MALKHAN & ANR. Vs. STATE OF RAJASTHAN

JUDGEMENT

(1.) This bail application under section 439 read with Sec. 167(2) Cr.RC. has been filed, on behalf of petitioners Malkhan S/o Ananda and Mukhram @ Par.garam S/o Sugreev against whom investigation is said to be pending for the offences under sections 399 and 402 I.P.C. in FIR No. 138/2003 Police Station, Kolwa, District. Dausa. Their similar baii application filed under Sec. 167(2) Crimial P.C. was rejected by the learned Additional Sessions Judge, Bandikui vide order dated 11.11.2003 on the ground that the period of 90 days prescribed for completion of investigation had yet not expired.

(2.) Learned counsel for the petitioners contended that the offence under Sec. 399 Penal Code is punishable with rigorous imprisonment for a term which may extend to 10 years and fine and the offence under Sec. 402 Penal Code is punishable with rigorous imprisonment for a term which may extend to seven years and fine and as held in the case Rajeev Choudhary Vs. State (NCT) of Delhi, reported in 2001 SCC (Cri.) 819, the period of 90 days for completion of investigation prescribed under Sec. 167(2)(a)(i) Cr.RC. is applicable to offences punishable with death, imprisonment for life or imprisonment for a term of not less than 10 years and the period of 60 days prescribed under Sec. 167(2)(a) (ii) Cr.RC. is applicable to other offences. Since the aforesaid offences are not punishable with death, imprisonment for life or imprisonment for a term of not less than 10 years, the view taken by the learned Additional Sessions Judge is erroneous and not in keeping with the settled law in this behalf. Admittedly, the investigation having not been completed and charge sheet having not been filed within the prescribed period of 60 days applicable to this case from the date of his judicial custody remand after his arrest on 25.8.03, the petitioners are entitled to be released on bail under Sec. 167(2) Cr.RC.

(3.) Learned public prosecutor also could not controvert this position.