H.C.Mital - (1.) ON being aggrieved by the order of Sri S. K. Srivastava, Sessions Judge, Hamirpur dated 30-4-1988 the applicants above named have filed this application for bail.
(2.) THE admitted facts, in brief, are that these applicants are cited accused in case Crime No. 25 of 1987 under sections 147, 148, 149, 302 IPC P. S. Chikasi District Hamirpur. THEse applicants were remanded to jail on 16-6-1987. A charge-sheet against them was submitted on 14-9-1987 i. e. on the first day after their remand to jail. THE learned Sessions Judge found that on 12th September it was second Saturday and 13 th September was Sunday, thus there was holiday on both the days. Hence the charge-sheet which was submitted on Monday Nth September 1987 would be held to have been submitted within ninety days and therefore in his view these applicants were not entitled to bail under section 167 (2) CrPC. He, therefore, refused bail to both the applicants. On behalf of the applicants it has been contended that under the provisions of section 167 (2) CrPC an accused person against whom charge-sheet is not presented before the court within ninety or sixty days, as the case may be, is entitled to be offered bail as a matter of right. That this right of the accused is absolute and indefeasible unless he fails to furnish the bail. It was also argued that section 10 of the General Clauses Act is not applicable in such a situation and the same cannot be invoked to defeat the accrued right of an accused person to be freed It was urged that the Magistrate should monitor the remand proceedings during investigation in such a manner so that a full account of the remand is handy and bail is offered to such accused person at the end of 90 or 60 days, as the case may be. Reliance has been placed on a Division Bench decision of Delhi High Court in the case of P. N. Ogechi v. State of Delhi Administration, 1986 CrLJ 2081. Their Lordships of the Delhi High Court distinguished the decision of the Honourable Supreme Court in the case of Harinder Singh v. S. Karnali Singh, AIR 1957 SC 271, wherein their Lordships; of the Supreme Court held that the object of section 10 of the General Clauses Act was to enable a person to do what he could have done on a holiday, on the next working day. Where, therefore, a period is prescribed for the performance of an act in a court or office and that period expires on a holiday, then according to the section, the act should be considered to have been done within that period, if it is done on the next day on which the court or office is open. The Honourable Supreme Court further ruled that to attract the application of section 10 of General Clauses Act. all that is requisite is that there should be a period prescribed, and that period should expire on a holiday,
(3.) THEIR Lordships of the Delhi High Court, however, distinguished the above observation by observing that no period is prescribed for submission of the charge-sheet under section 167 CrPC and, therefore, any question of application of section 10 of the General Clauses Act would not arise as the same could arise only if any period was prescribed and that period should expire on a holiday. Section 167 (2) (a) specifically provides a period of ninety days in respect of offence punishable with death, imprisonment for life or imprisonment for a term of not less than ten years and sixty days where the investigation relates to any other offence. It further provides that on the expiry of the said period 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, if a charge-sheet is not submitted within that period by the Investigating Officer.;