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2005(3) JLJ 340
S.L. Kochar, J
Ajay Singh v. Surendra and others
Miscellaneous Criminal Case No. 4311 of 2004 : against the orders
of Additional Chief Judicial Magistrate Bagli, and II Additional Sessions Judge, Dawas; Decided on 3.2.2005.
Non-applicants were arrested by police of Police Station, Hatpiplya, on 26.5.2004 for the commission of alleged offences punishable u/Ss. 147, 148, 302 read with S. 149 of IPC. The non-applicants were produced before the ACJM, Bagli, on 27.5.2004. Thereafter, time-to-time judicial remand was granted by the learned Magistrate to the police for filing charge-sheet. The charge-sheet was filed on 25.8.2004. On the same day, the non-applicants had also filed an application u/s 167(2) of the CrPC for their release on bail because according to the non-applicants, charge-sheet was not filed within 90 days and on 25.8.2004 the charge-sheet was filed which was the ninety first day from the date of production of the non-applicants before the learned Magistrate. The learned Magistrate accepted the prayer, of the non-applicants and held that charge-sheet was filed on 91st day and ordered for release of the non-applicants on furnishing personal bond. [Para 2
Held: For computation of clear 90 days, either first day of production of the accused before the learned Magistrate is to be excluded or the date on which the charge-sheet was filed will be excluded. [Para 4
The non-applicants were produced before the learned ACJM, Bagli, on 27.5.2004. This date is to be excluded and computation will commence from 28.5.2004. The. charge-sheet was filed on 25.8.2004. This date will be excluded and on computation, it is found that when the charge-sheet was filed, i.e., 25.8.2004, it was 90th day (four days of May, 30 days of June, 31 days of July and 25 days of August = 90 days). On computation, it is found that charge-sheet was filed within 90 days from the date of production of the non-applicants before the learned ACJM, Bagli. AIR 1986 SC 2130 and AIR 1992 SC 1768 discussed. 1995 Supp. (3) SCC 221 and AIR 2001 SC 1910 followed. [Para 5
(2) Criminal P.C., 1973--Ss. 437, 438, 439, 437(5), 439(2) and 167(2) proviso (a)--bail granted either under S.167(2) proviso (a) or under Chap. XXXIII--can be cancelled only under S.437(5) or S.439(2). AIR 1987 SC 149 followed. [Para 7
(3) Criminal P.C., 1973--S. 167(2) proviso (a)--indefeasible right of bail after completion of 60 or 90 days--is available only if charge-sheet has not been filed-- application for bail filed charge-sheet after filing of--accused has no indefeasible right of bail. 1995 Supp. (3) SCC 221 overruled in AIR 2001 SC 1910. [Para 9
¼1½ naM çfØ;k lafgrk] 1973&/kkjk 167¼2½ ijarqd ¼d½ rFkk 439¼2½&naM lafgrk dh /kkjk 147] 148 rFkk 302@149 ds v/khu vijk/k&/kkjk 167¼2½ ds v/khu tekur&vkjksii= Qkby fd, fcuk Li"V 90 fnu O;rhr gks tkus ds i‘pkr~ eatwj dh tk ldrh gS&vfHkqDr dks U;k;ky; eas is‘k djus dk ;k vkjksii= Qkby djus dk fnu vioftZr fd;k tkuk gksrk gS&90 fnu ds Hkhrj eatwj dh xbZ tekur&jn~n dh tkuk gksxhA vukosndx.k 26-5-2004 dks iqfyl Fkkuk gkV ihiY;k dh iqfyl }kjk naM lafgrk dh /kkjk 149 ds lkFk ifBr /kkjk 147] 148] 302 ds v/khu naMuh; vfHkdfFkr vijk/k djus ds fy, fxjrkj fd, x, FksA vukosndx.k 27-5-2004 dks vij eq[; U;kf;d eftLVªsV] ckxyh ds le{k is‘k fd, x,A rRi‘pkr~ le;≤ ij fo}ku eftLVªsV }kjk iqfyl dks vkjksii= Qkby djus ds fy, çfrçs"k.k eatwj fd;k tkrk jgkA vkjksii= 25-8-2004 dks Qkby fd;k x;k tks fo}ku eftLVªsV ds le{k vukosndx.k dks is‘k djus ds fnukad ls bD;kuosok¡ fnu FkkA fo}ku eftLVªsV us vukosndx.k dh çkFkZuk Lohdkj dj yh rFkk vfHkfu/kkZfjr fd;k fd vkjksii= 91osa fnu Qkby fd;k x;k Fkk] rFkk Loh; ca/ki= nsus ij vukosndx.k dks NksM+us dk vkns‘k fn;kA ¼iSjk 2½ vfHkfu/kkZfjr % Li"V 90 fnu dh lax.kuk ds fy, fo}ku eftLVªsV ds le{k vfHk;qDr dh is‘kh dk çFke fnu vioftZr fd;k tkuk gksrk gS ;k fQj og fnu vioftZr gksrk gS ftl fnu vkjksii= Qkby fd;kA ¼iSjk 4½ vukosndx.k 27-5-2004 dks fo}ku vij eq[; U;kf;d eftLVªsV] ckxyh ds le{k is‘k fd, x, FksA ;g fnukad vioftZr fd;k tk,xk rFkk lax.kuk 28-5-2004 ls vkjaHk gksxhA vkjksii= 25-8-2004 dks Qkby fd;k x;kA ;g fnukad vioftZr gksxk rFkk lax.kuk djus ij irk pyrk gS fd ftl fnu vkjksii= Qkby fd;k x;k] vFkkZr~ 25-8-2004] og 90ok¡ fnu Fkk ¼ebZ ds 4 fnu] twu ds 30 fnu] tqykbZ ds 31 fnu rFkk vxLr ds 25 fnu&90 fnu½A lax.kuk djus ij irk pyrk gS fd vkjksii= fo}ku vij eq[; U;kf;d eftLVªsV] ckxyh ds le{k vukosndx.k dks is‘kh ds fnukad ls 90 fnu ds Hkhrj Qkby fd;k x;k FkkA , vkb vkj 1986 ,l lh 2130 rFkk , vkb vkj 1992 ,l lh 1768 foosfprA 1995 lIyh- ¼3½ ,l lh lh 221 rFkk , vkb vkj 2001 ,l lh 1910 vuqlfjrA ¼iSjk 5½ ¼2½ naM çfØ;k lafgrk] 1973& &/kkjk 437] 438] 439] 437¼5½] 439¼2½ rFkk 167¼2½ ijarqd ¼d½&/kkjk 167¼2½ ijarqd ¼d½ ds v/khu vFkok v/;k; 33 ds v/khu eatwj tekur&/kkjk 437¼5½ ;k /kkjk 439¼2½ ds v/khu gh jn~n dh tk ldrh gSA , vkb vkj 1987 ,l lh 149 vuqlfjrA ¼iSjk 7½ ¼3½ naM çfØ;k lafgrk] 1973& &/kkjk 167¼2½ ijarqd ¼d½&60 vFkok 90 fnu iw.kZ gksus ij tekur dk vts; vf/kdkj&dsoy rc miyC/k tc vkjksii= Qkby ugha fd;k x;k gks&tekur ds fy, vkosnu vkjksii= Qkby fd, tkus ds i‘pkr~ Qkby fd;k x;k&vfHkqDr dks tekur dk vts; vf/kdkj ughaA , vkb vkj 2001 ,l lh 1910 esa 1995 lIyh-¼3½ ,l lh lh 221 myVk x;kA ¼iSjk 9½
