Full Judgment
B.A. Khan, J.
1. Petitioners are facing trial under Sections 302, 436, 147 & 148 R.P.C. They had sought bail from the trial court on the ground that the prosecution have put up challan against them one day after the prescribed time of 60 days but their prayer was rejected by order dated 31-8-1994. They have filed this petition to assail the order.
2. The record discloses that the petitioners were first remanded to police custody on 29-4-1994. The challan was produced against them on 28-6-1994 which was, however, returned as it was not accompanied by the seized aricles and it was again filed on 29-6-1994. '
3. Petitioners' case is that it should be treated to have been filed after 61 days, break-up whereof is as under:
April ... 2 daysMay ... 31 'June ... 28 'Total : ... 61 days--------------
The court below, however, took the view that since the challan had been put up on 28-6-1994, it was within the prescribed period of 60 days and, therefore, did not entitle the petitioners to bail as a matter of right.
4. Learned counsel for the petitioner, Mr. Soodan, was at pains to urge that presentation of challan on 28-6-1994, being incomplete, was not valid and, therefore, it should be held that the challan was produced on 29-6-1994, one day after the expiry of 60 days.
5. I do not feel any necessity to go into the relevant provisions of the Code of Criminal Procedure viz. Sections 167 and 344, which have received much attention by this Court in earlier judgments including a very elaborate and lucid judgment of Kotwal, J in 1982 KLJ 315. The import of these provisions has been so beautifully and elucidly brought out in the judgment (supra) that it obviates any further discussion or addition on the subject matter. Suffice it to say that under these judgments an accused becomes entitled to bail irrespective of the offence with which he is. charged, where the police fails to put up a challan against him within 60 days of his arrest. This right of the accused is liable to be exercised at any time till the conclusion of the trial and is not defeated by any lapse of time or by subsequent filing of the charge-sheet or by remand to any judicial custody or otherwise.
6. There is no dispute on the broad parameters with the proposition laid down by the courts while interpreting these provisions related to the right of the accused to bail in the event charge sheet is not put up within 60 days. The only controversy in the present case appears to be whether one day's delay should be treated fatal or not?
7. Mr. Soodan has relied upon (1993) 4 CCR 3315 and (1993) 3 CCR 2429 - judgments of Allahabad and Andhra Pradesh High Courts respectively - in support of his contention that the challan presented on 28-6-1994 being incomplete could not be said to have been validly presented.
8. I consider it unnecessary to enter into any discussion on this issue for the reason that even if it be assumed that the charge sheet was presented on 29-4-1994, this date requires to be excluded as per norms of counting the limitation period. That brings the filing of the challan within the prescribed 60 days. Even otherwise a delay of one day on account of the absence of seized articles along with the challan, cannot be held to be fatal to entitle the petitioners bail as a matter of right. Holding so, would lead to unwarranted situations and misuse of the right of bail provided under Section 167(2) Cr. P.C. Instances are conceivable where a challan may not be put forth complete in all respects through design or manipulation, to carve out a ground for the bail of the accused. Therefore, where the court feels satisfied that the police had presented the challan almost complete upon which the magistrate could have taken cognizance of the offence, it should be deemed a substantial compliance of the provisions of Section 167(2) Cr.P.C. Therefore, even on this parity of reasoning, I do not see much substance in the contention raised by Mr. Soodan, learned counsel for the petitioners.
9. This petition is accordingly rejected leaving the petitioners free to seek any other appropriate remedy as may be available to them.