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Judgment
A question of utmost importance and frequent occurrence is raised in this petition filed by the State seeking cancellation of bail granted to A-4, A-6, A-9, A-10, A-11, A-12, A-13, A-20, A-33, A-34 and A-35 in Crime No. 77/85 of Paruchuru Police Station, the respondents herein, by the III Additional Munsif Magistrate, Chirala, by his order dt. 17th October 1985 in Crl.W.P. No. 1466 of 1985 on his file under S. 167(2) of the Cri.P.C.
On 17-7-1985 between 7.00 a.m. and 9.00 a.m., a rioting, the magnitude of which is never heard in recent times, took place in and around Madigawada of Karamchedu village. In the course of the said rioting, as many as five persons died and twenty others were injured. Some of the residential huts situate at the said Madigawada were either destroyed or damaged and properties of some of its inhabitants were looted. All the five deceased were Madigas. The other injured as also those deprived of their abodes and relieved of their properties are also Madigas.
As many as 94 accused including the respondents herein have been charge-sheeted in that behalf by the Deputy Superintendent of Police, Crime Branch, C.I.D. Hyderabad before the III Additional Munsif Magistrate, Chirala, for the offences punishable under sections 120-B, 148, 302, 307, 355, 395, 454, 449 and 427 read with S. 149 of the Penal Code and under S. 7(1) of the Protection of Civil Rights Act.
The respondents were arrested by the Police of the C.B. C.I.D. on 19-7-1985 between 10.30 a.m. and 12 Noon and were produced before the III Additional Munsif Magistrate, Chirala, on 20-7-1985 for the purpose of remand. The learned Magistrate remanded them to judicial custody for a period of fifteen days in the first instance, and extended the remand, from time to time, up to 18-10-1985. The Investigating Officer filed into the Court the charge-sheet against the accused on 17-10-1985 at 10.30 a.m. along with all the relevant documents and records as envisaged under S. 173 of the Cr.P.C. On the very same day the counsel far the respondents, however, filed Crl.M.P. No. 1466 of 1985 before the learned Magistrate seeking enlargement of the respondents on bail under S. 167(2)(a) on the ground that 17-10-1985 happened to be the 91st day from the date of their arrest by the Police.
The petition was stoutly opposed by the State contending that the charge-sheet filed by the Investigating Officer on 17-10-1985 was well within the permissible statutory period of 90 days from the date of production of the respondents before the Magistrate and their detention authorised by the learned Magistrate. The learned Magistrate, however, upheld the plea of the respondents and released them on bail holding that the charge-sheet was filed by the Investigating Officer on the 91st day from the date of arrest of the respondents by the Police. The above Miscellaneous Petition is, therefore, filed by the State seeking cancellation of the bail granted to the respondents by the learned Magistrate on the ground that the order passed by the learned Magistrate is illegal and contrary to the plain meaning and intendment of S. 167(2) of the Cr.P.C. If 19-7-1985, the date of arrest of the respondents is liable to be excluded for the purpose of computation of the maximum authorised period of detention of 90 days under S. 167(2)(a)(i) of the Cr.P.C. the charge-sheet filed by the Investigating Officer on 17-10-1985 was well in time, it being the 90th day from the date of production of the respondents before and their detention authorised by the learned Magistrate.
To appreciate the rival contentions of the parties, Sections 57 and 167 of the Cr.P.C., 1973 may be usefully extracted hereunder :
"S. 57 :- No Police Officer shall detain in custody a person arrested without warrant for a longer period than under all the circumstances of the case is reasonable, and such period shall not, in the absence of a special order of a Magistrate under S. 167, exceed twenty-four hours exclusive of the time necessary for the journey from the place of arrest to the Magistrate''s Court".
S. 167 :- Procedure when investigation cannot be completed in twenty-four hours :
(1) Whenever any person is arrested and detained in custody and it appears that the investigation cannot be completed within the period of 24 hours fixed by S. 57, and there are grounds for believing that the accusation or information is well founded, the officer in charge of the police station or the police officer making the investigation, if he is not below the rank of sub-inspector, shall forthwith transmit to the nearest Judicial Magistrate a copy of the entries in the diary, hereinafter prescribed relating to the case, and shall at the same time forward the accused to such Magistrate.
