RAVINDER SINGH Vs. STATE OF PUNJAB

JUDGEMENT

(1.) LEARNED counsel for the petitioner submits that the petitioner had surrendered before the Court of learned Chief Judicial Magistrate, Ludhiana on 9.8.2004 and he was taken into Police remand on 11.8.2004. It is contended that the period of 90 days for filing the challan expired on 7.11.2004 and the petitioner filed an application for bail in terms of Section 167(2) Cr.P.C. on 8.11.2004 which was after the expiry of 90 days. Therefore, a right accrued in favour of the petitioner for being released on bail. Even otherwise it is contended that the case is triable by a Magistrate and, therefore, the petitioner is entitled to the concession of bail as he is in custody since 9.8.2004 and his custody is not further required for the purpose of investigation.

(2.) IN response, learned counsel for the State submits that even though the case is triable by the Magistrate, the petitioner is not entitled to the concession of bail as the offence under Section 409 IPC is punishable for imprisonment upto ten years which may extend upto life. It is contended that the petitioner was arrested on 11.8.2004 and the challan was filed within 90 days on 8.11.2004.

(3.) IN terms of the above provisions, it is evident that it is the Magistrate to whom an accused person is forwarded under the said section may, whether he has or has not jurisdiction to try the case, from time to time, authorise the detention of the accused in such custody as such Magistrate thinks fit. The proviso thereto envisages that where the investigation relates to an offence punishable with death, imprisonment for life or imprisonment for a term of not less than ten years and on expiry of the said period of ninety days the accused person shall be released on bail if he is prepared to and does furnish bail. The Hon'ble Supreme Court in Uday Mohanlal Acharya v. State of Maharashtra, 2001(2) RCR(Crl.) 452 (SC) held that an accused gets an indefeasible right of the accused to get bail where challan is not put up within the stipulated period provided for under Section 167(2) Cr.P.C. and it will not extinguish the indefeasible right of the accused to get bail. Accordingly, the challan was not put up within ninety days the accused was held entitled to the concession of bail. This Court in Balwinder Singh v. State of Punjab, 2004(1) RCR(Crl.) 1002 held that in a case where challan was put up after expiry of ninety days and then the accused had applied for bail when challan had already been put up, the right for the release under Section 167(2) Cr.P.C. would not be defeated on presentation of the challan. Insofar as the contentions of the learned counsel for the State that the findings under Section 409 is punishable with imprisonment with life or upto 10 years, it would be appropriate to notice that this Court in Jagdish Kumar Mehra v. State of Haryana (Cr. Misc. No. 12576-M of 2005), decided on 4.3.2005 observed that from a reading of Section 467 IPC it was clear that an accused found guilty of the said offence could be punished with imprisonment of either description for a term which may extend to ten years even though he could also be punished to imprisonment for life. It was observed that without going into the types of cases in which sentence would extend to ten years and cases in which sentence could be imprisonment for life that it would be suffice to say that an accused found guilty for the offence under Section 467 IPC could get sentence of less than ten years and may be even a few months. If this was the case then Section 167(2) proviso (a)(i) Cr.P.C. would not apply to Section 467 IPC because it related to those cases in which the offence is punishable with death, imprisonment for life or imprisonment for a term not less than ten years. In the circumstances, it was observed that the proviso (a)(i) to Section 167(2) Cr.P.C. was not applicable and the petitioner having undergone more than sixty days and the final report under Section 173 Cr.P.C. not having been presented, the accused therein was held to be entitled to the benefit of Section 167(2) proviso (a)(ii) Cr.P.C. and he was admitted to bail. Therefore, it cannot be said that merely because the offence of Section 409 IPC is attributed to the petitioner which is punishable with imprisonment which may extend to life or with imprisonment of either description for a term which may extend to ten years, the considerations for grant of bail would be different. In any case, in the case in hand the petitioner is seeking the relief under proviso (a)(i) to Section 167(2) Cr.P.C. as he has undergone 90 days after he surrendered to the custody of the Magistrate.