CRM-M-31950 of 2010 (O&M) - 1 - IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH ***** CRM-M-31950 of 2010 (O&M) Date of Decision: 02.11.2011 Kuldeep Singh . . .Petitioner Versus State of Punjab . . . Respondent ***** CORAM: HON’BLE MR.JUSTICE RAKESH KUMAR JAIN ***** Present: Mr.J.S. Dadwal, Advocate, for the petitioner. Mr.A.S. Rai, DAG, Punjab. ***** RAKESH KUMAR JAIN, J. This is a petition filed under Section 482 of the Code of Criminal Procedure, 1973 (for short ‘Cr.P.C.) read with Section 167(2) Cr.P.C. for setting aside the order dated 3.9.2010 (Annexure P-3) passed by the JMIC, Jagraon by which an application filed by the petitioner under Section 167(2) Cr.P.C. has been dismissed. The brief facts of this case are that the petitioner is facing trail in a case registered vide FIR No.70 dated 9.6.2008 under Sections 302, 307, 326, 324, 506, 148 & 149 of the Indian Penal Code, 1860 (for short ‘IPC’) at Police Station Raikot, District Ludhiana. Learned counsel for the petitioner has contended that the report under Section 173 Cr.P.C. (Challan) was presented on 1.9.2008 and at that time the petitioner was kept in Column No.2 as proceedings for declaring him proclaimed offender was going on. He has submitted that other co-accused namely Devinder Singh, Gurpreet Singh and Ajay Kumar were declared proclaimed offender vide order dated 10.12.2008. The petitioner was arrested on 29.5.2010 and after the expiry of 91 days of his arrest, he moved an application under Section 167(2) Cr.P.C. whereas supplementary challan was presented against him on 1.9.2010 after the expiry of 95 days. He has submitted that his application under CRM-M-31950 of 2010 (O&M) - 2 - Section 167(2) Cr.P.C. has been wrongly decided by the learned trial Court vide impugned order dated 3.9.2010 because an inalienable and indefeasible right had accrued in his favour after the expiry of statutory period of 90 days when the challan was not presented. In this regard, he has relied upon a decision of the Supreme Court in the case of “Uday Mohanlal Acharya Vs. State of Maharashtra” 2001(2) RCR (Criminal) 452. In reply, learned counsel for the State has submitted that the P.O. proceedings were going on against the petitioner when the challan was presented on 1.9.2008, therefore, he could not take advantage of the presentation of subsequent challan after the expiry of 95 days from the date of his custody. In this regard, he has relied upon decision of the Supreme Court in the case of “Dinesh Dalmia Vs. C.B.I.” 2007(4) RCR (Criminal) 283. I have heard both the learned counsel for the parties and perused the record. The case of the State is that when the challan was presented on 1.9.2008, the petitioner was kept in Column No.2 not because that he was found to be innocent but because he was absconding and the P.O. proceedings were pending against him for which even an entry in red ink was also made in the challan. The law laid down in the case of Uday Mohanlal Acharya (Supra) was basically to the effect that if a challan is not put up within the period stipulated under Section 167(2) Cr.P.C. then the accused gets an indefeasible right to be released on bail and if the bail application is already filed by the accused then subsequent filing of challan during the pendency of the bail application would not extinguish his right to be released on bail. As a matter of fact, this is not the issue in the present case rather the issue is whether an accused, who is absconding and against whom P.O. proceedings are pending and is kept in Column No.2 of the challan which is presented in his absence, can claim the benefit of Section 167 (2) Cr.P.C. if the supplementary challan is presented qua him after expiry of 90 days? In the case of Dinesh Dalmia (Supra), it was held that police can file charge-sheet even if the accused is absconding and there is no law that the filing of charge-sheet should await the arrest of the CRM-M-31950 of 2010 (O&M) - 3 - accused. In the said case it was also observed that the accused is not entitled to bail under Section 167(2) Cr.P.C. even no further challan is put up by the Police. In the present case, the challan was presented by the Police within stipulated time though the petitioner was kept in Column No.2 but it is not mentioned in the challan that he has been found to be innocent rather it is mentioned in the challan that he has been kept in Column No.2 because he could not be arrested since he was absconding. In my considered opinion the petitioner is not entitled to the benefit of Section 167(2) of the Cr.P.C. which is sought to be derived on the presentation of the supplementary challan as the challan against the petitioner had already been presented on 1.9.2008 in his absence when he was absconding when the P.O. proceedings was pending against him. In view thereof, I do not find any error in the order passed by learned trial Court and as such the present petition is found to be devoid of any merit and the same is hereby dismissed. (RAKESH KUMAR JAIN) NOVEMBER 02, 2011 JUDGE Vivek