(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 15 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 para 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 90 days, or sixty days, as the case may be, the accused person shall be released on bail if he is prepared to and does furnish bail, and every person released on bail under this sub-section shall be deemed to be so released under the provisions of Chap. XXXIII for the purpose of that Chapter.
(b) No Magistrate shall authorise detention in any custody under this section unless the accused is produced before him;
(c) No Magistrate of the second class, not specifically 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 para (b), the production of the accused person may be proved by his signature on the order authorising detention.)
(2A) Notwithstanding anything contained in sub-section (1) or sub-section (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 sub-section, 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.
(3) A Magistrate authorising under this section detention in the custody of the police shall record his reasons for so doing.
(4) Any Magistrate other than the Chief Judicial Magistrate making such order shall forward a copy of his order, with his reasons for making it, to the Chief Judicial Magistrate.
(5) If in any case triable by a Magistrate as a summons case, the investigation is not concluded within a period of six months from the date on which the accused was arrested, the Magistrate shall make an order stopping further investigation into the offence unless the officer making the investigation satisfies the Magistrate that for special reasons and in the interests of justice the continuation of the investigation beyond the period of six months is necessary.
(6) Where any order stopping further investigation into an offence has been made under sub-section (5), the Sessions Judge may, if he is satisfied, on an application made to him or otherwise, that further investigation into the offence ought to be made, vacate the order made under sub-section (5) and direct further investigation to be made into the offence subject to such directions with regard to bail and other matters as he may specify."
It may be noted that the new Cr.P.C. came into force on and from the 1st of April, 1974. S. 484(1) of the new Code repealed the old Cr.P.C., 1898. S. 57 of the new Code corresponds to S. 61 of the old Code and both the sections are couched in identical language. S. 167 of the new Cr.P.C. corresponds to S. 167 of the old Code with a drastic departure therefrom.
Under S. 61 of the old Code, a person arrested without warrant could not be detained in custody by a police officer for a period exceeding twenty-four hours exclusive of the time necessary for the journey of the arrested person from the place of arrest to the Magistrate''s Court. S. 167(1) required the police officer to forward the accused to the nearest Magistrate if the investigation could not be completed within the period of twenty-four hours fixed by S. 61 and if there were grounds for believing that the accusation levelled or information received, against him was well-founded. Sub-section (2) of S. 167 provided :
"The Magistrate to whom the 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. If he has not 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."
The Magistrate to whom the accused was forwarded could remand him to police custody or jail custody for a term not exceeding fifteen days in the whole under S. 167(2). Even the Magistrate who had jurisdiction to try the case could not remand the accused to any custody beyond the period of fifteen days under S. 167(2) of the old Code. There was no other section which in clear or express language conferred this power of remand on the Magistrate beyond the period of fifteen days during the pendency of the investigation and before taking of cognizance on the submission of the charge-sheet, of the offences set out therein. S. 344, however, enabled the Magistrate to postpone the commencement of any enquiry or trial for any reasonable cause and also to remand the accused if in custody, for a term not exceeding fifteen days at a time. The explanation to S. 344 of the old Code reads as follows :
"If sufficient evidence has been obtained to raise a suspicion that the accused may have committed an offence, and it appears likely that further evidence may be obtained by a remand, this is a reasonable cause for a remand."
Various High Courts had taken the view that a Magistrate having jurisdiction to try a case could remand an accused to jail custody from time to time during the pendency of the investigation in exercise of the power conferred under S. 344.
In Gouri Shankar Jha Vs. The State of Bihar and Others, , Shelat, J., speaking on behalf of the Supreme Court observed :
"In cases falling under S. 167, a Magistrate undoubtedly can order custody for a period at the most, of fifteen days in the whole and such custody can be either police or jail custody. S. 344, on the other hand, appears in Chapter XXIV which deals with inquiries and trials. Further, the custody which it speaks of if not such custody as the Magistrate thinks fit as in S. 167, but only jail custody, the object being that once an inquiry or a trial begins it is not proper to let the accused remain under police influence. Under this section, a Magistrate can remand an accused person to custody for a term not exceeding fifteen days at a time provided that sufficient evidence has been collected to raise a suspicion that such an accused person may have committed an offence and it appears likely that further evidence may be obtained by granting a remand."
