ORDER
Surinder Sarup, J.
1. The petitioner, along with other persons is an accused in a criminal case FIR No. 301 of 1998 under Sections 307/34/120-B IPC registered at Police Station, Palampur, on 25-10-1998.
2. He along with co-accused Shiv Karan Singh had applied for bail to this Court but his prayer was rejected by an order dated 24th November, 1998, in case No. Cr. M. P. (M) 352/98. Subsequently, another application was preferred by him before this Court which was dismissed on 1st January, 1999. He made yet another attempt by filing Cr. M.P. (M) No. 29 of 1999 and the following order was passed on 29th January, 1999:
Heard.
During the course of hearing, the learned counsel for the petitioner has prayed that he be permitted to withdraw the present petition with liberty to move the Magistrate under Section 167 (2), proviso, since the requisite challan is stated not to have been filed within the stipulated period of 90 days. Leave granted.
The present petition is dismissed as withdrawn.
3. In view of the order passed by this Court, referred to above, the petitioner applied for bail before the learned Addl. Chief Judicial Magistrate, Palampur, on 29th January, 1999, but his plea on the basis of the provisions of Section 167 (2) Cr. P.C. was not accepted by that Court and the application was dismissed on the next day, that is, 30th January, 1999. It is in these circumstances that the present application for bail has again been moved by him before this Court. The grounds contained therein, inter alia, are that the petitioner was entitled to bail as provided under Section 167(2) Cr. P.C. inasmuch as the learned Addl. Chief Judicial Magistrate, Palampur, had no power to remand him to judicial custody after the expiry of the mandatory period of 90 days as provided therein; that he is seriously ailing and is under treatment for various diseases including hypertension at various hospitals, including the P.G.I., Chandigarh and that further detention of the petitioner beyond the period of 90 days, according to the Criminal Procedure Code, can only be ordered under Section 309 of the Cr. P.C. after taking cognizance of the offence or after the commencement of the trial.
4. At the time of hearing it has been submitted by the learned counsel for the petitioner that although in the instant case the challan was put in Court on 22nd January, 1999, it was returned to the Investigating Officer by the learned Addl. Chief Judicial Magistrate because it was incomplete. On the date when the petitioner filed the application for being released under the provisions of Section 167(2) Cr. P.C. on 29th January, 1999, no cognizance had been taken of the offence by the Court till that date. Therefore, according to the learned counsel, the petitioner was entitled to be released on bail as of right, the provisions thereof being mandatory irrespective of the gravity of the offence. Elaborating his argument further, the learned counsel has submitted that even subsequent filing of the challan cannot defeat the right of the petitioner to be released on bail,
5. In support of his submissions learned counsel for the petitioner has cited Matchumari China Venkatareddy v. State of Andhra Pradesh 1994 Cri LJ 257 in which it has been laid down that on the failure to.file complete charge sheet/ police report within the prescribed period (Section 167 Cr. P.C.) a right is conferred on the accused to be released on bail and Court is not competent to take cognizance of offence of incomplete charge sheet. He has also referred to Khimbhadhur Palshiram Thapa v. State of Maharashtra 1989 Crimes (3) 543 (Bombay High Court). In this authority the words “taking cognizance of offence” have been interpreted so as to mean that mere mechanical adjournment of a case after a charge-sheet is filed is neither an enquiry nor taking cognizance of the case. Reliance has also been placed on Narayandas Bhagwandas Madhavdas v. The State of West Bengal AIR 1959 SC 1118: (1959 Cri LJ 1368) wherein it has been held that cognizance is deemed to be taken when complaint is filed and not when search warrant or warrant of arrest is issued. In the case of Krishna Pillai v. T. A. Rajendran 1990 SCC (Cri) 646 it has been held that date of filing of complaint cannot be treated as the date of taking cognizance, which is a different stage altogether. Lastly, the learned counsel has referred to Union of India v. Thamisharasi 1995 (2) Recent Criminal Reports 531 (SC). That was a case under the N.D.P.S. Act and on facts it was held that where the total period specified under Section 167(2) Cr. P.C. had expired and complaint under the said Act had not been filed, the accused was entitled to be released on bail under Section 167 (2) Cr. P.C.
6. On the other hand, the learned Assistant Advocate General, appearing on behalf of the State, has drawn the attention of this Court to two recent rulings of the Apex Court. In State through CBI v. Mohd. Ashraft Bhat (1996) 1 SCC 432 : (1996 AIR SCW 237), it was held that the right of the accused to be released on bail is enforceable only prior to the filing of the challan and is extinguished on the challan being filed. In Dr. Bipin Shantilal Panchal v. State of Gujarat (1996) 1 SCC 718 : (1996 Cri LJ 1652) the Apex Court has held that if an accused person failed to exercise his right to be released on bail for the failure of the prosecution to file the charge-sheet within the maximum time allowed by way, he cannot contend that he had an indefeasible right to exercise it at any time notwithstanding the fact that in the mean time the charge sheet is filed.
7. I have given careful thought to the respective submissions made and canvassed on behalf of the petitioner as well as of the State. The indisputable facts herein are that having failed in his attempt to get bail from this Court on two occasions, the petitioner applied for the third time on the ground that the challan in the case has not been filed in the Court within the mandatory statutory period of 90 days as envisaged under Section 167 Cr. P.C. He then chose to withdraw the third bail application with liberty to move the Magistrate under the proviso to Section 167 (2) Cr. P.C. A perusal of the order of the learned Addl. Chief Judicial Magistrate, Palampur, dated 30th January, 1999, shows that the challan was in fact filed on 22nd January, 1999, within the period of 90 days. However, it was returned on the next day, that is, 23rd January, 1999 because copies of challan were less in number than required and identification slip of co-accused Sanjay Singh was also not on file. In my considered view, the requirement of law was substantially complied with when the challan was in fact filed in Court within the period of 90 days, that is, on 22nd January, 1999. It was returned only to make good the number of copies as also to furnish identification slip of co-accused Sanjay Singh. Therefore, it cannot be said that in the present case the challan was not filed within the stipulated period.
8. Even otherwise, as noticed in the order of the learned Addl. Chief Judicial Magistrate, Palampur, in view of the decisions of the Apex Court in AIR 1986 SC 2110 and AIR 1992 SC 1768 : (1992 Cri LJ 2768) the period of 90 days has to be Computed from the date of remand order when first made. In the present case the petitioner was arrested on 26-10-1998 and was remanded for the first time to police custody from the next date, that is, 27-10-1998. Thus, computed from that date the statutory period of 90 days expired on 24-1 -1999. That happened to be a Sunday and the next two days, that is, 25th and 26th January, 1999, were gazetted holidays. On 27th and 28th January, 1999, the learned Addl. Chief Judicial Magistrate was on casual leave. The petitioner moved this Court for the third time on 29-1 -1999 and on being permitted to withdraw his bail application he applied for bail on the above ground before the learned Addl. Chief Judicial Magistrate, on that very day itself. Thus, taking the sequence of dates referred to above in detail, the ground that the challan was not filed during the period of 90 days is not available to him.
9. In view of the above reasons, the authorities relied upon by the learned counsel for the petitioner and referred to above are distinguishable on facts and are not applicable. On the other hand I find force in the submissions of the learned Asstt. Advocate General that in view of the rulings of the Apex Court cited by him and referred to above, the petitioner has lost his right to be granted bail after the filing of the challan in the competent Court.
10. For the reasons recorded above, there is no merit in this application and the same is consequently dismissed.
Cr. M.P. No. 30 of 1999
In view of the disposal of the main petition, this application has become infructuous and the same is accordingly disposed of.