NISHAN SINGH Vs. STATE OF PUNJAB

JUDGEMENT

(1.) THE petitioner was arrested in F.I.R. No. 59 of 1997 registered at Police Station Shahkot, District Jalandhar for an offence under section 15 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as the Act). During the course of investigation, he was remanded to judicial custody by the Judicial Magistrate at Nakodar (who had the territorial jurisdiction over Police Station Shahkot). On 11.8.1997, the petitioner was produced before the Duty Magistrate, Nakodar as the Illaqa Magistrate was on leave. The petitioner moved an application seeking bail under Section 167(2) of the Code of Criminal Procedure (hereinafter referred to as the Code). After obtaining a report from the Ahlmad of the Illaqa Magistrate as well as a statement made at the Bar by Shri Sukhdev Singh, Public Prosecutor that the challan had not been presented in the court by the police within 90 days, the Duty Magistrate granted bail to the petitioner. However, on 12.8.1997, the said Duty Magistrate received the challan file in a registered cover sent by the Duty Magistrate, Jalandhar whereby it was revealed that the charge-sheet had been filed before the Duty Magrate granted, Jalandhar by the police on 4.8.1997. The Duty Magistrate, Nakodar recalled his order dated 11.8.1997 and directed the arrest of the petitioner vide order dated 12.8.1997. The petitioner challenged the said order and sought bail underSection 438 of the Code from the Session Judge, Jalandhar which was declined by order dated 22.9.1997. Feeling aggrieved, the petitioner has approached this court.

(2.) WHILE assailing the legality of the order dated 12.8.1997 passed by the Duty, Magistrate, Nakodar, Shri H.S. Riar, Senior Advocate, learned counsel for the petitioner has argued that the bail granted to the petitioner on account of a default of the prosecution as envisaged by Section 167(2) of the Code could not be cancelled or recalled, merely on the ground that subsequently a charge-sheet has been received by that court. It has been further argued by the learned counsel that no charge-sheet had been filed in a proper court having jurisdiction within the prescribed period of 90 days and as such the Duty Magistrate had no power to recall the order and revoke the bail granted to the petitioner. It has also been pointed out by the learned counsel that the impugned order has been passed even without giving any opportunity to be heard to the petitioner. Thus, it has been contended that the order dated 12.8.1997 may be set aside and the petitioner may be released on bail during the pendency of the trial.

(3.) I have considered the respective arguments advanced at the Bar as well as the relevant provisions of law contained in Sections 167, 173, 190 and 437 of the Code.