CRM-M-2836-2010 (O&M) [ 1 ] :::::::: IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH CRM-M-2836-2010 (O&M) Date of decision:29.08.2011. Court on its own motion ...Petitioner Versus Sonu and others ...Respondents CORAM: HON’BLE MR. JUSTICE RAKESH KUMAR JAIN Present: Mr. Balwinder Singh, Advocate, as Amicus Curiae. Mr. Ajay Jain, Add. A.G., Haryana. Mr. Varun Baath, Advocate, for the respondents. ***** RAKESH KUMAR JAIN, J. Four persons/accused, namely, Sonu son of Ram Kishan, Deep Singh son of Bhajan Singh, Raju son of Chotte and Sunny son of Ashok Kumar filed bail application No.163 on 22.10.2008 under Section 439 of the Code of Criminal Procedure, 1973 [for short “Cr.P.C.”] in a case registered vide FIR No.173 dated 30.08.2008, under Sections 420, 467, 468, 471, 120-B IPC at Police Station Chandi Mandir, District Panchkula, which was allowed by the learned Additional Sessions Judge-II, Panchkula vide his order dated 01.11.2008 in terms of Section 167(2)(a)(ii) of the Cr.P.C. The members of the Bar Association, Panchkula made a complaint to the Administrative Judge, Panchkula for cancellation of bail on the ground that the provisions of Section 167(2)(a)(ii) of Cr.P.C. have been wrongly applied, therefore, vide his order dated 20.01.2010, the Administrative Judge, Panchkula ordered for taking up the matter CRM-M-2836-2010 (O&M) [ 2 ] :::::::: on the judicial side for cancellation of bail after obtaining the orders of Hon'ble the Chief Justice. The approval was granted by Hon'ble the Chief Justice on 28.01.2010 and the matter was listed on 02.02.2010 before the Court in which notice of motion was issued to the State as well as to the accused. After service of the accused, they were represented by Shri Varun Baath, Advocate. On 21.02.2011, an order was passed by the court for appointment of Amicus Curiae to assist the Court as the petition was entertained by the Court on its own motion and pursuant thereto Shri Balwinder Singh, Advocate had put in appearance as Amicus Curiae. Learned Amicus Curiae has argued that all the four accused were arrested on 30.08.2008, they had filed application for bail under Section 439 Cr.P.C. dated 21.10.2008 which came up before the Court on 22.10.2008 and the challan was presented on 27.10.2008, whereas the order for their release has been passed by the learned Court below on 01.11.2008 in terms of Section 167(2)(a)(ii) of the Cr.P.C. by observing that the challan has not been presented till date though more than 60 days have already elapsed. It is submitted that the learned counsel for the accused/ respondents knowingly did not file bail application under Section 167(2)(a)(ii) of the Cr.P.C. on 21.10.2008 because by that time only 52 days had expired and of course the challan was not presented till then as there were still 8 days left with the prosecution to present the challan. It was ultimately presented on 27.10.2008, i.e. 58th day from the date of arrest which was very well within the prescribed limit of 60 days. It is further argued that the learned Court below has wrongly recorded in its impugned order dated 01.11.2008 that “admittedly, the applicants- accused had been arrested on 30.08.2008 and since then, the challan against them till the present day has not been presented in the trial Court despite the fact that more than 60 days have elapsed”. It is also submitted that if the challan had already been presented on 27.10.2008, much before the statutory period of 60 days, the learned Court below had no jurisdiction to enlarge the accused on bail under the said provisions of law and any order which is without jurisdiction is nonest in the eyes of law. CRM-M-2836-2010 (O&M) [ 3 ] :::::::: Neither the learned State Counsel nor the accused/ respondents could contradict the aforesaid facts, rather the learned counsel for the accused/respondent has submitted that they had filed the application for bail under Section 439 Cr.P.C. and not under Section 167(2)(a)(ii) Cr.P.C. It is argued by the learned State Counsel that the learned Court below could have been misguided by the Investigating Officer or the Prosecution Agency but in this regard it is submitted by learned Amicus Curiae that the learned Court below itself has recorded in the impugned order that it has perused the police report. I have heard learned counsel for the parties and perused the record with their able assistance from which I have found that the learned Court below has committed an error in granting bail to the accused by invoking the provisions of Section 167(2)(a)(ii) of Cr.P.C. despite the fact that there was no application by the accused under the said provisions as the application was only under Section 439 Cr.P.C. and the challan was already presented on 27.10.2008, i.e. before the expiry of stipulated period of 60 days, whereas it has been recorded in the impugned order passed on 01.11.2008 that the challan has not been presented till date. In view of the above discussion, the present petition is allowed, the impugned order dated 01.11.2008 passed by the learned Court below is hereby set aside and the learned Trial Court is directed to take appropriate proceedings in accordance with law. August 29, 2011 (RAKESH KUMAR JAIN) vinod* JUDGE