- (1.) The petitioner seeks grant of regular bail in case FIR No.311, dated 10.5.2011, registered under Sections 420, 467, 468, 471, 120-B of the IPC and Sections 25, 27, 54, 59 of the Arms Act, at Police Station City Sirsa. On 5.9.2011, the following contention was noticed:- " Learned counsel for the applicant-petitioner states that this petition in any case would now have to be allowed under the provision of Section 167 Cr.P.C since even under Section 471 Cr.P.C the period of filing of challan is 60 days in view of the decision in Som Nath v. State of Punjab passed in Crl. Misc No. M 10219 of 2011, decided on 28.4.2011."
(2.) Counsel for the respondent has fairly accepted this proposition of law. However, counsel for the complainant has argued that the distinguishing factor would be the fact that in this case the petitioner filed an application to take the benefit of Section 167(2) of the Cr.P.C after the challan was filed and, therefore, he would have lost his right.
(3.) It is not disputed that the present petition for bail under Section 439 of the Cr.P.C was filed before the filing of the challan. The question now is whether the right of the accused can be defeated by the fact that challan has since been presented prior to the filing of the application under Section 167(2) of the Cr.P.C. In Som Nath and another's case (supra), it was held as follows:- " In the humble opinion of this Court, it would be futile exercise to ask the accused to approach the Magistrate first if argument is advanced that even during the pendency of the bail application before this Court statutory period provided under Section 167(2) of the Code for filing the challan has expired. This Court can take note of the law and can consider the bail application itself without asking the accused to approach the Magistrate first. In the opinion of this Court, hypertechnical view should not be adopted to refuse the relief if accused is otherwise legally entitled for.";