PAWAN JOGI Vs. STATE OF RAJASTHAN

JUDGEMENT

(1.) THE accused -petitioner has filed this second application for grant of bail under Section 439 read with Section 167(2) Cr.P.C. in respect of FIR No. 105/2015 registered at Police Station Chaksu, Jaipur Rural for the offences under Sections 376, 306 and 120 -B IPC. The first application filed by the petitioner for grant of bail under Section 439 Cr.P.C. was dismissed on merit by this Court by a reasoned order dated 28.04.2015.

(2.) BRIEF relevant facts for the disposal of this application are that for an incident of 18.03.2015, at the instance of father of the prosecutrix, FIR No. 105/2015 came to be registered against petitioner and co -accused on 20.03.2015 at Police Station Chaksu, Jaipur Rural for offences under Sections 376, 306 and 120 -B IPC. During the course of investigation petitioner was arrested on 24.03.2015 and he was produced before the concerned Magistrate for remand on 25.03.2015 and he was sent to judicial custody till 07.04.2015 and since then the petitioner is in custody.

(3.) IT was submitted by the learned counsel for the petitioner that although initially the FIR was registered for offence under Section 376 IPC also but immediately after commencement of investigation it was found by the investigating agency that offence under Section 376 IPC is not made out and petitioner was arrested only for offence under Section 306 IPC and Section 8 of the Act and this fact was clearly mentioned not only in the memo of arrest dated 24.3.2015 but also in order of remand dated 25.03.2015. It was further submitted that when the investigation against petitioner was undertaken for offence under Section 306 IPC only for which under proviso to Section 167(2) Cr.P.C. maximum period of sixty days is prescribed within which after investigation charge -sheet can be filed and that period admittedly expired on 23.05.2015 whereas charge -sheet was filed on 02.06.2015 i.e. after expiry of prescribed period of sixty days and application for grant of bail was filed by petitioner on 28.05.2015, petitioner was entitled to be released on compulsory bail but the learned trial Court without appreciating the well settled legal position dismissed the application filed by the petitioner. It was also submitted that whether the period of sixty days or ninety days, as prescribed under proviso to Section 167(2) Cr.P.C. is applicable would dependent upon for what offence investigation was undertaken by the investigating agency against the accused and for what offence the accused has been arrested and not upon the offence for which FIR was registered or for which offence charge -sheet has been filed. It was submitted that in the present case as investigation against petitioner was undertaken for offence under Section 306 IPC and he was arrested for the same offence for which maximum sentence of imprisonment for ten years is prescribed, the period of sixty days is applicable and charge -sheet was to be filed at the most on 23.05.2015 and when it was not done, a valuable right accrued in favour of petitioner and he was entitled to be released on bail as a right on the basis of application filed on 28.05.2015 even if it was decided on 05.06.2015 i.e. after charge -sheet was filed on 02.06.2015.