Crl. Misc. No.M-23236 of 2010 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. Crl. Misc. No.M-23236 of 2010 Date of Decision: 25.11.2010 Brij Mohan ....Petitioner Versus State of Punjab and another ...Respondents CORAM : Hon'ble Ms. Justice Nirmaljit Kaur Present:- Mr. B.S. Sra, Advocate for the petitioner. Mr. P.S. Bajwa, D.A.G., Punjab for the respondent-State. Mr. Vipul Aggarwal, Advocate for respondent No.2. ***** 1. Whether Reporters of Local Newspapers may be allowed to see the judgment ? 2. To be referred to the Reporters or not ? 3. Whether the judgment should be reported in the Digest ? ** NIRMALJIT KAUR, J. This is a petition under Section 439(2) Cr.P.C for cancellation of regular bail of respondent No.2 granted by the Court of Judicial Magistrate Ist Class, Ludhiana vide order dated 08.07.2010 (P-1) in case FIR No.158 dated 10.04.2010 under Sections 304-B/34 IPC registered at Police Station Civil Lines, Amritsar. The facts, in short, are that the daughter of the petitioner was found dead in her matrimonial house. She had dupatta marks on her neck and half of the chunni was hanging with the fan and the other half was lying on the bed near her dead body. The matter was informed to the police. Her Crl. Misc. No.M-23236 of 2010 2 statement was recorded and accordingly, FIR No.158 dated 10.04.2010 under Sections 304-B/34 IPC was registered at Police Station Civil Lines, Amritsar against respondent No.2 and his parents. The respondent No.2 was arrested in this case on 03.05.2010 and the police did not make a request for his police remand and rather prayed for sending the accused, Sunil Kumar, in judicial remand and accordingly, he was sent to judicial custody on 03.05.2010. The challan in the said case was not filed within 60 days. The application of the accused-Sunil Kumar was moved on 08.07.2010 praying for grant of bail under the provisions of Section 167(2) Cr.P.C on the ground that a period of sixty days had expired after the accused was sent in judicial custody and the challan was not presented in the court. This bail application came up for hearing before the Judicial Magistrate Ist Class, Amritsar on 08.07.2010 and the accused was ordered to be released on bail. It is contended that the Court below has wrongly granted the bail to respondent No.2 under Section 167(2) Cr.P.C by wrongly taking the permissible period for presentation of challan as 60 days in the offence under Section 304-B, whereas, the law in this regard, is well settled that the period for presenting the challan is 90 days and not 60 days for offence under Section 304-B IPC. Therefore, the benefit of bail to respondent No.2 under Section 167(2) Cr.P.C could only have been granted for non- presentation of challan even after 90 days and not 60 days. In the present case, the respondent No.2 has been released by giving benefit of Section 167(2) Cr.P.C after a custody of only 66 days (i.e. from 03.05.2010 to 08.07.2010). Thus, the bail was granted to respondent No.2 by wrongly invoking the provisions of Section 167(2) Cr.P.C. It is further contended that the challan was filed after two days of the grant of bail to him which shows that the investigating agency had illegally connived with the accused and had deliberately caused the delay in presentation of challan so that he Crl. Misc. No.M-23236 of 2010 3 may get the concession of bail under Section 167(2) Cr.P.C., despite the fact that the challan had already been prepared and submitted by the SHO for filing before the Court on 01.06.2010 i.e. about 40 days earlier. Learned counsel for the respondent, however, did not dispute the fact but submitted that the respondent has not misused the concession of bail. Hence, he should not be taken back in custody. He further relied on the judgment rendered in the case titled as V.D. Chaudhary v. State of U.P. reported as 2005 AIR (SC) 3270 to push home his point. In the case of Bhupinder Singh v. Jarnail Singh reported as 2006(3) RCR (Criminal) 677, the following two questions were under consideration :- “(a) In a case involving offence punishable under Section 304(B) is the period for filing challan 90 days or 60 days ? (b) Does mere filing of challan without relevant documents satisfy the requirement of filing the challan within a stipulated period for the purpose of Section 167(2)(a) ?” After hearing, Hon'ble the Supreme Court held that the period of filing of the challan was 90 days is the correct view. Accordingly, the appellants were directed to surrender forthwith to custody and file an application on merits. Similar view is held by this Court in the case of Kuldeep Singh vs. State of Punjab reported as 2005(3) RCR (Criminal) 599 as under :- “ Under these circumstances this petition is accepted and order dated 10.1.2004 is set aside. The accused-respondents shall surrender before the trial Court immediately, in any case on or before the next date of hearing. They shall be taken into custody. Since the earlier bail was under Section 167(2) Cr.P.C and not on merits, these accused-respondents shall be at liberty to Crl. Misc. No.M-23236 of 2010 4 file regular application for bail before the trial Court after they surrender and are taken into custody.” The fact that the respondent did not misuse the the concession of bail shall have no bearing. His bail was not allowed on merits. It was an illegal order. The same cannot be sustained and accordingly will have to be set aside. Thus, in view of the above, this Court has no option but to direct the accused-respondent No.2 to surrender before the trial Court immediately. He shall be taken into custody. However, it shall be open to him to move for bail on merits which shall be considered and whatever is said herein shall have no bearing on the merits of the case. Allowed in the above said terms. (NIRMALJIT KAUR) 25.11.2010 JUDGE gurpreet