AVTAR SINGH Vs. STATE OF PUNJAB

JUDGEMENT

(1.) ACCUSED -Avtar Singh has filed this petition under Section 439 read with Section 167(2) of the Code of Criminal Procedure (in short, Cr.P.C.) for bail in case FIR No.137 dated 19.11.2012 (Annexure P-1) under Sections 363, 366, and 120-B read with Section 34 IPC (and Section 376 IPC added later on) at Police Station Banur, District Patiala. I have heard learned counsel for the parties and perused the case file. I need not go into merits of the case because the petitioner seeks bail under proviso to Section 167(2) Cr.P.C. because report under Section 173 Cr.P.C. was not presented within statutory period. FIR was initially registered under Section 363, 366 and 120-B read with Section 34 IPC. Report under Section 173 Cr.P.C was not presented within statutory period of sixty days and, therefore, the petitioner was granted bail under proviso to Section 167(2) Cr.P.C. Thereafter offence under Section 376 IPC has also been added and the petitioner has been arrested again in the case.

(2.) LEARNED State counsel, on instructions from SI Jagdish Singh, stated that report under Section 173 Cr.P.C. has not yet been presented in the case. It was also stated that the petitioner was arrested on 19.11.2012 and was remanded by the Magistrate on 20.11.2012 and was earlier released on bail on 30.01.2013 and was thereafter arrested on 21.03.2013. Learned State counsel contended that the petitioner moved bail application for additional offence under Section 376 IPC before learned Chief Judicial Magistrate on 26.03.2013 and by then statutory period of 90 days in accorance with proviso to Section 167(2) Cr.P.C. had not lapsed and, therefore, the petitioner is not entitled to bail. However, counsel for petitioner responded to this contention by submitting that the petitioner can be granted bail under proviso to Section 167(2) Cr.P.C. even by this Court directly without requiring the petitioner to approach the Magistrate first. Reliance in support of this contention has been placed on judgment of this Court in the case of Som Nath and another versus State of Punjab reported as 2011(3) RCR (Criminal) 515.

(3.) BEFORE parting with the order, it has to be observed that no explanation has come from the State as to why the report under Section 173 Cr.P.C. has not been presented. The petitioner was granted bail by default of the State initially on 30.01.2013 for not presenting the report under Section 173 Cr.P.C. within statutory period of 60 days. However, even thereafter the concerned authorities did not wake up. Even for additional serious offence under Section 376 IPC, report under Section 173 Cr.P.C. was not presented within the statutory period of 90 days resulting in grant of bail to the petitioner by default by this order. If report under Section 173 Cr.P.C. had been presented in time, the petitioner perhaps might not have been entitled to bail on merits. This is a serious lapse on the part of the concerned authority resulting in miscarriage of justice. Connivance of the police authorities with the petitioner for some extraneous reason, therefore, cannot reasonably be ruled out. Copy of this order be sent to Director General of Police, Punjab for taking appropriate action in accordance with law against the guilty and also to devise some mechanism so that such lapses resulting in miscarriage of justice do not occur in future.