The learned Judge added :
"The fact that S. 344 occurs in the Chapter dealing with inquiries and trials does not mean that it does not apply to cases in which the process of investigation and collection of evidence is still going on."
In Matabar Parida, Bisnu Charan Parida, Batakrushna Parida and Babaji Parida Vs. The State of Orissa, , quoting the above observation of Shelat, J., with approval Untwalia, J., said :
"It would thus be seen that under the old Code the Magistrate was given the power under S. 344 to remand an accused to jail custody as the section was also applicable to cases in which process of investigation and collection of evidence was going on. In other words, the power of remand by the Magistrate during the process of investigation and collection of evidence was an integral part of the process. The power was meant to be exercised, whenever necessary, to aid the investigation and collection of further evidence."
It may thus be noted that under S. 167(2) of the old Code, an accused could not be remanded to any custody beyond a period of fifteen days. The period was found to be too short for investigation into the cases of serious and ghastly nature and the police naturally insisted on keeping the accused in custody. S. 344 of the old Code was freely resorted to by the police to secure remand of the accused beyond fifteen days though in fact S. 344 was intended to operate only after the Magistrate had taken cognizance of an offence on submission of a charge-sheet under S. 173 of the old Code and not while investigation was still in progress. The liberal use of S. 344 received judicial sanction and more often than not it led to serious abuse as the arrested person could be kept in custody indefinitely while the investigation went on in a leisurely fashion. It was naturally felt that a time limit should be put on the powers of the police to obtain remand of an accused person while the investigation was going on and at the same time to fix a longer time limit than fifteen days instead of countenancing liberal use and at times, abuse of S. 344.
Section 167 of the new Code is enacted to achieve both the purposes. A time limit of sixty days was, therefore, fixed by adding proviso (a) to sub-section (2) of S. 167 of the new Code. Provisos (b) and (c) to sub-section (2) and an Explanation after proviso (c) are also newly added by the new Code of 1973. The proviso (b) makes it obligatory to produce the accused before the Magistrate at the time of making remand while proviso (c) prevents a Magistrate of the second class from detaining the accused in police custody unless authorised by the High Court to do so. The Explanation added after proviso (c) requires proof of the factum of production of the accused before the Court in case of doubt. The Magistrate can authorise detention of the accused in the custody of the police for a term not exceeding fifteen days in the whole under sub-section (3). He shall however record his reasons for so doing. Sub-secs. (5) and (6) dealing with the investigation into cases triable as summons cases are also new.
Sub-Section (5) puts a time limit for continuation of the investigation after six months from the date on which the accused was arrested unless the investigating officer satisfied the Magistrate regarding its continuation beyond such period for special reasons or in the interest of justice. Sub-section (6) authorises the Sessions Judge when approached or otherwise to vacate the order of the Magistrate stopping investigation and direct its continuance if he is satisfied in that respect subject to such directions with regard to bail. The provisions are intended to afford protection to the accused against unnecessary harassment at the hands of the investigating police officers on account of their leisurely working. Sub-section (2-A) has been newly added by Act 45 of 1978. It empowers an Executive Magistrate on whom the powers of a Judicial Magistrate or Metropolitan Magistrate have been conferred to make an order for remand of an accused for a period not exceeding seven days in cases where the Judicial Magistrate is not available.
12 In Natabar Parida v. State of Orissa 1975 Cri LJ 1212 (supra) adverting to the limited period of remand of sixty days enacted in proviso (a) of sub-section (2) of S. 167, their Lordships of the Supreme Court observed :
"But if it is not possible to complete the investigation within a period of sixty days then even in serious and ghastly types of crimes, the accused will be entitled to be released on bail. Such a law may be a "paradise for the criminals", but surely it would not be so, as some times it is supposed to be because of the Courts. It would be so under the command of the Legislature."
The observations of the Supreme Court led to amendment of the proviso (a) to sub-section (2) of S. 167 by Act 45 of 1978. By the amendment the Magistrate is empowered to authorise detention of the accused in custody pending investigation for an aggregate period of 90 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 or more and up to 60 days in any other case. The amendment is intended to remove difficulties which had been actually experienced in relation to the investigation into offences of a serious nature as pointed out by the Supreme Court. By Act 45 of 1978 original Explanation in the Code of 1973 has been numbered as Explanation-II and Explanation-I has been added to clarify that when the accused person does not furnish bail he would continue to be in detention notwithstanding the expiry of the period specified in the proviso (a).
