( 1 ) THE petitioner, who is the complainant, filed this petition under Section 482 Cr. P. C. to quash the order passed by the Additional Judicial Magistrate of First class, Bhimavram, West Godavari District, in Crl. M. P. No. 84 of 2004 in Crime No. 223 of 2004 dated 17-1-2005.

( 2 ) BY the said order the learned magistrate invoking the powers under section 167 (2) Cr. P. C. , released the accused on bail solely on the ground that the charge-sheet was not filed by the time the application of the accused was taken up for consideration and the said charge-sheet was filed on 91st day i. e. , beyond 90 days, therefore, the accused is entitled to the benefit of Section 167 (2) proviso (a) (ii ).

( 3 ) HEARD the learned Counsel for the petitioner as well as the learned Counsel for the respondent and also the Additional Public prosecutor.

( 4 ) A few facts are necessary to be noticed to find out whether the respondent- accused is entitled to the benefit of section 167 (2) of the proviso or not which reads as under : 167. Procedure when investigation cannot be completed in twenty four hours :- (1)- (2) The Magistrate to whom an accused person is forwarded under this section may, whether he has or has not jurisdiction to try the case, from time to time, authorize the detention of the accused in such custody as such Magistrate thinks fit, for a term not exceeding fifteen days on the whole; and if he has no jurisdiction to try the case or commit it for trial, and considers further detention unnecessary, he may order the accused to be forwarded to a magistrate having such jurisdiction: provided that- (a) the Magistrate may authorize the detention of the accused person, otherwise than in the custody of the police, beyond the period of fifteen days if he is satisfied that adequate grounds exist for doing so, but no magistrate shall authorize the detention of the accused person in custody under this paragraph for a total period exceeding. (i) - (ii) sixty days, where the investigation relates to any other offence and, on the expiry of the said period of ninety days, or sixty days, as the case may be, the accused person shall be released on bail if he is prepared to and does furnish bail, and every person released on bail under this sub-section shall be deemed to be so released under the provisions of chapter XXXIII for the Chapter;" admittedly, the respondent-accused was sent to the judicial remand on 13-10-2004 and the charge-sheet has been filed after due investigation on 11-1-2005 i. e. , on the 91st day, if the day of remand is also taken into consideration.

( 5 ) IT is a settled principle of law that right to compulsive bail does not survive after filing of the challan and it is the abundant duty of the Court to examine the availability of right to compulsive bail on the date it is considering the question of bail and not barely on the date of presentation of the petition for bail, and that the day on which the accused remanded to the judicial custody should be excluded and the day on which challan filed in the court should be included as held by the apex Court in State of M. P v. Rustam and others, 1995 Supp (3) SCC 221.

( 6 ) THE trial Court was in error in the matter of computation of 90 days and also in complying the principle of compulsive bail as held by the Supreme Court in the above case State of M. P. v. Rustam and others (supra), which reads as under : "we find that the High Court was in error - both in the matter of computation of the period of 90 days prescribed as also in applying the principle of compulsive bail on entertaining a petition after the challan was filed as the so-called "indefeasible right" of the accused, in our view stood defeated by efflux of time. The prescribed period of 90 days, in our view, would instantly commence either from 4-9-1993 (excluding from it 3-9-1993) or 3-12-1993 (including in it 2-12-1993 ). Clear 90 days have to expire before the right begins. Plainly put, one of the days on either side

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