Chaganti Satyanarayan & Ors Vs.
State of Andhra Pradesh [1986] INSC 111 (8 May 1986)
NATRAJAN, S. (J) NATRAJAN, S. (J) SEN, A.P.
(J)
CITATION: 1986 AIR 2130 1986 SCR (2)1128 1986
SCC (3) 141 1986 SCALE (1)1037
CITATOR INFO: RF 1992 SC1768 (9)
ACT:
Criminal Procedure Code, 1973, S. 167(2)(a) -
Scope of Period of 90 days - Computation of - Whether from date of remand or
date of arrest of accused.
HEADNOTE:
The appellants were arrested in the forenoon
of July 19, 1985 in connection with a riot which resulted in a toll of human
lives and huge destruction of property. They were produced before the Munsiff
Magistrate on July 20, 1985 and were remanded to judicial custody till October
18, 1985.
The police filed a charge-sheet against the
appellants on October 17, 1985 that being the 90th day of remand. Even so, the
appellants filed a petition before the Magistrate and sought enlargement on
bail in terms of proviso (a) to s. 167(2) of the Code of Criminal Procedure.
The learned Magistrate, overruling the objection of the State, granted bail to
the appellants on the ground that the period of 90 days stipulated in the
proviso had to be reckoned from the date of arrest and not from the date of
remand and so computed, the charge-sheet had not been filed on the 90th day but
on 91st day and hence the accused/appellants were entitled to bail. The
respondent-State challenged the order of bail before the High Court by means of
a petition under s. 439(2) of the Code. A Single Judge of the High Court
allowed the petition holding that the period of 90 days envisaged by the
proviso to s. 167(2) has to be computed only from the date of remand and
therefore cancelled the bail and directed the magistrate to issue warrants of
arrest for the appellants.
Dismissing the appeal of the
appellants-accused. ^
HELD: 1. The High Court was right in allowing
the petition filed by the State for cancellation of the bail granted to the
appellants. As the Munsiff Magistrate has granted bail to the appellants before
the expiry of 90 days of remand period allowed under law, the order of the
Magistrate 1129 will not tantamount to one passed under the provisions of
Chapter XXXIII of the Code and hence there is no scope for contending that
re-arrest of the appellants can be ordered only in terms of sub-s.(5) of s.437.
After the appellants surrender themselves to custody or are taken into custody
by re-arrest, they will not stand precluded from seeking enlargement on bail by
filing applications under sub-s.(i) of s. 437 of the Code and satisfying the
court that they deserve to be enlarged on bail. [1148 G-H; 1149 A-B] 2.(i) On a
reading of the sub-ss.(1) and (2) it may be seen that sub-s.(1) is a mandatory
provision governing what a police officer should do when a 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. Sub-s.(2) on the other
hand pertains to the powers of remand available to a Magistrate and the manner
in which such powers should be exercised. The terms of sub-s. (1) of s. 167
have to be read in conjunction with s. 57. Section 57 interdicts a police
officer from keeping in custody a person without warrant for a longer period
than 24 hours without production before a Magistrate, subject to the exception
that the time taken for performing journey from the place of arrest to the
Magistrate's court can be excluded from the prescribed period of 24 hours.
Since sub-s. (1) provides that if the investigation cannot be completed within
the period of 24 hours fixed by s. 57 the accused has to be forwarded to the
Magistrate alongwith the entries in the Diary, it follows that a police officer
is entitled to keep an arrested person in custody for a maximum period of 24
hours for purposes of investigation. The resultant position is that the initial
period of custody of an arrested person till he is produced before a Magistrate
is neither referable to nor in pursuance of an order of remand passed by a
Magistrate. In fact the powers of remand given to a Magistrate become
exercisable only after an accused is produced before him in terms of sub-s. (1)
of s. 167. [1138 B-G] 2.(ii) Sub-s. (2) of s. 167 empowers the Magistrate
before whom an accused is produced for purpose of remand, whether he has
jurisdiction or not to try the case, to order the detention of the accused,
either in policy custody or in judicial custody, for a term not exceeding 15
days in the 1130 whole. In the first place, if the initial order of remand is
to be made with reference to the date of arrest then the order will have
retrospective coverage for the period of custody prior to the production of the
accused before the Magistrate, i.e. the period of 24 hours' custody which a
police officer is entitled to have under s. 57 besides the time taken for the
journey. Such a construction will not only be in discord with the terms of s.
