GURBACHAN SINGH Vs. STATE OF HIMACHAL PRADESH

JUDGEMENT

(1.) The petitioner are sought to be prosecuted for the offence f murder of one Mehar Singh said to have been committed on 23 -6 -1978. First information report for this purpose was filed at the police station on the next day, that is, on 24 -6 -1978. The petitioners moved the Sessions Judge, Solan for bail under Section 439 of the Code of Criminal Procedure. The learned Sessions Judge dismissed this application of 31 -7 -1978. This present petition is filed against that order of the learned Sessions Judge, When this petition was filed, sixty days for filing the challan contemplated by the proviso (a) attached to sub -section (2) of Section 167 of the Code of Criminal Procedure, were not over. But during the pendency of this period became over and challan was filled by the police on 4 -9 -1978. Thereafter the petitioners moved this court stating that apart from the merits of the case, they were entitled to bail under the above referred proviso (a) to Section 167 (2) of the Code of Criminal Procedure, because the challan was filed after the expiry of sixty days from the date of their arrest.

(2.) It is found that similar application was given by the petitioners to the Chief Judicial Magistrate, Nahan, but the learned Magistrate by this order dated 7 -9 -1971 did not decide that petition and referred the same to the Sessions Court because the case was comitted by him to the Sessions Court. When the matter went to the Sessions Court, the learned Sessions Judge, curiously enough, rejected the bail application without considering whether or not the petitioners were entitled to bail by virtue of proviso (a) attached to sub -section (2) of Section 167 of the Code of Criminal Procedure. This is clear from the following order passed by the learned Sessions Judge on 1 -9 -1978: - "The application stands to be rejected. So the course for accused is directed to adopt proper course. The case is fixed for 29 -9 -1978 for arguments on charge".

(3.) It is difficult to understand why the learned Sessions Judge rejected the bail application without considerating the question whether proviso (a) to Section 167 (2) was attracted or not. At any rate, the same point now is required to be considered by me in this petition.