The provisions of S. 167 of the new Code are to be read as supplementary to those contained in S. 57. The object of these provisions of law is to see that a person arrested by the police is brought before a Magistrate with the least possible delay in order to enable the latter to judge if such person has to be further kept in custody and also to enable such person to make any representation if he may wish to make in the matter. By these provisions, it is also intended to prevent the possible abuse by the police of their powers in trying to make discoveries of crime by means of duress, terror, and wrongful confinement. S. 167. also authorises detention in police custody of the arrested person for a period not exceeding fifteen days.
The Magistrate authorising such detention shall record his reasons for so doing. By these provisions it is intended to ensure expeditious investigation into cases not lasting more than 90 days where they relate to grave offences punishable with death, imprisonment for life or imprisonment for a term of not less than ten years or more and up to 60 days where they relate to other offences. If the investigation into a case is not completed and the charge-sheet is not filed before the expiry of the period of detention of the accused for 90 days or 60 days as the case may be the accused is entitled to be released on bail under the proviso (a) to S. 167(2) of the Cr.P.C., 1973. No discretion whatsoever is left to the Magistrate and it is obligatory on his part to release the accused on bail provided the accused furnishes bail.
As observed by Bhagwati, J. as he then was, in Hussainara Khatoon and Others Vs. Home Secretary, State of Bihar, Patna, the Magistrate owes a duty under the proviso (a) to S. 167(2) of the Code to inform the accused where he has been in detention for 90 days or 60 days as the case may be pending investigation into the case registered against him that he is entitled to be released on bail provided he furnishes bail. No formal or written application for bail need be filed. Even an oral application can be entertained. It is no doubt provided that the accused released on bail thereunder shall be deemed to be so released under the provisions of Chap. XXXIII for the purpose of that Chapter, i.e., under S. 437 of the Code. In other words, the Magistrate releasing the accused on bail, may, if he considers it necessary so to do, direct such person to be arrested and committed to custody as provided in sub-section (5) of S. 437 occurring in Chap. XXXIII.
In Bashir and Others Vs. State of Haryana, their Lordships of the Supreme Court held that while the Magistrate releasing the accused on bail under S. 167(2) could direct that such person be arrested and committed to custody if he considered it necessary so to do by virtue of the powers conferred upon him under S. 437(5) of the Cr.P.C. 1973, neither the fact that subsequent to his release the charge-sheet had been filed nor the fact that before the order passed under S. 167(2) the petition for bail filed by him was dismissed on merits was irrelevant for the purpose of taking action under S. 437(5) of the Cr.P.C. 1973. The Magistrate could, however, direct arrest of the accused or commit the accused to custody if he was satisfied that the accused was tampering with the evidence of the prosecution or that his being at large was not in the interests of justice.
The main question for determination in this miscellaneous petition is whether the date of arrest of an accused person by a police officer is liable to be included in or excluded from, the maximum period of his detention in custody for 90 days or 60 days as the case may be as envisaged under the proviso (a) of S. 167(2) of the Code. In other words, how is the period of detention of the accused person in custody permitted by the proviso (a) of sub-section (2) of S. 167 to be computed ? Is it from the date of arrest of the accused by the police officer or is it from the date of remand of the accused by the Magistrate before whom he is produced ?
Section 57 of the Cr.P.C., 1973 empowers a police officer to detain in custody a person arrested without warrant for a period not exceeding twenty-four hours exclusive of the time necessary for the journey of the arrested person from the place of arrest to the Court of the Magistrate having jurisdiction in the case and no authorisation of the Magistrate is required by the police officer for such detention. He shall not, however, detain in custody the person so arrested beyond twenty-four hours in the absence of a special order of the Magistrate under S. 167. Under S. 167(1) the police officer shall forward the arrested accused to the nearest Judicial Magistrate where the investigation into the accusation levelled or information received, against him cannot be completed within the period of twenty-four hours fixed by S. 57 to secure authorisation of the subsequent detention of the accused.
