# State of West Bengal v. Dinesh

- **Citation:** (2011) 1 ILRA 131
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2011-02-21
- **Case number:** Criminal Revision No. 27 of 2011
- **Bench:** Shri Narayan Shukla
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/state-of-west-bengal-v-dinesh-41805
- **Pages:** 4

## Headnote

Code of Criminal Procedure-Section-167
(2)-Magistrate rejected prayer for bailon ground-chargesheet filed within 90
days from the date of remand-argument
the period of 90 days expired on
17.01.2011 as the date of remand is
20.10.2011-held in view of provision of
Section 9 of General Clauses Act-if the
beginning date excluded-on 18.01.2011
shall
be
the
90th
day-on
which
chargesheet filed-not entitled to claim
the benefit of such beneficiary provision.

Held: Para 10

In light of the aforesaid provision it is
obvious that first date in the series of the
days shall be excluded for the purpose of
calculation of 90 days. Accordingly, in
the present case the period of 90 days
commenced just from the next date of
remand i.e. w.e.f 21.10.2010 and from
the said period 90 days completed on
18.1.2011, therefore, till 18.1.2011 the
revisionist was not entitled to claim the
benefit of the provisions of section
167(2) of the Code .
Case law discussed:
2007 (2) JIC 522 (SC); 2001 (1) JIC 652 (All.);
1995 Supp (3) Supreme Court Cases 221;
(1994) 4 SCC 602; 2010 (71) ACC 690

## Text

1 All] Irfan Ahmad V. State of U.P. and others
131
REVISIONAL JURISDICTION
CRIMINAL SIDE
DATED: LUCKNOW 21.02.2011

BEFORE
THE HON'BLE SHRI NARAYAN SHUKLA,J.

Criminal Revision No. 27 of 2011

Irfan Ahmad

 ...Petitioner
Versus
State of U.P. and others ...Respondents

Counsel for the Petitioner:
Gyan Singh Chauhan

Counsel for the Respondents:
G.A.

Code of Criminal Procedure-Section-167
(2)-Magistrate rejected prayer for bailon ground-chargesheet filed within 90
days from the date of remand-argument
the period of 90 days expired on
17.01.2011 as the date of remand is
20.10.2011-held in view of provision of
Section 9 of General Clauses Act-if the
beginning date excluded-on 18.01.2011
shall
be
the
90th
day-on
which
chargesheet filed-not entitled to claim
the benefit of such beneficiary provision.

Held: Para 10

In light of the aforesaid provision it is
obvious that first date in the series of the
days shall be excluded for the purpose of
calculation of 90 days. Accordingly, in
the present case the period of 90 days
commenced just from the next date of
remand i.e. w.e.f 21.10.2010 and from
the said period 90 days completed on
18.1.2011, therefore, till 18.1.2011 the
revisionist was not entitled to claim the
benefit of the provisions of section
167(2) of the Code .
Case law discussed:
2007 (2) JIC 522 (SC); 2001 (1) JIC 652 (All.);
1995 Supp (3) Supreme Court Cases 221;
(1994) 4 SCC 602; 2010 (71) ACC 690

(Delivered by Hon'ble Shri Narayan Shukla,J.)

1. Heard Mr. Gyan Singh Chauhan,
learned counsel for the revisionist and Mr.
Rajendra
Kumar
Dwivedi,
learned
Additional Government Advocate.

2. The revisionist has challenged the
order dated 18.1.2011 passed by the Chief
Judicial Magistrate, Reabareli in Criminal
Case No.2485 of 2010,whereby the
revisionist's application for bail has been
rejected .

3. Upon perusal of the record, it
appears that the revisionist moved an
application for bail under the strength of
the provisions of section 167(2) of the
Code of Criminal Procedure (Hereinafter
referred to as to the ''Code') stating therein
that from the date of remand no chargesheet was filed within 90 days, therefore
he is entitled for bail. He also supported
his case with the judgment of the Hon'ble
Supreme Court rendered in the cases of of
State of West Bengal Vs. Dinesh
Dalmiya, 2007 (2) JIC 522 (SC) and the
judgment of this Court rendered in the
case of Bijendra Singh @ Pintoo Vs.
State of U.P., 2001 (1) JIC 652 (All).

