Neutral Citation No:=2023:PHHC:126612

2023:PHHC:126612

IN THE HIGH COURT OF PUNJAB AND HARYANA

AT CHANDIGARH

273 CRR-1498-2023
Date of Decision: 27.09.2023

Sher Singh @ Kaku ...Petitioner

Vs.
State of Haryana ...Respondent

CORAM : HON'BLE MR. JUSTICE N.S.SHEKHAWAT

Present : Mr. Gaurav Vir Singh Behl, Advocate

for the petitioner.

Mr. Gaurav Gurcharan Singh Rai, DAG, Haryana.

N.S.SHEKHAWAT, J. (Oral)

1. The petitioner has filed the present petition under Section

401 read with Section 397 Cr.P.C. against the order dated 31.05.2023

passed by the Court of Additional Sessions Judge, Ambala, in case

arising out of FIR No. 353 dated 20.11.2022 under Sections 22 (c) of

the NDPS Act (Section 29 of the NDPS Act added later on),

registered at Police Station Barara, whereby, the application filed by

the present petitioner under Section 167(2) Cr.P.C. was ordered to be

dismissed.

2. The FIR in the present case was registered on the basis of

the statement made by ASI Yashpal, CIA-II, Ambala Cantt. Since, the

petitioner had filed the present application under Section 167(2)

Cr.P.C. before the trial Court for grant of concession of bail to him,

only on the ground that the complete challan was not presented by the

1 of 6
::: Downloaded on - 22-11-2024 20:25:55 :::
 Neutral Citation No:=2023:PHHC:126612

CRR-1498-2023 2023:PHHC:126612 -2-

prosecution within a period of 180 days, so there is no need to

reproduce the detail of the case in the present order.

3. Leaned counsel for the petitioner submitted that the

petitioner was ordered to be arrested in the present case on 20th

November, 2022 and the incomplete challan, i.e., without the FSL

report was filed on 02.02.2023. As per the learned counsel, the

petitioner had completed the period of 180 days in custody on

19.05.2023 and he filed an application under Section 167(2) Cr.P.C.

before the learned Special Court, Ambala, for grant of concession of

bail to him as the complete challan had not been filed by the police.

On 20.05.2023 itself, the report was called from the Ahlmad of the

Court and according to the report of the Ahlmad, the challan was

presented without FSL report and the FSL report had not been

received till that day. However, in the meantime, on 22.05.2023, an

application was moved by the police for extension of time for filing

the FSL report and the said application filed by the prosecution was

ordered to be allowed by the Special Court, Ambala. Learned counsel

submitted that in the present case, the investigation had not been

completed within a period of 180 days and just to frustrate the right of

the petitioner, incomplete challan without the report of FSL was

presented by the prosecution on 02.02.2023. Consequently, after the

completion of 180 days in custody, the petitioner had moved an

application under Section 167(2) Cr.P.C., for grant of bail, on

20.05.2023 and the petitioner was liable to be released on bail,

2 of 6
::: Downloaded on - 22-11-2024 20:25:56 :::
 Neutral Citation No:=2023:PHHC:126612

CRR-1498-2023 2023:PHHC:126612 -3-

without any delay. Learned counsel further submitted that an

indefeasible right had accrued in favour of the petitioner in view of

the provisions contained in Section 167(2) Cr.P.C. and the said right

would not be extinguished by the subsequent filing of an application

for extension of time, by the Investigating Agency. Learned counsel

further submitted that subsequent presentation of FSL report or any

application for extension of time for submission of the final

report/FSL report will have no effect on the case of the petitioner. In

fact, on 20.05.2023, the petitioner had already moved an application

under Section 167(2) Cr.P.C. for default bail and the prosecution had

moved an application for extension of time for presentation of FSL

report, complete challan on 22.05.2023, which would be meaningless.

In such circumstances, the petitioner would be entitled to be released

on bail.

4. On the other hand, learned State counsel had vehemently

opposed the prayer made by the learned counsel for the petitioner on

the ground that the petitioner was arrested in the present case on

20.11.2022. Thereafter, the final report under Section 173 Cr.P.C. was

prepared and presented before the Court on 02.02.2022. Thus, the

report submitted under Section 173 Cr.P.C. without the FSL report can

never be termed as incomplete challan.

