PARSHOTAM CHAND Vs. THE STATE OF H.P.

JUDGEMENT

(1.) PARSHOTAM Chand applies to this Court under Section 439 of the Code of Criminal Procedure for bail. He is indicated for the offence under Section 302 of the I.P.C. Before his case can be considered on merit it is submitted on his behalf by the learned Counsel that he was arrested on 28 -10 -1975 and the challan was put up before the Court on 20 -1 -1976 i.e. beyond the period of 60 days. The argument proceeds on the basis of Section 167(2) proviso (a) that any period of detention of Parshotam Chand exceeding 60 days was illegal and he is entitled as of right to be released on bail. In support of that contention the learned Counsel relies on Prem Raj and Anr. v. The State of Rajasthan : 1976 Cri.LJ 455. A learned Judge of Rajasthan High Court was faced was a similar situation. The challan was put up in Court after sixty days' period of detention of the accused. When the bail matter came up before the High Court for decision (although the bail application in the High Court was moved before the challan was put up in Court), the challan was already there before the Court. Even then the learned Judge held that the accused derived a light to be released on bail under proviso (a) to Section 167(2). At against this case the learned Advocate General placed reliance on Heeraman v. State of U.P. : 1975 Cri.L.J. 1508, where a learned Judge of the Allahabad High Court observed with reference to a hypothetical case that no sooner the charge sheet is presented before the Court the effect of Section 167 pales into insignificance. The case for bail will have to be considered on merit under Section 439 and no right for bail can be claimed by the accused.

(2.) THE other two cases relied upon by the learned Counsel, Lakshmi Brahman and Anr. v. State : 1976 Cri.L.J. 118 and Natabar Parida and Ors. v. State of Orissa : AIR 1975 SC 146 with respects to the learned Judges, are beside the point. In the Allahabad case it is only observed that remand order by a Magistrate beyond sixty days does not render the detention of the accused illegal because he can only be released provided he applies for bail and his bonds are accepted. The Supreme Court was faced entirely with a different situation and their Lordships observation, with respects, are not pertinent to the question at issue.

(3.) IN the present case the bail has been refused on merit by the learned Sessions Judge. The accused has applied for bail to the High Court under Section 439 and will have to satisfy his case on merit before he can be released. No assistance can be obtained from Section 167 and the accused cannot claim bail as of right.