57 but will also be at variance with the terms of sub-s. (2) itself. The
operative words in sub-s. (2) viz. "authorise the detention of the
accused... for a term not exceeding 15 days in the whole" will have to be
read differently in so far as the first order of remand is concerned so as to
read as "for a term not exceeding 15 days in the whole from the date of
arrest". This would necessitate the adding of more words to the section
than what the legislature has provided. Another anomaly that would occur is
that while sub-s. (2) empowers the Magistrate to order the detention of an
accused "in such custody as such Magistrate thinks fit, for a term not
exceeding 15 days in the whole" the Magistrate will be disentitled to
placing an accused in police custody for a full period of 15 days if the period
of custody is to be reckoned from the date of arrest because the period of
custody prior to the production of the accused will have to be excluded from
the total period of 15 days. [1138 G-H;
1139 A-F] Apart from these anomalous
features, if an accused were to contend that he was taken into custody more
than 24 hours before his production before the Magistrate and the police
officer refutes the statement, the Magistrate will have to indulge in a fact
finding inquiry to determine when exactly the accused was arrested and from
what point of time the remand period of 15 days is to be reckoned. Such an
exercise by a Magistrate ordering remand is not contemplated or provided for in
the Code. It would, therefore, be proper to give the plain meaning of the words
occurring in sub-s. (2) and holding that a Magistrate is empowered to authorise
the detention of an accused produced before him for a full period of 15 days
from the date of production of the accused. [1139 F-H; 1140 A]
3. Reference may also be made to another
provision in the Code, viz. the first proviso to sub-s. (2) of s. 309 for
construing the period of 15 days referred to in sub-s. 2 of s. 167. As sub-s.
(2) of s. 167 as well as proviso (1) of sub-s.
1131 (2) of s. 309 relate to the powers of
remand of a Magistrate, though under different situations, the two provisions
call for a harmonious reading in so far as the periods of remand are concerned.
It would, therefore, follow that the words "15 days in the whole"
occurring in sub-s.(2) of s. 167 would be tantamount to a period of "15
days at a time" but subject to the condition that if the accused is to be
remanded to police custody the remand should be for such period as is
commensurate with the requirements of a case with provisions for further
extensions for restricted periods, if need be, but in no case should be total
period of remand to police custody exceed 15 days. Where an accused is placed
in police custody for the maximum period of 15 days allowed under law either
pursuant to a single order of remand or to more than one order, when the remand
is restricted on each occassion to a lesser number of days, further detention
of the accused, if warranted, has to be necessarily to judicial custody and not
otherwise. The Legislature having provided for an accused being placed under
police custody under orders of remand for effective investigation of cases has
at the same time taken care to see that the interests of the accused are not
jeopardised by his being placed under police custody beyond a total period of
15 days, under any circumstances, irrespective of the gravity of the offence or
the serious nature of the case.
Thus, there is no merit or force in the
contention of the appellants' counsel that the words "for a term not
exceeding 15 days in the whole" occurring in sub-s.(2) of s. 167 should be
construed as to include also the period of custody of the accused from the time
of arrest till the time of production before the Magistrate. A Magistrate can,
therefore, authorise the detention of the accused for a maximum period of 15
days from the date of remand and place the accused either in police custody or
in judicial custody during the period of 15 days' remand. [1140 B-H; 1141 A-C]
4.(i) Construing proviso (a) either in conjunction with sub-s.(2) of s. 167 or
as an independent paragraph, the total period of 90 days under clause (i) and
the total period of 60 days under clause (ii) has to be calculated only from
the date of remand and not from the date of arrest.
4.(ii) The words used in proviso (a) are
"no Magistrate shall authorise the detention of the accused person in 1132
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 when the
accused is in the custody of a police officer in exercise of his powers under
s. 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.
Moreover, as per sub-s. (2A) of s. 167 a
Magistrate is obliged to take into consideration only the period of detention
actually undergone by the accused pursuant to the orders of remand passed by
the Executive Magistrate. The earlier period of custody till the production of
the accused before the Executive Magistrate is not directed to be taken into
consideration by sub-s. (2A). Such being the case, there cannot be different
modes of computation of the period of remand depending upon whether accused
person is forwarded to a Judicial Magistrate or an Executive Magistrate for
purposes of remand. [1141 G-H; 1142 A-G] 4.(iii) The change of wording in the
proviso has to be given its due significance because the Legislature would not
have effected the change without any purpose or objective.
Significant changes have been made in s. 167
as well as to the proviso by Act 45 of 1978 such as increasing the period for
investigation in grave cases from 60 to 90 days, conferring of powers of remand
on Executive Magistrates in certain situations etc. Therefore, it can be legitimately
contended that the words occurring in proviso (a) should be construed within
the frame work of the proviso itself without any reference to s. 167(2). If
such a construction is made, it may be seen that the proviso forbids the
extension of remands only beyond a total period of 90 days under clause (i) and
beyond a total period of 60 days under clause (ii). Thus if proviso (a) is
treated as a separate paragraph it necessarily follows that the period of 90
days or 60 days as the case may be, will commence running only from the date of
remand and not from any anterior date in spite of the fact that the accused may
have been taken into custody earlier by a police officer and deprived of his
liberty. [1143 F-H; 1144 A-B]
5. The intention of the Legislature can also
be gathered by comparing proviso (a) with sub-s. (5) of s. 167.
The 1133 Legislature has consciously referred
to the date of arrest in s. 167(5) but has made no such reference in s. 167 (2)
or poviso (a) thereto. If it was the intention of the Legislature that the
period of remand of 15 days in the whole envisaged in sub-s. (2) or the total
period of 90 days/60 days prescribed in proviso(a) should be calculated from
the date of arrest then the Legislature would have expressly said so as it had
done under s. 167(5). [1143 C-D] Fakira Naik v. State of Orissa, [1983] Crl.
