TARA SINGH Vs. STATE OF PUNJAB

JUDGEMENT

(1.) THIS is an application for bail under Section 439 of the Code of Criminal Procedure. The petitioner was arrested on the basis of circumstantial evidence on 15.7.1995 and was produced before the Sub- Divisional Judicial Magistrate, Kharar on 16.7.1995. According to the petitioner, the Investigating agency did not file the challan within 90 days as prescribed under Section 167(2) of the Code of Criminal Procedure but the challan was actually filed in Court in 17.10.1995 i.e. after the expiry of period of filing the challan against the petitioner. The petitioner moved an application for bail before the Sub-Divisional Judicial Magistrate seeking bail stating his willingness and readiness to furnish surety but the Sub- Divisional Judicial Magistrate vide his order dated 21.10.1995 rejected the application for bail. The petitioner moved the learned Sessions Judge for bail. The learned Additional Sessions Judge vide order dated 4.11.1995 dismissed the application for bail with the observation that if the accused is so advised, he may file a bail application as per provisions of law. According to the learned Additional Sessions Judge once the challan is filed, the accused loses his right to be released under Section 167(2) of the Code of Criminal Procedure.

(2.) IN view of the circumstances stated above, a short point which arises for consideration is whether the accused loses his right to be released on bail after the expiry of the maximum period laid down in the proviso to Section 167(2) of the Code of Criminal Procedure (hereinafter referred to as the Code), if the challan is presented before the release but after the expiry of that period.

(3.) LEARNED counsel appearing for the petitioner contends that the right to be released on bail is not defeated by lapse of time or subsequent filing of challan.