4. On the other hand relying upon
the judgment of Hon'ble Supreme Court
rendered in the cases of State of M.P. Vs.
Rustam and others, 1995 Supp (3)
Supreme Court Cases 221, Sanjay Dutt
Vs. State (1994) 5 SCC 410 and Hitendra
Vishnu Thakur and others Vs. State of
Maharastra and others , (1994) 4 SCC
602 and the judgment of this court
rendered in the case of Om Prakash
Dwivedi Vs. State of U.P., 2010 (71)
ACC
690,
the
learned
Additional
Government Advocate submitted that in
these cases the Hon'ble Supreme Court as
132 INDIAN LAW REPORTS ALLAHABAD SERIES [2011
well as this court have laid down the
correct law which requires appreciation
before arriving at the conclusion in the
matter.

5.

Thus
main
question
for
consideration is whether the period of 90
days from the date of remand had expired
?

6. Before dealing with the facts of
the case it is pertinent to mention the
provisions of section 167(2) of the Code,
which is extracted below:-

"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, authorise 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 it 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 authorise 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 authorise 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 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 an 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;]

[(b) no Magistrate shall authorize
detention of the accused in custody of the
police under this section unless the
accused is produced before him in person
for the first time and subsequently every
time till the accused remains in the
custody of the police, but the Magistrate
may extend further detention in judicial
custody on production of the accused
either in person or through the medium of
electronic video linkage.]

(C) no Magistrate of the second
class, not specially empowered in this
behalf by the High Court, shall authorise
detention in the custody of the police.

[Explanation I.- For the avoidance of
doubts, it is hereby declared that,
notwithstanding the expiry of the period
specified in paragraph (a), the accused
shall be detained in custody so long as he
does not furnish bail.]

[Explanation II.- If any question
arises whether an accused person was
produced
before
the
Magistrate
as
required under clause (b), the production
of the accused person may be proved by
his signature on the order authorising
1 All] Irfan Ahmad V. State of U.P. and others
133
detention or by the order certified by the
Magistrate as to production of the accused
person through the medium of electronic
video linkage, as the case may be:]

Provided further that in case of
woman under eighteen years of age, the
detention shall be authorised to be in the
custody of a remand home or recognized
social institution.]

[(2-A)
Notwithstanding
anything
contained in sub-section (1) or subsection(2), the officer in charge of the
police station or the police officer making
the investigation, if he is not below the
rank of a sub-inspector, may, where a
judicial Magistrate is not available,
transmit
to
the
nearest
Executive
Magistrate, on whom the powers of a
Judicial
Magistrate
or
Metropolitan
Magistrate have been conferred , a copy
of the entry in the diary hereinafter
prescribed relating to the case, and shall,
at the same time, forward the accused to
such Executive Magistrate, and thereupon
such Executive Magistrate, may, for
reasons to be recorded in writing,
authorise the detention of the accused
person in such custody as he may think fit
for a term not exceeding seven days in the
aggregate;and, on the expiry of the period
of detention so authorised, the accused
person shall be released on bail except
where an order for further detention of the
accused person has been made by a
Magistrate competent to make such order;
and where an order for such further
detention is made, the period during
which the accused person was detained in
custody under the orders made by an
Executive Magistrate under this subsection, shall be taken into account in
computing
the
period
specified
in
paragraph (a) of the proviso to sub-section
(2):

Provided that before the expiry of the
period aforesaid, the Executive Magistrate
shall transmit to the nearest Judicial
Magistrate the records of the case together
with a copy of the entries in the diary
relating to the case which was transmitted
to him by the officer in charge of the
police station or the police officer making
the investigation, as the case may be.)"

