Ashok Sharma vs State of M.P.

K.K. Verma, J.—The question of law in an application for bail (under section 439(1) Code of Criminal Procedure filed by one of the three accused persons, first remanded by the Judicial Magistrate to judicial custody on 23 April 1991, is whether the charge-sheet having been filed on a Monday (22 July 1991), the day falling on 21 July 1991 (a Sunday) has to be included for determining the duration of the applicant''s detention in judicial custody under the Sub-clause (ii) of Clause (a) of the proviso to Sub-section (2) of Section 167, Code of Criminal Procedure, 1973, or whether the day falling on 21.7.91 (a Sunday) has to be excluded from consideration in accordance with the provisions of Section 10 of the General Clauses Act, 1897.

I have heard at length the applicant''s learned Counsel, Shri J.P. Gupta, the learned panel lawyer for the State, Shri D.R. Sihara, and the complainant, learned Counsel Shri K.K. Sharma, who have cited a number of reported decisions to back up their respective stands, as posited in the two clauses of the statement at paragraph 1 (Supra).

The provisions of Sub-section (1) and (2) and Clause (a) of the proviso below Sub-section (2) of Section 167 Code of Criminal Procedure., and those of Sub-sections (1) and (2) of Section 10 of the General Clauses Act are being extracted and juxtaposed as follows:

Procedure when investigation can not be completed in twenty-four hours.

(1) Whenever any person is arrested and detained in custody, and it appears that the investigation cannot be completed within the period of twenty-four hours fixed by Section 57, and there are grounds for believing that the accusation or information is well-founded, the officer in charge of the police station or the police officer making the investigation, if he is not below the rank of sub-inspector, shall forthwith transmit to the nearest Judicial Magistrate a copy of the entries in the diary hereinafter prescribed relating to the case, and shall at the same time forward the accused to such Magistrate.

(2) The Magistrate to whom an accused person is forwarded under this section may, whether he has or has not jurisdiction to try the case, from time to time, authorise the detention of the accused in such custody as such Magistrate thinks fit, for a term not exceeding fifteen days in the whole; and if he has no jurisdiction to try the case or commit it for trial, and considers further detention unnecessary, he may order the accused to be forwarded to a Magistrate having such jurisdiction:

Provided that

(a) the Magistrate may authorise the detention of the accused person otherwise than in the custody of the police, beyond the period of fifteen days, if he is satisfied that adequate Computation of time.

(1) Where, by any Central Act or Regulation made after the commencement of this Act, any act or proceeding is directed or allowed to be done or taken in any Court or office on a certain day or within a prescribed period, then, if the Court or office is closed on that day or the last day of the prescribed period, the act or proceeding shall be considered as done or taken in due time if it is done or taken on the next day afterwards on which the Court or office is open:

Provided that nothing in this section shall apply to any act or proceeding to which the Indian Limitation Act, 1877, applies.

(2)This section applies also to all (Central Acts) Regulations made on or after the fourteenth day of January, 1887."grounds exist for doing so, but no Magistrate shall authorise the detention of the Accused person in custody under this paragraph for a total period exceeding.--

(i) ninety days, where the investigation relates to an offence punishable with death, imprisonment for life or imprisonment for a term of not less than ten years;

(ii) sixty days, where the investigation relates to any other offence, and on the expiry of the said period of ninety days, or sixty days, as the case may be, the accused person shall be released on bail if he is prepared to and does furnish bail, and every person released on bail under this Sub-section shall be deemed to be so released under the provisions of Chapter XXXIII for the purposes of that Chapter;

(Emphasis supplied)

Amongst the ruling cited by the learned Counsel, the following rulings refer provisions of the General Clauses Act (1897). The provisions of the enactment (s) in relation to which the provisions of Section 10 of the General Clauses Act (1897) were considered are also being indicated:

1) H.H. Raja Harinder Singh Vs. S. Karnail Singh, (Applicant''s citation) Section 10 of the General Clauses Act. Sections 81(1), 37 Proviso Rules u/s 81(1) Rule 119; Sections 37 proviso, 30(c) of the Re presentation of the People Act (1951).