L.J. 1336;
Mohd. Shafi & Anr. v. The State, [1975]
Crl. L.J. 1309; State of Rajasthan v. Bhanwaru Khan & Ors., [1975] Crl.
L.J. 1981; Khinvdan v. The State of Rajasthan, [1975] Crl. L.J., 1984; Prem Raj
& Anr. v. State of Rajasthan, [1976] Crl. L.J., 455; Gyanu Madhu Jamkhandi
& Ors. v. The State of Karnataka, [1977] Crl. L.J. 632; State of Haryana v.
Mehal Singh & Anr., (FB) [1978] Crl. L.J. 1810 and Fakira Naik & Ors.
v. State of Orissa, [1983] Crl. L.J. 1336, disapproved. Hussainara Khatoon
& Ors. v. Home Secretary, State of Bihar, Patna, [1979] Crl. L.J. 1052;
Rajoo Alias Raj Kishore Singh & Anr. v. State of Bihar & Anr., 55
[1976] I.L.R. Patna 1021; Raj Kumar v. The State of Punjab, A.I.R. 1979 Punjab
& Haryana 80; Batna Ram v. State of Himachal Pradesh, [1980] Crl. L.J. 748;
Jagdish & Ors. v. State of Madhya Pradesh, [1984] Crl. L.J. 79; N. Sureya
Reddy & Anr. v. State of Orissa, [1985] Crl. L.J. 939; Bashir & Ors. v.
State of Haryana, [1978] 1 S.C.R. 585 and
State of U.P. v. Laxmi Brahamn & Anr., [1983] 2 S.C.R. 537, referred to.
CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No.
278 of 1986.
From the Judgment and Order dated 31st
December, 1985 of the Andhra Pradesh High Court in Crl. Misc. Petition No.
4049 of 1985.
S. Madhusudan Rao and A. Subba Rao for the
Appellants. P. Ram Reddy, T.V.S.N. Chari and Ms. Vrinda Grover for the
Respondent.
The Judgment of the Court was delivered by
1134 NATARAJAN, J. This appeal by special leave against an order of a learned
Single Judge of the Andhra Pradesh High Court in a petition filed under Section
439(2) of the Code of Criminal Procedure (hereinafter referred to as the
'Code') calls for a critical examination of the scope and effect of proviso (a)
to Section 167(2) of the Code. Several High Courts have rendered decisions
construing differently the terms of the proviso but a need for the examination
of the terms of the proviso by this Court had not arisen till now.
The circumstances which form the prefactory
for this appeal can be summarised as under.
The hamlet of Madigawada in Village
Karamchedu in Andhra Pradesh was the scene of a horrendous riot on the morning
of July 17, 1985. The riot culminated in a toll of human lives and huge
destruction of property. Five persons were left dead, twenty others were
victims of injuries of varying degrees, properties were looted and hutments
were damaged or destroyed.
In connection with the macabre events the
police authorities arrested 94 persons including the appellants herein and had
them remanded to custody. The appellants were arrested in the forenoon of July
19, 1985 and were produced before the IIIrd Additional Munsif Magistrate,
Chirala on the next day, i.e. July 20, 1985. They were initially remanded to
judicial custody for a period of 15 days and thereafter the remand was extended
from time to time till October 18, 1985.
The investigating officer filed a
charge-sheet in the case at 10.30 A.M. on October 17, 1985, that being the 90th
day of remand. Even so, the appellants filed a petition before the Magistrate
and sought enlargement on bail in terms of proviso (a) to Section 167(2). The
learned Magistrate, overruling the objection of the State, granted bail to the
appellants on the ground that the period of 90 days stipulated in the proviso
had to be reckoned from the date of arrest and not from the date of remand and
so computed the charge-sheet had not been filed on the 90th day but on the 91st
day and hence the accused were entitled to bail. The State challenged the order
of bail before the High Court by means of a petition under Section 439(2) of
the Code. A learned Single Judge of the High Court allowed the petition holding
that the period of 1135 90 days envisaged by the proviso to Section 167(2) has
to be computed only from the date of remand and, therefore, cancelled the bail
and directed the Magistrate to issue warrants of arrest for the appellants. It
is the correctness of the order of the learned Judge which is challenged in
this appeal.
Mr. Madhusudan Rao, learned counsel for the
appellants, strenuously contended that the liberty of the citizen is the
paramount factor for consideration while construing the terms of proviso (a) of
Section 167(2) and as such the period of 90 days, in the case of grave
offences, and the period of 60 days, in the case of other offences set out as
outer limits for detention of accused persons should be computed from the very
day the accused was arrested and taken into custody by a police officer and not
from the day he was produced before the Magistrate and remanded to custody. In
fact Mr. Rao went so far as to say, placing reliance on a decision rendered in
Fakira Naik v. State of Orissa, [1983] Crl. L.J. 1336 that even the detention
during the fraction of a day should also be counted as detention for a day
since a calendar day as a unit of time is the interval between one midnight and
another. In support of his contention Mr. Rao placed reliance on some decisions
where the time limits set out in the proviso have been held to run from the
date of arrest itself.
