Full Judgment Text
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PETITIONER:
CHAGANTI SATYANARAYAN & ORS.
Vs.
RESPONDENT:
STATE OF ANDHRA PRADESH
DATE OF JUDGMENT08/05/1986
BENCH:
NATRAJAN, S. (J)
BENCH:
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
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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
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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
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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
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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.
JUDGMENT:
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
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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
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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
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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
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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,
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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
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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
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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
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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
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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
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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.
1