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2025 DIGILAW 120 (PNJ)

Jaswinder Singh @ Kindi v. State of Punjab

2025-03-04

H.S.GREWAL

body2025
JUDGMENT : H.S. Grewal, J. The petitioner has filed this revision petition seeking setting aside the order dated 03.02.2025 whereby his default bail application filed under Section 187(3) BNSS, 2023 [Section 167(2) Cr.P.C.] has been denied by the trial Court on the ground that it was filed before the expiry of 90 days i.e. on the 90th day. 2. Learned counsel for the petitioner submits that the FIR had been registered on 21.10.2024 and the petitioner was arrested on 05.11.2024. On the same day, he was produced before the Judicial Magistrate and was remanded to custody. He applied for default bail under Section 187(3) BNSS, 2023 [Section 167(2) Cr.P.C.] on 03.02.2025 at about 02.00 pm i.e. after the expiry of 60 days. However, on the same day at about 03:15 pm, the Investigating Officer presented the challan before the trial Court. Therefore, the challan was presented on the same day right after the filing of the bail application to extinguish the bail application filed by the petitioner. 4. I have carefully gone through the record of the case. 5. The petitioner is stated to be arrested on 05.11.2024 in FIR No.147 Dated 21.10.2024, registered under Sections 125/285/324 BNS (Section 113(2) BNS added later on) at Police Station Haibowal, Ludhiana. He had applied for default bail under Section 187(3) BNSS, 2023 [Section 167(2) Cr.P.C.] on 03.02.2025 at about 02.00 pm i.e. after the expiry of 60 days. However, on the same day at about 03.15 pm, the Investigating Officer presented the challan before the trial Court. Vide the impugned order dated 03.02.2025, the JMIC has declined the bail in accordance with Section 187(3) BNSS, 2023 holding that the day on which the petitioner was produced before the Court on 05.11.2024 and remanded to the custody, would be excluded while computing the period of 90 days. The trial Court has also relied upon the judgment of Hon’ble the Supreme Court in the case of State of M.P. vs. Rustam and others, 1995(Supl)(3) SCC 221, wherein it was observed that while computing the period of 90 days, the day on which the accused/petitioner was remanded to judicial custody should be excluded and the day on which the challan is filed in the Court, should be included. 6. 6. A bare reading of Section 187(3) of the BNSS reveals as under:- “(3) The Magistrate may authorise the detention of the accused person, beyond the period of fifteen days, if he is satisfied that adequate grounds exist for doing so, but no Magistrate shall authorise the detention of the accused person in custody under this sub-section for a total period exceeding- (i) ninety days, where the investigation relates to an offence punishable with death, imprisonment for life or imprisonment for a term of ten years or more; (ii) sixty days, where the investigation relates to any other offence, and, on the expiry of the said period of 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, and every person released on bail under this sub-section shall be deemed to be so released under the provisions of Chapter XX XV for the purposes of that Chapter.” 7. However, the three Judges’ Bench of the Hon’ble Supreme Court in the case of Enforcement Directorate, Government of India versus Kapil Wadhawan and another etc., 2024(3) SCC (Cri.)81 have held as under:- “58. Let us now test the argument propounded by the learned ASG, that if an accused is produced before a Magistrate at 11:50 PM on a given day, say, 01.01.2023, and if Section 9 of the General Clauses Act is not applied, then only a few minutes of that day would have to be counted as an entire day for purposes of calculating the remand period. In such a situation a short ten minute window or less, would be available for the police for custodial investigation. On this it must be observed that production of an accused before a Magistrate say at 11:50 PM, has more to do with police producing the accused within the prescribed 24 hour period as mandated under Section 57 CrPC. Therefore, the legal position vis-a-vis proviso (a) of Section 167 (2) CrPC, cannot be resolved in favour of the investigation agencies, with such an extreme example. 59. As stated earlier, when the day of remand order is included in the stipulated period under Section 167(2), the same would encourage the prosecution to promptly comply with Section 57 CrPC. Therefore, the legal position vis-a-vis proviso (a) of Section 167 (2) CrPC, cannot be resolved in favour of the investigation agencies, with such an extreme example. 59. As stated earlier, when the day of remand order is included in the stipulated period under Section 167(2), the same would encourage the prosecution to promptly comply with Section 57 CrPC. The leaning towards the accused’s right to personal liberty by reducing the 60 day period to something more than 59 days, and a few hours, is based on the constitutional protection afforded to an accused under Article 22(2) and Article 21. In this way, the Code’s application in dealing with an accused would be consistent with the inviolable right of personal liberty and dignity, as explained above. 60. Returning now to the English philosopher John Locke, with whose words this judgment commenced, we have elected to answer this reference by endorsing that interpretation of law which advances the cause of justice and freedom. The relevant provisions of the CrPC are the laws, that are essential to protect an individual’s liberty. It regulates the societal need for limited detention of persons charged with serious offences. We have therefore adopted the interpretation whereby personal liberty is safeguarded and justice would not be compromised and in the grand scheme of things, the unjustified detention of individuals is eschewed. As a court of law, once the legal stipulations of the Code are satisfied, we are duty bound to apply the law and prevent unlawful detention and protect personal liberty. 61. Since there exists vacuum in the application and details of Section 167 CrPC, we have opted for an interpretation which advances the cause of personal liberty. The accused herein were remanded on 14.05.2020 and as such, the chargesheet ought to have been filed on or before 12.07.2020 (i.e. the sixtieth day). But the same was filed, only on 13.07.2020 which was the 61st day of their custody. Therefore, the right to default bail accrued to the accused persons on 13.07.2020 at 12:00 AM, midnight, onwards. On that very day, the accused filed their default bail applications at 8:53 AM. The ED filed the chargesheet, later in the day, at 11:15 AM. Thus, the default bail Applications were filed well before the chargesheet. Therefore, the right to default bail accrued to the accused persons on 13.07.2020 at 12:00 AM, midnight, onwards. On that very day, the accused filed their default bail applications at 8:53 AM. The ED filed the chargesheet, later in the day, at 11:15 AM. Thus, the default bail Applications were filed well before the chargesheet. In Ravindran and Bikramjit, which followed the Constitution Bench in Sanjay Dutt it was rightly held that if the accused persons avail their indefeasible right to default bail before the chargesheet/final report is filed, then such right would not stand frustrated or extinguished by any such subsequent filing. 62. We therefore declare that the stipulated 60/90 day remand period under Section 167 CrPC ought to be computed from the date when a Magistrate authorizes remand. If the first day of remand is excluded, the remand period, as we notice will extend beyond the permitted 60/90 days’ period resulting in unauthorized detention beyond the period envisaged under Section 167 CrPC. In cases where the chargesheet/final report is filed on or after the 61st/91st day, the accused in our considered opinion would be entitled to default bail. In other words, the very moment the stipulated 60/90 day remand period expires, an indefeasible right to default bail accrues to the accused.” 8. Therefore, from the above judgment of the Hon’ble Supreme Court, it is clear that the day when the petitioner was produced before the Court and sent for remand is to be included while computing the period of 90 days under the relevant Sections. 9. Consequently, the impugned order is set aside and the revision petition is allowed. The petitioner is ordered to be released on bail, subject to his furnishing personal/surety bonds to the satisfaction of the trial Court/Duty Magistrate concerned. 10. Pending application, if any, shall stand disposed of accordingly.