M.M Punchhi, J. (Oral):— Heard. The allegation against the petitioner Joginder Singh is that on 23.4.1984 he called Rachhpal Singh deceased from his house, took him away in the company of others and since then Rachhpal Singh never returned home. After the disappearance of the deceased, the case was registered on 30th April, 1984. The petitioner is said to have made a disclosure statement whereby the dead body of Rachhpal Singh was recovered on 30th April, 1984 from underneath a water channel. Thus, the evidence against the petitioner is of being last seen together and the recovery of the dead body. It has been stated at the bar that at the instance of the complainant, four other persons are being questioned who are alleged to have participated in the murder of Rachhpal Singh.
2. For the present, as it appears, the crime was committed in stealth for there is no eye-witness to it. The petitioner in these circumstances can not be termed as a ‘terrorist’ within the meaning of section 2(h) of the Terrorist Affected Areas (Special Courts) Ordinance, 1984 for it cannot be said at this stage whether the public or any section of it was put in fear by his indulging in violence Even the rigors of section 15(5) thereof are not attracted
3. The petitioner is behind the bars with effect from 30.4.1984, A period of 90 days has elapsed and the challan concededly has not’ been put in. Bail has been claimed on his behalf as a matter of right in view of the provisions of section 167(2) of the Code of Criminal Procedure. Learned counsel for the State disputes such right. section 439-A of the Code of Criminal Procedure is pressed into service by him which is in the following terms:—
“439—A. Notwithstanding anything contained in this Code, no person—
(a) who, being accused or suspected of committing an offence under any of the following sections, namely sections 120B, 121, 364, 365, 367, 368, 392, 394, 395, 396, 399, 412, 431, 436, 449 and 450 of the Indian Penal Code, 1860, sections 3, 4, 5 and 6 of the Explosive Substances Act, 1908, and sections 25, 26, 27, 28, 29, 30 and 31 of the Arms Act, 1959, is arrested pr appears pr is brought before a Court; or
(b) who, having any reason to believe that he may be arrested on accusation or committing an offence as specified in clause (a), has applied to the High Court or the Court of Sessions for a direction for his release on bail in the event of his arrest, shall be released on bail or, as the case may be, directed to be released on bail, except on one or more of the following grounds, namely:—
(i) that the Court including the High Court or the Court of Sessions for reasons to be recorded in writing is satisfied that there are reasonable grounds for believing that such person is not guilty of any offence specified in clause (a);
(ii) that such person is under the age of sixteen years or a woman or a sick or an infirm person;
(iii) that the Court including the High Court or the Court of Sessions' for reasons to be recorded in writing is satisfied that there are exceptional and sufficient grounds to release or direct the release of the accused on bail”
4. As is plain from the reading of the non-obstante clause, the paramountcy of the section 439-A has been specifically brought to zenith. It seemingly tends to override section 167(2) of the Code of Criminal Procedure, Mr. Ghai, learned counsel for the petitioner, however to the strength of Surinder Kumar v. The State of Punjab, 1976 Chandigarh Law Reporter (Punjab and Haryana) 236 (F.B) contends that a similar provisions in rule 184 of the Defence and Internal Security of India Rules, 1971 was not allowed to prevail over the provisions of section 167(2) of the Code of Criminal Procedure as release thereunder was held being in the course of investigation. The language of the said rule 184 was in the following terms:—
“Notwithstanding anything contained in the Code of Criminal Procedure, 1898 (5 of 1898), no person accused or convicted of a contravention of these rules or orders made thereunder shall, if in custody, be released on bail on his bond unless:—
(a)XXXXXXXXXXXX
(b)XXXXXXXXXXXX”
5. The Full Bench took the view that the combined reading of sections 4 and 5 of the Code of Criminal Procedure and 37 of the Defence and Internal Security of India Act. 1971 with rule 184 showed, that the said rule would override the provisions of Chapter XXXIII pertaining to bails only to the extent they were found inconsistent with those of rule 184. The Full Bench also adopted approvingly from another Full Bench in Baldev Singh v. State of Punjab, 1975 P.L.R 534, the view that the Magistrate was duty bound and the accused was entitled as of right to be released on furnishing bail provided the requisite condition pf detention beyond sixty days was present.
6. The theory of the right of the accused to be released, after the expiry of sixty or ninety days as of right is almost whittled down. It has now been understood as only an enabling right and not an absolute one. See in this connection State of Uttar Pradesh v. Luxmi Brahman, 1983 (2) Chandigarh Law Reporter 537 (S C.) as also a decision of this Court in Nirmal Singh v. The State of Punjab. 1983 (2) Recent Criminal Reports 169 Cr. M. No. 1294-M of 1983, decided on 31st May, 1983:
7. So far as the paramountry of section 439-A of the Code of Criminal Procedure is concerned, it would be seen that it is a section specifically placed in Chapter XXXIII of the Code having the non obstante clause overriding other sections. The ratio pf the full Bench, in Surinder Kumar's case (supra) would hardly be of any help ?P the petitioner as it was arrived at in the peculiar facts of that case and the provisions of law involved therein. Bail to be claimed or granted under section 167 would have to be a release on bail as if release under Chapter XXXIII for the purposes of that Chapter (emphasis suppled). And in that very Chapter, clog has been put on the powers of the Court to grant bail Only for exceptional and sufficient grounds can now bail be granted and not otherwise. Non filing of a challan within a period of sixty or ninety days, as, the case may be, may attract the provisions of section 167, Criminal Procedure Code, and may be taken note of by the High Court or the Court of Session as an exceptional and sufficient ground, but not as a means to seek release of and accused as of right and having regard to the facts and circumstances of each case.
8. Reverting back to the facts of the case, it seems to me that merely because the challan has not been filed within a period of ninety days, that is not an exceptional and sufficient ground at this stage to release the petitioner on bail; more so when the prosecution has collected two strong incriminating circumstances against the petitioner i.e of the last seen together and the recovery of the dead body at his instance on the day when the crime was reported. The petitioner stands accused of offences under sections 302/354 with the aid of section 34, Indian Penal Code. The aforesaid two offences are mentioned in clause (a) of section 439-A prominently. There are equally no valid reasons available which the Court can record in writing that there are reasonable grounds for believing that the petitioner is not guilty of any of the aforesaid two offences Thus, in the, circumstances, bail to the petitioner has to be declined. Ordered accordingly.