1. This Misc. Criminal Case has been filed by the applicant Ajay Singh-complainant u/s 439 sub-section (2) of CrPC for setting aside the order of grant of bail by the learned Magistrate by order dated 25.8.2004 whereby the learned ACJM, Bagli, has granted bail to the non-applicants on the ground that police did not file the charge-sheet within 90 days and "indefeasible right" accrued as per provision u/s 167(2) of the Code of Criminal Procedure (for short "the Code") to the non-applicants-accused for their release on bail and against the order dated 12.10.2004 passed by learned II ASJ, Dewas, dismissing the application of the applicant for cancellation of the order passed by the learned Magistrate dated 25.8.2004.
2. The facts are that non-applicants were arrested by police of Police Station, Hatpiplya, on 26.5.2004 for the commission of alleged offences punishable u/Ss. 147, 148, 302 read with S. 149 of IPC. The non-applicants were produced before the ACJM, Bagli, on 27.5.2004. Thereafter, time-to-time judicial remand was granted by the learned Magistrate to the police for filing charge-sheet. The charge-sheet was filed on 25.8.2004. On the same day, the non-applicants had also filed an application u/s 167(2) of the CrPC for their release on bail because according to the non-applicants, charge-sheet was not filed within 90 days and on 25.8.2004 the charge-sheet was filed which was the ninety first day from the date of production of the non-applicants before the learned Magistrate. The learned Magistrate accepted the prayer of the non-applicants and held that charge-sheet was filed on 91st day and ordered for release of the non-applicants on furnishing personal bond of Rs. 20,000/- with one surety in the like amount by each of the non-applicants to the satisfaction of the said Court.
3. In this application for cancellation of bail, the contention of the learned counsel for applicant-complainant is that the learned ACMJ, Bagli has committed error in computing period of 90 days. Admittedly, the non-applicants were produced before 'the said Court on 27.5.2004 and charge-sheet was filed on 25.8.2004. According to the apex Court judgment rendered in case of State of M.P. v. Rustam and others [1995 Supp. (3) SCC 221], it hag ruled in paragraph three which is as under:
"3. We find that the High Court was in error-both in the matter of computation of the period of 90 days prescribed as also in applying the principle of compulsive bail on entertaining a petition after the challan was filed as the so-called 'indefeasible right' of the accused, in our view, stood defeated by efflux of time. The prescribed period of 90 days, in our view, would instantly commence either from 4.9.1993 (excluding from it 3.9.1993) or 3.12.1993 (including in it 2.12.1993). Clear 90 days have to expire before the right begins. Plainly put, one of the days on either side has to be excluded in computing the prescribed period of 90 days. Section 9 and 10 of the General Clauses Act warrant such an interpretation in computing the prescribed period of 90 days. The period of limitation thus computed on reckoning 27 days of September, 31 days of October and 30 days of November would leave two clear days in December to compute 90 days and on which date the challan was filed, when the day running was the 90th day. The High Court was, thus, obviously in error in assuming that on 2.12.1993 when the challan was filed, period of 90 days had expired".
4. In the judgment of Rustam (supra), the Supreme Court has decided the issue as to how the computation of 90 days is to be done. The Supreme Court has held that for computation of clear 90 days, either first day of production of the accused before the learned Magistrate is to be excluded or the date on which the charge-sheet was filed will be excluded. For the purposes of computation of period of 90 days, the Supreme Court has considered the provisions of sections 9 and 10 of the General Clauses Act.
5. In the instant case,
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