Jubraj Bariha vs State of Orissa

B.P. Das, J.—This is an application u/s 482, Code of Criminal Procedure (for short "the Cr.P.C."), filed by the Petitioner, who is implicated in a case u/s 302, Indian Penal Code (for short, "the I.P.C."), in G.R. Case No. 53 of 1996 on the file of the S.D. J. M, Padampur.

The brief facts leading to this application are that the Investigating Officer failed to file Final Form as required u/s 173, Cr.P.C. within the stipulated period of 90 days. The Petitioner has been released on bail by the learned S.D. J. M, taking recourse to proviso to Section 167(2) of the Code. Against the aforesaid order of the learned Magistrate, the State filed an application before the learned Addl. Sessions Judge, Bargarh u/s 439(2) Cr.P.C. for cancellation of bail so granted to the Petitioner on the ground that the learned Magistrate committed an illegality in computing the period of 90 days. Hence, the statutory provision u/s 167(2), Cr.P.C. cannot be applied to the present case because the accused was sent to the jail custody on 28-3-96 and that date should have been excluded while computing the period and 90 days should have been counted thereafter. It shows that charge-sheet was filed on 26-6-96, which is the last date of computation of 90 days.Hence, according to the prosecution the Petitioner could not have been released on bail u/s 167(2) Cr.P.C..

The Case of the Petitioner in nut shell, is that he was taken to judicial custody on 28-3-96 and as such charge-sheet was to be submitted by the police on or before 25-6-96 and as the police did not submit the charge-sheet within that period, the Petitioner has accured a tight u/s 167(2), Cr.P.C. and there is no illegality committed by the S.D. J.M. in enlarging him on bail. The further case of the Petitioner is that the learned Sessions Judge committed gross illegality by excluding the date of remand for the purpose of computation of the period of 90 days and erroneously cancelled the bail granted, which is an injustice, manifestly done to him.

The moot point before this Court is whether the learned Addl. Sessions Judge was right in excluding the date of remand for computing the period of 90 days.

In the impugned order, the learned Addl. Sessions Judge relied on a decision of the Apex Court reported in (1996) 11 O.C.R. (S.C.) 167 (State of Madhya Pradesh v. Rustam and Ors., wherein it is held that one of the days on either side has to be excluded. The relevant portion of the aforesaid judgment reads as follows:

xx xx xx'' The prescribed period of 90 days, in our view would instantly commence either from 4-9-1993 (excluding from it 3- 9-1993) or 3-9-1993 (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. Sections 9 and 10 of the General Clauses Act warrant such an interpretation in computing the prescribed period of 90 day.

The counsel for the accused in court below placed a decision of this Court reported in (1996) 10 O.C. R 650 (Ada alias Adeita Behera v. State) for consideration of the learned Addl. Sessions Judge, wherein this Court placed reliance on a decision of the Supreme Court, reported in Chaganti Satyanarayana and Others Vs. State of Andhra Pradesh, and came to the following conclusion.

From the aforesaid observation of the Supreme Court, it can be justifiably concluded that the period of ninety days or sixty days, as the case may be, has to be computed from the date of remand itself without excluding such day.

But the learned Addl. Sessions Judge, discarded the aforesaid decision of this Court and passed the order cancelling the bail of the Petitioner relying upon the decision of the Apex Court reported in (1996) 11 O.C.R. (S.C.) 167 (State of M.P. v. Rustam and Ors..

The counsel for the Petitioner drawn my attention to a decision of the Apex Court, reported in (1996) 10 O.C.R. (S.C.) 329, (State through. C.B. I. v. Mohd. Ashraft Bhat and Anr., which is subsequent to the decision so reported in (1996) 11 0. C.R. (S. C) 167, on which reliance was placed by the Addl. Sessions Judge and ultlmately the bail was cancelled. The Apex Court in (1996 10 O.C.R. (S.C) 329 (Supra) relied upon the decision of the said Court, reported in (1994) (5) S. C.C 141 (Central Bureau of Investigation Special Investigation Cell-1 New Delhi v. Anupam J. Kulkarni). The relevant portion of the aforesaid decision reads as follows:

x x x If the investigation is not complete within the period of ninety days or sixty days then the accused has to be released on bail as provided under the proviso to Section 167(2). 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. Consequently the first period of fifteen days mentioned in Section 167(2) has to be computed from the date of such detention and after the expiry of the period of first fifteen days it should be only judicial custody.

Now before me there are two decisions of the Apex Court of co-equal benches and there are catena of decisions which say that the later one prevails over the former. In M.M Yaragatti v. Vasant and Ors. (A.I.R. 1987 Kar. 186) and in the case of Govinda N aik G Kalaghtigi v. West Patent Press Company Ltd. and Anr. (A.I.R 1980,Kar 92), the Full Bench of Karnataka High Court held that if there are conflicting decisions of Supreme Court the one given by larger Bench should be followed and that if both the Benches of Supreme Court consist of equal number of Judges, the later of the two decisions should be followed by High Courts and other courts.

The aforesaid Full Bench decision of Karnataka High Court was also followed in the case of Gujarat Housing Board, Ahmedabad Vs. Nagajibhai Laxmanbhai and Others, . The Full Bench of the Gujarat High Court held that the later of the two decisions should be followed by the High Courts and other courts.

Following the principle so enunciated in the aforesaid decisions rendered by the Full Bench of Karnataka and Gujarat High Courts, I follow the ratio of the decision reported in 1996 (10) O.C.R. (S.C.) 329, which is the later decision. Accordingly, the order of cancellation of bail so passed by the Addl. Sessions Judge cannot be maintained. The application u/s 482, Cr.P.C. is allowed, and the impugned order is set aside.

Application allowed.