CRR No.2271 of 2011(O&M) ::1:: IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH CRR No.2271 of 2011 (O&M) Date of decision : 20.10.2011 Davinder Kumar ...... Petitioner v. State of Punjab ...... Respondent *** CORAM : HON'BLE MR.JUSTICE AJAY TEWARI *** Present : Mr. Nandan Jindal, Advocate for the petitioner. Mr. S.S. Gill, D.A.G., Punjab. *** AJAY TEWARI, J. (Oral) By this petition the order dated 10.09.2011 passed by the learned Chief Judicial Magistrate, Barnala has been challenged declining the plea of the petitioner for bail in terms of Section 167(2) Cr.P.C. Admittedly the petitioner surrendered in Court on 06.06.2011 and the challan was filed on 06.09.2011 which was also admittedly more than 90 days afterwards. However, the police remand of the petitioner was taken only on 09.06.2011. The learned Magistrate held that the period of custody of the petitioner would start only on 09.06.2011 from which date the police remand was obtained and consequently dismissed the petition. While passing this order the learned Magistrate relied upon the judgment in CRR No.2271 of 2011(O&M) ::2:: the matter of State of Bengal v. Dinesh Dalmia reported in 2007(2) R.C.R. (Criminal) 953 S.C. Learned counsel for the petitioner has relied upon the judgments in the matter of Uday Mohanlal Acharya v. State of Maharashtra, 2001(2) R.C.R. (Criminal) 452 S.C.; Ravinder Singh v. State of Punjab, 2005(2) R.C.R. (Criminal) 340 P&H; Shri Ram Singh Batra v. State, 2005 CrlLJ 2471 Delhi; Ranbir Singh and another v. The State of Haryana, 1988(2) R.C.R. (Criminal) 5 P&H and Kamaljeet v. State, 1986(2) R.C.R. (Criminal) 551 Delhi, whereby it is declared that if the challan is not put up within period stipulated in Section 167(2) Cr.P.C. the accused gets an indefeasible right to get bail. In the judgment relied upon by the learned Magistrate it would be seen that the respondent was arrested in Delhi and produced before the Court of learned Additional Chief Judicial Magistrate, Tis Hazari. On transit remand, the respondent was produced before the learned Additional Chief Judicial Magistrate, Egmore, Chennai on 14.02.2006. In the meantime, the investigating officer also prayed for issuance of production warrant against the respondent before the Court of learned Chief Metropolitan Magistrate, Calcutta, as the respondent was arrested and detained in the CBI case pending for the Chief Metropolitan Magistrate, Egmore, Chennai. The Chief Metropolitan Magistrate, Calcutta allowed the prayer of the investigating officer by order dated 13.02.2006 and directed that the accused-respondent be produced before the learned Chief Metropolitan Magistrate, Calcutta on or before 22.02.2006. On 14.02.2006, the order dated 13.02.2006 passed by the Chief Metropolitan Magistrate, Calcutta was brought to the notice of the Additional Chief Metropolitan CRR No.2271 of 2011(O&M) ::3:: Magistrate, Egmore, Chennai by the CBI in their further remand application . The Additional Chief Metropolitan Magistrate, Egmore, Chennai observed that the matter of Calcutta police would be considered after the period of CBI custody was over. On 17th February, 2006 the Investigating Officer of the present case filed an application before the learned Court of Chief Metropolitan Magistrate, Calcutta intimating that the accused-respondent was in the custody of CBI till 24th February, 2006 in connection with the aforesaid CBI cases and sought direction for production of the accused-respondent in Calcutta on or by 8th March, 2006. The Court at Calcutta by order dated 17th February, 2006 observed that looking to the gravity of the offences complained against the accused- respondent in the cases pending in Calcutta, he should not be released in the CBI cases at Chennai. On 23rd February, 2006, the Investigating Officer in the present case filed an application before the Magistrate at Egmore, Chennai regarding production of the accused-respondent being in the present case before the Court of Chief Metropolitan Magistrate at Calcutta. By that time, the accused-respondent came to know that he was wanted in two more cases pending against him in Calcutta. When the accused-respondent was in custody on 27th February, 2006 in connection with the CBI case pending before the Addl. Chief Metropolitan Magistrate, Egmore, Chennai, he voluntarily surrendered before the learned Magistrate, Chennai as he was wanted in connection with the two cases of Calcutta Police i.e. Case No. 300/2002 and 476/2002. The accused respondent surrendered on 27th February, 2006 and that was accepted by the Addl. Chief Metropolitan Magistrate, Egmore, Chennai on the same date. But the Learned Additional Chief Metropolitan Magistrate Egmore, CRR No.2271 of 2011(O&M) ::4:: Chennai remanded the accused respondent to the judicial custody till 13th March, 2006. The learned Additional Chief Metropolitan Magistrate, Chennai further directed production of the accused before the Court at Calcutta. An intimation in this regard was also forwarded to the Chief Metropolitan Magistrate, Calcutta along with surrender papers of both the cases. An intimation dated 28th February, 2006 was also forwarded to the Hare Street Police Station and Park Street Police Station where those two cases were pending. The Investigation Officer requested the learned Addl. Chief Metropolitan Magistrate, Egmore, Chennai for counter-signature on the production warrant issued by the learned Chief Metropolitan Magistrate, Calcutta. The Addl. Chief Metropolitan magistrate, Chennai counter signed the production warrant and served upon the Jail Superintendent, Egmore, Chennai. On 3rd March, 2006 in response to the prayer made by the CBI, the learned Magistrate at Chennai directed for conducting of Polygraph, Brain Mapping and Nacro Analysis tests on the accused-respondent. The learned Magistrate directed the Superintendent, Central Jail, Chennai to hand over the accused for the aforesaid test to Inspector, CBI and produce him before the Court on 9.3.2006. Thereafter on 11.3.2006 on the request of Calcutta Police accused was handed over to Calcutta Police to be escorted to Calcutta for production before the Magistrate at Calcutta. Therefore, on the request made by the CBI , the accused respondent was handed over to the CBI team for the above tests. On 13th March, 2006 pursuant to the order of the learned Magistrate at Calcutta the accused respondent was produced in the Court of Chief Metropolitan Magistrate, Calcutta. A perusal of these facts reveal that in the Case Nos.300/2002 CRR No.2271 of 2011(O&M) ::5:: and 476/2002 for the first time the petitioner was produced before the learned Magistrate on 13.03.2006. It was in these circumstances that the Hon'ble Supreme Court had held that his custody in those cases would be started from 13.03.2006. On the other hand, in the present case the petitioner was arrested in this very case and consequently from the date of his arrest was under the jurisdiction of the learned Magistrate. In my opinion, the judgments cited by the learned Magistrate is clearly distinguishable and the judgments cited by the learned counsel for the petitioner would be applicable. Learned Deputy Advocate General is not in a position to cite any contrary judgment. Consequently, this petition is allowed and the impugned order dated 10.09.2011 is set aside. It is declared that the challan of the petitioner was filed beyond 90 days and thus the petitioner is entitled for release on bail under the provision of Section 167(2) Cr.P.C. Let the petitioner be now released on bail to the satisfaction of the learned trial Court. ( AJAY TEWARI ) October 20, 2011 JUDGE ashish