VIJAY BISHNOI - (1.) The petitioner has been arrested in connection with FIR No.49/2017 of Police Station, Siwana, District Barmer for the offence punishable under Section 376(1) IPC. He has preferred these bail applications under Section 439 CrPC.
(2.) Learned counsel for the petitioner has submitted that the petitioner was arrested by police on 12.06.2017, however, on the expiry of 90 days i.e. 11.09.2017, the police filed charge- sheet against the petitioner in the Court of Judicial Magistrate, Siwana. The Judicial Magistrate, Siwana returned the said charge- sheet with a remark that as the charge against the petitioner is under the POCSO Act, the charge-sheet be filed in Special POCSO Court, Barmer only. The Judicial Magistrate, Siwana also extended the judicial custody of the petitioner up to 25.09.2017. The police then filed charge-sheet against the petitioner in the Special POCSO Court, Barmer on 11.09.2017 itself, however, the Special Judge returned the said charge-sheet while treating it as incomplete and gave direction to the police to remove the deficiencies on certain points. Thereafter the police filed charge- sheet before the Judicial Magistrate, Siwana on 14.09.2017, however, the Judicial Magistrate, Siwana returned the said charge- sheet while observing that in view of the order dated 11.09.2017 passed by the Special Judge, POCSO Court, Barmer, the same is not liable to be accepted.
(3.) Learned counsel for the petitioner has submitted that in the meantime on 13.09.2017, the petitioner preferred an application under Section 167(2) CrPC before the Judicial Magistrate, Siwana with contention that since charge-sheet was not filed on 11.09.2017, the day, when limitation had expired, the petitioner is entitled to be released on default bail. The Judicial Magistrate, Siwana rejected the said application of the petitioner vide order dated 13.09.2017 while observing that since charge- sheet against the petitioner is filed within 90 days, he is not entitled for default bail. Thereafter, when the Judicial Magistrate again refused to accept the charge-sheet on 14.09.2017, an application was moved on behalf of the petitioner before the Special Court, Barmer under Section 167(2) CrPC on 15.09.2017 with a prayer for releasing him on default bail on the ground that no charge-sheet has been filed by the police against the petitioner within the prescribed limit. The said application of the petitioner was rejected by the Special Judge vide order dated 20.09.2017 while observing that as the charge-sheet against the petitioner was filed under Section 376(1) CrPC, the petitioner is not entitled to be released on bail.;