Mr. Ram Reddy, learned counsel for the State
of Andhra Pradesh, advanced arguments to the contrary and submitted that the
period of detention contemplated under the proviso is exclusively referable to
the detentions ordered by a Magistrate and there is no scope for tagging on to
this period any anterior period of custody by a police officer, who is
permitted under Section 57 of the Code to detain in custody a person arrested
without warrant for a maximum period of 24 hours. Alternately, it was contended
that a significant change in the terms of the proviso has been made by the
Legislature under Amendment Act 45 of 1978 and by reason of that change the
periods of 90 days/60 days prescribed under the proviso are to be computed
solely within the framework of the proviso and not with reference to any other
provision in the Code. Besides these submissions the learned counsel also
placed reliance on another set of decisions wherein the calculation 1136 of the
total number of days of custody under remand has been made with reference to
the date of remand.
Before making a scrutiny of the terms of the
proviso in question it will be of use to have a glimpse of the historical
background of this legislative provision.
Originally, the Code provided only a period
of 15 days for remand. As the period was too short for investigation in cases
of serious nature the police were forced to resort to filing before the
Magistrates a preliminary or incomplete report and seek extension of remand
under Section 344 of the Old Code. This device was resorted to as an inevitable
necessity, even though Section 344 of the Old Code could be invoked only after
a Magistrate had taken cognizance of an offence which in turn could be only
after a report under Section 173 had been received and not while the
investigation was in progress. The course followed for obtaining orders of
remand beyond 15 days very often led to lethargy in the investigation of cases
resulting in scores of accused persons languishing in custody for long periods.
To remedy the situation the Legislature
deemed it fit to put a time limit on the powers of the police to obtain remand
while the investigation was in progress after taking care to provide a longer
period of remand so that investigations are not affected. Consequently, a time
limit of 60 days with a provision for its extension under certain circumstances
was fixed by adding proviso (a) to sub-section (2) of Section 167 of the Code
of 1973. In the working of the provision it came to be realised that a ceiling
limit of 60 days for completion of investigation in all cases including serious
cases involving sentence of death, imprisonment for life etc. was hampering
full and effective investigation in serious cases and affected the interests of
the State.
Consequently, certain amendments were
effected to the proviso to section 167(2) by means of Act 45 of 1978. By reason
of the amendment the ceiling limit for remand period for cases, where the
investigation relates to an offence punishable with death, imprisonment for
life or imprisonment for a term of not lessthan 10 years was raised to 90 days,
while in other cases the earlier limit of 60 days was retained. Apart from
this, another significant change made was that instead of the words "under
this section" occurring in the old proviso, the words "under this
paragraph", were substituted. A third change was the addition of
Explanation 1 to the proviso to highlight the 1137 position that the statutory
right of bail under clause (a) of the proviso will stand restricted only to
those accused persons who are in a position to furnish bail. Another important
change made by the Amendment Act is the provision of Section (2A) whereby
Executive Magistrates, on whom the powers of a Judicial Magistrate have been
conferred, have also been empowered to order remand for a term not exceeding 7
days in the aggregate, wherever Judicial Magistrates are not available.
Our reference to the historical background of
the proviso is for two reasons. The first reason is for presenting a
perspective of the proviso in its entire conspectus; the second reason is to
focus attention on the fact that the proviso has been enacted to not only
safeguard the liberty of the citizens but also to safeguard the interests of
the State or in other words the public. We feel it necessary to advert to this
feature because some of the decisions cited before us have proceeded on the
basis that the only factor underlying the legislative provision is the anxiety
of the Legislature to safeguard the liberty of the citizen by providing for the
restoration of his liberty at the earliest possible moment after the maximum
period of custody is over.
Besides a reference to the historical
background of the proviso and the objective underlying it we must also refer to
another notable feature falling within the field of relevance. The right of
bail granted to remand prisoners at the end of 90 days or 60 days as the case
may be does not have the effect of rendering the subsequent period of detention
ipso facto illegal or unlawful. This is evident from the fact that the right to
bail conferred under the proviso is subject to the condition that the accused
in custody should furnish bail. For clearance of doubts in the matter,
Explanation 1 has been expressly provided and the Explanation obligates the
accused being detained in custody in spite of the expiry of the prescribed
period of 90 days or 60 days as the case may be so long as he does not furnish
bail. It will thus be seen that the anxiety of the Legislature to secure to the
remand prisoners their release from custody is circumscribed by its concern in
equal measure to safeguard the interests of the State as well.
1138 It is in the light of the contours set
out above we have to examine Section 167 and proviso (a) to sub-section (2).
The marginal note for Section 167 is as under:
"Procedure when investigation cannot be
completed in twenty-four hours".
On a reading of the sub-sections (1) and (2)
it may be seen that sub-section (1) is a mandatory provision governing what a
police officer should do when a person is arrested and detained in custody and
it appears that the investigation cannot be completed within the period of 24
hours fixed by Section 57. Sub-section (2) on the other hand pertains to the
powers of remand available to a Magistrate and the manner in which such powers
should be exercised. The terms of sub-section (1) of Section 167 have to be
read in conjunction with Section 57. Section 57 interdicts a police officer
from keeping in custody a person without warrant for a longer period than 24
hours without production before a Magistrate, subject to the exception that the
time taken for performing the journey from the place of arrest to the
Magistrate's Court can be excluded from the prescribed period of 24 hours.
