GURMUKH SINGH Vs. STATE OF PUNJAB

JUDGEMENT

(1.) PETITIONER seeks grant of bail during the pendency of trial in a case registered under Sections 354 and 307 IPC read with Sections 25, 54, 59 and 27 of the Arms Act. The basis of the petition is that as the challan had been presented after the expiry of 90 days so the petitioner was entitled to be released on bail in terms of Section 167(2) Cr. P.C.

(2.) FACTS lie within a very narrow copass. Petitioner filed an application for grant of bail as the challan was not presented within the statutory period of 90 days on 12.8.1996. The Additional Sessions Judge on examining this matter came to the conclusion that challan in fact had been presented on the 90th day an so held that the accused was not entitled to be enlarged on bail in terms of Section 167(2) Cr. P.C. According to the learned counsel for the petitioner the Additional Sessions Judge has erred in calculating the period spent by the petitioner in judicial lock -up. According to the counsel, petitioner surrendered on 10.5.1996 and was sent to judicial custody by the Additional Chief Judicial Magistrate to be produced on 11.5.1996. Since the challan admittedly was presented on 9.8.1996, it was 93rd day and not the 90th day as calculated by the Additional Sessions Judge. Since a right had accrued, the Additional Sessions Judge has erred in not granting the relief of bail in terms of Section 167 (2) Cr. P.C. Reliance has been placed upon the decision of this Court in Pardeep Kumar v. State of Punjab, 1996(1) Recent CR 598.

(3.) FACTUAL aspects are not in dispute i.e. the petitioner's surrendering on 10.5.1996 and presenting of challan on 9.8.1996. According to the State counsel day of 10th of May and of 9th of August are to be excluded as Section 167 merely states that the detention of the accused in custody is not to exceed 90 days when an offence is punishable with death, imprisonment for life or imprisonment for a term not less than 10 years. In the instant case, the petitioner surrendered on 10th of May, 1996 and so for the purposes of calculation his detention shall be deemed to be from the next day i.e. 11th and if so calculated the 90 days will expire on 8.8.1996. Since the challan has been presented on, 9.8.1996 his detention cannot be termed to be un -lawful and as the petitioner had not applied for the bail after the submission of the challan the bail can be granted to the petitioner only in terms of section 437 Cr. P.C. So, even if it be taken that the challan is been presented on the 91st day, the petitioner is not entitled to be released in terms of Section 167(2) Cr. P.C. in view of the following judgments. (1) Shardulbhai Lakhmanbhai Pancholi and Anr. v. State of Gujarat, 4990(1) Recent C.R. 347: [1990(1) All India Criminal Law Reporter 364 (Guj.)]; and (2) Abdul Wahid v. State of Maharashtra, 1992 Cri.L.J. 1900 : [1992(1) All India Criminal Law Reporter 319 (Bom.)]. Section 167(1) and (2) Cr. P.C. reads as : - "167.(1) Whenever any person is arrested and detained in custody, and it appears that the investigation cannot be completed within the period of twenty four hours fixed by Section 57, and there are grounds for believing that the accusation or information is well founded, the officer in charge of the police station or the police officer making the investigation, if he is not below the rank of Sub -Inspector, shall forthwith transmit to the nearest Judicial Magistrate a copy of the entries in the diary hereinafter prescribed relating to the case, and shall at the same time forward the accused to such Magistrate. (2) The Magistrate to whom an accused person is forwarded under this 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, for a term - not exceeding fifteen, days in the whole; and if he has no jurisdiction to try the case or commit it for trial, and considers further detention unnecessary he may order the accused to be forwarded to a Magistrate having such jurisdiction: Provided that - (a) the Magistrate may authorise the detention of the accused person, otherwise than in the custody of the police, beyond the period of fifteen days, if he is satisfied that adequate grounds exist for doing so, but no Magistrate shall authorise the detention of the accused person in custody under this paragraph for a total period exceeding, (i) ninety days, where the investigation relates to an offence punishable with death, imprisonment for life or imprisonment for a term not less than ten years; (ii) sixty days, where the investigation n relates to any other offence, and, on the expiry of the said period of ninety days or Sixty days, as the case may be, the accused person shall be released on bail if he is prepared to and does furnish bail, and every person released on bail under this sub -section shall be deemed to be so released under the provisions of Chapter XXXIII for the purposes of that chapter; (b) and (c)...... Explanation I. - For the avoidance of doubts, it is hereby declared that, notwithstanding the expiry of the period specified in paragraph (a), the accused shall be detained in custody so long as he does not furnish bail." Thus as per proviso (a) to Section 167(2) a person becomes entitled to grant of bail in case a challan is not presented within 90 days; but all the same detention continues to be authorised. Such custody cannot be termed to be illegal or improper. So, every after expiry of 90 days, person has to apply to the Court for his release in terms of Section 167(2) Cr. P.C. The apex Court had the occasion to examine this specific provision in Rajnikant v. Intelligence Officer, Narcotic Control Bureau, AIR 1990 SC 71 and held as under : - "An order for release on bail under proviso (a) to Section 167(2) may appropriately be termed as an order -on -default. Indeed it is a release on bail on the default of the prosecution in filing charge -sheet within the prescribed period. The right to bail under, Section 167 (2) proviso (a) thereto is absolute. It is a legislative command and not Court's discretion. If the investigating agency fails to file charge -sheet before the expiry of 90/60 days, as the case may, be, the accused in custody should be released on bail. But at that stage, merits of the case are not to be examined. Not at all In fact, the Magistrate has no power to remand a person beyond the stipulated period of 90/60 days. He must pass an order of bail and communicate the same to the accused to furnish the requisite bail bonds." The aforesaid observation of the Court, of course, have to be read in the context of a case. In that case the petitioners were arrested on 23.3.1988. On 10.5.1988 they moved for bail and when the petition was pending for consideration, the prosecution submitted the charge sheet on 23.6.1988 for offences under Sections 21, 23 and 29 of the Narcotic Drugs and Psychotropic Substances Act, 1985. On 22.7.1988 the petitioners filed an application for bail under Section 167 (2) Cr. P.C. on the ground that the charge -sheet was filed after the expiry of 90 days of their arrest. On 29.7.1988 they were enlarged on bail and it is thereafter that the prosecution moved for cancellation of bail which was ultimately cancelled by the Delhi High Court. The question before the Supreme Court was whether the discretion exercised by the High Court was legally sustainable and the Supreme Court took the view that the accused cannot claim any special right to remain on bail if the investigation reveals that they had committed a serious offence and a charge -sheet is filed, the bail granted under proviso (a) to Section 167(2) could be cancelled. Thus, on examination of the relevant provisions it appears that the right given under the proviso (a) to Section 167 (2) Cr. P.C. is not an absolute right to be let off. It gives only an absolute right to be granted bail if the chargesheet is not filed within the prescribed period, but all the same the detention continues to be authorised. Once a charge -sheet is filed, the Magistrate, of course, can grant bail but only under Section 437 of the Code.