OM PARKASH GABBAR Vs. STATE OF PUNJAB

JUDGEMENT

(1.) This petition is before us on a reference made by the learned single Judge of this Court on the following facts :The petitioner, Om Parkash, filed an application for bail under S. 439 of the Code of Criminal Procedure (in short "the Code"), in case arising out of FIR No. 138 of 1995, dated September 1, 1995, registered at Police Station, Sadar Amritsar, under Ss. 325/367/345/346/166/506/509/323/452/148/149 of the Indian Penal Code. It is the conceded case that the offence under S. 367, IPC is punishable with imprisonment, which may extend upto ten years, whereas the other Sections provide for imprisonment of lesser period. The application was filed on the, ground that despite the passage of 60 days from the date that the petitioner had been taken into custody, the challan had not been filed and as such the petitioner was, ipso facto entitled to be released on bail in terms of S. 167(2)(a) (ii) of the; Code. Mr. Hundal, the learned counsel appearing in support of the application, has placed reliance on a decision of the Allahabad High Court in Sohan Lal v. State 1991 All Cri R 383.

(2.) The learned State counsel has, however, relied on a single Bench judgment of this Court in Tejinder Singh Desanj v. State of Punjab, (1991) 28 Cri LT 5, wherein a contrary view had been taken and it has been held that where the sentence provided was upto ten years, the Magistrate could authorise the detention of the accused for a total period of 90 days, as envisaged by S. 167(2)(a)(i) of the Code. It is in the light of this divergence of opinion that the matter has been referred to a Division Bench, on the following reference :

(3.) The matter would rest on the interpretation of S. 167(2)(a)(i) and (ii) of the Code and reproduce the provision :-