Pilloo Singh Rajput vs State of Chhattisgarh

D.R. Deshmukh, J.—Heard.

This is a repeat application for bail u/s 439 of Cr.P.C. The first bail application was dismissed on 18-9-2006 in M.Cr.C. No. 2558 of 2006 since withdrawn by the applicant.

Brief facts are that in Crime No. 166 of 2006 of Police Station Manendragrarh for offence punishable under Sections 302 and 120-B read with Section 34 of the IPC and Section 3(2)(v) of the Scheduled Caste and Scheduled Tribe (Prevention of Atrocities) Act, 1989 (hereinafter referred to as ''the Act''), the applicant herein was arrested on 27-7-2006. He was produced before the Magistrate on 28-7-2006. Before the filing of challan at 02.45 p.m. on 26-10-2006 the accused had exercised the indefeasible right under the Proviso to Sub-section (2) of Section 167, Cr.P.C. for being released on bail at 11.25 a.m. Challan was filed at 2.45 p.m. on the same day. The learned Judicial Magistrate First Class, Manendragarh, rejected the application filed by the accused under Sub-section (2) of Section 167, Cr.P.C. on an erroneous computation of the period of 90 days from the date of arrest of the accused by excluding the day of production of the accused before the Magistrate.

It is well settled that the learned Magistrate assumes jurisdiction to authorize detention of the accused from the date of the production of the accused before him for the first time for obtaining judicial remand and the period under the proviso to Section 167 (2), Cr.P.C. would commence from the date of production of the accused before the Magistrate. I am fortified in my view by the decision of the Supreme Court in Chaganti Satyanarayana and Others Vs. State of Andhra Pradesh, , wherein it was held as under:

The words used in Proviso (a) to Section 167 (2) are "no Magistrate shall authorize the detention of the accused person in custody", "under this paragraph", "for a total period exceeding, i.e., 90 days/60 days". Detention can be authorized by the Magistrate only from the time the order of remand is passed. The earlier period when the accused is in the custody of a public officer in exercise of his powers u/s 57 cannot constitute detention pursuant to an authorization issued by the Magistrate. It, therefore, stands to reason that the total period of 90 days or 60 days can begin to run only from the date of order of remand.

In this case, although the accused was arrested 27-7-2006, he was produced before the Judicial Magistrate First Class, Manendragarh on 28-7-2006, therefore, period of 90 days would commence from 28-7-2006. The accused had exercised the indefeasible right under the Proviso to Sub-section (2) of Section 167 of Cr.P.C. at 11.25 a.m. on 21-6-2006, i.e., before challan was filed. Computing the period from the date of authorization of detention in custody by Judicial Magistrate First from 28-7-2006, it is clear that on 26-10-2006 when the accused exercised the indefeasible right before the filing of challan, it was the 91st day (4+31+30+26).

In this view of the matter, under the proviso to Sub-section (2) of Section 167, Cr.P.C. the accused-Pilloo Singh Rajput had an indefeasible right of being released on bail.

In the result, M.Cr.C. No. 3356 of 2006 is allowed. It is directed that the applicant-Pilloo Singh Rajput shall be released on bail on his furnishing a personal bond of Rs. 30,000/- alongwith one local solvent surety in the like amount to the satisfaction of the learned Judicial Magistrate First Class, Manendragarh for his regular appearance during trial as and when directed.

The learned JMFC, Manendragarh is directed to ensure that the photographs of the surety are affixed on the bail bonds and the surety bonds are subjected to thorough verification, in all details.