Since sub-section (1) provides that if that investigation cannot be completed
within the period of 24 hours fixed by Section 57 the accused has to be
forwarded to the Magistrate along with the entries in the Diary, it follows
that a police officer is entitled to keep an arrested person in custody for a
maximum period of 24 hours for purposes of investigation. The resultant
position is that the initial period of custody of an arrested person till he is
produced before a Magistrate is neither referable to nor in pursuance of an
order of remand passed by a Magistrate. In fact the powers of remand given to a
Magistrate become execisable only after an accused is produced before him in
terms of sub-section (1) of Section 167.
Keeping proviso (a) out of mind for some time
let us look at the wording of sub-section (2) of Section 167. This sub-section
empowers the Magistrate before whom an accused is produced for purpose of
remand, whether he has jurisdiction or not to try the case, to order the
detention of the accused, either in police custody or in judicial custody, for
a term not exceeding 15 days in the whole. It was argued by Mr. Rao 1139 that
the words "in the whole" would govern the words "for a term not
exceeding 15 days' and, therefore, the only interpretation that can be made is
that the detention period would commence from the date of arrest itself and not
from the date of production of the accused before the Magistrate.
Attractive as the contention may be, we find
that it cannot stand the test of scrutiny. In the first place, if the initial
order of remand is to be made with reference to the date of arrest then the
order will have retrospective coverage for the period of custody prior to the
production of the accused before the Magistrate, i.e. the period of 24 hours'
custody which a police officer is entitled to have under section 57 besides the
time taken for the journey.
Such a construction will not only be in
discord with the terms of Section 57 but will also be at variance with the
terms of sub-section (2) itself. The operative words in sub- section (2) viz.
"authorise the detention of the accused .... for a term not exceeding 15
days in the whole" will have to be read differently in so far as the first
order of remand is concerned so as to read as "for a term not exceeding 15
days in the whole from the date of arrest".
This would necessitate the adding of more
words to the section than what the Legislature has provided. Another anomaly
that would occur is that while sub-section (2) empowers the Magistrate to order
the detention of an accused "in such custody as such Magistrate thinks
fit, for a term not exceeding 15 days in the whole" the Magistrate will be
disentitled to placing an accused in police custody for a full period of 15
days or in judicial custody for a full period of 15 days if the period of
custody is to be reckoned from the date of arrest because the period of custody
prior to the production of the accused will have to be excluded from the total
period of 15 days.
Apart from these anomalous features, if an
accused were to contend that he was taken into custody more than 24 hours
before his production before the Magistrate and the police officer refutes the
statement, the Magistrate will have to indulge in a fact finding inquiry to
determine when exactly the accused was arrested and from what point of time the
remand period of 15 days is to be reckoned. Such an exercise by a Magistrate
ordering remand is not contemplated or provided for in the Code. It would,
therefore, be proper to give the plain meaning of the words occurring in
sub-section 1140 (2) and holding that a Magistrate is empowered to authorise
the detention of an accused produced before him for a full period of 15 days
from the date of production of the accused.
We may also refer to another provision in the
Code, viz.the first proviso to sub-section (2) of section 309 for construing
the period of 15 days referred to in sub-section (2) of Section 167. Section
309, while prescribing expeditious conduct of enquiries and trials also
provides for adjournments of cases for valid reasons and for remanding the
accused if he is in custody. The first proviso restricts the period of remand
to 15 days and is worded as under :- "Provided that no Magistrate shall
remand an accused person to custody under this section for a term exceeding 15
days at a time".
As sub-section (2) of Section 167 as well as
proviso (1) of sub-section (2) of Section 309 relate to the powers of remand of
a Magistrate, though under different situations, the two provisions call for a
harmonious reading in so far as the periods of remand are concerned. It would,
therefore, follow that the words "15 days in the whole" occurring in
sub-section (2) of Section 167 would be tantamount to a period of "15 days
at a time" but subject to the condition that if the accused is to be
remanded to police custody the remand should be for such period as is
commensurate with the requirements of a case with provision for further
extensions for restricted periods, if need be, but in no case should the total
period of remand to police custody exceed 15 days. Where an accused is placed
in police custody for the maximum period of 15 days allowed under law either
pursuant to a single order of remand or to more than one order, when the remand
is restricted on each occasion to a lesser number of days, further detention of
the accused, if warranted, has to be necessarily to judicial custody and not
otherwise. The Legislature having provided for an accused being placed under
police custody under orders of remand for effective investigation of cases has
at the same time taken care to see that the interests of the accused are not
jeopardised by his being placed under police custody beyond a total period of
15 days, under any circumstances, irrespective of the gravity of the offence or
the serious nature of the case.
