SUNIL SINGH Vs. STATE OF CHHATTISGARH

JUDGEMENT

(1.) Being aggrieved by the order dated 12-7-2006 passed by Shri V. B. Singh, learned 1st Additional Sessions Judge, Surajpur in Criminal Revision No. 156/2006 affirming the order dated 30-6-2006 passed by the Additional Chief Judicial Magistrate, Surajpur in Criminal Case No. 405/2006 whereby the application under Section 167(2) Cr. P.C. filed by the applicants on 29-6-2006 was dismissed, the applicants herein have filed this petition under Section 482 Cr. P.C.

(2.) Undisputed facts are that the applicants were arrested on 31-3-2006 in crime No. 8/2006 by Police Outpost Bhatgoan, Police Station Pratappur for an offence under Section 395, IPC. The applicants were produced before the Additional Chief Judicial Magistrate, Surajpur on the same day who authorized their detention in judicial custody from time to time. On 29-6-2006 before the filing of challan, an application was moved at 11.00 a.m. on behalf of the applicants under Section 167(2) of the Cr. P.C. Arguments were heard on the said application. At about 4.00 p.m. challan was filed by Police Outpost Bhatgaon, P.S. Pratappur against the applicants in the aforesaid crime No. 08/2006 under Section 395, IPC. On 30-6-2006 the learned Additional Chief Judicial Magistrate, Surajpur dismissed the application on the sole ground that the date of arrest of the applicants was to be excluded while computing the period of authorization for detention in judicial custody and for deciding whether the challan w.as filed within the said period or not. Computing in this manner, the learned Addl. Chief Judicial Magistrate excluded the date of arrest i.e. 31-3-2006 and held that the challan having been filed on the 90th day the right to be released under Section 167(2) Cr. P.C. did not accrue to the applicants. It is also not disputed that in an offence under Section 395, IPC, the period for which the Magistrate may authorize detention of the accused-person is 90 days.

(3.) Ms. Sharmila Singhai, learned counsel for the applicants argued that the challan was filed on the 91st day at 4.00 p.m. The applicants having exercised their right under the proviso to Section 167(2) Cr. P.C. prior to filing of challan, an indefeasible right had accrued in favour of the applicants for being released on bail. Reliance was placed in Chaganti Satyanarayana v. State of Andhra Pradesh AIR 1986 SC 2130, Uday Mohanlal Acharya v. State of Maharashtra, (2001) 5 SCC 453 : (2001 Cri LJ 1832) and State of Maharashtra v. Mrs. Bharati Chandmal Varma alias Ayesha Khan, AIR 2002 SC 285 : (2002 Cri LJ 575). It was also contended that exclusion of the day of arrest in computing the period of detention as envisaged under the proviso to Section 167(2) Cr. P.C. by both the Courts below was wholly illegal since the period of detention is to be computed from the day of grant of remand. On the other than hand, Shri G. K. Beriwal, learned Dy. Advocate General argued in support of the impugned order.