Binod Kumar Nanda vs State of Orissa

L. Mohapatra, J.—This revision is directed against the order dated 11.12.2003 passed by the learned Special Judge-cum-Additional Sessions Judge, Jajpur in G.R. Case No. 538 of 2003 rejecting the prayer of the Petitioner for grant of bail u/s 167(2) of the Code of Criminal Procedure.

The case of the Petitioner is that on 24.5.2003 at about 4.40 P.M. 126 grams of brown sugar was seized from the possession of the Petitioner. On the very same date at 6.30 P.M. he was arrested. On 25.5.2003 the Petitioner was forwarded to the Court of the learned Additional Sessions Judge, Jajpur for commission of offences under Sections 21 and 22 of the N.D.P.S. Act and was remanded to the jail custody. After expiry of 60th day, since charge-sheet was not filed, a petition was filed u/s 167(2) of the Code of Criminal Procedure on the 61 (sixtyone) days i.e., on 24th July, 2003 for grant of bail. On 25th July, 2003 at about 11.30 A.M. charge-sheet was filed. Since on expiry of sixty days the Petitioner had moved for bail and by that time charge sheet had not been filed, the Petitioner prayed for compulsory bail under the aforesaid provision of the Code of Criminal Procedure. The learned Special Judge rejected the petition relying on a decision of the Apex Court holding that if the date of remand is excluded, the Petitioner is not entitled to bail u/s 167(2), Code of Criminal Procedure

Shri Mulia, learned Counsel for the Petitioner referring to a decision of this Court in the case of Jubraj Bariha v. State of Orissa reported in (2000) 19 OCR 372 submitted that on 24th of July, 2003 the period of sixty days for filing the charge sheet had expired and the petition u/s 167(2), Code of Criminal Procedure was maintainable and should have been allowed. He also referred to two other decisions, one of this Court and the other of the Apex Court stating that even if charge sheet is filed at a later date, if the accused had exercised his right after expiry of 60th day, the said right cannot be taken away merely because charge sheet had been filed. There is no dispute about the aforesaid proposition of law. The only question required to be considered for determination is as to whether the date of remand is to be included or excluded. In this connection, reference may be made to a decision of the Apex Court in the case of State of M.P. v. Rustam and Ors. reported in (1996) 11 OCR (SC) 167. Taking the help of Sections 9 and 10 of the General Clauses Act, 1897 the Apex Court in the aforesaid decision held that by computing the period under the Act either the date of remand is to be excluded or the date of submission of police report is to be excluded. One of the days on either side has to be excluded and not both the days. The Apex Court in the case of State through C.B.I. v. Mohd. Ashraft Bhat and Anr. reported in (1996) 10 OCR (SC) 329 has observed that the period of ninety days or sixty days has to be computed from the date of detention as per the orders of the Magistrate and not from the date of arrest by the police. Faced with the aforesaid two decisions, this Court in the case of Jubraj Bariha (supra) followed the later decision in the case of State through C.B.I. v. Mohd. Ashraft Bhat and Anr. and held that the date of remand has to be included for computing the period of detention. This Court in the case of Ada alias Adeita Behera v. State reported in (1996) 10 OCR 650 has also held that the date of remand is to be included for computing the period of detention. In view of the above decisions, it is clear that the date of remand has to be included for computing the period of 60 days.

In the present case, the Petitioner was remanded to jail custody on 24th May, 2003 and the period of sixty days expired on 23rd of July, 2003. On 24th July, 2003 it appears that the Petitioner had exercised his right under the proviso to Section 167(2), Code of Criminal Procedure for grant of bail and admittedly by that time the charge sheet had not been submitted and only on 25th July, 2003 charge sheet was submitted. Since the Petitioner had filed the petition after expiry of sixty days and admittedly the charge sheet was filed on the next day, the right of the Petitioner to be released on bail under the proviso to Section 167(2), Code of Criminal Procedure cannot be denied.

I, therefore, set aside the impugned order and direct that the Petitioner be released on bail u/s 167(2) of the Code of Criminal Procedure in the aforesaid case on such terms and conditions as the learned Special Judge may deem just and proper.