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2008 DIGILAW 187 (PAT)

Beera Sahani v. State Of Bihar

2008-01-28

ABHIJIT SINHA

body2008
Judgment 1. Heard learned counsel for the petitioner as also learned A.P.P. for the State. 2. The petitioner, who is in custody in connection with Paharpur P.S. Case No. 106/ 2006 under Section 307 and other allied Sections of the Penal Code, seeks the quashing of order dated 7.5.2007 passed by the learned Sessions Judge, East Champaran at Motihari in Criminal Revision No. 50 of 2007, whereby while dismissing the revision petition he has upheld the order dated 20.1.2007 passed therein by the learned Chief Judicial Magistrate, East Champaran at Motihari, whereby he has rejected the prayer of release of the petitioner under the provisions of proviso to Section 167(2) Cr.P.C. 3. The petitioner has been in jail custody since 18.10.2006 and since no charge- sheet was filed till 19.1.2007 a petition was moved on his behalf before the learned Chief Judicial Magistrate contending that the charge-sheet not having been filed within the prescribed statutory period of 90 days he was entitled to default bail/compulsive bail in view of the provisions of Section 167(2) Cr.P.C. It appears that on filing of the said petition the learned Court called for a report from the office as to whether a charge-sheet had been filed and the office report endorsed in the margin of the order sheet reveals that no charge-sheet had been filed till 4.30 P.M. on 19.1.2007. Another petition under the same provisions was again moved on 20.1.2007 and the learned Court again called for a report from the G.R. Clerk as to whether the charge-sheet had been submitted. The report df the G.R. Clerk dated 20.1.2007 as endorsed in the margin of the order sheet reveals that charge-sheet as also the case diary had been received and attached with the records and on the basis thereof the learned Magistrate rejected the prayer for bail. Criminal Revision No. 50 of 2007 was preferred there against but as stated above the same too was dismissed on the ground that the charge-sheet had been submitted and no order could be passed under the provisions of Section 167(2). 4. The proviso to Section 167(2) provides for release of a person in custody if the charge-sheet is not filed within 60 days or 90 days as the case may be. The proviso to Section 167(2) Cr.P.C. is mandatory. 4. The proviso to Section 167(2) provides for release of a person in custody if the charge-sheet is not filed within 60 days or 90 days as the case may be. The proviso to Section 167(2) Cr.P.C. is mandatory. if the period specified therein has expired without the charge sheet being filed the accused must be released on bail. Merits of the case are irrelevant at that stage and the provision has to be construed strictly in favour of individual liberty since even the law expects early completion of the investigation. 5. In calculating the period of 60 days or 90 days the period of detention in police custody is to be included. There is a conflict of decisions as to from which date the computation of the period of 60 days or 90 days shall start. The controversy was set at rest by the Supreme Court in Chaganti V/s. State, AIR 1986 SC 2130 wherein it was held that the total period of 90 days under clause (i) and the total period of 60 days under clause (ii) have to be calculated only from the date of remand and not from the date of arrest. 6. In the instant case the petitioner has been in jail since 18.1.2006. Calculating 90 days therefrom the period of 90 days would end on 16th January, 2007. As such the petitioner became entitled to bail under the proviso to Section 167(2) Cr.P.C. on 17.1.2007 and this entitlement cannot be taken away from him merely because charge sheet was submitted on 20.1.2007 since the entitlement of the petitioner to bail by default had already occurred. 7. Due regard being had to the facts and circumstances of the case and the discussions made above petitioner Beera Sahani is directed to be released on bail on his furnishing bail bond of Rs. 10,000/-with two sureties of the like amount each to the satisfaction of the Chief Judicial Magistrate, East Champaran at Motihari in connection with Paharpur P.S. Case No. 106/2006.