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2013 DIGILAW 74 (CHH)

Manharan Chandra v. State of Chhattisgarh

2013-02-28

G.MINHAJUDDIN

body2013
ORDER Heard on application (A. No.2 of 2013) for condonation of delay in payment of process fee. 2. Delay condoned. 3. With the consent of counsel for the parties, the revision is finally heard at the admission stage. 4. This criminal revision under Section 397/401 of the Cr. P. C. has been filed by the revision petitioners against the order dated 3-1-2013 passed by IInd Additional Sessions Judge, Sakti, District Janjgir Champa in Criminal Revision No. 101/2012, whereby order dated 30-10-2012 passed by Judicial Magistrate First Class, Jaijaipur (for short, JMFC) allowing the application of the revision petitioners filed under Section 167 (2) of the Cr. P. C., has been set aside and the said application has been rejected as premature. 5. Facts, in brief, are that the revision petitioners were arrested in connection with Crime No. 110/2011 of Police Station-Jaijaipur, Tehsil - Sakti, District Janjgir-Champa for offence punishable under Section 302 IPC on 1-8-2012. On the same date i.e. 1-8-2012, the revision petitioners were produced before the JMFC and were remanded to judicial custody. On 30-10-2012, an application under Section 167(2) of the Cr. P. C. was filed on the ground that as the charge-sheet has not been filed within a period of 90 days, therefore, the revision petitioners/accused have acquired an indefeasible right to be released on bail. After hearing counsel for the revision petitioners as well as the Assistant Public Prosecutor, the JMFC allowed the said application and released the revision petitioners/accused on bail. On the same date i.e. 30-10-2012 after passing the said order, allowing the application filed under Section 167(2) of the Cr. P. C. in favour of the revision petitioners/accused, a charge-sheet for offence punishable under Section 302 IPC was filed against the revision petitioners/accused by the Station House Officer, Police Station Jaijaipur. Aggrieved by the said order dated 30-10-2012 granting bail under Section 167(2) of the Cr. P. C. to the revision petitioners/accused, the State filed a revision petition before the IInd Additional Sessions Judge, Sakti, District Janjgir-Champa which was allowed vide impugned order dated 3-1-2013 whereby the order passed by the JMFC dated 30-10-2012 releasing the revision petitioners/accused on bail under Section 167(2) of the Cr. P. C., has been set-aside and the application filed under Section 167(2) of the Cr. P. C. was consequently rejected. P. C., has been set-aside and the application filed under Section 167(2) of the Cr. P. C. was consequently rejected. Against the said impugned order dated 3-1-2013, this criminal revision has been filed by the revision petitioners/accused. 6. On perusing the impugned order dated 3-1-2013 passed by the IInd Additional Sessions Judge, Sakti as well as the order dated 30-10-2012 passed by the JMFC, it is found that the controversy revolves around the point as to from which date the period of 90 days has to be counted for the purposes of Section 167(2) of the Cr. P. C. 7. It is not in dispute that the revision petitioners/accused were arrested on 1-8-2012 and, on the very same date, they were produced before the JMFC and, thereafter, they were remanded to judicial custody. It is also not in dispute that on 30-10-2012, an application under Section 167(2) of the Cr. P. C., was filed on behalf of the revision petitioners/accused which was allowed and they were released on bail. 8. The revisional Court (IInd Additional Sessions Judge, Sakti) in the impugned order dated 3-1-2013 has relied upon the judgment of Supreme Court rendered in the case of State of Madhya Pradesh v. Rustam and others, 1995 (3) SCC 221 , in which it has been laid down that in computing the period of 90 days or 60 days for the purposes of Section 167(2) of the Cr. P. C., the date on which the accused is first produced before the Magistrate shall be excluded and the date on which the charge-sheet is filed shall be included. 9. The revision petitioners/accused were produced before the JMFC on 1-8-2012 and were remanded to judicial custody on the same date. If the period of 90 days is computed from 1-8-2012 then the period of 90 days expires on 29-10-2012. If 1-8-2012 is excluded and the date of filing of charge-sheet i.e. 30-10-2012 is included then the charge-sheet was definitely filed on the 90th day and, in that case, application filed on behalf of the revision petitioners/accused under Section 167(2) of the Cr. P. C. was not maintainable as it was premature. 10. If 1-8-2012 is excluded and the date of filing of charge-sheet i.e. 30-10-2012 is included then the charge-sheet was definitely filed on the 90th day and, in that case, application filed on behalf of the revision petitioners/accused under Section 167(2) of the Cr. P. C. was not maintainable as it was premature. 10. The date from which the period of 90 days or 60 days has to be counted, has been very elaborately explained by the Hon’ble Supreme Court in the case of Chiganti Satnarayana v. State of Andhra Pradesh, AIR 1986 SC 2130 wherein the Apex Court has laid down that the period of detention for the purpose of Section 167(2) of the Cr. P. C. shall be counted from the date on which the detention of the accused was authorized by the Magistrate. 11. In the instant case, as the revision petitioners/accused were produced before the JMFC on 1-8-2012 and, on the very same date, they were remanded to judicial custody; therefore, their detention was authorized by the Magistrate on 1-8-2012 and, therefore, in computing the period of 90 days for the purposes of Section 167(2) of the Cr. P. C. the said period has to be counted from 1-8-2012. As such, the period of 90 days has expired on 29-10-2012. The application under Section 167(2) of the Cr. P. C. was filed on 30-10-2012 i.e. after 90 days from the date on which the detention of the revision petitioners/accused was authorized by the Magistrate. In view of this, the application under Section 167(2) of the Cr. P. C. filed on 30-10-2012 was rightly allowed by the JMFC as after the expiry of 90 days the Magistrate has no discretion in the matter and it is the mandate of law that the accused shall be released on bail irrespective of the nature and the gravity of the offence. 12. It is not in dispute that after passing of the order, on the application under Section 167(2) of the Cr. P. C., on 30-10-2012, a charge-sheet was filed by the Station House Officer, Police Station Jaijaipur before the JMFC. 12. It is not in dispute that after passing of the order, on the application under Section 167(2) of the Cr. P. C., on 30-10-2012, a charge-sheet was filed by the Station House Officer, Police Station Jaijaipur before the JMFC. As such, there is no error or illegality in the order passed by the JMFC, and the revisional Court (IInd Additional Sessions Judge, Sakti) has definitely committed illegality and impropriety in allowing the revision and setting aside the order dated 30-12-2012 passed by the JMFC and, consequently, rejected the application filed by the revision petitioners/accused under Section 167 (2) of the Cr. P. C., which deserves to be and is hereby set aside restoring the order dated 30-10-2012 passed by the JMFC. 13. In the result, this criminal revision is allowed. The impugned order dated 3-1-2013 passed by IInd Additional Sessions Judge, Sakti is set aside. Consequently, order dated 30-10-2012 passed by the JMFC is hereby restored. Revision allowed.