appellant moved an application for statutory/default bail under Section 167(2) Cr.P.C., which was dismissed by the trial Court.
Finding of the Court:
The Court held that the period of 90 days for filing the challan should be computed from the date of remanding of the accused and not from the date of arrest. The day on which the accused was remanded to the judicial custody should be excluded while the date on which the challan has been filed should be included. In the present case, the appellant was remanded to judicial custody on 08.11.2017 and the challan was filed on 05.02.2018, which was within 90 days. Therefore, the appellant was not entitled to be released on statutory/default bail.
Issues: 1. Whether the time period available to the investigating agency to conclude the investigation in a case of murder, having been committed by a child in conflict with law, would be 60 days or 90 days – failing which, the accused would be entitled for grant of statutory/default bail under Section 167(2) of the Cr.P.C.? 2. Whether for the purpose of Section 167(2) of the Cr.P.C., the presentation of the challan is required to be before the Court or whether merely filing it before an official of the Court, such as the Ahlmad, would be sufficient for determining the compliance of Section 167(2) of the Cr.P.C.? 3. Whether in the present case, the challan came to be filed by the investigating agency on 05.02.2018 as claimed by the investigating agency or on 06.02.2018 as is alleged by the present appellant? 4. Whether the indefeasible right to be released on bail, which accrues to an accused on account of the investigation not having been concluded within the statutory time-period would stand extinguished, if the challan is filed by the investigating agency on the same day on which the application is moved by the accused under Section 167(2) of the Cr.P.C.? 5. Whether in the facts and circumstances of the present case, any right under Section 167(2) of the Cr.P.C. had accrued to the present appellant so as to entitle him to the relief of statutory/default bail?
Ratio Decidendi: 1. The time period available to the investigating agency to conclude the investigation in a case of murder, having been committed by a child in conflict with law, would be 90 days and not 60 days. 2. For the purpose of Section 167(2) of the Cr.P.C., the presentation of the challan is required to be before the Court and not before an official of the Court, such as the Ahlmad. 3. In the present case, the challan came to be filed by the investigating agency on 05.02.2018. 4. The indefeasible right to be released on bail, which accrues to an accused on account of the investigation not having been concluded within the statutory time-period would not stand extinguished, if the challan is filed by the investigating agency on the same day on which the application is moved by the accused under Section 167(2) of the Cr.P.C., provided that the application was filed prior in time to the challan. 5. In the facts and circumstances of the present case, no right under Section 167(2) of the Cr.P.C. had accrued to the present appellant so as to entitle him to the relief of statutory/default bail.
Final Decision: The appeal was dismissed.
Daya Chaudhary, J.
1. The present appeal has been filed to challenge impugned order dated 05.02.2018 passed by the Additional Sessions Judge, Gurugram, whereby, the application filed by the appellant under Section 167(2)(a)(ii) Cr.P.C. read with Section 2(33) and 21 of the Juvenile Justice (Care and Protection of Children) Act, 2015 (for short 'the Juvenile Justice Act') for grant of statutory/default bail in case FIR No.RC-8(S)/2017/SCIII/New Delhi dated 22.09.2017 for offence punishable under Section 302 of Indian Penal Code, Section 25 of the Arms Act, 1954, Section 12 of the Protection of Children from Sexual Offences Act, 2012 (for short 'the POCSO Act') and Section 75 of the Juvenile Justice Act, 2015 has been dismissed.
2. Briefly, the facts of the case as made out in the present appeal are that FIR No.250 dated 08.09.2017 was registered at Police Station Bhondsi, District Gurugram, under Section 302 IPC, Section 25 of the Arms Act, Section 12 of the POCSO Act and Section 75 of the Juvenile Justice Act. The State Government issued notification and transferred the investigation of the case to CBI and thereafter, the case was re-registered as FIR No.RC-8(S)/2017/SCIII/New Delhi dated 22.09.2017.
3. After registration of said FIR in view of notification issued by the State Government, the investigation of the case was conducted by the CBI. The present appellant was arrested by the CBI and was produced before the Juvenile Justice Board on 08.11.2017. Thereafter, an inquiry was conducted by the Juvenile Justice Board and vide order dated 20.12.2017, it was ordered that the appellant could be tried as an adult and transferred the case to the Children Court. Since no Court was specifically designated as Children Court, the case was entrusted to the Court of Additional Sessions Judge, Gurugram to try the present appellant as an adult under the Juvenile Justice Act.
4. After arrest of the appellant, he was retained in the Observation Home. When the challan was not presented by the CBI within the prescribed period, the appellant moved an application under Section 167(2) Cr.P.C. A report was called from the Criminal Ahlmad, wherein it was clarified that the challan had been submitted by the CBI on 05.02.2018. The application moved by the appellant under Section 167(2) Cr.P.C. was dismissed vide order dated 05.02.2018, which is subject matter of challenge in the present appeal.
5. Learned senior counsel for the appellant submits that the period of 60 days had expired on 05.01.2018 and the period of 90 days from the date of arrest had expired on 04.02.2018. The challan was not presented within a period of 60 days and the appellant became entitled for bail as per provisions of Section 167(2) Cr.P.C. Learned senior counsel further submits that while passing impugned order, the lower Court has held that the period of filing challan was 90 days as the appellant was facing trial for offence punishable under Section 302 IPC. The application for grant of bail was moved on 90th day and on that day, only the charge-sheet was submitted and the appellant was not entitled for bail. Learned senior counsel also submits that as per provisions of Section 21 of the Juvenile Justice Act, the period for filing challan was 90 days and not 60 days as in case, the offence is punishable with death penalty and life imprisonment, then the period of presentation of challan is 90 days. Learned senior counsel also submits that as per proviso to Section 167(2) Cr.P.C., it is apparent that total period of 90 days is specified to an offence where offence is punishable with death, imprisonment for life or for a term not less than 10 years. It is also the argument of learned senior counsel that Section 5 Cr.P.C. shows that said section is a saving clause and it provides that nothing in the Court shall affect any special or local law in absence of any specific provision to the contrary but however, as per Section 103 of the Juvenile Justice Act, the procedure a
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