ORDER
1. The State has preferred this petition under section 439(2) Cr.P.C. for cancellation of the bail granted to the respondent herein who is the accused in S.C. No. 165/92 on the file of the I Addl. Sessions Judge, Bangalore.
2. It is seen that the accused preferred I.A. II before the learned Sessions Judge under section 167 of the Cr.P.C. for being released on bail on the ground that the charge sheet had not been filed within 90 days from the date of arrest, by the investigating officer. Despite the objection by the learned Public Prosecutor that the period of 90 days had to be counted from the date on which the accused was produced before the Jurisdictional Magistrate and not from the date of arrest and that the charge sheet had been filed within 90 days from the date on which the accused was produced before the Jurisdictional Magistrate, by the police and despite the fact that the decision of the Supreme Court in was brought to the notice of the learned Sessions Judge, he came to the conclusion that the charge sheet had not been filed within 90 days from the date of arrest or from the date of his remand by the Jurisdictional Magistrate to Judicial Custody and granted bail under Section 167(2)(a)(i) Cr.P.C. It is the legality and correctness of this order that have been questioned by the State in this petition.
3. The records in the case indicate that the accused was apprehended by Head Constable 1822 on 18-2-1992 and he was produced before the Magistrate on 19-2-1992 and he was remanded to Judicial Custody till 4-3-1992. The charge sheet has been submitted to the Court on 18-5-1992. These aspects are not disputed by the learned Advocate for the respondent-accused and they are borne out by the records of the learned Magistrate. Whether the period of 90 days as provided by proviso (a)(i) to Section 167(2) Cr.P.C. has to be counted from the date of arrest of the accused or from the date of first production of the accused before the Magistrate is fairly well settled. The Supreme Court in the decision reported in Chaganti Satyanarayana v. State of Andhra Pradesh, has laid down in an unequivocal terms, the law to the effect that the period of 90 days or 60 days envisaged by proviso (a) to Section 167(2) Cr.P.C. begins to run from the date of order of remand and not from the earlier date when the accused was arrested. It has been observed in paragraph 18 of the judgment at page 2135 as hereunder :-
“The words used in proviso (a) are “no Magistrate shall authorise the detention the accused person in custody”, “under this paragraph”, “for a total period exceeding i.e. 90 days/60 days”. Detention can be authorised by the Magistrate only from the time the order of remand is passed the earlier period of when the accused is in the custody of a police officer in exercise of his powers under section 57 cannot constitute detention pursuant to an authorisation issued by the Magistrate. It, therefore, stands to reason that the total period of 90 days or 60 days can begin to run only from the date of order of remand.”
4. Learned Advocate for the respondent invited my attention to the decision of a learned single Judge of this Court reported in Ramu v. State of Karnataka, ILR 1991 (2) Karnataka 1861. It has no doubt been held in this decision that the period during which the police had kept surveillance over accused in the hospital before formal arrest of the accused and production before the Magistrate should also be counted for purposes of finding out whether the charge sheet had been filed within the time prescribed under the aforesaid section. But this decision runs practically contrary to the decision of the Supreme Court referred to above and in a later decision of this Court reported in Shivanna v. State Via Arasikere Rural Police, 1992 Cr LJ 2287 it was been held following the decision of the Supreme Court that the period of 90 days should be counted from the date on which the accused was remanded and not from the date of arrest. The decision of the learned single Judge in Ramu’s Case relied upon by the learned Advocate for the accused was rendered after the decision of the Supreme Court in Chaganti Satyanarayana’s case adverted to above. Nevertheless no reference has been made to this decision by the Apex Court in Ramu’s case. When the Apex Court has laid down the law in this regard and when the decision of the learned single Judge relied upon by the learned counsel for the respondent practically runs contrary to that decision, it is needless to say that this decision cannot be relied upon to over come the mandate of the decision of the Supreme Court.
5. An attempt was also made by the learned Advocate for the respondent to derive some support for his proposition that the date of arrest has to be taken note of for calculating the 90 days, on the decision of the Supreme Court reported in Rajnikant Jivanlal Patel, Petitioners v. Intelligence Officer, Narcotic Control Bureau, New Delhi, Respondent, . There is practically nothing in this decision to say that the 90 days period had to be counted from the date of arrest. No proposition contrary to the decision of the Supreme Court in Chaganti Satyanarayana’s case has been laid down in this decision. Therefore, this decision cannot be pressed into service by the learned counsel for the respondent to canvass that the date of arrest shall count for the purposes of counting the period of 90 days, to find out whether the charge sheet had been filed within the time prescribed under section 167(2) Cr.P.C.