Under S. 167(2) the Magistrate to whom the accused is forwarded or before whom he is produced, whether he has or has not jurisdiction to try the case is empowered to authorise, from time to time, the detention of the accused in such custody as he thinks fit, for a term not exceeding fifteen days in the whole. If the Magistrate 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 jurisdiction. That Magistrate can authorise the detention of the accused, otherwise than in the custody of the police, beyond the period of fifteen days. He shall not, however, authorise the detention of the accused person in custody for a total period exceeding 90 days or 60 days as the case may be.
It may be thus noted that the total period of detention of the accused person in custody envisaged by the proviso (a) to S. 167(2) is that authorised by the Magistrate thereunder. The words "under this para" immediately preceding the words "for a total period exceeding" occurring in the proviso (a) do not permit any other interpretation. It, therefore, follows that the maximum period of detention of the accused the Magistrate is empowered to authorise, is to be reckoned only from the date of production of the accused before the Magistrate by the Police Officer for the purpose of securing remand.
In Tarsem Kumar Vs. The State, one Tarsem Kumar, accused of an offence of murder punishable under S. 302 of the Penal Code, was arrested on the 19th October 1974. The charge-sheet under S. 173 of the Criminal P.C. was filed into the Court of the concerned Magistrate on the 18th December 1974 when cognizance of the offence was taken by the Magistrate. The accused applied for bail under S. 167(2) of the Code prior to its amendment under Act No. 45 of 1978 on the ground that the charge-sheet was filed on the sixty-first day from the date of his arrest. It was argued on his behalf that under sub-section (2) of S. 167, the Magistrate could from time to time authorise his detention in such custody as he thought fit for a term not exceeding fifteen days as a whole, that the expression "in the whole" meant that the period of fifteen days would include the period of first twenty-four hours during which he was detained by the police officer and that he having been detained, for a total period exceeding sixty days, by the police and the Magistrate, he was entitled to be released on bail. Repelling the contention, Misra, J., of the Delhi High Court observed :
"In my opinion, sub-section (2) deals with the period of detention which can be authorised by the Magistrate and has no concern with the period for which the accused can be detained by a Police Officer without the authority of a Magistrate. Under S. 57, a Police Officer can detain an accused for a period of twenty-four hours as well as for the time which may be necessary for the journey from the place of arrest to the Magistrate''s Court. This journey may, in some cases, take a long time depending upon the circumstances. All this period of detention does not need any authorisation by the Magistrate. It is only when the period for which a Police Officer can detain under S. 57 of the Code expires that he needs authorisation of a Magistrate for further detention. The total authorisation, which can be made for police custody by the Magistrate, is not to exceed fifteen days. The words "in the whole" have been used with reference to the context that the Magistrate may "from time to time" authorise the detention of the accused in police custody and they have no reference to the period of detention during which a police officer can detain the accused under S. 57 of the Code. Similarly, when the proviso (a) to sub-section (2) refers to "a total period of sixty days", it relates to the period of detention authorised by the Magistrate in police custody as well as the custody other than police custody.
Thus, while computing the total period of sixty days, referred to in proviso (a) to sub-section (2) of S. 167, the period of detention under S. 57 of the Code has to be excluded. Admittedly, December 18, 1974, was the sixtieth day of the authorised detention by the Magistrate when challan was filed and cognizance of the offence was taken by the Magistrate. Thereafter the detention was under S. 309 of the Code."
In L.R. Chawla Vs. Murari, etc., Vyas Dev Misra, J., of the Delhi High Court while reiterating the legal position observed :
"After a person is arrested, the Police can keep him in custody for limited period under S. 57 of the Code. Thereafter, the accused has to be product before a Magistrate for remand under S. 167 of the Code. Where the Magistrate decides to grant the remand, the custody thereafter is under orders of the Magistrate. The custody under this section cannot be granted for a period ''exceeding sixty days''. A calendar day as a unit of time is the interval from one midnight to another. It is not correct to take into consideration fractions of two days to make up one day. Thus the day on which the custody is granted cannot be excluded."
In Raj Kumar Vs. The State of Punjab, one Raj Kumar and another were accused of the murder of Smt. Taro. Raj Kumar was arrested on the 17th June, 1973. The charge-sheet was filed against him and other accused on the 16th August 1978. An application for bail was filed on behalf of Raj Kumar under S. 167(2) of the Cr.P.C. prior to its amendment under Act 45 of 1978 on the ground that the charge-sheet was filed on the sixty-first day from the date of his arrest S. C. Mital, J. observed :
"It is no gainsaying that it was on the 18th June, 1978, that the Magistrate authorised the detention of the petitioner. Accordingly, the inclusion of the 17th June, 1978, does not appear to be within the purview of the proviso."
