JUDGMENT :

H.K. Rathod, J.

Heard Mr.Hriday C.Buch, learned advocate appearing on behalf of the petitioner and Mr. H.L. Jani, learned APP for respondent - State.

2. Rule. Mr. H.L. Jani, learned APP waives service of rule on behalf of the respondent - State.

3. According to the petitioner, FIR has been registered being C.R. No. I-6/2001 with Veraval City Police Station under Section 363, 366, 376, 377 of the IPC. In pursuance of the FIR registered against the present petitioner, immediately on 17th January, 2001, the petitioner was arrested by the concerned police authority. Thereafter the petitioner has preferred Regular Bail Application before the Additional Sessions Judge, Veraval being Criminal Misc. Application No. 33/2001 but that application was dismissed by the Additional Sessions Judge vide order dated 14th February, 2001. The petitioner has challenged the said order of Additional Sessions Judge dated 14th February, 2001 before this Court by way of preferring regular Bail Application being Crim. Misc. Application No. 1802/2001 but that application has been withdrawn by the petitioner on 19th March, 2001. According to the petitioner, thereafter the investigating agency filed the charge sheet on or before 17th April, 2001 before expiry of the period of 90 days as prescribed under Clause 167(2)(a) of the CrPC. The petitioner preferred the application on 17th April, 2001 for releasing the petitioner on bail as prescribed under the said provisions. The said application has been dismissed by the JMFC, Veraval on 20th April, 2001 and thereafter that order dated 20th April, 2001 has been challenged by the petitioner before the Additional Sessions Judge, Veraval by filing Criminal Misc. Application No. 19/2001 and that application has also rejected on 30th April, 2001. Therefore, both these orders have been challenged by the present petitioner before this Court in the present proceedings.

4. Learned advocate Mr. H.C. Buch has submitted that there are certain undisputed facts and dates between the parties. The alleged offence has been committed by the present petitioner on 12th January, 2001 and FIR has been lodged against the present petitioner on 14th January, 2001 and in pursuance of the FIR, the petitioner was arrested by the concerned police authority on 17th January, 2001. Thereafter on 21st January, 2001, the police authority has asked for remand which was granted by the JMFC, Veraval for two days and thereafter the petitioner has submitted regular bail application on 17th April, 2001 and charge sheet has been submitted against the present petitioner on 18th April, 2001 at about 2.00 P.M.. In light of this undisputed facts between the parties, learned advocate Mr.Buch has submitted that 90 days period has expired on 16th April, 2001 and therefore the petitioner has indefeasible right to have regular bail when the petitioner is prepared to furnish bail by filing necessary application before the concerned Court. But that application has been rejected by both the lower courts on the ground that before passing the order on the application submitted by the petitioner on 17th April, 2001, the concerned Police Authority has submitted the charge sheet on 18th April, 2001 and therefore, the observations made by the Additional Sessions Judge in respect of the proviso (a) to Section 167 (2) of Cr.P.C. as discussed in para-11 and 12 in the judgment dated 30th April, 2001, are as under :-

"11. Then, it further laid down that - "Summary of the latest position of law as laid down by the Supreme Court - (1) `Indefeasible right' is created in favour of the accused, if charge-sheet is not filed on expiry of the statutory period as provided in provision (a) to Section 167 (2) of Code; (2) No doubt, said right is `indefeasible right' but the life of that right is from the expiry of the period to file the charge sheet till the date the charge sheet is filed; and (3) that right dos not survive or remain enforceable on the charge sheet being filed and