The period of temporary bail cannot be reckoned in computing 90 days under the proviso to subsection (2) of Section 167 of the CrPC.

( 1 ) THE petitioner by this petition u/s. 439 (1), Criminal P. C. has sought his entitlement to he enlarged on bail by raising a question, that the period of temporary bail of 13 days should be reckoned in computing 90 days under proviso (a) to sub-sec. (2) of S. 167 and, thus, the petitioner/accused who is in continuous detention and in custody after his arrest, acquired the statutory right to be released on bail for the default of the prosecution in not filing the charge-sheet within the prescribed period of 90 days.

( 2 ) THE facts leading to this petition are thus. The petitioner and two others after their arrest on 22-4-1991 in Crime No. 146/1991 for offences u/ Ss. 302 and 307/34, IPC, by Police Station Dabra, were first remanded by the Judicial Magistrate to judicial custody on 23/04/1991; the charge-sheet was to be filed in terms of proviso (a) to S. 167 (2) within 90 days. 22/07/1991 being Sunday, the charge sheet was filed on Monday, the 23rd July. During the period of detention, in judicial custody the petitioner moved an application under S. 439, Cr. P. C. , before the Sessions Judge, Gwalior, for grant of bail for few days to perform 'kanyadan' of his daughter Sunita and other marriage ceremonies. The Sessions Judge vide order dated 25-6-1991 passed in Misc. Cr. Case No. 1402/ 1991, released the petitioner on interim bail for 13 days on three conditions, that the petitioner on his furnishing personal bond of Rs. 40,000/- and two solvent sureties of Rs. 20,000/- each to the satisfaction of Chief Judicial Magistrate, Gwalior, shall be releas- ed on interim bail till 7-7-1991; he will surrender on 8-7-91 at 8-00 a. m. before the Chief Judicial Magistrate, Gwalior, from where he will be taken into custody and will be sent to Jail, he will not contact the prosecution witnesses nor will tamper with the evidence or terrorise the witnesses and for that petitioner will report on 28/06/1991 and 3/07/1991 between 11 a. m. and 12 noon at Police Station, Dabra.

( 3 ) THE charge-sheet in the case was filed on the 91st day; therefore, in an application for bail of co-accused Ashok Sharma in Misc. Cr. Case No. 1642 of 1991, decided on 24-9- 9 1, Shri K. K. Verma, J. after dealing with the question whether the 90th day failing on a Sunday has to be excluded from consideration in accordance with the provisions of S. 10 of the General Clauses Act 1897, and considering various authorities and the provisions of Ss. 57 and 167, held that such a day cannot be excluded for reckoning the period of 90 days and, as such, the co-accused got the statutory right under the proviso (a) to S. 167 (2) to be released on bail.

( 4 ) SHRI R. B. Tiwari, counsel for the petitioner, contended that there is no provision in law of granting interim bail; though the petitioner was released on interim bail, he was well within the control of the Court; therefore, the period of 13 days in computing 90 days cannot be excluded; hence, the petitioner is entitled to be released on bail. Counsel pressed into service a decision of the apex Court in case of Niranjan Singh v. Prabhakar, AIR 1980 SC 785: (1980 Cri LJ 426) wherein the apex Court considered the meaning of 'custody' for the purpose of S. 439.

( 5 ) IT is settled that an accused acquires statutory right to be released on bail on default of prosecution in not filing charge-sheet within the prescribed period, and that right to bail under proviso (a) to S. 167 (2) is absolute, as it is a legislative command and not Court's discretion;.

( 6 ) THE question for consideration, before this Court is; an accused released on bail for a limited period or for a few days on conditions, be said to be in custody of the Court.

( 7 ) ACCORDING to the New Lexicon Webster's Dictionary, 1988 Edn. Vol. 1, at p. 73, "bail" means a money or property security deposited to obtain a prisoner's freedom of movement, pledging that he will appear before the Court when called; to grant hail, to release on security to secu