22 In Raju v. State of Bihar ILR(1976) Pat 1021, a Division Bench of the Patna High Court held that the period of sixty days mentioned in S. 167(2)(a) of the Cr.P.C. prior to its amendment under Act No. 45 of 1978 would mean sixty clear days and that the date on which the accused therein surrendered before the Court was to be excluded from counting the period of sixty days.
In Jagdish and Others Vs. State of Madhya Pradesh, it was held by C. P. Sen., that while computing the period of 90 days under S. 167(2) the date of arrest of the accused was to be excluded.
A contrary view was, however, taken by the High Courts of Himachal Pradesh and Orissa. In Gurucharan Singh v. State of Himachal Pradesh 1979 P&H LR (Cri) 1 it was held by the High Court of Himachal Pradesh :
"The scheme which is revealed from the provisions of S. 167, Cr.P.C. is that the Magistrate can authorise two types of custodies namely, (1) the police custody and (2) the judicial custody. In other words, S. 167 contemplates not merely the judicial custody, but also the police custody. So far as the police custody is concerned, there is a limitation to the effect that the same cannot exceed more than fifteen days. After the expiry of these fifteen days of police custody, the arrested person is required to be taken in judicial custody. Sixty days'' limitation which is contemplated by the proviso (e) of S. 167(2) is with regard to both the types of custodies contemplated by this section. It, therefore, follows that sixty days'' limitation would start running from the time the person is arrested by the police .......".
In Fakira Naik and Others Vs. State of Orissa, , it was held by a Division Bench of the High Court of Orissa :
"Section 57 commands the police to produce the accused before the Magistrate whenever it appears to it that the investigation cannot be completed within a period of twenty-four hours. The time taken for the journey from the place of arrest to the Magistrate''s Court is excluded. Then comes 167. It says that upon such production of the accused, the Magistrate may remand him to such custody, i.e., police custody. The remand to police custody, however, would not exceed fifteen days on the whole. Proviso (a) says that the Magistrate may authorise the detention of the accused if he is satisfied that adequate grounds exist even after the period of fifteen days under police custody. The period of detention, however, would not exceed 90 days where the investigation relates to an offence punishable with death, imprisonment for life or imprisonment for a term not less than ten years, and 60 days where the investigation relates to another offence. In our opinion, having regard to the intention of the legislature in enacting the new provision that where the investigation is dilatory an accused should not suffer the deprivation of his liberty for more than 60 days or 90, as the case may be. The commencement of the deprivation of liberty is from the date of arrest and not from the date of production. If this approach is adopted, the authorisation under proviso (a) for detention should be for such a period contemplated by S. 57 would make the period of 60 days or 90 days, as the case may be. We agree with Mr. Misra that an obiter of Supreme Court is binding on us. When in construding proviso (a), the Supreme Court said that ...... on the expiry of 90 days or 60 days, as the case may be, from the date of arrest ........".
It may be noted that in Hussainara Khatoon and Others Vs. Home Secretary, State of Bihar, Patna, emphasis was laid by Bhagwati, J. on the inviolable right of an accused person to be released on bail on expiry of the period of his detention for 90 days or 60 days, as the case may be and the duty cast upon the Magistrate to apprise the accused of the valuable right conferred upon him under the proviso (a) to sub-section (2) of S. 167. It is true that in the course of discussion, Bhagwati, J. no doubt, observed :
"We are also very doubtful whether on the expiry of 90 or 60 days, as the case may be, from the date of arrest ........."
But it should be borne in mind that the question of computation of the period of 90 days or 60 days as the case may be, with or without reference to the undoubted right of a police officer to detain the accused arrested by him without a warrant for a period not exceeding twenty-four hours, was neither raised and debated before, nor decided by their Lordships.
The same comment equally holds good to the casual following observation made by Kailasam, J., in Bashir and Others Vs. State of Haryana, :
"But as no challan was filed by the police in the case within sixty days from the date of the arrest of the appellants they were released on bail on 23rd February, 1976 under S. 167(2) of the Cr.P.C."