2) The State of Maharastra v. Sharan K. Karda (1983 (2) Crimes SN page 254 (Bombay High Court), M.P. Kanade, J. (Applicant''s citation) Section General 10 of the Clauses Act. Sections 167(2) and 437(5) of the Code of Criminal Procedure, 1973.

3) N. Surveya Reddy v. State of Orissa (1985 Cr.L.J. 839) (DB). Notes: 2. The applicant''s learned Counsel has submitted that 1980 Cr.L.J. 939 Orissa does not lay down the correct law. (State''s citation) Section 10 of the General Clauses Act. Section 167(2) Proviso (a) (i)

4) P.N. Ogochi v. State (Delhi Administration) (1986 Cr.L.J. 2081 (Delhi) (DB). (Applicant''s citation) Section 10 of the General Clauses Act. Section 167(2) of the Code of Criminal Procedure, 1973.

5) Meghiji Jethabhai Vankar v. State of Gujrat, (1986 Cr.L.J. NOC 68 (Gujrat), A.S. Qure shi, J. (Applicant''s citation) Section 10 of the General Clauses Act. Section 167(2) of the Code of Criminal Procedure,

The rulings, at serial No. 2 has no text while serial No. 5 contains insufficient facts. Hence, these two will be of no aid to us.

The following rulings cited by the two sides do not discuss the provisions of Section 10 of the General Clauses Act. 1897:

Applicant''s citations

1) Umashankar v. State of Madhya Pradesh 1982 JU 697 (DB).

(2) Darshan Singh v. The State of Rajasthan 1978 (3) CRI. 276 (SB) of Rajasthan High Court.

Citations by the State Counsel

1) Jagdish and Ors. v. State of M.P. ARI 1983 JU 730decided by C.P. Sen, J. on 31.1.1983.

2) Chaganti Satyanarayana and Others Vs. State of Andhra Pradesh, decided on 8.5.1986

3) Bhanu Pratap Singh v. State of M.P. 1986 C.CriLJ 47 decided by K.M. Agarwl, J. on 20.8.1985.

4) Rajnikant Jiwanlal Patel v. Intelligence Officer Narcotic Control Bureau 1989 CAR 208 decided on 26.5.1989.

The learned Panel Lawyer for the State also cites Umedsinh Vakmatji Jadeja and Others Vs. The State of Gujarat, decision, the Pandi''s case, a Single Penal decision of Madras High Court 1979 (2) CriLJ. 1103 which were considered and dissented from the DB decision in Umashankar''s case 1982 JLJ 697. Hence, the rulings from Gujrat and Madras High Courts do not admit of further examination in the present case owing to the observations in Umashankar''s case 1982 JU 697.

Coming to the present case, the Magistrate passed the order of remand for the first time on 23 April 1991. The period of detection for the purpose of Clause (a) of the proviso to Sub-section (2) of Section 167 began on 23 April 1991. Chaganti Satyanarayana and Others Vs. State of Andhra Pradesh, The 90th day fell on 21 July 1991, when admittedly the Court of the Magistrate did not function because it was Sunday. The police filed the charge-sheet on 22 July 1991 (Monday).

The crucial point is whether or not Sub-section (2) of Section 167, for that matter, Sections 169, 170 and Section 173, singly, or read together, contain any direction to any Officer-in-charge of a police station doing an investigation into a cognizable offence (in respect of which an accused person has been detained under the orders of a Magistrate under Sub-section (2) of Section 167 read with the proviso there under) to do any act in Court within any prescribed period within the meaning of Sub-section (1) of Section 10 of the General Clauses Act (1897), and if so, whether the period of 90 days or 60 days (referred to in Sub-clause (i) and (ii) of Clause (a) in the proviso below Sub-section (2) of Section 167) could be said to be that prescribed period for the requisite act.

