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Madhya Pradesh High Court · body

2005 DIGILAW 163 (MP)

Ajay Singh v. Surendra

2005-02-03

S.L.KOCHAR

body2005
ORDER 1. This Misc. Criminal Case has been filed by the applicant Ajay Singh-complainant u/s 439 sub-section (2) of CrPC for setting aside the order of grant of bail by the learned Magistrate by order dated 25.8.2004 whereby the learned ACJM, Bagli, has granted bail to the non-applicants on the ground that police did not file the charge-sheet within 90 days and "indefeasible right" accrued as per provision u/s 167(2) of the Code of Criminal Procedure (for short "the Code") to the non-applicants-accused for their release on bail and against the order dated 12.10.2004 passed by learned II ASJ, Dewas, dismissing the application of the applicant for cancellation of the order passed by the learned Magistrate dated 25.8.2004. 2. The facts are that non-applicants were arrested by police of Police Station, Hatpiplya, on 26.5.2004 for the commission of alleged offences punishable u/Ss. 147, 148, 302 read with S. 149 of IPC. The non-applicants were produced before the ACJM, Bagli, on 27.5.2004. Thereafter, time-to-time judicial remand was granted by the learned Magistrate to the police for filing charge-sheet. The charge-sheet was filed on 25.8.2004. On the same day, the non-applicants had also filed an application u/s 167(2) of the CrPC for their release on bail because according to the non-applicants, charge-sheet was not filed within 90 days and on 25.8.2004 the charge-sheet was filed which was the ninety first day from the date of production of the non-applicants before the learned Magistrate. The learned Magistrate accepted the prayer of the non-applicants and held that charge-sheet was filed on 91st day and ordered for release of the non-applicants on furnishing personal bond of Rs. 20,000/- with one surety in the like amount by each of the non-applicants to the satisfaction of the said Court. 3. In this application for cancellation of bail, the contention of the learned counsel for applicant-complainant is that the learned ACMJ, Bagli has committed error in computing period of 90 days. Admittedly, the non-applicants were produced before 'the said Court on 27.5.2004 and charge-sheet was filed on 25.8.2004. According to the apex Court judgment rendered in case of State of M.P. v. Rustam and others [1995 Supp. (3) SCC 221], it hag ruled in paragraph three which is as under: "3. Admittedly, the non-applicants were produced before 'the said Court on 27.5.2004 and charge-sheet was filed on 25.8.2004. According to the apex Court judgment rendered in case of State of M.P. v. Rustam and others [1995 Supp. (3) SCC 221], it hag ruled in paragraph three which is as under: "3. We find that the High Court was in error-both in the matter of computation of the period of 90 days prescribed as also in applying the principle of compulsive bail on entertaining a petition after the challan was filed as the so-called 'indefeasible right' of the accused, in our view, stood defeated by efflux of time. The prescribed period of 90 days, in our view, would instantly commence either from 4.9.1993 (excluding from it 3.9.1993) or 3.12.1993 (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. Section 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 2.12.1993 when the challan was filed, period of 90 days had expired". 4. In the judgment of Rustam (supra), the Supreme Court has decided the issue as to how the computation of 90 days is to be done. The Supreme Court has held that for computation of clear 90 days, either first day of production of the accused before the learned Magistrate is to be excluded or the date on which the charge-sheet was filed will be excluded. For the purposes of computation of period of 90 days, the Supreme Court has considered the provisions of sections 9 and 10 of the General Clauses Act. 5. In the instant case, applying the aforementioned ratio, the non-applicants were produced before the learned ACJM, Bagli, on 27.5.2004. This date is to be excluded and computation will commence from 28.5.2004. The charge-sheet was filed on 25.8.2004. 5. In the instant case, applying the aforementioned ratio, the non-applicants were produced before the learned ACJM, Bagli, on 27.5.2004. This date is to be excluded and computation will commence from 28.5.2004. The charge-sheet was filed on 25.8.2004. This date will be excluded and on computation, it is found that when the charge-sheet was filed, i.e., 25.8.2004, it was 90th day (four days of May, 30 days of June, 31 days of July and 25 days of August = 90 days). On computation, it is found that charge-sheet was filed within 90 days from the date of production of the non-applicants before the learned ACJM, Bagli. The learned ACJM has failed to consider the Supreme Court judgment rendered in case of Rustam (supra) and while computing the period of 90 days, inch.1ded the date of production of the nonapplicants before his Court and also included the date of filing of charge-sheet. Because of this error of computation, the learned Magistrate held that the charge-sheet was filed on 91st day which is apparently illegal and erroneous, therefore, require interference by this Court. 