I, therefore, respectfully dissent from the view taken by the High Courts of Orissa and Himachal Pradesh.
In Ram Saran Vs. State of Haryana, a Division Bench of the High Court of Orissa, however, held that there was no infringement of the provisions of the proviso (a)(1) to S. 167(2) of the Cr.P.C., 1973 due to filing of the charge sheet on the ninety first day when the ninetieth day had fallen on a holiday. Relying upon the following observations of the Supreme Court in H.H. Raja Harinder Singh Vs. S. Karnail Singh, the Division Bench of Orissa High Court applied the provisions of S. 10 of the General Clauses Act and the principle underlying the same while interpreting the proviso (a) to S. 167(2) of the Cr.P.C., 1973 :
"Broadly stated, the object of S. 10 is to enable a person to do what he could have done on a holiday, on the next working day. Where, therefore, a period is prescribed for the performance of an act in a Court or office, and that period expires on a holiday, then according to section, the act should be considered to have been done within that period, if it is done on the next day on which the Court or office is open. For that section to apply, therefore, all that is requisite is that there should be a period prescribed and that period should expire on a holiday."
I must, however, observe that in a case where an accused person is arrested without a warrant by a police officer and produced before a Magistrate within 24 hours for the purpose of securing remand of the accused and if the Magistrate instead of remanding the accused to police custody or jail custody directs production of the accused on the following day or later to pass an order of remand the Magistrate should be deemed to have impliedly authorised the detention of the accused from the time of first production of the accused up to the date of actual remand of the accused and the intervening period should be counted for the purpose of computing the period of 90 days or 60 days, as the case may be, mentioned in the proviso (a) to S. 167(2) of the Cr.P.C.
Rule 25 of the Criminal Rules of Practice, though framed by the High Court of Andhra Pradesh under the repealed Act continues to be in force in the absence of any rules framed under the new Code. The rule runs thus :
"In computing the period of fifteen days mentioned in sub-section (2) of S. 167, or the proviso to S. 344 of the Code, both the day on which the order of remand is made and the day on which the accused is ordered to be produced before the Court shall be included."
It may be noted that Rule 25 of the Criminal Rules of Practice also favours the interpretation of exclusion of the date of arrest of the accused for the purpose of computation of the period of authorised detention of the accused for 90 days or 60 days, as the case may be, mentioned in the proviso (a) to sub-section (2) of S. 167 of the new Code.
It, therefore, follows that the respondents having been arrested on 19-7-1985 the charge-sheet filed into the Court by the investigating officer on 17-10-1985 was in time it being the 90th day from 20-7-1985, the date of production of the respondents before and authorised detention of them by, the learned Magistrate. In fact the learned Magistrate earlier rightly extended remand of the respondents up to 18-10-1985.
It is, however, urged by Sri C. Obulpathi Choudary, learned counsel appearing for the respondents that the charge-sheet filed into the Court on 17-10-1985 is no charge-sheet in the eye of law, in that it lacks the particulars required to be set out thereunder and is also not in the form prescribed under S. 173(1) of the Code. Reliance is placed upon the following observations in the impugned order of the learned Magistrate :
"It is contended on behalf of the State by the A.P.P. that the time starts from 12 Noon on 19-7-1985 and, therefore, the period of 90 days would expire only by 12 noon on 17-10-1985 and that the charge-sheet is now filed before the Court at 10.30 a.m. today even though the charge-sheet is not in complete form and hence the question of the release of accused on bail does not arise and, therefore, the petition may be dismissed."
The above observations of the learned Magistrate would no doubt give an impression that the Assistant Public Prosecutor appearing for the State conceded before the learned Magistrate that the charge-sheet was not in complete form. The learned Public Prosecutor, appearing for the State seriously disputes the correctness of the statement imputed to the Assistant Public Prosecutor. Admittedly, no finding was recorded by the learned Magistrate that the charge-sheet was not in complete form. In fact, the charge-sheet was taken on file by the learned Magistrate on 18-10-1985 after taking cognizance of the offences set out therein without any other documents or records having been filed on 18-14-1985 except copies of documents and records referred to in the charge-sheet for being supplied to the accused, a duty not so much cast upon the investigating officer as cast upon the Court.
