Allahabad High Court
Irfan Ahmad vs State Of U.P. on 21 February, 2011
Author: Narayan Shukla
Bench: Narayan Shukla
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH Reserved Criminal Revision No. 27 of 2011 Irfan Ahmad Vs. State of U.P. and others Hon'ble Shri Narayan Shukla,J.
Heard Mr. Gyan Singh Chauhan, learned counsel for the revisionist and Mr. Rajendra Kumar Dwivedi, learned Additional Government Advocate.
The revisionist has challenged the order dated 18.1.2011 passed by the Chief Judicial Magistrate, Reabareli in Criminal Case No.2485 of 2010,whereby the revisionist's application for bail has been rejected .
Upon perusal of the record, it appears that the revisionist moved an application for bail under the strength of the provisions of section 167(2) of the Code of Criminal Procedure (Hereinafter referred to as to the ''Code') stating therein that from the date of remand no charge-sheet was filed within 90 days, therefore he is entitled for bail. He also supported his case with the judgment of the Hon'ble Supreme Court rendered in the cases of of State of West Bengal Vs. Dinesh Dalmiya, 2007 (2) JIC 522 (SC) and the judgment of this Court rendered in the case of Bijendra Singh @ Pintoo Vs. State of U.P., 2001 (1) JIC 652 (All).
On the other hand relying upon the judgment of Hon'ble Supreme Court rendered in the cases of State of M.P. Vs. Rustam and others, 1995 Supp (3) Supreme Court Cases 221, Sanjay Dutt Vs. State (1994) 5 SCC 410 and Hitendra Vishnu Thakur and others Vs. State of Maharastra and others , (1994) 4 SCC 602 and the judgment of this court rendered in the case of Om Prakash Dwivedi Vs. State of U.P., 2010 (71) ACC 690, the learned Additional Government Advocate submitted that in these cases the Hon'ble Supreme Court as well as this court have laid down the correct law which requires appreciation before arriving at the conclusion in the matter.
Thus main question for consideration is whether the period of 90 days from the date of remand had expired ?
Before dealing with the facts of the case it is pertinent to mention the provisions of section 167(2) of the Code, which is extracted below:-
"167(2). The Magistrate to whom an accused person is forwarded under this section may, whether he has or has not jurisdiction to try the case, from time to time, authorise the detention of the accused in such custody as such Magistrate thinks fit, for a term not exceeding fifteen days in the whole; and if he has no jurisdiction to try the case or commit it for trial, and considers further detention unnecessary, he may order the accused to be forwarded to a Magistrate having such jurisdiction:
Provided that-
[(a) the Magistrate may authorise the detention of the accused person, otherwise than in the custody of the police, 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 paragraph 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 not less than ten years;
(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 an 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 XXXIII for the purposes of that Chapter;] [(b) no Magistrate shall authorize detention of the accused in custody of the police under this section unless the accused is produced before him in person for the first time and subsequently every time till the accused remains in the custody of the police, but the Magistrate may extend further detention in judicial custody on production of the accused either in person or through the medium of electronic video linkage.] (C) no Magistrate of the second class, not specially empowered in this behalf by the High Court, shall authorise detention in the custody of the police.
[Explanation I.- For the avoidance of doubts, it is hereby declared that, notwithstanding the expiry of the period specified in paragraph (a), the accused shall be detained in custody so long as he does not furnish bail.] [Explanation II.- If any question arises whether an accused person was produced before the Magistrate as required under clause (b), the production of the accused person may be proved by his signature on the order authorising detention or by the order certified by the Magistrate as to production of the accused person through the medium of electronic video linkage, as the case may be:] Provided further that in case of woman under eighteen years of age, the detention shall be authorised to be in the custody of a remand home or recognized social institution.] [(2-A) Notwithstanding anything contained in sub-section (1) or sub-section(2), the officer in charge of the police station or the police officer making the investigation, if he is not below the rank of a sub-inspector, may, where a judicial Magistrate is not available, transmit to the nearest Executive Magistrate, on whom the powers of a Judicial Magistrate or Metropolitan Magistrate have been conferred , a copy of the entry in the diary hereinafter prescribed relating to the case, and shall, at the same time, forward the accused to such Executive Magistrate, and thereupon such Executive Magistrate, may, for reasons to be recorded in writing, authorise the detention of the accused person in such custody as he may think fit for a term not exceeding seven days in the aggregate;and, on the expiry of the period of detention so authorised, the accused person shall be released on bail except where an order for further detention of the accused person has been made by a Magistrate competent to make such order; and where an order for such further detention is made, the period during which the accused person was detained in custody under the orders made by an Executive Magistrate under this sub-section,shall be taken into account in computing the period specified in paragraph (a) of the proviso to sub-section (2):
Provided that before the expiry of the period aforesaid, the Executive Magistrate shall transmit to the nearest Judicial Magistrate the records of the case together with a copy of the entries in the diary relating to the case which was transmitted to him by the officer in charge of the police station or the police officer making the investigation, as the case may be.)"
The facts of the case are that accused was taken or remand on 20.10.2010 and 17.1.2011 no charge-sheet was filed by the investigating agency; whereas; on 18.1.2011 it filed the charge-sheet by including the date of remand i.e. 20.10.2010 within the score of 90 days, The revisionist submitted that 90 days had completed on 17.1.2011 and since no charge-sheet was filed by that date, the accused became entitled for bail just after expiry of 90 days i.e. on 18.1.2011, therefore, according to the revisionist the filing of the charge-sheet on 18.1.2011 be treated as filed after 90 days and thus it does not make any difference for granting him bail .
Learned counsel for the revisionist in support of his submissions stated that in the case of Rustam (Supra) one of the days on either side has to be excluded in computing the period prescribed of 90 days, accordingly, he submitted that the date of remand has to be included in calculation of 90 days, accordingly, 90 days completed on 17.1.2011. Those period of 90 days for the benefit of bail as above has been provided under the Code of Criminal Procedure, but nowhere it is provided in the Code how the period of 90 days would be calculated for the purpose of application of the provision of sub section 2 of section 167 of the Code.
Section 9 of the General Clauses Act, 1897 speaks regarding method of calculation of the period, which is extracted below:-
"9.Commencement and termination of time.- (1) In any [General Act] or Regulation made after the commencement of this Act, it shall be sufficient, for the purpose of excluding the first in a series of days or any other period of time, to use the word "from", and , for the purpose of including the last in a series of days or any other period of time, to use the word "or".
(2)This section applies also to all [Central Acts] made after the third days of January, 1868, and to all Regulations made on or after the fourteenth day of January, 1887."
In light of the aforesaid provision it is obvious that first date in the series of the days shall be excluded for the purpose of calculation of 90 days. Accordingly, in the present case the period of 90 days commenced just from the next date of remand i.e. w.e.f 21.10.2010 and from the said period 90 days completed on 18.1.2011, therefore, till 18.1.2011 the revisionist was not entitled to claim the benefit of the provisions of section 167(2) of the Code .
Indisputedly, on 18.1.2011 the charge-sheet was filed, therefore, I am of the view that the charge-sheet was filed within 90 days, therefore, the benefit of provision of section 167(2) of the Code is not available to the revisionist for granting him bail. Thus I do not find error in the order impugned .
The revision is dismissed. The revisionist is at liberty to claim for bail on different ground.
GSY Dt. 21.02.2011