6. Prior to the judgment passed by the Supreme Court in case of Rustam (supra), the Supreme Court had occasion to decide the issue of computation of period of 90 days for the purposes of section 167(2) of CrPC in case of Chaganti Satyanarayana and others v. State of Andhra Pradesh [ AIR 1986 SC 2130 ] and Central Bureau of Investigation v. Anupam J. Kulkarni [ AIR 1992 SC 1768 ]. In both these judgments, the Supreme Court has decided that the period of police custody of the accused persons would not be included for computation of period of 90 days or 60 days as the case may, be as per provision u/s. 167(2) proviso (a) of CrPC. In both these cases the Supreme Court has not considered whether the first date of production of the accused before the learned Magistrate would be included or excluded. This has been considered for the first time with the interpretation of sections 9 and 10 of the General Clauses Act (Central), 1897 in the case of Rustam (supra). 7. In both these cases the Supreme Court has not considered whether the first date of production of the accused before the learned Magistrate would be included or excluded. This has been considered for the first time with the interpretation of sections 9 and 10 of the General Clauses Act (Central), 1897 in the case of Rustam (supra). 7. The order of learned II Additional Sessions Judge, Dewas dated 12.10.2004 holding that application u/s. 439(2) of the CrPC is not maintainable is also not correct in view of the judgment rendered by the Supreme Court in case of Raghuvirsingh v. State of Bihar [ AIR 1987 SC 149 • para 20]. The Supreme Court has ruled that "when an accused person is granted bail, whether under the proviso to section 167(2) or under the provisions of Chapter XXXIII the only way the bail may be cancelled is to proceed under S. 437(5) or S. 439(2)". 8. The learned counsel for non-applicants has also placed reliance on a judgment rendered by Supreme Court in case of Uday Mohanlal Acharya v. State of Maharashtra [ AIR 2001 SC 1910 ] and has submitted that in this judgment, by the Bench of three Judges, the judgment passed by Supreme Court in the case of Rustam (supra) has been over-ruled. Therefore, the point decided regarding computation of period of 90 days or 60 days in the case of Rustam (supra) will application in this case. 9. Having gone through the judgment passed by Supreme Court in Uday Mohanlal Acharya's case (supra), this Court does not find any substance in the submission of the counsel for non-applicants. The judgment of Rustam's case (supra) has been over-ruled only on the point of accruement of "indefeasible right" of accused after completion of the stipulated period as prescribed. The Supreme Court, in clear words has held that if application for grant of bail is filed by the accused immediately after completion of 60 days or 90 days and prior to filing of charge-sheet, then the accused is entitled to get benefit of his "indefeasible right" accrued as per provisions u/s. 167(2) proviso. The Supreme Court, in clear words has held that if application for grant of bail is filed by the accused immediately after completion of 60 days or 90 days and prior to filing of charge-sheet, then the accused is entitled to get benefit of his "indefeasible right" accrued as per provisions u/s. 167(2) proviso. But if 60 days and 90 days have expired and thereafter charge-sheet has been filed and after filing of the charge-sheet, if accused files application seeking relief as per provision u/s. 167(2) proviso, it cannot be said that the "indefeasible right" accrued to the accused for his release. If we go through the factual matrix as mentioned in paragraph two of the case of Uday Mohanlal Acharya (supra), it is manifest that the date of production of the accused before the Magistrate has been excluded by the Supreme Court for computation of period of 60 days. In this case, the judicial custody was ordered by the Magistrate on 17.6.2000. The case has been instituted against accused u/Ss. 406 and 420 of the IPC read with Maharashtra Protection of Interest of Depositors (Financial Establishment) Act, 1999. The period of 60 days for filing of charge-sheet was considered to be completed on 16.8.2000 (on calculation, 13 days of June, 31 days of July, 16 days of August = 60 days). Therefore, from 17.6.2000 to 16.8.2000, sixty days has completed on 16.8.2000. If 17.6.2000 is included, then on 16.8.2000, sixty first day will be completed whereas the Supreme Court has considered that 60 days has completed on 16.8.2000. Therefore, the judgment rendered by the Supreme Court in case of Rustam (supra) regarding computation of period of 90 days or 60 days as mentioned in paragraph three of the judgment has not been overruled by the Supreme Court. On the contrary, impliedly it has been followed by the Supreme Court. 10. In view of the above mentioned legal and factual position, this petition is allowed. The order passed by the learned ACJM, Bagli dated 25.8.2004 and learned II Additional Sessions Judge, Dewas dated 12.10.2004 are illegal and without jurisdiction. Therefore, same are hereby set aside. The learned counsel for non-applicants has informed this Court that non-applicants are facing trial before the learned II ASJ, Dewas. Therefore, they are directed to surrender themselves before II Additional Sessions Judge, Dewas on 15th February, 2005. Therefore, same are hereby set aside. The learned counsel for non-applicants has informed this Court that non-applicants are facing trial before the learned II ASJ, Dewas. Therefore, they are directed to surrender themselves before II Additional Sessions Judge, Dewas on 15th February, 2005. Learned counsel for non-applicants informed that this is the date of hearing of trial before the II Additional Sessions Judge. 11. Office is directed to send copy of this order to II Additional Sessions Judge, Dewas and ACJM, Bagli. ...................