B.P.Singh and A.K.Sinha JJ.

1. This writ petition has been filed by the petitioners for issuance of a writ, order or direction quashing the order passed by the Chief Judicial Magistrate, Motihari, East Champaran, dated 28.11.1998 in Chakia P.S. Case No. 19 of 1998 whereby the learned Chief Judicial Magistrate dismissed the application filed by the petitioners for grant of compulsive bail under the provision of Section 167(2) of the Code of Criminal Procedure holding that since the charge-sheet as against them has been received when the matter regarding grant of bail was being considered by him, they could not claim the benefit under the said provision.

2. The facts of the case are that in connection with Chakia P.S. Case No. 19 of 1998 which related to an offence under Section 302/34 of the Indian Penal Code, the petitioners were arrested on 28.8.1998. They were produced before the Chief Judicial Magistrate on 29.8.1998 when they were remanded to judicial custody. On 27.11.1998, the petitioners filed an application for grant of bail under the provision of sub-section (2) of Section 167 of the Code of Criminal Procedure. On that very day, the Chief Judicial Magistrate called for a report and was informed in response thereto that till then, the charge-sheet as against the petitioners had not been received. The matter was directed to be put up on the following day for consideration of the bail petition filed on behalf of the petitioners. On the following day i.e. on 28.11.1998 while the learned Chief Judicial Magistrate was considering the matter regarding grant of compulsive bail to the petitioners, the charge-sheet as against these petitioners was received. In the circumstance, he held that the charge-sheet having been receiving as against the petitioners, they were not entitled to the benefit of compulsive bail under Section 167(2) of the Code of Criminal Procedure.

3. In the writ petition filed before this Court, the petitioners have sub-mitted that since they were arrested on 28.8.1998 and, therefore, the stipulated period of 90 days expired on 26.11.1998, the petitioners should have been released on bail under Section 167(2) of the Code of Criminal Procedure. On 27th November, 1998 when the petitioners had filed an application claiming compulsive bail under Section 167(2) of the Code of Criminal Procedure. Rather than admitting them to bail, the Court asked for a report, and, thereafter deferred the matter for consideration on the following day. This, according to the petitioners, the Court should not have done because that amounted to an improper exercise of discretion calculated to defeat the right, which had accrued in favour of the petitioners.

4. On behalf of the State, it has been contended that the petitioners are not right in submitting that the stipulated period of 90 days expired on 26.11.1998. It was submitted that the period of 90 days had to be calculated from the date of order of remand and in calculating the said period one day has to be excluded i.e. either the date on which the order of remand is passed, or the date on which the period of 90 days is completed. He places reliance on a decision of the Supreme Court, reported in 1995 Supreme Court Cases (Cri) 830 State of M.P. V/s. Rustam and others, and submits that the said decision provides a complete answer to the sub-mission urged on behalf of the petitioners. In our view, the submission urged on behalf of the State must prevail.

5. In State of M.P. v. Rustam and others, the accused respondents were remanded to judicial custody on 3.9.1993. The challan was submitted in that case on 2.12.1993. It was urged on behalf of the respondents that the period of 90 days expired on 1.12.1993 and, therefore, their right to compulsive bail survived even after the challan was filed. Their plea was accepted by the High Court, but on appeal, the Supreme Court reversed the finding and held that the prescribed period of 90 days commenced either from 4.9.1993 (exclu