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2000 DIGILAW 361 (ORI)

JUBRAJ BARIHA v. STATE OF ORISSA

2000-07-19

B.P.DAS

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B. P. DAS. J. ( 1 ) THIS is an application under Section 482 Criminal Procedure Code (for short the Cr. P. C.) filed by the petitioner who is implicated in a case under Section 302. Indian Penal Code (for short, the I. P. C. T1) in G. R Case No. 53 of 1996 on the file of the S. D. J. M. Padampur. ( 2 ) THE brief facts leading to this application are that the Investigating Officer failed to file Final Form as required under Section 173, Cr. P. C. within the stipulated period of 90 days. The petitioner has been released on bail by the learned S. D. J. M. taking recourse to provision to Section 167 (2) of the Code. Against the aforesaid order of the learned Magistrate the State filed an application before the learned Addi. Sessions Judge. Bargarh under Section 439 (2) Cr. P. C. for cancellation of bail so granted to the petitioner on the ground that the learned Magistrate committed an illegality in. computing the period of 90 days. Hence the statutory provision under Section 167 (2 ). Cr. P. C. cannot be applied to the present case because the accused was sent to the jail custody on 28-3- 1996 and that date should have been excluded while computing the period and 90 days should have been counted thereafter. It shows that charge-sheet was filed on 26-6-1996, which is the last date of computation of 90 days. Hence, according to the prosecution the petitioner could not have been released on bail under Section 167 (2) Cr. P. C. ( 3 ) THE case of the petitioner in nutshell, is that he was taken to judicial custody on 28-3-1996 and as such charge-sheet was to be submitted by the police on or before 25-6-1996 and as the police did not submit the charge-sheet within that period, the petitioner has accrued a right under Section 167 (2) Cr. P. C. and there is no illegality committed by the S. D. J. M. in enlarging him on bail. The further case of the petitioner is that the learned Sessions Judge committed gross illegality by excluding the date of remand for the purpose of computation of the period of 90 days and erroneously cancelled the bail granted, which is an injustice, manifestly done to him. The moot point before this Court is whether the learned Addi. The further case of the petitioner is that the learned Sessions Judge committed gross illegality by excluding the date of remand for the purpose of computation of the period of 90 days and erroneously cancelled the bail granted, which is an injustice, manifestly done to him. The moot point before this Court is whether the learned Addi. Sessions Judge was right in excluding the date of remand for computing the period of 90 days. ( 4 ) IN the impugned order, the learned Addi. Sessions Judge relied on a decision of the Apex Court reported in State of Madhya Pradesh v. Rustam and others, wherein it is held that one of the days on either side has to be excluded. The relevant portion of the aforesaid judgment reads as follows: The prescribed period of 90 days, in our view would instantly commence either from 4-9-1993 (excluding from it 3-9-1993) or 3-9-1993 (including in it 2-12-1993 ). 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. ( 5 ) THE counsel for the accused in Court below placed a decision of this Court reported in Ada alias Adeita Behera v. State for consideration of the learned Addi. Sessions Judge, wherein this Court placed reliance on a decision of the Supreme Court, reported in Dhaganti Satyanarayana and others v. State of Andhra Pradesh and came to the following conclusion. From the aforesaid observation of the Supreme Court, it can be justifiably concluded that the period of ninety days or sixty days, as the case may be, has to be computed from the date of remand itself without excluding such day. But the learned Addi. Sessions Judge, discarded the aforesaid decision of this Court and passed the order cancelling the bail of the petitioner relying upon the decision of the Apex Court reported in State of M. P. v. Rustam and others (supra ). ( 6 ) THE Counsel for the petitioner draws my attention to a decision of the Apex Court, reported in State through CHI v. Mohd. Ashraft Bhat and another. ( 6 ) THE Counsel for the petitioner draws my attention to a decision of the Apex Court, reported in State through CHI v. Mohd. Ashraft Bhat and another. which is subsequent to the decision so reported in (1996) II OCR (SC) 167, on which reliance was placed by the Addi. Sessions Judge and ultimately the bail was cancelled. The Apex Court in (1996) 10 OCR (SC) 329 (Supra) relied upon the decision of the said Court. reported in Central Bureau of Investigation Special Investigation Cell-I, New Delhi v. Anupam J. Kulkarni. The relevant portion of the aforesaid decision reads as follows: If the investigation is not complete within the period of ninety days or sixty days then the accused has to be released on bail as provided under the provision to Section 167 (2 ). The period of ninety days or sixty days has to be computed from the date of detention as per the orders the Magistrate and not from the date of arrest by the police. Consequently the first period of fifteen days mentioned in Section 167 (2) has to be computed from the date of such detention and after the expiry of the period of first fifteen days it should be only judicial custody. Now before me there are two decisions of the Apex Court of co-equal Benches and there are catena of decisions which say that the later one prevails over the former. In M. M. Yaragatti v. Vasant and others and in the case of Govindanaik G. Kalaghtigi v. West. Patent Press Co. Ltd. and another, the Full Bench of Karnataka High Court held that if there are conflicting decisions of Supreme Court the one given by larger Bench should be followed and that if both the Benches of Supreme Court consist of equal number of Judges the later of the two decisions should be followed by High Courts and other courts. ( 7 ) THE aforesaid Full Bench decision of Karnataka High Court was also followed in the case of Gujarat Housing Board, Ahmedabad v. Nagajibhai Laxman Bhai and others. The Full Bench of the Gujarat High Court held that the later of the two decisions should be followed by the High Courts and other courts. ( 8 ) FOLLOWING the principle so enunciated in the aforesaid decisions rendered by the Full Bench of Karnataka and Gujarat High Courts. The Full Bench of the Gujarat High Court held that the later of the two decisions should be followed by the High Courts and other courts. ( 8 ) FOLLOWING the principle so enunciated in the aforesaid decisions rendered by the Full Bench of Karnataka and Gujarat High Courts. I follow the ratio of the decision reported in 1996 (Vol. 10) O. C. R. (S. C.) 329, which is the later decision. Accordingly the order of cancellation of bail so passed by the Addi. Sessions Judge cannot be maintained. The application under Section 482 Cr. P. C. is allowed and the impugned order is set-aside. Petition allowed.