6. An attempt was also made by the learned counsel for the respondent to contend that it is not the date of submission of the charge sheet that should be taken note of but it is the date on which the copies of the documents referred to in Section 173 Cr.P.C. are furnished to the accused and if so counted, the documents in the present case have been supplied to the accused long after the expiry of 90 days from the date of first production of the accused before the Magistrate and in that view of the matter, it is to be held that his client is entitled to be released on bail. He cited the decision of a Learned single Judge of the Madhya Pradesh High Court reported in Dodha @ Chainsai v. State of M.P., 1992 (2) Crimes 1171, Govardhan v. State of M.P., 1993 (3) Crimes 104. It is no doubt true that in these decisions, the learned single Judge of the Madhya Pradesh High Court has held that for the purposes of counting 90 days in relation to Section 167(2) of the Cr.P.C. it is not the date of submission of the charge sheet, but the date on which the copies of the challan papers were furnished to the accused that had to be taken note of. With due respect to the learned single Judge there is practically no warrant to hold that 90 days has to be counted up to the date of furnishing of the copies, there is absolutely no mention in Section 167 of the Cr.P.C. to say that submission of the charge sheet is not expected to be taken note of and the date of supply of copies of the documents referred to in Section 173(5) Cr.P.C. should be within 90 days from the date of first production of the accused before the Magistrate and that if the documents are not supplied within 90 days, the accused is entitled to be released on bail. There is practically no reasoning in these two decisions to arrive at the aforesaid conclusion. Hence with due respect to learned single Judge, I am not at all persuaded to follow these two decisions cited by the learned counsel for the respondent.
7. Therefore, it is clear that what is to be seen is whether he charge sheet has been submitted within 90 days from the date of production of the accused for the first time before the Magistrate. It is not disputed by the learned counsel for the respondent that the charge sheet had in fact been filed within 90 days from 19-2-1992, the date on which the accused was produced for the first time before the Magistrate. The calculation made by the State Public Prosecutor in para 5 of the petition is perfectly alright and the charge sheet has been filed well within 90 days from the date of first remand of the accused and therefore there was absolutely no scope for the learned Sessions Judge to have directed release of the accused on the ground that the charge sheet had been filed beyond 90 days.
8. The operative portion of the order of the learned single Judge also makes a little curious reading. It reads :-
“As the Investigating Officer has not filed the charge sheet against the accused within 90 days from the date of his arrest or from the date of his remand by the Jurisdictional Magistrate to Judicial custody.”
9. It cannot be made out whether the learned Sessions Judge was trying to count 90 days from the date of arrest or from the date of remand. If the date of arrest is 18-2-1992 and the date of production of the accused before the Magistrate is 19-2-1992 and if the law mandates that the date of production before the Magistrate should be taken note of for counting 90 days, the learned Sessions Judge could not have adverted to the filing of the charge sheet being beyond 90 days from the date of arrest or from the date of remand because it cannot be disputed that if the date of production of the accused before the learned Magistrate is taken note of and 90 days is counted from that date, the submission of the charge sheet would be within the period of 90 days as enjoined by Section 167 of Cr.P.C. Therefore, it is clear that the bail granted to the respondent-accused should be cancelled.
10. However, as the learned Sessions Judge has not considered the aspect whether the accused is entitled to be released on bail on any other ground; the accused is at liberty to file an appropriate application before the learned Sessions Judge for canvassing that he is entitled to be released on bail on other grounds. If such an application is filed, the learned Sessions Judge shall consider it on merits and dispose of the same.
11. In the result, the bail granted to the respondent is cancelled and it is directed that he shall be taken to the custody of the Court. The learned Counsel for the respondent states that he would surrender the accused before the Court. If he surrenders, he shall be taken into custody and if not, non-bailable warrant shall be issued against him and thereafter his presence is secured and thereafter, he shall be taken into custody.
In these terms, the petition is allowed.
12. Petition allowed.