As I see it, the interpretation of Sub-section (2) of Section 167 and Clause (a) in the proviso below it calls for an exercise in constructing those provisions in the context of some other relevant provisions of the Code of Criminal Procedure, 1973, as well. In Reserve Bank of India v. Peerless General Finance and Investment Co. AIR 1987 SC 1023, it was laid down:

Interpretation must depend on the text and the context. They are the basis of interpretation. One may well say if the text is the texture, context is what gives colour. Neither can be ignored. Both are important. That interpretation is best which makes the textual interpretation match the contextual. A statute is best interpreted when we know why it was enacted.

Chapter V of the Code of Criminal Procedure, 1973 deals with the subject "Arrest of persons." It begins with Section 41.

Clause (a) of Sub-section (1) of Section 41 says that any police officer may, without an order from a Magistrate, and without any warrant, arrest any person who has been concerned in any cognizable offence, or against whom a reasonable complaint has been made or credible information has been received, or a reasonable suspicion exists, of his having been so concerned.

As to what is the duty of the police officer arresting a person without a warrant, Section 56 says that the police officer in question shall, without unnecessary delay and subject to the provisions (in the Code) as to bail, take or send the person arrested before a Magistrate having jurisdiction in the case, or the officer-in-charge of a police station.

Section 57 says that no police officer shall detain in custody a person arrested without a warrant for a longer period than under all the circumstances of the case is reasonable, and such period shall not in the absence of a special order of a Magistrate u/s 167, exceed twenty-four hours exclusive of the time necessary for the journey from the place of arrest to the Magistrate''s Court.

The reference in Section 57 - 167 take us to the provisions of Sub-sections (1) and (2) including the proviso below Sub-section (2) of Section 167, extracted at paragraph 3 (supra).

Here a pause is indicated before going on to the other provisions of the Code. Section 56 speaks of the taking or sending of a person arrested before a Magistrate but not necessarily in the Court of a Magistrate. Section 57 and Sub-section (1) of Section 167, read together, envisage the forwarding of an accused to the nearest Magistrate and to the Magistrate having jurisdiction but not necessarily in the Court of the Magistrates in question. What is more, Section 57 and Sub-section (1) of Section 167 do not say that the production of the accused arrested before the Magistrate need not be done on a day on which the Court of the Magistrate is closed, or that on such a day the Magistrate is not required to consider the first application made by the police for further detention of the accused in custody.

Again, Sub-section (2) of Section 167 and Clause (a) of its proviso do not contain any provisions to the effect that the Magistrate, who has been directing the detention of the accused from time to time, is to direct the investigating police to file a charge-sheet against the accused by the 90th or 60th day, as the case may be, reckoned from the date of the first order made by him (the Magistrate) for the detention of the accused during the investigation of the police.

Now, the first part of Clause (h)of Section 2 of the Code defines the term ''investigation'' to include all the proceedings under this Code for the collection of evidence conducted by a police officer.

Sub-section (1) of Section 173 of the Code says that every investigation under Chapter XII of the Code shall be completed without unnecessary delay. It is significant that in its wisdom the legislature has not prescribed any period for the completion of an investigation under Chapter XII. In fact, the legislature has given no command to a police officer making an investigation under Chapter XII that he shall file a charge-sheet against the accused.

The reason for the aforementioned omission of such a legislative command becomes apparent from the provisions of Sections 169, 170 and 173(2) of the Code. Section 169 says that if, upon an investigation under Chapter XII, it appears to the officer-in-charge of the police station that there is not sufficient evidence or reasonable ground of suspicion to justify the forwarding of the accused to a Magistrate, he shall, if such person is in custody, release him on a personal bond with or without a bail bond to appear, if and so required, before a Magistrate empowered to take cognizance of the offence on a police report and to try the accused or commit him to trial. On the other hand, Sub-section (1) of Section 170 says that if, upon an investigation under Chapter XII, it appears to the officer-in-charge of the police station that there is sufficient evidence or reasonable ground as aforesaid, (in Section 169), to forward the accused under custody to the Magistrate as aforesaid (in Section 169).

