Rajveer vs State of U.P.

J.C. Gupta, J.—This is an application for bail on behalf of the applicant Rajveer, who is detained in custody in Case Crime No. 46 of 1998 u/s 147/148/149/302, I.P.C, Police Station Cantt., district Barrenly. The incident in question is said to have occurred in broad Day light in which two persons are said to have been murdered by the applicant and his five Ors. associates. The F.I.R. was soon lodged wherein the applicant was named as one of the assailants who was armed with a firearm and there were firearm injuries on the deceased persons.

Learned Counsel for the applicant, Dr. Arun Srivastava has not pressed the application on merits but bail is being claimed under the provisions of Section 167(2) of the Code of Criminal Procedure as according to the submission of learned Counsel, the accused-applicant had become entitled to bail on account of non-submission of charge-sheet within the prescribed statutory period of 90 days and the same was submitted in Court on 91st day, that too after when the accused had applied for bail. It has been argued that the right to be released on bail which had accrued to the applicant could not be defeated by keeping the applicant for bail pending till the charge-sheet was submitted.

It is not disputed before the Court that the applicant was remanded to judicial custody on 27.1.1998 and, therefore, the period of 90 days expired on 26.4.1998. It is also not disputed that 26.4.1998 was a Sunday and the charge-sheet was submitted on the very next day, i.e., 27.4.1998. It is also not disputed that on Sundays Courts remain closed.

Relying upon the decision of Kerala High Court in the case of Shri Shivanna v. State. 1992 Cr U 2287. the learned Counsel for the applicant vehemently argued that even where a public holiday falls on the 90th day, that too could not be excluded for the purpose of counting while computing the period of limitation prescribed for submission of charge-sheet. In other Words, the outer limit of 90 days does not get extended by the mere fact of the 90th day falling on a day when the Court is closed. Reliance was also placed on the decision of a learned single Judge of this Court in the case of Shiu Nath alias Clihotka v. State of U.P. 1994 LLJ 150. In that case there had been wrong calculation by the Courts below while computing the 90 days period and as a matter of fact, the charge-sheet was not submitted within the statutory period of 90 days but on 91st day and before, that application for bail had already been moved on behalf of the accused claiming the benefit of the provisions of Section 167(2). Code of Criminal Procedure but instead of disposing of that application, the learned Sessions Judge postponed its hearing and waited for the submission of charge-sheet and when the same was filed, the accused was refused bail. It was in these circumstances that the learned Judge held that the right which had accrued to the accused could not be defeated by keeping the application for bail pending till the charge-sheet was submitted. It is not clear from the report that the 90th day was a Sunday or a public holiday or that the Court was closed on that day. That apart, it further appears that perhaps the attention of the learned Judge was not invited to the provisions of Section 10 of the General Clauses Act, which is reproduced as under:

"10. Computation of time.(1) Where, by any (Central Act) or Regulation made after the commencement of this Act, any act or proceeding is directed or allowed to be done or taken in any Court or office on a certain day or within a prescribed period, then if the Court or office is closed on that day or the last day of the prescribed period, the act or proceeding shall be considered as done or taken in due time if it is done or taken on the next day afterwards on which the Court or office is open:

Provided that nothing in this section shall apply to any act or proceeding to which the Indian Limitation Act. 1877, applies.

(2) This section applies also to all (Central Acts) and Regulations made on or after the fourteenth day of January, 1887."

Broadly stated, the object of Section 10 of the General Clauses Act is to enable a person to do what he could have done on a holiday, or the next working day. Where, therefore, a period is prescribed for the performance of an act in a Court or office and that period expires on a holiday, then according to the Section, the act should be considered to have been done within that period, if it is done on the next day on which the Court or office reopens. In order to attract the application of the provisions of this Section all that is requisite is that there should be a period prescribed, and that period should expire on a holiday.

It could not be disputed by the learned Counsel for the applicant that Code of Criminal Procedure is a Central Act and a prescribed period of 90 days is provided in Section 167(2) code of Criminal Procedure for submission of charge-sheet. Therefore, provisions of Section 10 of the General Clauses Act will be attracted if Ors. Conditions laid down therein are shown to exist.

There is weight in the submission of the learned A.G.A., that when in the present case Courts were closed on 26.4.1998 on account of it being a Sunday, the act of submission of charge-sheet on the next day of opening of Courts, i.e., on 27.4.1998 would be deemed to have been done within the prescribed period. In this view of the matter, the right to get bail under the provisions of bail could not accrue to the applicant on 27.4.1998. Any other view will be most unjust and unreasonable because even though the charge-sheet is ready but on account of the closure of Court, the investigating agency is not in a position to submit the same in Court for a reason beyond its control, yet the accused is held entitled to take the advantage of the provisions of Section 167(2), Code of Criminal Procedure

Since in the present case when the charge-sheet had been submitted in Court on 27.4.1998. i.e. on the very next day of the opening of Court, the accused-applicant did not become entitled to claim the right to be released on bail under the provisions of Section 167(2), Code of Criminal Procedure as such the submission of the learned Counsel for the applicant to release the applicant on bail must be rejected.

For the foregoing reasons, the application is rejected.