Sri C. Obulpathi Choudary, learned counsel appearing for the respondents, also places reliance upon the following paragraph contained in the counter-affidavit filed on behalf of the State in Crl.M.P. No. 3191 of 1985 on the file of this Court filed by 56 accused including the respondents, for bail in support of his submission that investigation into the case is not yet completed and the charge-sheet filed into the Court on 17-10-1985 can at best be treated only as a preliminary charge-sheet :
"No doubt investigation was completed in the case. But as per S. 173(8) of Cr.P.C. the police are empowered to investigate further into the case even though the charge-sheet has been filed. Yet some more witnesses, whose whereabouts are not known, have got to be traced and examined. It is quite likely that even complicity of some more accused persons may come to light. Most of the victims whose properties were damaged during the said raid by the accused, could not be traced and examined by the police. The whereabouts of Aviti Chandraian, who is a star witness for the prosecution are not known and therefore he could not be examined. In this context, it has to be pointed out that the accused who are rich and influential persons are likely to tamper with the evidence forthcoming for the prosecution."
There is no substance in the submission made by the learned counsel for the respondents. It is categorically asserted by the State that the investigation into the case was completed so far as the accused charge-sheeted are concerned. All that is added is that examination of some more witnesses whose whereabouts are not known may reveal complicity of some more accused persons. What is more, S. 173(8) of the Cr.P.C. permits further investigation into the case and submission of a further report even after filing of the charge-sheet.
The learned counsel for the respondents also relies upon the decision in T.V. Sarma Vs. Smt. Turgakamala Devi and Others, wherein it was held by Gangadhara Rao, J., that a preliminary charge-sheet could not be treated as a report within the meaning of sub-section (8) of S. 173 of the Code and that the Magistrate could not take cognizance of any offence on the basis of the preliminary charge-sheet and remand the accused under S. 309 of the Cr.P.C.
In the said decision it was admitted that the investigation into the case against the accused therein was not completed. The decision relied upon by the learned counsel for the respondents is, therefore, of no assistance.
In P.V. Vijayaraghavan and Others Vs. C.B.I. and Another, the investigating officer filed, two charge-sheets one relating to some offences before expiry of 90 days from the date of arrest of the accused therein and the other relating to the remaining offences after expiry of 90 days. On the admitted facts in the case it was held that the investigation into the case must be taken as completed only when the second charge-sheet was filed entitling the accused to be released on bail under the proviso (a) to S. 167(2) of the Cr.P.C., 1973.
Relying upon the decision in Nethala Vinod Prabhu v. State of A. P. 1979 2 An WR 347 : 1979 Cri LJ 90 rendered by Punnayya, J., wherein it was held that after submission of the charge-sheet under S. 173(2) of the Cr.P.C., 1973 and after taking cognizance of the offences set out therein, the provisions of S. 167(2) of the Code would cease to operate and the provisions of S. 309 of the Code would at once come into play and that the accused would not be entitled to be released on bail as of right because of his illegal detention caused by non-compliance with the provisions of the proviso (a) to sub-section (2) of S. 167 of the Code, the learned Public Prosecutor contends and not without considerable force that in spite of filing of the charge-sheet before the learned Magistrate on 17-10-1985 at 10.30 a.m. he deliberately kept it aside without taking it on file on the same day so as to enable him to exercise the power conferred upon him under the proviso (a) to S. 167(2) of the Code to release the respondents on bail as otherwise he would have been bound to remand the respondents to custody for a term not exceeding fifteen days at a time as provided under S. 309 of the Cr.P.C., 1973, even assuming that the detention of the respondents on 17-10-1985 was unlawful on the ground of it being the 91st day from the date of their arrest.
From the foregoing discussion it follows that the order dt. 17th October, 1985 passed by the III Additional Munsif Magistrate, Chirala in Criminal Miscellaneous Petition No. 1466 of 1985 on his file releasing A4, A6, A9, A10, A11, A12, A13, A20, A33, A34 and A35 in P.R.C. No. 7 of 1985 on his file, on bail under S. 167(2) of the Cr.P.C. is illegal and is liable to be cancelled. The bail granted to them is therefore cancelled. The learned Magistrate shall issue warrants of arrest and commit them to custody.
The above Criminal Miscellaneous Petition is accordingly allowed.
Petition allowed.