The accused is entitled to default bail under Section 167(2) Cr.P.C. if the challan is not presented within 90 days, and the subsequent presentation of the challan does not defeat this right.

JUDGMENT :

Sudhir Mittal, J.

The issue involved in this revision petition is whether the petitioner is entitled to grant of default bail under Section 167(2) Cr.P.C.?

2. The petitioner is an accused in FIR No.222, dated 23.11.2018, registered at Police Station Guru Har Sahai, under Sections 420, 406, 409, 465, 467, 468, 471, 120-B of IPC and 7 & 13(1) A of Prevention of Corruption Act, 1988. The petitioner has been involved in this case as at the relevant time he was working as Inspector, Grade-II, PUNSUP, Ferozepur, deputed to purchase paddy from ‘Mandi Jiwan Arai' and 'Panje ke Uttar’ and allegedly, he along with the co-accused showed purchase of more paddy than actually done thereby causing a loss of Rs.3 crores (approx.) to the State Exchequer. The co-accused mentioned in the FIR are Jaswinder Pal Singh prop. of M/s Reet Enterprises, Sandeep Kumar prop. of M/s Jagdish Chander & Sons, Rashu Mutneja prop. of M/s Dhruv Commission Agent and Jasmeet Singh s/o Amarjeet Singh sole prop. of M/s Sunrise Food Products. Challan was presented in the Court on 23.01.2019 wherein the petitioner and his co-accused named in the FIR were kept in column No.2. At the end of the challan, it was mentioned that warrants have been got issued from the learned Illaqa Magistrate against the petitioner and his co-accused named in the FIR and that supplementary challan would be presented after arresting them. It has also been mentioned that separate supplementary challan would be submitted against the staff of Punjab National Bank after collecting evidence of their involvement. Challan was presented only against Sandeep Kumar s/o Fakir Chand who was in custody having been arrested on 25.11.2018.

3. Thereafter, the petitioner surrendered on 23.11.2019. As per the prosecution, the petitioner was taken into custody in this case on 02.12.2019 when he was produced before the Magistrate by way of production warrant. This implies that either the petitioner was arrested elsewhere and produced before the Magistrate on 02.12.2019 or that he was arrested in some other case and produced in this case on 02.12.2019. The actual position is not forthcoming from the record and is inconsequential in view of the reasons given hereinafter. The petitioner sought default bail under Section 167(2) Cr.P.C. vide a petition dated 24.02.2020 in which the learned Special Judge, Ferozepur has observed that no challan against the petitioner had been presented till 10:55 AM on the said date. However, parties have admitted that challan against the petitioner was in fact submitted on 24.02.2020. Again, this fact is inconsequential as 90 days had expired earlier and an indefeasible right had accrued in favour of the petitioner which could not be taken away. Vide the impugned order dated 25.02.2020, the learned trial Court dismissed the application filed under Section 167(2) Cr.P.C. on the ground that the main challan already stood presented on 23.01.2019 which was even before the date of surrender of the petitioner. To conclude so, he placed reliance upon Dinesh Dalmia vs. C.B.I., 2007(4) RCR (Criminal) 282.

4. Learned counsel for the petitioner submits that challan against the petitioner was presented on 24.02.2020. In the challan presented on 23.01.2019, the petitioner had been kept in column No.2 and thus, it is evident that investigation against the petitioner was not complete on the said date. The trial Court was in error in concluding that challan already stood presented against the petitioner. The judgment in Dinesh Dalmia (supra) is distinguishable as in the said case; the petitioner therein had been named in the challan presented before his arrest. Further, if a period of 90 days, elapses without conclusion of investigation and presentation of challan, an accused gets an indefeasible right to bail which could not be extinguished by presenting a challan after 90 days. Reliance is placed upon Ravinder Singh vs. State of Punjab, 2005(2) R.C.R. (Criminal) 340.

5. Learned State counsel,