Important Point-Accused gets an indefeasible right of being released on bail if charge-sheet is not filed within period of limitation.

J.B. Pardiwala, J.

1. By this application, the applicants- original accused persons call in question the legality and validity of the order dated 27.11.2014 passed by the learned Additional Sessions Judge, Dhangandhra in Criminal Misc. Application No. 214 of 2014, by which, the learned Additional Sessions Judge rejected the application filed by the applicants herein, praying for default bail under Section 167(2) of the Code of Criminal Procedure, 1973. It appears that the applicants were arrested in connection with C.R. No. I-86 of 2014 registered at the Patdi Police Station, Surendranagar of the offence punishable under Sections-302, 147, 148, 149 of the IPC and Section 135 of the Bombay Police Act.

2. The applicants were arrested on 11.08.2014 and were produced on the next day i.e. on 12.08.2014 before the Court of the learned Magistrate, Patdi, District-Surendranagar. The learned J.M.F.C. thereafter remanded the applicants to judicial custody.

3. It appears that the period of 90 days expired on 09.11.2014. However, till 09.11.2014, no chargesheet was filed in the Court of the learned Magistrate. The charge-sheet came to be filed on 10.11.2014 i.e. on the 91st day at 04:00 p.m.

4. The applicants herein filed an application for default bail under Section 167(2) at 10.35 in the morning, in the Court of the learned Judicial Magistrate First Class, Patdi. There is an endorsement made by the Registrar of the Principal Civil Court, Patdi, below the application that the same was filed on 10.11.2014 at 10.35 A.M. There is also an endorsement made by the Superintendent, JMFC, Patdi that upto 10.35 A.M of 10th November, 2014, the charge-sheet was not filed in the Court. The learned JMFC issued notice to the Investigating Officer and the Additional Public Prosecutor, and fixed the hearing of the bail application on the next day i.e. on 11.11.2014.

5. It is also not in dispute that the charge-sheet was filed by the Investigating Officer on 10th November, 2014 at 4.00 P.M in the evening.

6. It appears that the bail application was considered by the learned JMFC, Patdi and vide order dated 14.11.2014, rejected the same. On a plain reading of the order, it appears that the learned Magistrate took the view that there was no delay on the part of the Investigating Officer in filing the charge-sheet and the same was actually filed on the 90th day. According to the learned Magistrate, the accused-applicants were remanded to the judicial custody on 12th August, 2014, and therefore, the period of 90 days could be said to have expired on 9.11.2014. Such calculation of the learned Magistrate is suggestive of the fact that 12th August, 2014 i.e. the date on which the applicants were produced before the learned Magistrate and remanded to judicial custody was not counted for the purpose of computing the period of 90 days by taking recourse to the Section 9 of the General Clauses Act, 1897. The learned Magistrate also relied upon an over-ruled decision of the Supreme Court in the case of State of M.P. v. Rustom and ors., reported in 1995 Supp. (3) SCC 221.

7. Being dis-satisfied, the applicants thereafter filed application before the Sessions Court and the Sessions Court also computed the period of ninety days excluding the day on which the applicants were produced before the learned Magistrate and remanded to the judicial custody. It appears from a plain reading of paragraph 6 of the order passed by the learned Additional Sessions Judge that so far as the month of August was concerned, only 19 days were calculated, thereby suggesting that the first day of remand i.e. 12th August, 2014 was excluded.

8. At this stage, it needs to be stated, as pointed out by the learned Additional Public Prosecutor Mr. Pandya that irrespective of the reasonings assigned by the Courts below in rejecting the bail applications filed by the applicants under Section 167(2) of the Code, the Courts below missed one important aspect that the 8th and 9th November, 2014 were ho