1141 Thus in the light of our discussion and
conclusions reached we do not find merit or force in the contention of the
appellants' counsel that the words 'for a term not exceeding 15 days in the
whole" occurring in sub-section (2) of Section 167 should be so construed
as to include also the period of custody of the accused from the time of arrest
till the time of production before the Magistrate. A Magistrate can, therefore,
authorise the detention of the accused for a maximum period of 15 days from the
date of remand and place the accused either in police custody or in judicial
custody during the period of 15 days' remand. It has, however, to be borne in
mind that if an accused is remanded to police custody the maximum period during
which he can be placed in police custody is only 15 days. Beyond that period no
Magistrate can authorise the detention of the accused in police custody.
Further remands, to fecilitate the
investigation, can only be for the detention of the accused in judicial
custody. The restriction of the Magistrate's powers in this behalf is to be
found in the words "otherwise than in the custody of the police beyond the
period of 15 days" in proviso (a).
Now coming to proviso (a) itself, the proviso
authorises a Magistrate to order further detention of an accused person,
otherwise than in police custody which as already stated means that the maximum
period under which a Magistrate can place an accused in police custody is only
15 days. A limitation to the powers of further remand is, however, placed by
interdicting the Magistrate from authorising the detention of an accused person
in custody beyond a total period of 90 days where the offence is punishable
with death, imprisonment for life or for a term of not less than 10 years and
beyond a total period of 60 days in other cases. The interdiction will,
however, operate only in those cases where the accused persons are in a position
to furnish bail.
The words used in proviso (a) are "no
Magistrate shall authorise the detention of 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 when the accused is in the
custody of a police officer in exercise of his powers under Section 57 cannot
constitute 1142 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.
Approaching the matter from another angle
also we find it necessary to construe the proviso in the manner set out above.
We have earlier referred to sub-section (2A) newly introduced by Act 45 of 1978
to Section 167. This sub- section has been introduced for pragmatic reasons. In
order that the production of an accused, arrested under Section 57, before a
Magistrate is not delayed on account of the non-availability of a Judicial
Magistrate, the Legislature has deemed it necessary to confer powers of remand
on such of those Executive Magistrates on whom the powers of a Judicial
Magistrate have been conferred. The sub-section states that if an arrested
person is produced before an Executive Magistrate for remand the said
Magistrate may authorise the detention of the accused "for a term not
exceeding 7 days in the aggregate". It is further provided that the period
of remand ordered by an Executive Magistrate should also be taken into account
for computing the period specified in paragraph (a) of the proviso to
sub-section (2). Let us assume a case where a person arrested under Section 57
on the previous day is produced before an Executive Magistrate on the next day,
but within the expiry of 24 hours and the remand order is obtained for a period
of 7 days. How is the Judicial Magistrate, who is competent to make further
orders of detention to calculate the period of detention so as to conform to
the requirements of proviso (a)? As per sub-section (2A) he is obliged to take
into consideration only the period of detention actually undergone by the
accused pursuant to the orders of remand passed by the Executive Magistrrate.
The earlier period of custody till the producton of the accused before the
Executive Magistrate is not directed to be taken into consideration by
sub-section (2A). Such being the case, there cannot be different modes of
computation of the period of remand depending upon whether the accused person
is forwarded to a Judicial Magistrate or an Executive Magistrate for purposes
of remand.
The intention of the Legislature can also be
gathered by comparing proviso (a) of sub-section (5) of Section 167.
Sub-section (5) of Section 167 is in the
following terms :
1143 "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 beyond the period of six months is
necessary".
(Exphasis supplied) The Legislature has
consciously referred to the date of arrest in Section 167 (5) but has made no
such reference in Section 167(2) or proviso (a) thereto. If it was the
intention of the Legislature that the period of remand of 15 days in the whole
envisaged in sub-section (2) or the total period of 90 days/60 days prescribed
in proviso (a) should be calculated from the date of arrest then the
Legislature would have expressly said so as it had done under Section 167(5).
Turning now to the alternate argument of Mr.
Ram Reddy, the contention is that even if there is scope for contending that
the total period of detention should be reckoned from the date of arrest there
is no room at all for any such contention being raised after the amendment of
the proviso by Act 45 of 1978. We have already referred to the fact that the
amending Act has substituted the words "under this paragraph" for the
words "under this section" in proviso (a). We have also adverted to
Explanation 1 and sub-section (2A) which also refer to "the period
specified in paragraph (a)". The change of wording in the proviso has to
be given its due significance because the Legislature would not have effected
the change without any purpose or objective. We must bear in mind that
significant changes have been made in Section 167 as well as to the proviso by
Act 45 of 1978 such as increasing the period for investigation in grave cases
from 60 to 90 days, conferring of powers of remand on Executive Magistrates in
certain situations etc. Therefore, it can be legitimately contended that the
words occurring in proviso (a) should be construed within the frame work of the
proviso itself without any reference to Section 167(2). If such a construction
is made, it may be seen that the proviso forbids the extension of remands only
beyond a total period of 90 days under clause (i) 1144 and beyond a total period
of 60 days under clause (ii). Thus if proviso (a) is treated as a separate
paragraph it necessarily follows that the period of 90 days or 60 days as the
case may be, will commence running only from the date of remand and not from
any anterior date in spite of the fact that the accused may have been taken
into custody earlier by a police officer and deprived of his liberty.
