Nirapat v. State Of U. P. — 1988 DIGILAW 654 (ALL)

JUDGMENT H.C. Mital, J. 1. On being aggrieved by the order of Sri S. K. Srivastava, Sessions Judge, Hamirpur dated 30-4-1988 the applicants above named have filed this application for bail. 2. The admitted facts, in brief, are that these applicants are cited accused in case Crime No. 25 of 1987 under sections 147, 148, 149, 302 IPC P. S. Chikasi District Hamirpur. These applicants were remanded to jail on 16-6-1987. A charge-sheet against them was submitted on 14-9-1987 i.e. on the first day after their remand to jail. The learned Sessions Judge found that on 12th September it was second Saturday and 13th September was Sunday, thus there was holiday on both the days. Hence the charge-sheet which was submitted on Monday Nth September 1987 would be held to have been submitted within ninety days and therefore in his view these applicants were not entitled to bail under section 167 (2) CrPC. He, therefore, refused bail to both the applicants. On behalf of the applicants it has been contended that under the provisions of section 167 (2) CrPC an accused person against whom charge-sheet is not presented before the court within ninety or sixty days, as the case may be, is entitled to be offered bail as a matter of right. That this right of the accused is absolute and indefeasible unless he fails to furnish the bail. It was also argued that section 10 of the General Clauses Act is not applicable in such a situation and the same cannot be invoked to defeat the accrued right of an accused person to be freed It was urged that the Magistrate should monitor the remand proceedings during investigation in such a manner so that a full account of the remand is handy and bail is offered to such accused person at the end of 90 or 60 days, as the case may be. 3. Reliance has been placed on a Division Bench decision of Delhi High Court in the case of P. N. Ogechi v. State of Delhi Administration, 1986 CrLJ 2081 . 3. Reliance has been placed on a Division Bench decision of Delhi High Court in the case of P. N. Ogechi v. State of Delhi Administration, 1986 CrLJ 2081 . Their Lordships of the Delhi High Court distinguished the decision of the Honourable Supreme Court in the case of Harinder Singh v. S. Karnali Singh, AIR 1957 SC 271 , wherein their Lordships; of the Supreme Court held that the object of section 10 of the General Clauses Act was to enable a person to do what he could have done on a holiday, on 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 is open. The Honourable Supreme Court further ruled that to attract the application of section 10 of General Clauses Act. all that is requisite is that there should be a period prescribed, and that period should expire on a holiday, 4. Their Lordships of the Delhi High Court, however, distinguished the above observation by observing that no period is prescribed for submission of the charge-sheet under section 167 CrPC and, therefore, any question of application of section 10 of the General Clauses Act would not arise as the same could arise only if any period was prescribed and that period should expire on a holiday. Section 167 (2) (a) specifically provides a period of ninety days in respect of offence punishable with death, imprisonment for life or imprisonment for a term of not less than ten years and sixty days where the investigation relates to any other offence. It further provides that on the expiry of the said period ninety days or sixty days, as the case may be, the accused person shall be released on bail if he is prepared to and does furnish bail, if a charge-sheet is not submitted within that period by the Investigating Officer. 5. Hence with respects I humbly differ with the view of their Lordships of Delhi High Court that no period is prescribed under the provision of section 167 (2) CrPC. 5. Hence with respects I humbly differ with the view of their Lordships of Delhi High Court that no period is prescribed under the provision of section 167 (2) CrPC. It is something different that no period is prescribed for filing the charge-sheet but a period has been prescribed for enabling the accused to be released on bail if the charge-sheet is not submitted within 90 days or 60 days as the case may be and in view of the observation of the Honourable Supreme Court in the case of Harinder Singh, AIR 1957 SC 271 , to attract the application of section 10 of General Clauses Act all that is requisite is that there should be a period prescribed, and that period should expire on a holiday. Hence in the present case where the period of ninety days is prescribed for the investigation to file charge-sheet and if that is not so lied, then it would enable the accused to be released on bail. It would, therefore, be wrong to say that no period is prescribed under section 167 (2) CrPC for enabling the accused to be released on bail if the charge-sheet is not submitted within that period. It is something different to say that no priod has been laid down within which the charge-sheet is to be ultimately submitted. 