HARBHAJAN SINGH Vs. STATE OF RAJASTHAN

JUDGEMENT

(1.) HEARD. Perused the challan papers. Petitioner is facing trial for the offences punishable under Secs. 302, 307, 147, 148, 149 & 452 IPC & Secs. 25 & 27, Arms Act alongwith other accused persons. Petitioner was arrested on 24. 11. 92 and the challan was filed in the Court on 20. 2. 93 against the petitioner and Others and it was also mentioned therein that for other accused persons, investigation shall continue u/s. 173 {8) Cr. P. C. On the same day, the Magistrate took cognizance for the aforesaid offences against the petitioner. However, the copies of the challan papers were furnished to him on 25. 2. 93. Therefore, it is abundantly clear that Investigating Officer had filed a charge-sheet against the petitioner in the Court on eighty eight day after his arrest, i. e. within ninety days of his arrest. Since at the time of filing challan, petitioner was in judicial custody and was not present in the Court, the copies of the challan were given to him on 25. 2. 93. The contention of Mr. Kharlia is that since the copies of the charge-sheet were given to the petitioner on 25. 2. 93 i. e. after the expiry of ninety days, petitioner is entitled for bail u/s. 167 (2) Cr. P. C. He has relied on the case of Dodha & Chainsai vs. State of M. P. (1 ). In that case, the charge-sheet was presented in the Court for the offence u/s. 302 IPC within ninety days of the arrest of the accused but the accused was not produced in the Court and the charge-sheet was filed for in sufficient reasons. The copies of the charge-sheet were however supplied to the accused after ninety days of his arrest. It was held that since the accused was not produced in the Court for reasons which were wholly insufficient, the applicant was entitled to be released on bail under Sec. 167 (2) Cr. P. C. It was held that non-availability of escort guard was not sufficient reason for non-production of the accused in the Court.

(2.) I respectfully disagree with the decision rendered by the Single Bench of the Madhya Pradesh High Court because in the case in hand, the charge-sheet was filed within ninety days of the arrest of the petitioner (On eighty eighth day) and that on that fixed on that day, the accused was not produced before the Court a the case as not was on and as such, he was not present at the time when the charge-sheet was filed. However, the copies of the challan were given to him on 25. 2. 93. Secondly the Magistrate had also taken cognizance of the offences on 20. 2j93. In such circumstances, the detention of the petitioner cannot be held to be illegal and the petitioner is not entitled to be released on bail under Sec. 167 (2) Cr. P. C.