An accused in custody is entitled to default bail if the charge sheet is not filed within the specified time under Section 167 (2) of the Code of Criminal Procedure.

JUDGMENT

Jaishree Thakur, J. - This is a petition that has been filed under Section 167 (2) of the Code of Criminal Procedure for grant of regular bail to the petitioner in case FIR No. 84 dated 28.4.2017, under Section 376-D, 120-B/323/457 IPC and Sections 3,4,6 of the Protection of Children from Sexual Offences Act, 2012 registered at Police Station Sadar Ferozepur.

2. The aforesaid FIR came to be registered at the instance of the prosecutrix, who alleged that on 27.4.2017, in the afternoon, her mother had gone to the house of her uncle Balwinder Kumar Sharma for some work and she and her younger brother, who is about 12 years old, after having their dinner went to sleep in their house. At about 11.30 p.m., the petitioner, who belong to the village of the prosecutrix, climbed the wall of the house of the prosecutrix and put his hand on her face and dragged her through the stairs to the roof of the house, where Balkar Singh, Meetu and Shingara Singh were already present. Thereafter, Balkar Singh caught her by her arms, Meetu covered her mouth with his hands and slapped her and Gurmej Singh forcibly removed her clothes (salwar) without her consent and raped her. On this, she shouted loudly which attracted her neighbour, namely Shinder Kaur and her husband Gurmeet Singh, to the spot and on seeking them, all the accused fled from the spot.

3. Co-accused Balkar Singh and Shingara Singh were arrested and after investigation, challan was presented against them under Section 173 of the Code of Criminal Procedure on 29.8.2017. However, the petitioner and co-accused Meetu @ Gurmit Singh were not arrested and eventually they were declared proclaimed offenders on 18.12.2020. As a result of which, the challan was not presented qua these two accused.

4. Learned counsel for the petitioner would contend that the petitioner himself surrendered on 18.12.2020 and challan had not been presented against him till the date of filing the application for default bail i.e on the 23.3.2021. Therefore, since the statutory period of 90 days for filing the challan has already expired, he is entitled to default bail in terms of Section 167 (2) of the Code of Criminal Procedure. It is also contended that co-accused against whom the challan was presented have already been acquitted by the trial court as a result of the compromise arrived at between them and the complainant. It is also submitted that the petitioner was placed in column No.2 and since he was not challaned, therefore, he is entitled to default bail.

5. Per contra, learned counsel for the respondent—State, opposes the bail on the ground that the allegations made against the petitioner are of serious nature and as such he does not deserves the concession of bail.

6. I have heard learned counsel for the parties and have gone through the paper book.

7. In a case referred to as Uday Mohan Lal AcharyaVs. State of Maharasthra (2001) 5 SCC 453, the Supreme Court, while dealing with Section 167 (2) Cr.P.C, held as under:

“In the aforesaid premises, we are of the considered opinion that an accused must be held to have availed of his right flowing from the legislative mandate engrafted in the proviso to sub-section (2) of Section 167 of the Code if he has filed an application after the expiry of the stipulated period alleging that no challan has been filed and he is prepared to offer the bail that is ordered, and it is found as a fact that no challan has been filed within the period prescribed from the date of the arrest of the accused. In our view, such interpretation would subserve the purpose and the object for which the provision in question was brought on to the statute- book. In such a case, therefore, even if the application for consideration of an order of being released on bail is posted before the court after some length of time, or even if the Magistrate refuses the application erroneously and the accused moves the higher forum for getting a formal order of being released on bail in enforcement of his