JUBRAJ BARIHA Vs. STATE OF ORISSA

JUDGEMENT

(1.) This is an application under Section 482 Criminal Procedure Code (for short the Cr. P.C.) filed by the petitioner who is implicated in a case under Section 302. Indian Penal Code (for short, the I.P.C.T1) in G.R Case No. 53 of 1996 on the file of the S.D.J.M. Padampur.

(2.) The brief facts leading to this application are that the Investigating Officer failed to file Final Form as required under Section 173, Cr. P.C. within the stipulated period of 90 days. The petitioner has been released on bail by the learned S.D.J.M. taking recourse to provision to Section 167 (2) of the Code. Against the aforesaid order of the learned Magistrate the State filed an application before the learned AddI. Sessions Judge. Bargarh under Section 439(2) Cr. P.C. for cancellation of bail so granted to the petitioner on the ground that the learned Magistrate committed an illegality in. computing the period of 90 days. Hence the statutory provision under Section 167(2). Cr. P.C. cannot be applied to the present case because the accused was sent to the jail custody on 28-3- 1996 and that date should have been excluded while computing the period and 90 days should have been counted thereafter. It shows that charge-sheet was filed on 26-6-1996, which is the last date of computation of 90 days. Hence, according to the prosecution the petitioner could not have been released on bail under Section 167(2) Cr. P.C.

(3.) The case of the petitioner in nutshell, is that he was taken to judicial custody on 28-3-1996 and as such charge-sheet was to be submitted by the police on or before 25-6-1996 and as the police did not submit the charge-sheet within that period, the petitioner has accrued a right under Section 167(2) Cr. P.C. and there is no illegality committed by the S.D.J.M. in enlarging him on bail. The further case of the petitioner is that the learned Sessions Judge committed gross illegality by excluding the date of remand for the purpose of computation of the period of 90 days and erroneously cancelled the bail granted, which is an injustice, manifestly done to him. The moot point before this Court is whether the learned AddI. Sessions Judge was right in excluding the date of remand for computing the period of 90 days.