Sri Shivanna vs State

By this petition, the petitioner has prayed for enlarging him on bail in Crime No. 26/91 of Arasikere Rural Police Station. It is seen that the case is committed to the Sessions Court, Hassan and the same is now pending in S.C. No. 41/1991. The petitioner and another are accused of offences punishable under Ss. 302, 323 and 324, I.P.C. The petitioner is arrested in the course of investigation on 15-4-1991. He was produced before the J.M.F.C., Arasikere on 16-4-1991. He was remanded to judicial custody on the same day and the custody was extended from time to time. The charge-sheet was filed before the learned J.M.F.C., on 15-7-1991. His application before the learned J.M.F.C. for releasing him on bail did not fructify. He approached the learned Sessions Judge, Hassan praying for bail. In the meanwhile, the case was also committed to the Session Court by the J.M.F.C., Arasikere. The learned Sessions Judge rejected the application for bail. Hence, the instant petition under S. 439 R/W S. 167(2), Cr.P.C.

The only ground made out by the petitioner in his application for bail is that he ought to have been released on bail, since the charge-sheet was filed after the expiration of 90 days referred to in Clause (a) of the proviso to section 165(2), Cr.P.C.

The contention of the respondent-State is that the charge-sheet is filed well within time.

I have heard Sri Hashmath Pasha, learned Counsel for the petitioner and Sri M. Marigowda, learned Government Pleader.

It is undisputed that the petitioner was arrested on 15-4-1991 in connection with the offence punishable under S. 302, I.P.C. among other offences. Similarly, it is not in dispute that the petitioner was produced before the Judicial Magistrate First Class at Arasikere on 16-4-1991. The charge-sheet was also filed before the J.M.F.C. on 15-7-1991. Sri Hashmath Pasha, learned Counsel for the petitioner has relied on three decisions of this Court viz., Balappa Karnal Vs. State of Karnataka, Muniswamy Vs. State of Karnataka, and the decision in Ramu Vs. State of Karnataka, to contend that the date of arrest also will have to be taken into consideration for the purpose of determining the commencement of the period of 90 days referred to in clause (a) to the proviso to S. 165(2), Cr.P.C. Sri Hashmath Pasha has placed reliance in Balappa Karnal''s case, also to contend that S. 10 of the General Clauses Act cannot be invoked in such a situation, to hold that if the last day of the period of 90 days is a public holiday, the charge-sheet can be filed on the next day.

The Supreme Court in Chaganti Satyanarayana and Others Vs. State of Andhra Pradesh, has among other things held as under :

"The words used in proviso (a) are "no Magistrate was authorised 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 authorised 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 Police Officer in exercise of his powers under S. 57 cannot constitute detention pursuant to an authorisation issued by the Magistrate. It, therefore, stands to reason that the total period of 90 days or 60 days can being to run only from the date of order of remand".

In the light of the decisions of the Supreme Court it will have to be held that the period of 90 days commences from the date on which the accused is remanded and not from the date of arrest. If the date of arrest and the date of remand are one and the same there should not be any difficulty.

In the instant case as pointed out earlier, the accused was produced before the J.M.F.C., on 16-4-1991. The charge sheet was filed before the J.M.F.C, on 15-7-1991. 14-7-1991 was a public holiday. However, it is pointed out by this Court in the decision in Balappa Karnal''s case that S. 10 of the General Clauses Act will not apply to such a situation, since there is no time limit within which the Police have to place the final report. In other words, though the accused will be entitled to be released on bail if the charge-sheet is not produced by the Police before the expiry of 90 days, there is no legislative command that the charge-sheet should be filed within 90 days and that therefore, S. 10 of the General Clauses Act will not apply.

If that be so, it will have to be seen as to when 90 days will expire. In Chaganti Satyanarayana and Others Vs. State of Andhra Pradesh, the accused persons were arrested on 19-7-1985. However, they were produced before the jurisdictional Magistrate on 20-7-1985. The I.O. filed the charge-sheet in that case on 17-10-1985. The Supreme Court took 17th October, 1985 as the 90th day commencing from the date on which the accused was remanded. Having regard to the same, it is clear that the day cannot be counted on the basis of 24 hours but on the basis that the day begins after midnight0 and would continue till next mid-night. It also appears that even a fraction of day ending at midnight will have to be construed as a "day". It is seen that the modus operandi worked out both in Balappa Karnal''s case as also in Muniswamy''s case for the purpose of counting the days is also the same. In the instant case, the accused was produced on 16-4-1991. Therefore, 90 days will expire on 14-7-1991. In other words, 14-7-1991 will be the 90th day from the date of remand, which in this case, is 16-4-1991. The charge-sheet is filed on 15-7-1991. 14-7-1991 was no doubt a public holiday. However, in the light of the decision of this Court in Balappa Karnal''s case with which I respectfully agree with reference to this aspect, 14-7-1991 though a public holiday cannot be excluded for the purpose of counting 90 days from the date of remand. It is, therefore, clear that the charge-sheet which was filed on 15-4-1991 was filed after the expiration of 90 days from the date of remand. The learned Sessions Judge has not considered the aspects referred to hereinabove, with the result, the conclusion arrived at by the learned Sessions Judge is not correct.

For the reasons stated hereinabove, the petitioner is entitled to bail prayed for.

In the result, the petition is allowed. The petitioner is directed to be released on bail on his executing a bond for Rs. 5000/- with one surety for the like amount to the satisfaction of the Sessions Judge, Hassan and on his undertaking to abide by the following condition :

(1) He shall not leave Hassan Town without the express permission of the Sessions Judge, Hassan.

Petition allowed.