Thus in any view of the matter i.e.
construing proviso (a) either in conjunction with sub-section (2) of Section
167 or as an independent paragraph, we find that the total period of 90 days
under clause (i) and the total period of 60 days under clause (ii) has to be
calculated only from the date of remand and not from the date of arrest.
We may now consider the decisions cited
before us by the learned counsel for the appellants and the respondent.
The judgments relied upon by Mr. Rao in
support of his contentions are the following :
Mohd. Shafi & Anr. v. The State, [1975]
Crl. L.J. 1309, State of Rajasthan v. Bhanwaru Khan & Ors., [1975] Crl.
L.J. 1981, Khinvdan v. The State of Rajasthan, [1975] Crl. L.J. 1984, Prem Raj
& Anr. v. State of Rajasthan, [1976] Crl. L.J. 455, Gyanu Madhu Jamkhandi
& Ors. v. The State of Karnataka, [1977] Crl. L.J. 632, State of Haryana v.
Mehal Singh & Anr., (FB) [1978] Crl. L.J. 1810, Fakira Naik & Ors. v.
State of Orissa, [1983] Crl. L.J. 1336.
Though in all these decisions there are
expressions to the effect that for computing the total period of detention
prescribed in proviso (a) to Section 167(2) the period will start running from
the date of arrest itself, we find that excepting in Fakira Naik's case (supra)
the question as to how the total period of detention should be computed had not
directly arisen for consideration. In fact except in the last mentioned case
there is no discussion about this question. The controversies in all those
cases pertained to other matters. In Shaif's case (No.2) the matter for
consideration was whether when an application for bail was made under proviso
1145 (a) to Section 167(2) the Court can reject the application on the ground
it was not a fit case for grant of bail under Section 439 of the Code. In
Bhanwaru Khan's Case (No.3) the matter for decision was whether proviso (a) to
Section 167(2) contained a mandatory provision or not. In Khinvdan's case
(No.4) the issue for consideration was whether an accused person entitled to
bail under proviso (a) can be validly kept in detention by an order of remand
made under Section 309(2) of the Code. In Gyanu's Case (No.6) what fell for
consideration was whether after charge-sheet had been filed on 6.9.76 the
accused can be kept in custody pursuant to an earlier order of remand which
expired on 10.9.76. In Mehal Singh's case (No.7) the Full Bench was called upon
to decide whether a police report in terms of Section 173(2) of the Code will
constitute a valid report only if it is accompanied by such documents and
statements as are referred to in Section 173(5). It was only in Fakira Naik's
case (No.8) a debate similar to the one before us was raised for consideration.
A Division Bench of the Orissa High Court has taken the view that the intention
of the Legislature in enacting the proviso was to prevent accused persons
suffering the deprivation of liberty on account of dilatory investigation and
hence the period of detention would start running from the date of arrest
itself. In reaching such a conclusion the Court has taken the view that the
decision of this Court in Hussainara Khatoon & Ors. v. Home Secretary,
State of Bihar, [1979] Crl. L.J. 1052, Patna contains an obiter that on the
expiry of 90 days or 60 days as the case may be from the date of arrest the
accused is entitled to be released on bail under proviso (a) of Section 167(2).
We will be presently showing that this Court has not made such a pronouncement
by way of an obiter. Apart from that we find that there has been no critical
analysis in the judgment of the several relevant provisions which have been
examined by us in this case. We, therefore, find that the decisions relied on
by Mr. Rao cannot advance the case of the appellants in any manner. In view of
the findings rendered by us the decisions of the various High Courts will stand
disapproved.
We will now deal with the other set of cases
cited by Mr. Ram Reddy to fortify his arguments. These decisions are to be
found in :
1146 "Rajoo alias Raj Kishore Singh
& Anr. v. State of Bihar & Anr., [1976] 55 I.L.R. Patna 1021, Raj Kumar
v. The State of Punjab, A.I.R. [1979] Punjab & Haryana 80, Batna Ram v.
State of Himachal Pradesh, [1980] Crl. L.J. 748, Jagdish & Ors. v. State of
Madhya Pradesh, [1984] Crl. L.J. 79, N. Sureya Reddy & Anr. v. State of
Orissa, [1985] Crl. L.J. 939.
In these decisions, even though a contrary
view has been taken we find the conclusions are not based on the reasoning
taken by us. In Rajoo alias Raj Kishore Singh's case (No. 10) it has been held
that the words used in the proviso are "a total period not exceeding 60
days' and not "within 60 days" and hence the Legislature has intended
to provide a clear 60 days for purposes of investigation. In Raj Kumar's case
(No.11) it has been held that the day of arrest is not to be included for
calculating the total period but there is no discussion. In Batna Ram's case
(No.12) it has been laid down that Section 57 should be given full effect to
and as such a Magistrate is entitled to grant police custody for a total period
of 15 days without taking into consideration the period of custody from the
time of arrest till the time of production before a Magistrate. In Jagdish's
case (No. 13) it has been held that the date of arrest is to be excluded in
computing the total period of detention by application of Section 9 of the
General Clauses Act and by bearing in mind Section 12 of the limitation Act. In
Sureya Reddy's case (No 14) the view taken is that Section 10 of the General
Clauses Act would be attracted for interpreting the proviso if the last day
happens to be a Sunday or holiday and even otherwise the principle enunciated
therein should be invoked on considerations of justice and expediency. In that
case the 90th day from the date of arrest happened to be a Sunday and hence the
Court was of the view that Section 10 of the General Clauses Act would be
attracted.
