DEVENDRA KUMAR Vs. STATE OF MADHYA PRADESH

JUDGEMENT

(1.) The petitioner by this petition u/S.439(1), Criminal P.C. has sought his entitlement to he enlarged on bail by raising a question, that the period of temporary bail of 13 days should be reckoned in computing 90 days under proviso (a) to sub-sec. (2) of S. 167 and, thus, the petitioner/accused who is in continuous detention and in custody after his arrest, acquired the statutory right to be released on bail for the default of the prosecution in not filing the charge-sheet within the prescribed period of 90 days.

(2.) The facts leading to this petition are thus. The petitioner and two others after their arrest on 22-4-1991 in Crime No. 146/1991 for offences u/ Ss. 302 and 307/34, IPC, by Police Station Dabra, were first remanded by the Judicial Magistrate to judicial custody on 23/04/1991; the charge-sheet was to be filed in terms of proviso (a) to S. 167(2) within 90 days. 22/07/1991 being Sunday, the charge sheet was filed on Monday, the 23rd July. During the period of detention, in judicial custody the petitioner moved an application under S. 439, Cr. P.C., before the Sessions Judge, Gwalior, for grant of bail for few days to perform 'Kanyadan' of his daughter Sunita and other marriage ceremonies. The Sessions Judge vide order dated 25-6-1991 passed in Misc. Cr. Case No. 1402/ 1991, released the petitioner on interim bail for 13 days on three conditions, that the petitioner on his furnishing personal bond of Rs. 40,000/- and two solvent sureties of Rs. 20,000/- each to the satisfaction of Chief Judicial Magistrate, Gwalior, shall be releas- ed on interim bail till 7-7-1991; he will surrender on 8-7-91 at 8-00 a.m. before the Chief Judicial Magistrate, Gwalior, from where he will be taken into custody and will be sent to Jail, he will not contact the prosecution witnesses nor will tamper with the evidence or terrorise the witnesses and for that petitioner will report on 28/06/1991 and 3/07/1991 between 11 a.m. and 12 noon at Police Station, Dabra.

(3.) The charge-sheet in the case was filed on the 91st day; therefore, in an application for bail of co-accused Ashok Sharma in Misc. Cr. Case No. 1642 of 1991, decided on 24-9- 9 1, Shri K. K. Verma, J. after dealing with the question whether the 90th day failing on a Sunday has to be excluded from consideration in accordance with the provisions of S. 10 of the General Clauses Act 1897, and considering various authorities and the provisions of Ss. 57 and 167, held that such a day cannot be excluded for reckoning the period of 90 days and, as such, the co-accused got the statutory right under the proviso (a) to S. 167(2) to be released on bail.