- (1.) P. K. Jain, J. Heard learned counsel for the applicant and learned A. G. A.
(2.) SOLE ground on which this applica tion is pressed is that the charge-sheet was not submitted within sixty days of remand of the accused to judicial custody under Section 167 (2), Cr. PC. and the applicant was entitled to bail in view of the proviso (a) (ii) to Section 167 (2), Cr. P. C. Brief facts are that the applicant surrendered before the Magistrate con cerned on 14-5-98. An application for bail was moved before the learned C. J. M. on 13-7-98 on the ground that a period of sixty days had expired and the applicant was entitled to bail. Learned C. J. M. rejected the bail application vide order dated 13-7-98 holding that the date of surrender shall be excluded in computing the period of sixty days, as such the 13th of July was the last date. The application was, therefore, premature. An application for bail was moved before the learned Sessions Judge who rejected the bail application on merit without giving any decision on the ques tion of claim of the applicant with regard to his right of being released under the proviso (a) (ii) of Section 167 (2), Cr. P. C. Learned counsel submits that the date of surrender shall also be included while computing the period of sixty days. In support of his contention the learned counsel has relied upon the decision of the apex Court in the Central Bureau of Inves tigation v. Anupam K. Kulkarni, 1992 (29) ACC. 512; 1992 JIC 720 (SC ). That was a case in which the accused was ap prehended on 4-10-91 and was produced before the Magistrate on 5-10-91. In that case the apex Court held that "the total period of detention should not exceed ninety days in cases where the investiga tion relates to serious offences mentioned therein and sixty days in other cases and if by that time cognizance is not taken on the expiry of the said period the accused shall be released on bail as mentioned therein. " In Chaganti Satyanarayana v. State of Andhra Pradesh, 1986 (23) A. C. C. 320 (SC) it was held that "it, therefore, stands to reason that the total period of 90 days can begin to run from the date of order of remand. Therefore the first period of detention should be computed from the date of order of remand. "
(3.) SUBSEQUENT to the aforesaid decision in the Central Bureau of Investiga tion case, the apex Court had occasion to consider whether the date to remand is to be included in the period of sixty or ninety days as the case may be. This question came up for decision in State of M. P. v. Rustam,1995 SCC (Cri) 830. That was a case in which accused was remanded to judicial custody on 3-9-93, charge-sheet was submitted on 2-12-93 where after the accused applied for bail under the proviso to Section 167 (2), Cr. P. C. contending that period of ninety days expired on 1-12-93. The apex Court while considering the provisions of the General Clauses Act held that the prescribed period of 90 days, in our view, would instantly commence either from 4-9-93 (excluding from it 4-9-1993) or 3-9- 1993 (including it 2-12- 1993 ). Clear 90 days have to expire before the right begins. Plainly put, one of the days on either side has to be excluded in computing the prescribed period of 90 days. Sections 9 and 10 of the General Clauses Act warrant such an interpreta tion in computing the prescribed period of 90 days. The period of limitation thus com puted on reckoning 27 days of September, 31 days of October and 30 days of Novem ber would leave two clear days in Decem ber to compute 90 days and on which date the challan was filed, when the day running was the 90th day. The High Court was, thus, obviously in error in assuming that on 2-12-1993 when the challan was filed, period of 90 days had expired. In view of the above pronounce ment the date of remand i. e. 14- 5-98 has to be excluded while computing the period of sixty days. While so computing there would be 17 days left in May, 1998,30 days in June, 1998 and thereafter 13 clear days in July, 1998. Bail application was moved before the learned Magistrate on 13-7-1998, the last day of the period of sixty days. The application was, thus, prema ture. Charge-sheet was submitted on 14-7-98. There is nothing on record to show that before submission of the charge-sheet on 14-7-98 the accused again exercised his right under the proviso of S. 167 (2) Cr. PC. There is consistent view of the apex court that the right of compulsive bail under the proviso of S. 167 (2), Cr. P. C. subsists only during the period till charge-sheet is not submitted. If such right is not exercised within that period, then on sub mission of the charge sheet remand order is passed u/s. 209 or 309 Cr. P. C. as the case may be. In that event the right of compul sive bail comes to an end. The apex court in Dr. Bipin Shantilal Panchal v. State of Gujarat, 1996 SCC (Cri.) 200 ; 1996 JIC 315 (SC) and Mohamed Iqbal Madar Sheikh v. State of Maharashtra, 1996 SCC (Cri.) 202; 1996 JIC 499 (SC) took the above view. In Dr. Bipin Shantilal Panchal's case (supra) the Court held that "if an accused person fails to exercise his right to be released on bail for the failure of the prosecution to file the charge-sheet within the maximum time allowed by law, he cannot contend that he had an in defeasible right to exercise it at any time notwithstanding the fact that in the mean time the charge-sheet is tiled. But on the other hand if he exercises the right within the time allowed by law and is released on bail under such circumstances he cannot be re-arrested on the mere filing of the charge-sheet as pointed out in Aslam Babalal Desai v. State of Maharashtra, 1992 SCC (Cri) 870; 1993 JIC 14 SC ). " In Mohamed Iqbal Madar's case the apex Court held that "this right cannot be exer cised after the charge-sheet has been sub mitted and cognizance has been taken, because in that event the remand of the accused concerned including one who is alleged to have committed an offence under TADA, is not u/s. 167 (2)but under other provisions of the Code. " The Court, however, observed that" if an accused charged with any kind of offence becomes entitled to be released on bail under proviso (a) to S. 167 (2), that statutory right should not be defeated by keeping the applications pending till the charge-sheets are submitted so that the right which had accrued is extinguished and defeated. ";