Charanjit Singh Alias Channi Vs. State of Punjab - Court Judgment

In the High Court of Punjab and Haryana at Chandigarh .....Criminal Misc.

No.M-7730 of 2014 ....Date of decision:25.3.2014 Charanjit Singh alias Channi ...Petitioner v.

State of Punjab ...Respondent ...Coram: Hon'ble Mr.Justice Inderjit Singh ....Present: Mr.Himanshu Puri, Advocate for the petitioner.

Mr.V.P.S.Sidhu, Assistant Advocate General, Punjab for the respondent-State....Inderjit Singh, J.

The petitioner has filed this petition under Section 439 read with Section 167(2) Cr.P.C.for grant of regular bail in case FIR No.46 dated 29.4.2013 registered at Police Station Sadar, District Kapurthala for the offence under Section 21 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as `the Act').Learned counsel for the petitioner contends that the petitioner was arrested on 29.4.2013.

Later on, the prosecution sought the extension, which was upto 22.2.2014, but the challan was not presented.

On 24.2.2014, application under Section 167(2) Cr.P.C.has been filed by the petitioner.

On 25.2.2014, application was again filed by the Parmar Harpal Singh 2014.03.26 10:14 I attest to the accuracy and integrity of this document Chandigarh Cr.

Misc.

No.M-7730 of 2014 [2].prosecution for extension of time.

It is also argued that even the challan has not been presented so far.

Learned counsel argued that as per law the petitioner is entitled to bail under Section 167(2) Cr.P.C.and the application for extension, which was filed later on, should not have been allowed.

On the other hand, learned Assistant Advocate General, Punjab opposed the bail petition.

I have gone through the record and have heard learned counsel for the petitioner and learned Assistant Advocate General, Punjab appearing for the respondent-State.

From the record, I find that it is admitted fact that the challan has not been filed in the Court even after the decision of the application filed by the petitioner as 180 days have already been lapsed.

It is also clear from the record that when the application was filed by the petitioner on that day challan was not presented and the period of extension for filing the challan has already lapsed.

Therefore, the petitioner got indefeasible right under section 167(2) Cr.P.C.to get bail.

The subsequent filing of application will not affect his right, which is accrued to him on 24.2.2014.

Learned counsel for the petitioner placed reliance on the judgment of the Supreme Court in Uday Mohanlal Acharya v.

State of Maharashtra, 2001 (2) RCR (Cr.) 452 (3 Judges Bench).in which it is stated that if charge-sheet is not filed within the period stipulated in Section 167(2) Cr.P.C., the accused gets an indefeasible right to get bail.

Parmar Harpal Singh 2014.03.26 10:14 I attest to the accuracy and integrity of this document Chandigarh Cr.

Misc.

No.M-7730 of 2014 [3].The accused must be held to have availed this right when he filed bail application.

Subsequent filing of challan will not extinguish the right of the accused to get bail.

This citation also fully applies in the present case.

In Sanjay Kumar Kedia alias Sanjay Kedia v.

Intelligence Officer, Narcotic Control Bureau and another, 2010 (1) RCR (Cr.) 942 (SC).the Hon'ble Supreme Court has held as under:- “14.

A bare perusal of this application shows that it has been filed by the investigating officer of respondent No.1 and does not indicate even remotely any application of mind on the part of the public prosecutor.

It further does not indicate the progress of the investigation, nor the compelling reasons which required an extension of custody beyond 180 days.

This application was allowed by the Special Judge on 2nd August, 2007 i.e.on the day on which it was filed which also reveals that no notice had been issued to the accused and he was not even present in Court on that day.”

.

The Hon'ble Supreme Court set aside the order of granting extension being contrary to law.

The law laid down in this judgment fully applies to the facts of the present case.

In Suresh Kumar Bhikamchand Jain v.

State of Maharashtra and another, 2013 (2) R.C.R.(Cr.) 170, the Hon'ble Supreme Court has clearly held that if the investigating agency failed to present the charge- sheet within the stipulated period, the accused is entitled to be released on statutory bail.

Parmar Harpal Singh 2014.03.26 10:14 I attest to the accuracy and integrity of this document Chandigarh Cr.

Misc.

No.M-7730 of 2014 [4].In Sayed Mohd.

Ahmed Kazmi v.

State, GNCTD and otheRs.2012(4) R.C.R.(Cr.) 875, which was a case under Unlawful Activities (Prevention) Act, 1967, it was held by the Hon'ble Supreme Court that as the investigation was not completed within 90 days and charge-sheet was not filed, the accused got a statutory right of grant of bail and right of accused for grant of statutory bail remained unaffected by subsequent filing of application for extension of time of investigation for a further period of 90 days in terms of Section 167(2) Cr.P.C.It is also held in this case that the accused gets statutory right of release on bail if charge-sheet is not filed within the stipulated period.

Keeping in view the above discussion and the law laid down by the Hon'ble Supreme Court, I find that a statutory right has accrued to the petitioner on 24.2.2014 when 180 days had already lapsed and challan had not been presented and there was no extension of time at that time for filing the challan.

Therefore, the order of the learned trial Court dismissing the application is not as per law and is set aside.

Consequently, the present petition is allowed and the petitioner is ordered to be released on bail subject to his furnishing personal bond in the sum of `50,000/- with one surety in the like amount to the satisfaction of the Judge, Special Court, Kapurthala, where the case is pending.

March 25, 2014.

(Inderjit Singh) Judge *hsp* Parmar Harpal Singh 2014.03.26 10:14 I attest to the accuracy and integrity of this document Chandigarh