5. It has been held by the Hon'ble Supreme Court in the

matter of M. Ravindran Vs. The Intelligence Officer, Directorate

3 of 6
::: Downloaded on - 22-11-2024 20:25:56 :::
 Neutral Citation No:=2023:PHHC:126612

CRR-1498-2023 2023:PHHC:126612 -4-

of Revenue Intelligence, 2021(2) SCC 485; 2020(4) R.C.R.

(Criminal) 800 as follows:-

“13.1 However, the expression ‘the accused does furnish

bail’ in Section 167(2) and Explanation I thereto cannot
be interpreted to mean that if the accused, in spite of
being ready and willing, could not furnish bail on
account of the pendency of the bail application before the
Magistrate, or because the challenge to the rejection of
his bail application was pending before a higher forum,
his continued detention in custody is authorized. If such
an interpretation is accepted, the application of the
Proviso to Section 167(2) would be narrowly confined
only to those cases where the Magistrate is able to
instantaneously decide the bail application as soon as it
is preferred before the Court, which may sometimes not
be logistically possible given the pendency of the docket
across courts or for other reasons. Moreover, the
application for bail has to be decided only after notice to
the public prosecutor. Such a strict interpretation of the
Proviso would defeat the rights of the accused. Hence his
right to be released on bail cannot be defeated merely
because the prosecution files the chargesheet prior to
furnishing of bail and fulfil the conditions of bail of
furnishing bonds, etc., so long as he furnishes the bail
within the time stipulated by the Court”.
Still further, it was held as follows:-

18.1 Once the accused files an application for bail under

the Proviso to Section 167(2) he is deemed to have
‘availed of’ or enforced his right to be released on
default bail, accruing after expiry of the stipulated time
limit for investigation. Thus, if the accused applies for

4 of 6
::: Downloaded on - 22-11-2024 20:25:56 :::
 Neutral Citation No:=2023:PHHC:126612

CRR-1498-2023 2023:PHHC:126612 -5-

bail under Section 167(2), Cr.P.C. read with Section 36A

(4), NDPS Act upon expiry of 180 days or the extended
period, as the case may be, the Court must release him
on bail forthwith without any unnecessary delay after
getting necessary information from the public
prosecutor, as mentioned supra. Such prompt action will
restrict the prosecution from frustrating the legislative
mandate to release the accused on bail in case of default
by the investigative agency.
18.2 The right to be released on default bail continues to
remain enforceable if the accused has applied for such
bail, notwithstanding pendency of the bail application;
or subsequent filing of the chargesheet or a report
seeking extension of time by the prosecution before the
Court; or filing of the chargesheet during the
interregnum when challenge to the rejection of the bail
application is pending before a higher Court.

6. Still further, this court, in CRM M-25600-2021 decided

on 15.07.2021 titled as “State of Haryana Vs. Dildar Ram @ Dari”

has held that challan filed without FSL report would not be regarded

as a complete challan and the accused would be entitled to default bail

in terms of Section 167(2) Cr.P.C.

7. In the present case also, the petitioner was ordered to be

arrested on 20.11.2022 and the challan without FSL report was filed

on 02.02.2023. After the completion of 180 days in custody, the

petitioner had filed the application under Section 167(2) Cr.P.C. on

20.05.2023. However, the prosecution moved an application for

extension of time for filing of the FSL report on 22.05.2023 and the

5 of 6
::: Downloaded on - 22-11-2024 20:25:56 :::
 Neutral Citation No:=2023:PHHC:126612

CRR-1498-2023 2023:PHHC:126612 -6-

same was allowed on the same day. However, such a move by the

prosecution, would not defeat indefeasible right of the accused to

claim bail under Section 167(2) Cr.P.C. First of all, a challan filed

without FSL report can never be regarded as a complete challan.

Secondly, the Hon'ble Supreme Court has also held that the right to be

released on default bail continues to be in force if the accused has

applied for such bail and the bail application remains pending for a

long period and subsequent extension of time by the Court will have

no effect on the right of the accused to default bail.

8. Consequently, in view of the above discussion and the

law laid down by this Court as well as Hon'ble Supreme Court, the

present petition is ordered to be allowed and the impugned order

dated 31.05.2023 passed by the Additional Sessions Judge, Ambala, is

set-aside. The petitioner is ordered to be released on bail on his

furnishing bail bonds/surety bonds to the satisfaction of the learned

trial Court/Duty Magistrate/CJM concerned.

27.09.2023 ( N.S.SHEKHAWAT)
amit rana JUDGE
Whether reasoned/speaking : Yes/No
Whether reportable : Yes/No

6 of 6
::: Downloaded on - 22-11-2024 20:25:56 :::