7. The facts of the case are that
accused
was
taken
or
remand
on
20.10.2010 and 17.1.2011 no charge-sheet
was filed by the investigating agency;
whereas; on 18.1.2011 it filed the chargesheet by including the date of remand i.e.
20.10.2010 within the score of 90 days,
The revisionist submitted that 90 days had
completed on 17.1.2011 and since no
charge-sheet was filed by that date, the
accused became entitled for bail just after
expiry of 90 days i.e. on 18.1.2011,
therefore, according to the revisionist the
filing of the charge-sheet on 18.1.2011 be
treated as filed after 90 days and thus it
does not make any difference for granting
him bail .

8.

Learned
counsel
for
the
revisionist in support of his submissions
stated that in the case of Rustam (Supra)
one of the days on either side has to be
excluded
in
computing
the
period
prescribed of 90 days, accordingly, he
submitted that the date of remand has to
be included in calculation of 90 days,
accordingly, 90 days completed on
17.1.2011. Those period of 90 days for
the benefit of bail as above has been
provided under the Code of Criminal
Procedure, but nowhere it is provided in
the Code how the period of 90 days would
134 INDIAN LAW REPORTS ALLAHABAD SERIES [2011
be
calculated
for
the
purpose
of
application of the provision of sub section
2 of section 167 of the Code.

9. Section 9 of the General Clauses
Act, 1897 speaks regarding method of
calculation of the period, which is
extracted below:-

"9.Commencement and termination
of time.- (1) In any [General Act] or
Regulation made after the commencement
of this Act, it shall be sufficient, for the
purpose of excluding the first in a series
of days or any other period of time, to use
the word "from", and , for the purpose of
including the last in a series of days or
any other period of time, to use the word
"or".

(2)This section applies also to all
[Central Acts] made after the third days
of January, 1868, and to all Regulations
made on or after the fourteenth day of
January, 1887."

10. In light of the aforesaid
provision it is obvious that first date in the
series of the days shall be excluded for the
purpose of calculation of 90 days.
Accordingly, in the present case the
period of 90 days commenced just from
the next date of remand i.e. w.e.f
21.10.2010 and from the said period 90
days completed on 18.1.2011, therefore,
till 18.1.2011 the revisionist was not
entitled to claim the benefit of the
provisions of section 167(2) of the Code .

11. Indisputedly, on 18.1.2011 the
charge-sheet was filed, therefore, I am of
the view that the charge-sheet was filed
within 90 days, therefore, the benefit of
provision of section 167(2) of the Code is
not available to the revisionist for
granting him bail. Thus I do not find error
in the order impugned .

12. The revision is dismissed. The
revisionist is at liberty to claim for bail on
different ground.
---------
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 11.02.2011

BEFORE
THE HON'BLE SUNIL AMBWANI, J.
THE HON'BLE MRS. JAYASHREE TIWARI, J.

First Appeal From Order No. 379 OF 2011

Sheoraj

 ...Appellant-Plaintiff
Versus
M/s Accord Infrastructure Pvt. Ltd. and
others

 ...Defendant-Respondents

Counsel for the Appellant:
Sri S.O.P. Agarwal

Counsel for the Respondents:
Sri Anoop Trivedi
Sri Shashi Nandan

Code of Civil Procedure-Order 39 rule 1Prayer for interim injunction refused by
Trail Court with specific finding that
inspite of recorded co-tenure holder out
of 3, two brother have sold their share to
the
Defendant-Plaintiff
allowed
the
deceleration for nature of land for non
agricultural purposed-never resisted the
sanction
of
map
by
development
authority-from
khasra-No
agriculture
activities found-even in relief no prayer
for restraining them to create third party
interest-held-Trail Court committed No
illegality
in
rejecting
injunction
Application.

Held: Para 17

In the present case the plaintiff has
neither pleaded nor shown that he was
exercising any ownership right on the