RAJVEER (IN JAIL) Vs. STATE OF U.P.

JUDGEMENT

(1.) THIS is an application for bail on behalf of the applicant Rajveer, who is detained in custody in Case Crime No. 46 of 1998 under Sections 147/148/149/302, I.PC., Police Station Cantt. District Bareilly. The incident in question is said to have occurred in broad day light in which two persons are said to have been murdered by the applicant and his five other associates. The F.I.R. was soon lodged wherein the applicant was named as one of the assailants who was armed with a fire arm and there were fire arm injuries on the deceased persons.

(2.) LEARNED Counsel for the ap­plicant, Dr. Arun Srivastava has not pressed the application on merits but bail is being claimed under the provisions of Section 167 (2) of the Code of Criminal Procedure as according to the submission of learned Counsel the accused-applicant had become entitled to bail on account of non- submission of charge-sheet within the prescribed statutory period of 90 days and the same was submitted in Court on 91st day, that too after when the accused had applied for bail. It has been argued that the right to be released on bail which had accrued to the applicant could not be defeated by keeping the application for bail pending till the charge-sheet was sub­mitted.

(3.) RELYING upon the decision of Kerala High Court in the case of Shri Shivanna v. State, 1992 Cr LJ 2287, the learned Counsel for the applicant vehe­mently argued that even where a public holiday falls on the 90th day that too could not be excluded for the purpose of count­ing while computing the period of limita­tion prescribed for submission of charge-sheet. In other words, the outer limit of 90 days does not gel extended by the mere fact of the 90th day falling on a day when the Court is closed. Reliance was also placed on the decision of a learned Single Judge of this Court in the case of Shiv Nath alias Chhorkev. Slate of U.P. 1994 LU 150. In that case there had been wrong calcula­tion by the Courts below while computing the 90 days period and as a matter of fact the charge- sheet was not submitted within the statutory period of 90 days but on 91st day and before that application for bail had already been moved on behalf of the accused claiming the benefit of the provisions of Section 167 (2), Cr. P.C. but instead of disposing of that application, the learned Sessions Judge postponed its hearing and waited for the submission of charge-sheet and when the same was filed the accused was refused bail. It was in these circumstances that the learned Judge held that the right which had ac­crued to the accused could not be defeated by keeping the application for bail pend­ing till the charge-sheet was submitted. It is not clear from the report that the 90th day was a Sunday or a public holiday or that the Court was closed on that day. That apart, it further appears that perhaps the attention of the learned Judge was not invited to the provisions of Section 10 of the General Clauses Act, which is reproduced as under: