FEROZ Vs. STATE

JUDGEMENT

(1.) Whether the day of the arrest of an accused or of his surrender in Court, is to be excluded for the purposes of the precise computation of 90 days under the proviso to sub-sec. (2) of S. 167 of the Cr. P.C., 1973, is the some what ticklish and significant question necessitating this reference to the Division Bench.

(2.) The relevant facts are not in dispute. The petitioner Md. Feroz Khan alias Feroz is accused of offences under Ss. 302, 120B and 34 of the Indian Penal Code. Admittedly he surrendered in Court on the 15th Dec., 1983 and was thereafter formally arrested by the police. It would appear that the investigation of his case was closed on the 13th Mar., 1984 which is the date borne out by the police report under S. 170 of the Cr. P.C., 1973 (hereinafter referred to as the 'Code'). However, it is common ground that the said charge-sheet was submitted in Court on the following day, i.e. 14th Mar. 1984. On the same day the petitioner moved the learned Chief Judicial Magistrate under S. 167(2) of the Code primarily on the ground that the charge-sheet had been submitted in Court beyond the prescribed period of 90 days. The learned Chief Judicial Magistrate, however, rejected the bail petition, and aggrieved thereby the petitioner moved the Court of Sessions at Muzaffarpur. The learned Sessions Judge, while again rejecting the prayer for bail, chose to rely on the judgment of Madhya Pradesh High Court in Jagdish v. State of Madhya Pradesh, 1984 Cri LJ 79 in preference to the observations of the Orissa High Court in Fakira Naik v. State of Orissa, 1983 Cri LJ 1336. Consequently he took the view that the day of the surrender of the accused in Court was to be excluded for the purposes of the computation of the period of 90 days.

(3.) This petition originally came up for hearing before Choudhary Sia Saran Sinha, J. Noticing the significance of the issue and some conflict of judicial precedent the matter was referred to the Division Bench and that is how it is before us now.