RAJASTHAN HIGH COURT
JUSTICE Pankaj Bhandari
BASRAM Vs. STATE OF RAJASTHAN THR. P.P. On 7 March 2018
Law Point:
Section 304B — Bail — Dowry Death — Charge sheet not filed within period of 90 days — Date of remand included in calculating period of 90 days or 60 days — Holiday on last day would not extend period of limitation — Accused petitioner released on bail with conditions.
JUDGEMENT
Petitioner has filed this bail application under Section 439 of Cr.P.C. read with Section 167(2) of Cr.P.C.
2. F.I.R. No. 220/2017 was registered at Police Station, Ramghar Pachwara, District Dausa for offence under Section 304-B of I.P.C.
3. It is contended by Counsel for the petitioner that petitioner in this case was arrested on 6.11.2017. He was produced before the learned Magistrate who remanded him in custody on 7.11.2017. Challan was filed on 5.2.2017. On 5.2.2017 itself petitioner moved an application under Section 167(2) of Cr.P.C. for default bail.
4. It is contended that charge-sheet was not filed within a period of 90 days and petitioner was entitled to bail, in view of provisions of Section 167(2) of Cr.P.C.
5. Counsel for the petitioner has placed reliance on Chaganti Satyanarayana & Ors. v. State of Andhra Pradesh, 1986 (SLT SOFT) 13=1987, Volume 1, Recent Criminal Reports, Page 40, wherein, Apex Court has held that period of 90 days or 60 days as the case may be begins to run from date of order of remand and not from date of arrest. The period during which the accused remained in custody of Police Officer in exercise of power under Section 57 of Cr.P.C. cannot constitute detention.
6. Counsel for the petitioner has also placed reliance on Rakesh Kumar Paul v. State of Assam, 242 (2017) DLT 79 (SC)=VI (2017) SLT 455=III (2017) DLT (CRL.) 879 (SC)=2017 (15) SCC 67, where challan was not put up within statutory period of 60 days, default bail was granted. In that case, the day on which accused was remanded was included for calculating the period of 60 days.
7. It is also contended that if there are two views, the earlier view has to be accepted, as the succeeding ones would fall in the category of per incuriam. In support of this contention Counsel for the petitioner has placed reliance on Sandeep Kumar Bafna v. State of Maharashtra, III (2014) SLT 540=II (2014) CCR 186 (SC)=2014 (2) RCR (Criminal) Page 416.
8. Counsel for the complainant-respondent has opposed the bail application. His contention is that the date of remand is to be excluded.
9. Counsel for the complainant-respondent has placed reliance on “State of M.P. v. Rustam & Ors., 1995 SCC (Criminal) CRA 830”.
10. It is also contended that if last day happens to be a holiday charge-sheet can be filed on the succeeding day. That is, if the period expires on holiday, the same has to be excluded.
11. Counsel for the complainant-respondent has also placed reliance on Ravi Prakash Singh @ Arvind Singh v. State of Bihar, II (2015) SLT 502=2015 (2) RCR (Criminal) 89, wherein, Apex Court has held that the day on which accused was remanded should be excluded and the day on which challan is filed should be included.
12. Counsel for the State has nothing to add and supports the arguments advanced by the Counsel for the complainant-respondent.
13. I have considered the contentions.
14. Chaganti Satyanarayana & Ors. v. State of Andhra Pradesh (supra), happens to be the earlier view, wherein, Apex Court has held that period of 90 days or 60 days as the case may be begins to run from date of order of remand. The Apex Court while dealing with the case State of M.P. v. Rustam & Ors. (supra), did not take note of “Chaganti Satyanarayana & Ors.” (supra) and thus, in view of Sandeep Kumar Bafna v. State of Maharashtra (supra) the earlier view has to be accepted. Even otherwise, the Apex Court in Rakesh Kumar Paul v. State of Assam (supra), which is passed by Bench of three Judges, the date of remand was included in calculating the period of 90 days.
15. In the present case in hand, if we include the date of remand then period of 90 days expired on 4.2.2018 and application for default bail was moved on 5.2.2018 and on the same day charge-sheet was also filed.
16. This Court in the case of Hari Singh v. State of Rajasthan, 1998, Cr.LJ Page 4641, Criminal Law General, has held that the Provisions of Section 10 of the General Clauses Act would not be applicable to provisions of Section 167(2) of Cr.P.C. and if the period of 60 or 90 days expires on holiday and challan is submitted on the next date, it cannot be considered to have been filed in the prescribed time.
17. In view of the above, I am of the considered view that date of order of remand is to be included in calculating the period of 60 or 90 days as the case may be and holiday on last day would not extend the period of limitation.
18. Consequently, I deem it proper to allow the bail application.
19. This bail application is accordingly allowed and it is directed that accused petitioner shall be released on bail provided he furnishes a personal bond in the sum of Rs. 50,000 (Rupees Fifty Thousand only) together with two sureties in the sum of Rs. 25,000 (Rupees twenty five thousand only) each to the satisfaction of the learned Trial Court with the stipulation that he shall appear before that Court and any Court to which the matter is transferred, on all subsequent dates of hearing and as and when called upon to do so.
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