Tinnu vs State of U.P.

P. K. Jain, J.—Heard learned counsel for the applicant and learned A.G. A.

Sole ground on which this application is pressed is that the chargesheet was not submitted within sixty days of remand of the accused to judicial custody under Section 167 (2), Cr. PC. and the applicant was entitled to bail in view of the proviso (a) (ii) to Section 167 (2), Cr. P.C.

Brief facts are that the applicant surrendered before the Magistrate concerned on 14598. An application for bail was moved before the learned C.J.M. on 13798 on the ground that a period of sixty days had expired and the applicant was entitled to bail. Learned C.J.M. rejected the bail application vide order dated 13798 holding that the date of surrender shall be excluded in computing the period of sixty days, as such the 13th of July was the last date. The application was, therefore, premature. An application for bail was moved before the learned Sessions Judge who rejected the bail application on merit without giving any decision on the question of claim of the applicant with regard to his right of being released under the proviso (a) (ii) of Section 167(2), Cr. P.C.

Learned counsel submits that the date of surrender shall also be included while computing the period of sixty days. In support of his contention the learned counsel has relied upon the decision of the apex Court in the Central Bureau of Investigation v. Anupam K. Kulkarni, 1992 (29) ACC. 512; 1992 JIC 720 (SC). That was a case in which the accused was apprehended on 41091 and was produced before the Magistrate on 51091. In that case the apex Court held that "the total period of detention should not exceed ninety days in cases where the investigation relates to serious offences mentioned therein and sixty days in other cases and if by that time cognizance is not taken on the expiry of the said period the accused shall be released on bail as mentioned therein." In Chaganti Satyanarayana v. State of Andhra Pradesh, 1986 (23) A.C.C. 320 (SC) it was held that "it, therefore, stands to reason that the total period of 90 days can begin to run from the date of order of remand. Therefore the first period of detention should be computed from the date of order of remand."

Subsequent to the aforesaid decision in the Central Bureau of Investigation case, the apex Court had occasion to consider whether the date to remand is to be included in the period of sixty or ninety days as the case may be. This question came up for decision in State of M.P. v. Rustam,1995 SCC (Cri) 830. That was a case in which accused was remanded to judicial custody on 3993, chargesheet was submitted on 21293 where after the accused applied for bail under the proviso to Section 167 (2), Cr. P.C. contending that period of ninety days expired on 11293. The apex Court while considering the provisions of the General Clauses Act held that the prescribed period of 90 days, in our view, would instantly commence either from 4993 (excluding from it 491993) or 39 1993 (including it 2121993). 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 days. The period of limitation thus computed on reckoning 27 days of September, 31 days of October and 30 days of November would leave two clear days in December to compute 90 days and on which date the challan was filed, when the day running was the 90th day. The High Court was, thus, obviously in error in assuming that on 2121993 when the challan was filed, period of 90 days had expired.

In view of the above pronouncement the date of remand i.e. 14 598 has to be excluded while computing the period of sixty days. While so computing there would be 17 days left in May, 1998,30 days in June, 1998 and thereafter 13 clear days in July, 1998. Bail application was moved before the learned Magistrate on 1371998, the last day of the period of sixty days. The application was, thus, premature. Chargesheet was submitted on 14798. There is nothing on record to show that before submission of the chargesheet on 14798 the accused again exercised his right under the proviso of S. 167 (2) Cr. PC. There is consistent view of the apex court that the right of compulsive bail under the proviso of S. 167 (2), Cr. P.C. subsists only during the period till chargesheet is not submitted. If such right is not exercised within that period, then on submission of the charge sheet remand order is passed u/S. 209 or 309 Cr. P.C. as the case may be. In that event the right of compulsive bail comes to an end. The apex court in Dr. Bipin Shantilal Panchal v. State of Gujarat, 1996 SCC (Cri.) 200 ; 1996 JIC 315 (SC) and Mohamed Iqbal Madar Sheikh v. State of Maharashtra, 1996 SCC (Cri.) 202; 1996 JIC 499 (SC) took the above view. In Dr. Bipin Shantilal Panchal''s case (supra) the Court held that "if an accused person fails to exercise his right to be released on bail for the failure of the prosecution to file the chargesheet within the maximum time allowed by law, he cannot contend that he had an indefeasible right to exercise it at any time notwithstanding the fact that in the meantime the chargesheet is tiled. But on the other hand if he exercises the right within the time allowed by law and is released on bail under such circumstances he cannot be rearrested on the mere filing of the chargesheet as pointed out in Aslam Babalal Desai v. State of Maharashtra, 1992 SCC (Cri) 870; 1993 JIC 14 SC)." In Mohamed Iqbal Madar''s case the apex Court held that "this right cannot be exercised after the chargesheet has been submitted and cognizance has been taken, because in that event the remand of the accused concerned including one who is alleged to have committed an offence under TADA, is not u/S. 167 (2)but under other provisions of the Code." The Court, however, observed that" if an accused charged with any kind of offence becomes entitled to be released on bail under proviso (a) to S. 167 (2), that statutory right should not be defeated by keeping the applications pending till the chargesheets are submitted so that the right which had accrued is extinguished and defeated."

The factual position in this case is that the applicant applied for bail on 13798, the date which was last day of the period of sixty days and the bail application was rejected the same day by the learned Magistrate on ground that it was premature. There is nothing before me that the accused had applied afresh on 14th July, 1998 before submission of the chargesheet; Thus, the position is that when the applicant applied for bail under the proviso (a) of S. 167 (2), Cr. P.C., the right of being released on compulsive bail had not accrued to him and the application was rejected as premature. The applicant is not shown to have applied afresh on 14798 before filing of the chargesheet. Admittedly, chargesheet was submitted on 14798. Therefore, after the submission of the chargesheet the detention of the applicant under Section 167, Cr. P.C. had come to an end on the learned Magistrate taking cognizance. His right to be released on compulsive bail had extinguished. The applicant, therefore, cannot be released on bail on this technical ground. The bail application is, therefore, rejected.

Bail application dismissed.