BIPIN BABU GUPTA Vs. STATE

JUDGEMENT

(1.) In this petition filed under Section 439 read with Sections 482 and 167(2), Cr.P.C., petitioner seeks setting aside of the order dated 10th September, 2001 passed by an Additional Sessions judge in Crl.R. No. 58/2001 whereby the order dated 5th July, 2001 passed by a Metropolitan Magistrate declining bail was affirmed.

(2.) Facts giving rise to this petition lie in a narrow compass. FIR being No. 272/2001 under Secdons 418/420/12C-IPC was registered against the petitioner and others at P.S. Darya Ganj. Petitioner who was already in judicial custody in another case, was summoned by issuing a production warrant by the Metropolitan Magistrate concerned for 4th May, 2001. On production, at the request of Investigating Officer, he was sent to police remand upto 10th May, 2001. Thereafter, petitioner continued to be in judicial remand and an application under Section 167(2) read with Section 437, Cr.P.C. was filed by him on 3rd July, 2001 seeking bail on the ground that charge sheet had not been filed within the statutory period of 60 days. To be noted that on 3rd July, 2001 itself charge sheet was also filed by the police. Said application came to be dismissed by the order dated 5th July, 2001. Crl. R. No. 58/2001 taken out against this order was also dismissed by the order dated 10th September, 2001.

(3.) Short submission advanced by Mr. Jugal Wadhwa for petitioner was that 4th May, 2001 on which date the petitioner was prod need before the Metropoli tan Magistrate in this case, is to be included in computing 60 days' time for the purpose of Section 167(2)(a)(ii), Cr.P.C. and as the charge sheet was filed on 61st day, the petitioner was entitled to an order for release on compulsive bail on his application dated 3rd July, 2001. In support of submission, reliance was placed, particularly, on the decisions in Meghji Jethabhai Vankar & Ors. v. State of Gujarat, 1988 Crl.L.J. NOC 0 (Guj.); Chaganti Satyanarayana & Ors. v. State of Andhra Pradesh, AIR 1986 SC 2130, and Powell Nwawa Ogechi v. The State (Delhi Administration), 30 (1986) DLT 462. It was pointed out that decision in State of M.P. v. Rustam and Ors., 1995 SCC (Crl.) 830, was over-ruled by the Apex Court in the decision in Uday Mohalal Acharya v. State of Maharashtra, III (2001) SLT 289=11 (2001) CCR 100 (SC)=2001 Crl.L.J. 1832. Meghji Jethabhai Vankar's case (supra), was rendered following the decision in Chaganti Satyanarana's case (supra). Ratio of the latter decision is that the period of 90/60 days envisaged by proviso (a) to Section 167(2), Cr.P.C. would begin to run from the date of order of remand and not from earlier date when the accused was arrested. Question of computation of prescribed period under the said section with reference to provisions of Sections 9 & 10 of General Clauses Act was not considered therein. In Powell Nwawa Ogechi's case (supra), one of the points which arose for consideration was whether Section 10 of General Clauses Act could be brought in and in cases in which charge sheet is not filed within 90/60 days as envisaged by Section 167(2)(a), Cr.P.C. It was held that Section 10 of the said Act has no application as the Code does not prescribe any time limit for presentation of charge sheet before a Court. In Rustam's case (supra), accused/respondents were sent by the Magistrate concerned to judicial custody on 3rd September, 1993 which was extended from time to time. On 2nd December, 1993, challan was submitted in Court whereafter the accused/respondents applied for compulsive bail, as according to them, the period of 90 days expired on 1st December, 1993 and on the premise that their right to compulsive bail survived even after the challan was filed, the High Court agreeing with the pleas raised by accused/respondents, granted them bail. While dealing with two fold issue which fell for consideration, it was held by Apex Court in paras 3 & 4 of the decision :