BALWINDER SINGH Vs. STATE OF PUNJAB

JUDGEMENT

(1.) THIS petition filed under Section 439 of the Code of Criminal Procedure, 1973 (for brevity, 'the Code') prays for grant of bail to the petitioner pending trial in case FIR No. 226 dated 21.11.2002 registered under Sections 307/326/323/34 IPC at Police Station Phillaur, District Jalandhar. It is pertinent to mention that initially the case was registered under Sections 326/323/34 IPC and Section 307 IPC was added lateron.

(2.) THE prosecution version as disclosed in the first information report is that on 19.11.2002, injured-complainant Amar Singh was coming back to his house. He was waylaid by Balwinder Singh accused-petitioner, who was armed with a Kirpan and Manjit Singh accused armed with a Dang alongwith two other persons. Manjit Singh exhorted all others that the injured-complainant should not be spared. The accused-petitioner Balwinder Singh is imputed with Kirpan blow from sharp side on the head of the injured-complainant. After the Kirpan blow, the injured-complainant fell down. The injured-complainant was admitted to hospital at Phillaur. A first information report was registered on 21.11.2002 under Sections 307/326/323/34 IPC at Police Station Phillaur. The accused-petitioner surrendered before the Court on 26.11.2002. The challan was presented against the accused-petitioner amongst others on 28.2.2003.

(3.) MR . Sanjay Gupta, learned counsel for the accused-petitioner has argued that the accused-petitioner is in custody since 26.11.2002 and he has already undergone custody as undertrial about more than 14 months. The learned counsel has also submitted that the accused-petitioner is entitled to be released on bail under Section 167(2) of the Code on the ground that the challan was presented after the expiry of 90 days and no application for extension of time was ever filed. According to the learned counsel, order dated 15.3.2003 dismissing the application of the accused-petitioner could not be challenged by him on account of acute poverty and ignorance of law. In support of his submission, the learned counsel has placed reliance on two judgments of the Supreme Court in the cases of Hitendra Vishnu Thakur v. State of Maharashtra, 1994(3) Recent Criminal Reports 156 and Uday Mohanlal Acharya v. State of Maharashtra, 2001(2) RCR(Crl.) 452 (SC) : 2001(5) SCC 453 and argued that the right of the accused-petitioner to be released on bail under Section 167(2) of the Code an account of late presentation of challan is an indefeasible right and it cannot be defeated on the basis that the accused-petitioner failed to avail the same. The learned counsel has further submitted that even on merits, the accused-petitioner has been falsely implicated because there was some quarrel between the accused-petitioner and the injured-complainant on Diwali day which had been compromised on the intervention of Panchayat. He has maintained that the injuries suffered by the injured-complainant were the result of an accident and the accused-petitioner has been falsely implicated.