6. On behalf of the petitioner reliance was also placed on the observation of the Honourable Supreme Court in the case of C. Satya Narain Rao v. State of A. P., 1986 ACrR 521. In that case the accused was arrested on 19-7-1985 and was remanded to judicial custody by the Magistrate on 20-7-1985. The charge-sheet was submitted on 17th October the 90th day of remand. The main point involved was whether the period of ninety days or sixty days, as the case may be, under section 167 (2) CrlPC was to be computed from the date of arrest of the accused or from the date of his remand. Their Lordships held that the period shall be computed from the date of the remand. In the background and on the facts of that case it was apparent that from the date of the remand (20-7-1985) the charge-sheet was submitted within ninety days on 17-10-1985 and therefore there was no question of the applicants being entitled to bail. Their Lordships held that the period shall be computed from the date of the remand. In the background and on the facts of that case it was apparent that from the date of the remand (20-7-1985) the charge-sheet was submitted within ninety days on 17-10-1985 and therefore there was no question of the applicants being entitled to bail. In the body of the judgment their Lordships also referred to the decisions of the various High Courts which were cited on behalf of the State in support of the order passed by the High Court of Andhra Pradesh rejecting the bail holding that the period of 90 days was to be computed from the date of the remand and not from the date of the arrest. One of the decisions so referred to was of N. Sureya Reddy, 1985 CrLJ 939 . An Honourable Judge of Orissa High Court took the view that section 10 of the General Clauses Act would be attracted for interpreting the proviso, if the last day happens to be a Sunday or holiday and even otherwise the principles enunciated therein should be invoked on considerations of justice and expediency. Their Lordships of the Honourable Supreme Court observed that in that case the 90th day from the date of arrest happened to be a Sunday and hence the court was of the view that section 10 of the General Clauses Act would be attracted. Their Lordships also referred to some of the other decisions cited on either side which had been rendered prior to the amendment of proviso (a) by Act 45 of 1978 and some had been rendered after the amendment. The amendment to proviso (a) made no change on the point whether period is to be computed from the date of the remand or from the date of the arrest, hence their Lordships were of the view that the period was to be computed from the date of the remand. The amendment to proviso (a) made no change on the point whether period is to be computed from the date of the remand or from the date of the arrest, hence their Lordships were of the view that the period was to be computed from the date of the remand. In that background of the case with which they were dealing they further observed as follows on page 328: "As the terms of proviso (a) with reference to the total periods of detention can be interpreted on the plain language of tie proviso itself we do not think it is necessary to invoke the provisions of the General Clauses Act or seek guidance from the Limitation Act to construe the terms of the proviso." Learned counsel for the applicants laid great emphasis on the above observation and urged that by the above observation their Lordships of the Supreme Court clearly implied that provisions of section 10 of the General Clauses Act were not applicable. Prima facie there is no force in such a contention as their Lordships did not say that the provisions of the General Clauses Act or Limitation Act could not be invoked but they held that in that case it was not necessary to invoke the provisions of the General Clauses Act or seek guidance from the Limitation Act to construe the terms of the proviso. 7. The above observation does not show that their Lordships in any way dis-agreed with the view of the Orissa High Court in N. Sureya Reddy's case 1985 CrLJ 939 . Moreover, if they had not approved it they would have so observed, but they simply observed that it was not necessary to invoke the provisions of Sec. 10 of the General Clauses Act, when the charge-sheet was submitted within time i.e. 90 days from the date of remand, which they further specified in words as quoted above. 8. In the present case the date of remand was 16-6-1987. Charge sheet was submitted on 14-9-1987 which happened to be 91st day. However 12th September was second Saturday and 13th September Sunday, hence there was holiday on both dates. The charge-sheet was submitted on the day the court opened i.e. Monday, the 14-9-1987, hence it shall be deemed to have been filed on the 90th day i.e. within time. The applicant is not entitled to bail on that score. However 12th September was second Saturday and 13th September Sunday, hence there was holiday on both dates. The charge-sheet was submitted on the day the court opened i.e. Monday, the 14-9-1987, hence it shall be deemed to have been filed on the 90th day i.e. within time. The applicant is not entitled to bail on that score. Even otherwise on perusal of pap?rs there is no force to grant bail on the merits of the case. The application is therefore rejected. Application rejected.