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GURMEET SINGH & ORS versus STATE OF PUNJAB

High Court of Punjab and Haryana, Chandigarh

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Gurmeet Singh & Ors v. State of Punjab - CRM-61725.m-2005 [2006] RD-P&H 3222 (17 May 2006)

Crl.Misc.No.61725.M of 2005 ::1::

IN THE PUNJAB AND HARYANA HIGH COURT AT CHANDIGARH DATE OF DECISION : 14.2.2006.

Gurmeet Singh & others vs State of Punjab QUORAM : HON'BLE MR.JUSTICE RAJIVE BHALLA.

Present : Mr.Balram Singh, Advocate,

for the petitioners.

Mr.B.S.Baath, AAG, Punjab.

******

The petitioners seek grant of regular bail in case FIR No.194, dated 1.6.2005, registered under Sections 399/402 of the Indian Penal Code, and Sections 25/54/59 of the Arms Act, at Police Station Nakodar, Distt. Jalandhar.

The petitioners were arrested on 31.5.2005 and produced before the Magistrate on 1.6.2005. The challan was presented on 2.9.2005. The petitioners filed an application, praying therein that as the challan had been filed beyond a period of 90 days, they were entitled to be released on bail, in terms of the provisions of Section 167(2) of the Cr.P.C. The Judicial Magistrate Ist Class, Nakodar, vide order dated 10.9.2005 dismissed the application on the ground that it had been filed after the presentation of the challan.

On the basis of the aforementioned facts, counsel for the petitioners contends that admittedly the challan was filed, after the expiry of 90 days. In this view of the matter, by virtue of the provisions of Section 167(2) of the Cr.P.C, an indefeasible right to be released on bail had accrued to the petitioners. The subsequent filing of the challan would not nullify the statutory right that had accrued to the petitioners and, therefore, the trial Court erred in declining the application of the petitioner for grant of bail.

Counsel for the State of Punjab, on the other hand, contends that as the application for grant of bail was filed, after the challan had been presented, the Crl.Misc.No.61725.M of 2005 ::2::

right to be released on bail for failure to file the challan stood extinguished.

I have heard learned counsel for the parties and perused the record.

There appears to be no dispute on facts. Admittedly, the challan was presented on 2.9.2005 i.e. beyond a period of 90 days, as prescribed under Section 167(2) of the Cr.P.C. In my considered opinion, an indefeasible right to be released on bail accrued to the petitioners, by virtue of the provisions of 167(2) of the Cr.P.C. The right to be released on bail for failure of the prosecution to file a challan within a period prescribed by law confers a statutory right upon an accused to be released on bail. This statutory right cannot be extinguished by the subsequent presentation of a challan. The aforementioned position in law has been settled by the Hon'ble Supreme Court in Uday Mohanlal Acharya vs State of Maharashtra , 2001(2) RCR 452.

In view of the facts, narrated herein above, the provisions of Section 167(2) of the Cr.P.C and the aforementioned judgment of the Hon'ble Supreme Court, the lapse of the prosecution in presenting the challan beyond a period of 90 days conferred an indefeasible statutory right upon the petitioners, which could not be defeated or nullified by the subsequent presentation of the challan. The trial Court erred in holding that the filing of the application for bail, after the presentation of the challan, nullified the statutory right, conferred upon the petitioners, under Section 167(2) of the Cr.P.C.

In view of what has been stated above, but without expressing any opinion on the merits of the controversy, bail to the satisfaction of Chief Judicial Magistrate/Duty Magistrate, Jalandhar.

( RAJIVE BHALLA )

February , 2006. JUDGE

`kk'

Crl.Misc.No.61725.M of 2005 ::3::


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Reproduced in accordance with s52(q) of the Copyright Act 1957 (India) from judis.nic.in, indiacode.nic.in and other Indian High Court Websites

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