Some of the decisions cited on either side
have been rendered prior to the amendment of proviso (a) by Act 45 of 1978 and
some have been rendered after the amendment. Mr.
Ram Reddy sought to make a distinction of the
earlier decisions by contending that they ceased to have relevance because of
the amendment to proviso (a) making it an independent paragraph 1147 all by
itself. Since we have held that in whichever way proviso (a) is construed i.e.
with reference to Section 167(2) or without reference to it the periods of 90
days and 60 days prescribed by the Legislature can be reckoned only from the
date of remand the distinction sought to be made between the decisions rendered
prior to Amendment Act 45 of 1978 and subsequent to it does not have much of
significance.
As the terms of proviso (a) with reference to
the total periods of detention can be interpreted on the plain language of the
proviso itself we do not think it is necessary to invoke the provisions of the
General Clauses Act or seek guidance from the Limitation Act to construe the
terms of the proviso.
We are lastly left with three decisions of
this Court which were also placed before us for consideration. The first case
is Bashir & Ors. v. State of Haryana, [1978] 1 S.C.R. 585. What fell for
consideration in that case was whether the grant of bail to an accused under
proviso (a) to Section 167(2) was tantamount to a release on bail under Section
437(1) of the Code so as to entitle the accused person to contend that his
re-arrest cannot be ordered except by means of an order under Section 437(5) of
the Code. The second case is Hussainara Khatoon (supra) where the Court was
dealing with a public interest litigation case pertaining to the detention of
undertrial prisoners for such long periods which even exceeded the Maximum term
for which the accused could have been sentenced if they had been convicted. In
the course of the judgment a passing observation has been made that the Court
was very doubtful whether on the expiry of 90 days or 60 days, as the case may
be, from the date of arrest, the attention of the undertrial prisoners was
drawn to the fact that they were entitled to be released on bail under proviso
(a) of sub-section (2) of Section 167. It was not a pronouncement of the Court
either expressly or by way of obiter that the maximum periods of detention set
out in the proviso commence to run from the very date of arrest. On the other
hand the following sentence in the judgment will appropriately reflect the view
expressed by the Court :
"When an undertrial prisoner is produced
before a Magistrate and he has been in detention for 90 days 1148 or 60 days,
as the case may be, the Magistrate must, before making an order of further
remand to judicial custody point out to the undertrial prisoner that he is
entitled to be released on bail".
If this Court had intended to lay down, even
by way of an obiter that the period of detention is to commence from the date
of arrest, then it would not have said in the very next breath that an accused
is entitled to be told by the Magistrate, at the end of the period of detention
for 90 days or 60 days as the case may be that he has a right to seek
enlargement on bail. The last of the cases is State of U.P. v. Laxmi Brahman
& Anr., [1983] 2 S.C.R. 537. That was a case where the Allahabad High Court
held that in a case exclusively triable by a Court of Sessions a Magistrate has
no jurisdiction or authority to remand an accused to custody after the
charge-sheet is submitted and before the commitment order is made, and hence
the accused are entitled to be released on bail after being in detention as
remand prisoners for 90 days. The view of the Allahabad High court was upheld
by this Court a casual observation has been made that the admitted position was
that the accused did not apply to the Magistrate for being released on bail on
the expiry of 60 days from the date of arrest. This statement of fact can never
constitute a pronouncement as to how the total period of detention should be
reckoned.
From what we have stated above it is obvious
that this Court has not expressed itself in any of the three decisions, either
directly or indirectly, upholding the proposition that for computing the total
periods of detention prescribed in clauses (i) and (ii) of proviso (a) to
Section 167(2) of the Code, the date of arrest and not the date of production
of the accused before the Magistrate should be taken as the starting point. In
the light of our findings we are clearly of the view that the contentions of
the appellants cannot be sustained. The learned Singh Judge, it must therefore
be held, has acted correctly in allowing the petition filed by the State for
cancellation of the bail granted to the appellants. As the Munsif Magistrate
has granted bail to the appellants before the expiry of 90 days of remand
period allowed under law, the order of the Magistrate will not tantamount to
one passed 1149 under the provisions of Chapter XXXIII of the Code and hence
there is no scope for contending that re-arrest of the appellants can be
ordered only in terms of sub-section (5) of Section 437. We, however, make it
clear that after the appellants surrender themselves to custody or are taken
into custody by re-arrest, they will not stand precluded from seeking
enlargement on bail by filing applications under sub-section (1) of Section 437
of the Code and satisfying the Court that they deserve to be enlarged on bail.
In the result, the judgment of the High Court
is upheld and the appeal is dismissed accordingly.
M.L.A Appeal dismissed.
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