STATE OF MAHARASHTRA Vs. SHARAD B SARDA

JUDGEMENT

(1.) By this writ petition the State has challenged the legality and correctness of the order passed by the learned Additional Sessions Judge, Pune, dated October 2, 1982 whereby the accused has been enlarged on bail, having regard to the provisions of section 167(2) of the Code of Criminal Procedure. The respondent Sharad B. Sarda is prosecuted for having committed murder of his wife Manjushri on June 12, 1982. The respondent (hereinafter referred to as accused) was arrested on June 14, 1982. The other two accused i.e. the accused Nos. 2 and 3 were also arrested on June 17, 1982 and they have been released on bail before filing of the charge sheet. The accused had filed an application for bail on September 13, 1982 before the learned Judicial Magistrate, First Class, Court No. 8, Pune, at about 5 p.m. wherein he claimed the right to be released on bail as per the provision of section 167 Clause 2(a) of the Code of Criminal Procedure. It was contended by the accused that since 90 days have expired on the date when the charge-sheet was filed he became entitled to be released on bail. The learned Judicial Magistrate after hearing the accused and the prosecution rejected the said application on September 15, 1982. Feeling aggrieved by the said order of the Magistrate the accused filed a Criminal Revision Application No. 306 of 1982. The said revision application was heard by the learned Additional Sessions Judge Pune and by his judgment and order dated October 2, 1982 was pleased to release the accused on bail of Rs. 15,000/- with one surety in the like amount. Certain conditions were imposed on the accused that the accused shall not directly or indirectly make any inducement, threat or promise to any person acquainted with the facts of the case so as to dissuade him from disclosing such facts to the Court. The second condition against the accused was that he shall not stay within the limits of Pune and District Beed till the disposal of the case and he should stay at Aurangabad City and he shall not leave the Municipal limits of Aurangabad City without the previous permission from the Court. The last condition was that the accused shall make himself available to the Court as and when required. He was also directed to report to the Police Station within the jurisdictions which he chooses, once in a week on every Monday. The State feeling aggrieved by the aforesaid judgment and order passed by the learned Additional Sessions Judge, Pune, filed this criminal writ petition under Article 227 of Constitution of India and also under section 482 of the Code of Criminal Procedure.

(2.) The undisputed facts in this writ petition are that the accused was arrested by the police on June 14, 1982. He was produced before the Magistrate on June 15, 1982. The learned Magistrate passed an order of remand to Police Custody for 14 days and thereafter the accused was sent to the Judicial Custody. That order of remand to the Judicial Custody was to operate till September 14, 1982. On September 13, 1982 the police filed a charge-sheet against the accused at about 3 p.m. and accused filed an application for bail on the same day at about 5 p.m. The learned Magistrate passed an order on September 15, 1982 holding that the total period of 90 days expired at the midnight between September 12/13, 1982. The charge-sheet was filed a couple of hours thereafter during the Court hours. The charge-sheet therefore must be deemed to have been filed, practically, at the expiry of 90 days as mentioned in proviso (a) of sub-section (2) of section 167 of the Code of Criminal Procedure. It is further observed by the learned Magistrate that the contention of the accused appeared to him to be too technical, and therefore, he was unable to accept the submission made by the accused. According to the learned Magistrate the present case does not fall within the purview of proviso (a) of sub-section (2) of section 167 of the Code. Accordingly the application was rejected. The learned Additional Sessions Judge, Pune, held that 90 days as provided have already expired and the accused became entitled as a matter of right to be released on bail.

(3.) Mr. P.P. Hudlikar, learned Public Prosecutor for the State, contended that the learned Additional Sessions Judge, Pune, committed an error in interpreting the provisions of section 167 of the Code of Criminal Procedure. The computation of the period of 90 days is also erroneous. It is submitted, that while computing the period of 90 days or 60 days, as the case may be as laid down in section 167, the initial detention under section 57 of the Code is to be excluded. It is urged by the learned Counsel that the powers of the learned Magistrate under section 167 of the Code of Criminal Procedure come into existence from the time and the date when the accused is produced before him by the police after the period of detention under section 57. According to Mr. Hudlikar the detention period of 24 hours by the policy ought to have been excluded and thereafter the authorised period of detention by the learned Magistrate should have been taken into consideration for computing the period of 90 days. Having regard to the facts of this case it is urged that the period of 90 days was to end on a day when the Court had a holiday. The said day of holiday has to be excluded in view of the provisions of section 10 of the General Clauses Act, 1897.