Lakhey s/o Rahat Hussain vs State

Kamleshnar Nath, J.—Heard learned counsel for the parties.

In this case, under Section 307, I. P. C., the bail application was rejected on merits by this Court on 371987.

An application for bail was made to the Court of the Magistrate concerned on 1881987. The simple ground was that the applicant having been taken into custody on 2051987, and having remained in jail custody till 1781987, the statutory period of 90 days, within the explanation to Section 167 (2), Cr. P. C., had expired, but the chargesheet had not been submitted till then. The material on record shows that the bail application was made on 1881987. There is no denial of the averment in para 11 of the application that the bail application was put up before the Magistrate for hearing at 2 p. m. that day, but orders were not passed at that time. The matter was taken up at 4 p. m,, and it was at that time that the chargesheet was filed in the court. The applicant''s learned counsel says that on the expiry of the statutory period of 90 days on 1781987, the applicants had exercised his option to be enlarged on bail by making the application dated 1881987 in the earlier part of the day. The learned Sessions Judge, while rejecting the application, held that the chargesheet had been submitted on the 89th day. That is perhaps on the basis of exclusion of the first day of custody, i. e., 20519S7. That is incorrect, for a Division Bench of this Court in the case of Subhas Bhandari v. State, 1986 LLJ 271, para 15 held that the date on which the order of remand is passed has to be counted within the period prescribed for tiling the chargesheet. That being so, the, chargesheet was filed beyond the expiry of 90 days, while in the meantime the applicant had already exercised his option, and had submitted his willingness to proceed on bail.

The applicant shall be enlarged on bail on his executing a personal bond and furnishing two sureties, in the like amount each, to the satisfaction of C. J. M. concerned.