Sub-section (2) of Section 173 says that as soon as the investigation is complete, the officer-in-charge of the police station shall forward to a Magistrate empowered to take cognizance of the offence on a police report, a report in the form prescribed by the State Government, stating the names of the parties, nature of the information, the names of the persons who appear to be acquainted with the circumstances of the case, whether any offence appears to have been committed and if so, by whom whether the accused has been arrested, whether he has been released on bond, and if so, whether with or without sureties, whether he has been forwarded in custody u/s 170.

Hence, the provisions of Sections 169, 170 and 173, read together, highlight that the legislature left it to the individual judgment of the investigating officer to take the decision as to the juncture he should treat the investigation as closed, and to decide whether on the evidence collected by him any offence was made out or not and whether any person was to be arraigned or not. These are the requisite in-built preconditions before the launching of a prosecution against an accused person in a Court of law which understandably did not admit of a legislative direction for the completion of the investigation within any prescribed period.

In other words, the police agency invested with the powers of investigation under Chapter XII of the Code has not been given any command by the legislature in the provisions of Sub-section (2) inclusive of Clause (a) in its proviso of Section 167, Section 169, Section 170 and Sub-sections (1) and (2) of Section 173, to complete an investigation under Chapter XII, and file a charge-sheet against an accused person in 90 days, or 60 days, specified under Sub-clause (i) and (ii) of Clause (a) in the aforementioned proviso below Sub-section (2) of Section 167. On the other hand, the aforementioned provisions in Section 167 show the legislative intent only to limit the powers of the Magistracy in the matter of the authorization of the detention of an accused person, upto 90 days, and to give such an accused person the statutory right to be admitted to bail on and from the 91st day, counted from, that is, inclusive, of the day on which the authorization of the detention of the accused person made by the Magistrate for the first time.

Now, first we have the task of construction of the material parts of Sub-section (1) of Section 10 of the General Clauses Act (1897)-already extracted at paragraph 3 (supra)-to be followed by the dovetailing the meaning thereof with the end-product of the interpretation of the provisions of Sub-section (2) of Section 167 and Clause (a) in its proviso, set out at paragraph 22 (supra).

The provisions of Sub-section (1) of Section 10 of the General Clauses Act (1897)-material for our purposes-say that where by any Central Act etc. any act or proceeding is directed to be done or taken in any Court within a prescribed period, then, if the Court is closed on the last day of the prescribed period, the act or proceeding shall be considered as done or taken in time if it is done or taken on the next day afterwards on which the Court is open. Are these provisions applicable to the provisions of Section 167(2) of the Code.

In H.H. Raja Harinder Singh Vs. S. Karnail Singh, the provisions of Section 81(1) of the Representation of the People Act (1951) and Rule 119(a) framed thereunder were interpreted in order to see whether or not they attracted the provisions of Section 10(1) of the General Clauses Act (1897). Section 81(1) enacts that election petition may be presented "within such time as may be prescribed." Rule 119(a) provides that election petition may be filed against a returned candidate not later than fourteen days from the date of publication of the notice in the Official Gazette under Rule 113 that the return of election expenses of such candidate and the declaration made in respect thereof, have been lodged with the Returning Officer."

The Supreme Court held that the provisions of Section 10(1) of the General Clauses Act (1897) were attracted to the filing of an election petition under the Representation of People Act (1951) required to be filed within a period prescribed under Rule 119(a) read with Section 81(1).

