V.S.DAVE, J. - (1.) THIS reference has been placed before us to answer the question 'whether the date of identification parade can be taken as a date of arrest of the accused in a case even if the accused is under arrest in some other case and has been sent to judicial custody in that case?' The question arose before Mahendra Bhushan, J. who was hearing SB Criminal Bail Application No 3206/89 Jawahar Singh v. State of Rajasthan. The facts giving rise to the present controversy are as under:
(2.) A dacoity was committed with the jurisdiction of Police Station Todabhim on 20th February, 1988 and case FIR No. 33/88 was registered in the said Police Station on that date under Sections 395/397 IPC (the present case). Since the Police could not trace the accused persons of the present case the investigation was closed. Subsequently Jawahar Singh (petitioner) and some other persons were arrested by the Police of Police Station Mahuwa in case -FIR Mo. 178/88 under Sections 399 and 408 IPC(here in after to be referred the Mahuwa case). During the investigation of the Mahuwa case some case some case property was recovered by the Mahuwa Police and an information was received by Police Station Todabhim about the arrest of the applicant and his co -accused persons and about the recovery of some stolen property from them. On receipt of this information the Police of Police Station Todabhim reopened the investigation of this case and the IO went to Police Station Mahuwa and interrogated the petitioner on 8 -12 1988 while he was in Police custody at that Police Station. During interrogation the petitioner is said to have confessed his involvement in the present case. After the petitioner was sent to judicial custody an Identification Parade was arranged in the jail at the instance of the IO. of the present case and during those proceedings the petitioner has been identified by the witnesses. The I.O. continued with the investigation of the case and filed the challan in the Court of the learned Magistrate on 19th August, 1989. Along with the challan papers the memo of arrest dated 9th June, 1989 was also. The petitioner moved the learned Magistrate for grant of bail on the ground that he should be deemed to have been arrested in this case on 16th December, 1988 when the Identification Parade was arranged in jail and that the challan having been filed after more than 90 days of that date, he was entitled to be released on bail in view of Sub -section (2) of Section 161 of the Code of Criminal Procedure (here in after to be referred 'the Cod'). His application was rejected by the learned Magistrate on the ground that the was arrested on 9th June, 1989 as shown in the arrest memo and could not be taken to have been arrested on 16 -12 -88 when the Identification Parade was held at the instance of the I.O. of the present case. He moved the Sessions Court but the learned Additional Sessions Judge Karauli Camp Hindon also took a similar view and dismissed his bail application. The petitioner thereafter moved this Court Under Section 439 Cr.P.C. The bail application came up before M.B. Sharma, J. During the course of arguments it was contended that the date of arrest has to be the date of Identification Parade and not the date when formal arrest memo is prepared. The reliance was placed on behalf of the petitioner on the decision of G.K. Sharma, J. in S.B. bail application No. 1855/84 (wrongly noted as bail application No 876/80 which in fact relates to an application Under Section 438 of the Code) and decision of Mrs. Mohini Kapur, J. in S. B Bail Application No. 853, 864 and 865 of 1989 M.B. Sharma J. how ever did not agree with the uied expressed in the above said single Bench decision by the two learned Judges and as such referred the matter to Hon'ble the Chief Justice to constitute a Larger Bench to decide the dispute once for all. This is bow this reference has been placed before us under the Orders of Hon'ble the Chief Justice.
(3.) WE have heard the Shri N.A. Naqvi Advocate for the petitioner, Shri G.C. Chatterjee for the State and have also perused the case diary produced before us through S.I. Girraj Prasad of Police Station Todabhim who is investigating the present case.;