- (1.) G. S. N. Tripathi, J. This is an application for bail by the accused Sheo Nath alias Chhotaka on the technical ground that even though after expiry of 90 days, charge-sheet had not been filed by the prosecution, still he was remanded to custody.
(2.) I have heard learned counsel for the parties at considerable stretch and gone through the record. I find there is sufficient force in the contention advanced by the learned counsel for the applicant and this application deserves to be allowed. Case Crime No. 68 of 1992, under Section 18/20, N. D. P. S. Act, P. S. Bhognipur, District Kanpur Dehat is pending against the ;. . ccused. He was arrested on 10-3-1992 and produced before the learned Magistrate/special Judge on 11-3-1992, 8-6-1992 was the last date for remand. The charge-sheet was submitted on 9-6-1992 i. e. after expiry of 90 days. On 9-6-1992, the applicant moved the court that since mandatory provisions of Section 167 (2) have been violated, no further remand was permissible, and the accused should be let off. The learned Sessions Judge instead of deciding the application on the same day, for some reasons or the other, adjourned the case and ultimately he rejected it on 24-6-1992. In making the calculation, he found that the charge-sheet had been filed within 90 days. But in fact, it was not so. It was on the 91st day. The reasoning is clear. In March, there were 21 days (including the day of remand dated 11-2-1992 ). In April, there were 30 days. In May, there were 31st days and upto 8th June, there were 8 days in June, making a total of 90 days. Therefore, admittedly, the charge-sheet was submitted on 9-6-1992 i. e. on the 91st day, after the remand. It seems that had this calculation been correct, the learned Sessions Judge would have himself also granted bail to the applicant. May attention has been invited to the observations of the Hon'ble Supreme Court in Aslam Babalal Desai v. State of Maharashtra, 1993 JIC 14 (SC) ; AIR 1993 SC 1. Latest law has been laid down after considering the earlier observations of their Lordships of the Hon'ble Supreme Court and other courts. The legislative history of Section 167, Cr. P. C. , has also been concern ed at page 5 in paragraph 6.
(3.) EARLIER the bail application of the applicant had been dismissed by the learned Sessions Judge on 1-6- 1992, being bail application No. 397 of 92. It means that the applicant was prepared to furnish the bail before the expiry of 90 days as required under Section 167 (2) (a) (ii) of the Cr. P. C. Once he expressed his willingness to furnish bail, he was not expected to display his readiness and willingness at every stage and on every date. So the argument of the learned Special State Counsel that the petitioner expressed his willing ness for being bailed out on 9-6-1992 only is without substance. While interpreting the legislative intent behind the enactment of Section 167, Cr. P. C. , the Hon'ble Supreme Court came to the conclusion that the intent was clear loud and vocal that the investigation must be completed within 60/90 days. The provision is mandatory that the accused shall be released. It means no discretion is left with the Magistrate/special Judge to refuse bail, once this mandatory provision has been flouted by the investi gating agency. If the investigating agency fails to file charge- sheet before the expiry of 60/90 days, as the case may be, the accused in custody should be released on bail vide observations in paragraph 9 at page 9. At page 10, in paragraph 11, the following observations are very material: "the purpose and object of providing for the release of the accused under sub-section (2) of Section 167 on the failure of the investi gating agency completing the investigation within the extended time allowed by the proviso was to instil a sense of urgency in the investigating agency to complete the investigation promptly and within the statutory time-frame. ";