IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Crl. Misc. No. M-37622 of 2010 (O&M) Date of Decision: February 09, 2011 Ram Kishore @ Bantai …Petitioner Versus State of Haryana. … Respondent CORAM: HON’BLE MR. JUSTICE ALOK SINGH 1. Whether reporters of local news papers may be Allowed to see judgment? 2. To be referred to reporters or not? 3. Whether the judgment should be reported in the Digest? Present: Mr. Deepender Singh, Advocate, for the petitioner. Mr. Gaurav Dhir, DAG, Haryana, for the respondent-State. **** Alok Singh, J. (Oral) Present petition is moved seeking bail in case F.I.R. No.141 dated 23.08.2010, under Sections 302/201/34 IPC, registered at Police Station Badshahpur, District Gurgaon. CRM M-37622 of 2010 Learned counsel for the petitioner has vehemently argued that accused-petitioner is seeking bail in view of Section 167(2) of the Code of Criminal Procedure for not filing challan within 90 days from the date of his custody. Undisputedly, petitioner was arrested by the police on 30.08.2010 and was produced before the competent Magistrate on 31.08.2010 and the learned Magistrate vide order dated 31.08.2010 has sent the accused-petitioner into the judicial custody. Bail application, as well as, challan was submitted before the learned Magistrate on 29.11.2010. As per the learned counsel for the petitioner- accused, bail application was moved prior in time on 29.11.2010, however, challan was submitted subsequent to the filing of the bail application on the same day i.e. 29.11.2011. Learned counsel for the petitioner has vehemently argued that in view of dictum of the Apex Court in the matter of Uday Mohanlal Acharya vs. State of Maharashtra reported in (2001) 5 Supreme Court Cases 453, petitioner has every legal right to be enlarged on bail. Section 167(2) proviso (a) (i) & (ii) of the Code of Criminal Procedure are being reproduced herein for the sake of brevity:- 2 CRM M-37622 of 2010 “167(2). The Magistrate to whom an accused person is forwarded under this section may, whether he has or has not jurisdiction to try the case, from time to time, authorize the detention of the accused in such custody as such Magistrate thinks fit, for a term not exceeding fifteen days in the whole; and if he has no jurisdiction to try the case or commit if for trial, and considers further detention unnecessary, he may order the accused to be forwarded to a Magistrate having such jurisdiction: Provided that – (a) the Magistrate may authorize the detention of the accused person, otherwise than in the custody of the police, beyond the period of fifteen days, if he is satisfied that adequate grounds exist for doing so, but no Magistrate shall authorize the detention of the accused person in custody under this paragraph for a total period exceeding, - (i) ninety days, where the investigation relates to an offence punishable with death, imprisonment for life or imprisonment for a term of not less than ten years; (ii) sixty days, where the investigation relates to any other offence, and, on the expiry of the 3 CRM M-37622 of 2010 said period of ninety days, or sixty days, as the case may be, the accused person shall be released on bail if he is prepared to and does furnish bail, and every person released on bail under this sub-section shall be deemed to be so released under the provisions of Chapter XXXIII for the purposes of that Chapter;” From the perusal of Section 167(2) of the Code, as well as, dictum of the Apex Court in the case of Uday Mohanlal Acharya (supra), it is, thus, clear that no Court shall authorize the detention of the accused for a period exceeding 90 days or 60 days if challan (charge-sheet) is not submitted by the police after the investigation within stipulated time. If charge-sheet / challan is not submitted by the police within stipulated time, accused shall be released on bail if he is prepared to and furnishes bail as per the direction of the Court. Now, question arises as to how stipulated period of 90 days or 60 days, as the case may be, counted? Undisputedly, petitioner was produced before the learned Magistrate on 31.08.2010, while he was arrested by the police on 30.08.2010. As per the dictum of the Apex Court in the matter of Chaganti Satyanarayana and others vs. State of Andhra Pradesh reported in 1986(3) 4 CRM M-37622 of 2010 SCC 141, the period of 90 days or 60 days, as the case may be, has to be computed from the date of the order of the Magistrate on remand and not from the date of arrest by the police. Now, period of 90 days in the present case has to be computed from the date of the order of the Magistrate. Now, question comes as to whether the day of the order of the Magistrate shall be excluded for the purpose of computing the period or shall be included. In the opinion of this Court, accused shall be detained for clear 90 days in an offence punishable with death, life imprisonment and for the offence punishable for not less than 10 years and shall be released on bail after expiry of 90 days on 91st day if challan is not filed within stipulated time. Meaning thereby, clear 90 days or 60 days detention is permissible under clause (i) & (ii) of the proviso to Section 167(2) of the Code. In the opinion of this Court, the date of remand must be excluded for the purpose of counting of clear 90 days because next day will start in the midnight of the day when custody is ordered. Since in the present case, custody was directed on 31.08.2010, hence period of 90 days would commence in the intervening night of 31st August and 1st September, 2010. Meaning thereby, first day would be 1st of September, 2010. If clear 90 days are counted from 5 CRM M-37622 of 2010 01.09.2010 then 29.11.2010 would be the last day to submit the challan, it will come to an end in the intervening night on 29.11.2010 and 30.11.2011. Meaning thereby, police was well within its jurisdiction to submit the challan on or before the intervening night on 29.11.2010 and 30.11.2010. In the present matter, undisputedly, bail application was moved on 29.11.2010 and challan was also submitted on 29.11.2010. Since, challan was filed within 90 days, hence petitioner is not entitled to be enlarged on bail under the proviso to Section 167(2) of the Code. Bail application has not been argued on merit, hence, there is no need to touch the merits of the case. Dismissed. Learned counsel for the petitioner seeks liberty to move fresh bail application before the Sessions Judge on merit.. In the event of moving bail application, the same shall be decided without being prejudiced from the order passed today, at its own merit, in accordance with law. February 09, 2011 ( Alok Singh ) vkd Judge 6