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The period of ninety days under Section 167(2) of the Code shall be computed from the date of remand of the accused and not from the date of his arrest :Madhya Pradesh High Court

The Madhya Pradesh High Court in the case of Baludas vs The State Of Madhya Pradesh (MISC. CRIMINAL CASE No. 63866 of 2021) upheld that the period of ninety days under Section 167(2) of the Cr.P.C. shall be computed from the date of remand of the accused and not from the date of his arrest 

Facts of the case: Petition under Section 482 of the Code of Criminal Procedure r/w Section 167(2) of the Code of Criminal Procedure was filed being aggrieved by the order passed by Additional Sessions Judge whereby the Court has dismissed the application filed by the applicant under Section 397 r/w Section 167(2) of Cr.P.C. for granting the default bail to the petitioner.

Yashwant Mali and one Ramniwas submitted a written report before the police station against the applicant and other accused persons stating that Yashwant got acquainted with one Madan, who used to visit their shop. Madan tricked his father and persuaded him to induct Yashwant in the Railway department and introduced them to the applicant Baludas stating that Baludas is a Senior Railway Officer. Thereafter, they took Rs 3,00,000/- within two months from the complainant’s father for the job. Later on, in August 2017, they introduced them to one Madan Gurjar for medical and other formalities. Further, Madan Gurjar took Rs 2,50,000/- from the complainant for the job. After the lapse of time, the complainant inquired and came to know that the whole act is fraud and the accused had committed cheating. Similar thing happened with another complainant Ramniwas.

FIR was registered and the applicant was arrested on 06.09.2021. Thereafter, applicant moved an application under Section 167(2) of Cr.P.C. for grant of default bail as the charge-sheet was not filed within 90 days. The charge-sheet was filed on 07.12.2021 which was 92 day after the date of arrest of the applicant. Counsel for the applicant submitted that even if the date of arrest is 06.09.2021 is excluded, still the charge-sheet was filed on 91 days and not within 90 days, therefore, the applicant is entitled for grant of default bail.

Per contra, counsel for the State submitted that the calculation made by the applicant is incorrect. The period has to be calculated from the date of remand which shall be excluded and the date of filing of the challan shall also be included and if the calculation is made on that basis, then the charge-sheet has been filed within 90 days.

Judgment: While computing the period of 90 days, the day on which the accused was remanded to judicial custody has to be excluded and the day on which the challan is filed in the Court should be included. If application for grant of bail is filed by the accused immediately after completion of 60 days or 90 days or prior to filing the charge-sheet, then the accused is entitled to get benefit of his “indefeasible right” accrued as per provision under section 167(2) proviso. But if 60 days and 90 days have expired and thereafter charge-sheet has been filed and after filing of the chargesheet, if accused files application seeking relief as per provision under Section 167(2) proviso, it cannot be said that the “indefeasible right” accrued to the accused for his release.

The period of ninety days under Section 167(2) of the Code shall be computed from the date of remand of the accused and not from the date of his arrest under Section 57 of the Code and the date of remand of the accused has to be excluded. The court found that there was no illegality in the order passed by the trial Court rejecting the application of the petitioner for default bail. The applicant is not entitled for grant of default bail.

JUDGMENT REVIEWED BY : SHUBHANGI CHAUDHARY

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