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2013 Supreme(Chh) 75
HIGH COURT OF CHHATTISGARH, BILASPUR
G. Minhajuddin, J.
MANHARANCHANDRA & ANOTHER - Petitioners
Vs.
STATE OF C.G. - Respondent
Criminal Revision No. 24 of 2013
Decided On : 28-2-2013.
Mr. V.C. Ottalwar, Advocate, for the Petitioners.
Mr. Devesh Verma, Panel Lawyer, for the Respondent.
Headnote:
Criminal Procedure Code, 1973 – Section 397/401 – Criminal revision has been filed by the revision petitioners against the order passed by IInd Additional Sessions Judge, , District - in Criminal Revision, whereby order by Judicial Magistrate First Class, Jaijaipur allowing the application of the revision petitioners filed, has been set-aside and the said application has been rejected as premature – Facts, in brief, are that the revision petitioners were arrested in connection with Crime of Police Station-Jaijaipur, Tehsil-Sakti, District Janjgir-Champa for offence punishable – On the same, the revision petitioners were produced before the JMFC and were remanded to judicial custody, an application was filed on the ground that as the charge-sheet has not been filed within, therefore, the revision petitioners/accused have acquired an indefeasible right to be released on bail –Held, the instant case, as the revision petitioners/accused were produced before the JMFC and, on the very same date, they were remanded to judicial custody, therefore, their detention was authorized by the Magistrate and, therefore, in computing the period of 90 days for the purposes of Section 167 (2) of the. the said period has to be counted. As such, the period of 90 days has expired on application under Section 167 (2) of the Cr.P.C. was filed i.e. after from the date on which the detention of the revision petitioners/accused was authorized by the Magistrate. In view of this, the application filed was rightly allowed by the JMFC as after the expiry of 90 days the Magistrate has no discretion in the matter and it is the mandate of law that the accused shall be released on bail irrespective of the nature and the gravity of the offence – Revision Allowed
1. Heard on application (LA. No.2 of 2013) for condonation of delay in payment of process fee.
2. Delay condoned.
3. With the consent of counsel for the parties, the revision is finally heard at the admission stage.
4. This criminal revision under Section 397/401 of the Cr.P.C. has been filed by the revision petitioners against the order dated 3.1.2013 passed by IInd Additional Sessions Judge, Sakti, District Janjgir-Champa in Criminal Revision No. 101/2012, whereby order dated 30.10.2012 passed by Judicial Magistrate First Class, Jaijaipur(for short, "JMFC") allowing the application of the revision petitioners filed under Section 167 (2) of the Cr.P.C, has been set-aside and the said application has been rejected as premature.
5. Facts, in brief, are that the revision petitioners were arrested in connection with Crime No. 110/2011 of Police Station-Jaijaipur, Tehsil-Sakti, District Janjgir-Champa for offence punishable under Section 302 IPC on 1.8.2012. On the same date i.e. 1.8.2012, the revision petitioners were produced before the JMFC and were remanded to judicial custody. On 30.1 0.2012, an application under Section 167 (2) of the Cr.P.C. was filed on the ground that as the charge-sheet has not been filed within a period of 90 days, therefore, the revision petitioners/accused have acquired an indefeasible right to be released on bail. After hearing counsel for the revision petitioners as well as the Assistant Public Prosecutor, the JMFC allowed the said application and released the revision petitioners/accused on bail. On the same date i.e. 30.10.2012 after passing the said order, allowing the application filed under Section 167 (2) of the Cr.P.C. in favour of the revision petitioners/accused, a charge-sheet for offence punishable under Section 302 IPC was filed against the revision petitioners/accused by the Station House Officer, Police Station-Jaijaipur. Aggrieved by the said order dated 30.10.2012 granting bail under Section 167(2) of the Cr.P.C. to the revision petitioners/accused the State filed a revision petition before the IInd Additional Sessions Judge, Sakti. District Janjgir-Champa which was allowed vide impugned order dated 3.1.2013 whereby the order passed by the JMFC dated 30.10.2012 releasing the revision petitioners/accused on bail under Section 167 (2) of the Cr.P.C. has been set-aside and the application filed under Section 167 (2) of the Cr.P.C. was consequently rejected. Against the said impugned order dated 3.1.2013, this criminal revision has been filed by the revision petitioners/ accused.
6. On perusing the impugned order dated 3.1.2013 passed by the IInd Additional Sessions Judge, Sakti as well as the order dated 30.10.2012 passed by the JMFC, it is found that the controversy revolves around the point as to from which date the period of 90 days has to be counted for the purposes of Section 167 (2) of the Cr.P.C.
7. It is not in dispute that the revision petitioners/accused were arrested on 1.8.2012 and, on the very same date they were produced before the JMFC and, thereafter, they were remanded to judicial custody. It is also not in dispute that on 30.10.2012, an application under Section 167 (2) of the Cr.P.C. was filed on behalf of the revision petitioners/accused which was allowed and they were released on bail.
8. The revisional Court (IInd Additional Sessions Judge, Sakti) in the impugned order dated 3.1.2013 has relied upon the judgment of Supreme Court rendered in the case of State of Madhya Pradesh Vs. Rustam and others 1995(3) SCC 221, in which it has been laid down that in computing the period of 90 days or 60 days for the purposes or Section 167 (2) of the Cr.P.C., the date on which the accused is first produced before the Magistrate shall be excluded and the date on which the charge-sheet is filed shall be included.
9. The revision petitioners/accused were produced before the JMFC on 1.8.2012 and were remanded to judicial custody on the same date. If the period of 90 days is computed f