But in the case before us, the Central Act in question is the Code of Criminal Procedure, 1973 (No. 1 of 1974). The relevant provisions are the provisions of Sub-section (2) of Section 167 (inclusive of Clause (a) of the proviso below the said Sub-section but, as stated at paragraph 22 (supra), those provisions do not contain any direction to the officer-in-charge of a police station to file a report under Sub-section (2) of Section 173, containing a charge-sheet or Challan against an accused person held in custody under Sub-section (2) of Section 167 (inclusive of Clause (a) of its proviso).

The touchstone in H.H. Raja Harinder Singh Vs. S. Karnail Singh, being the existence of a prescribed period for doing an act or taking a proceeding in a Court or office, I hold that in view of the interpretation given by me (at paragraph 27) in respect of the provisions of Section 167(2), those provisions do not attract the provisions of Section 10(1) of the General Clauses Act (1897).

In H. Suraya Reddy v. State of Orissa 1985 Cri LJ 393 , their Lordships referred to the observations of the Supreme Court at paragraphs in H.H. Raja Harinder Singh Vs. S. Karnail Singh, about the object of Section 10(1) of the General Clauses Act but did not set out the provisions of Section 81(1) of the Representation of People Act, 1951, and Rule 119(a) framed under the section. The learned Judges conceded that Section 167(2) does not contain any express directions to the investigating agency. However, they held that the provisions of Section 10(1) of the General Clauses Act (1897) were being held applicable on the grounds of justice and fairness to a police officer, who, on account of the 90th day falling on a holiday, files a charge-sheet on 91st day, with respect, taking such amorphous factors into consideration is not permissible in the light of the ratio-decidendi in H.H. Raja Harinder Singh Vs. S. Karnail Singh, as stated by me at paragraph 26 (supra). With utmost respect, I disagree with the view of the Orissa High Court.

In Powell Nwawa Ogechi Vs. The State (Delhi Administration), a Division Bench of Delhi High Court applying the ratio-decidendi in H.H. Raja Harinder Singh Vs. S. Karnail Singh, held that Section 10(1) of the General Clauses Act (1897) is not attracted to the provisions of Section 167(2) because these provisions do not contain any prescribed period for the filing of a charge-sheet by the police. The Court dissented from Sureya Reddy''s case 1985 CriLJ. 395). I am in respectful agreement with Delhi High Court''s view.

In Jagdish v. State of M.P. 1983 JLJ 730 Bhanu Pratap Singh v. Stale of M.P. 1986 Cri L 47 , decided by K.M. Agarwal, J. on 20.8.1985, Chaganti Satyanarayana and Others Vs. State of Andhra Pradesh, and RajniKant Jeevanlal Petal v. Intelligence Officer Narcotic Control Bureuo 1989 CAR 208 SC the question of the applicability of the provisions of Section 10(1) of the General Clauses Act (1897) to the provisions of Section 167(2) was not in issue. These cases do not come to the aid of the State in the case before me.

The learned Counsel of the State and the complainant urged on a decision of K.M. Agarwal, J. in Bhanu Pratap Singh''s case 1986 CirLLJ 47 decided on 20.8.1985 that the filing of a charge-sheet after the expiry of 90 days detention of an accused extinguishes his right to be released u/s 167(2) Code of Criminal Procedure. The decision was not only contrary to the law laid down in an earlier Division Bench decision of this Court, Umashankar''s case 1982 JLJ 697 but also cannot stand upto a Supreme Court decision reported in Rajni Kant''s case 1989 CAR 208(SC) decided on 26.5.1989. In the latter case, it was stated (at paragraph 9) as follows:

9 ... The right to bail u/s 167(2) proviso (a) thereto is absolute. It is a legislative command and not Court''s discretion. If the Investigating agency fails to file charge- sheet before the expiry of 90/60 days, as the case may be, the accused in custody should be released on bail. But at that stage, merits of the case are not to be examined. Not at all. In fact, the Magistrate has no power to remand a person beyond the stipulated period of 90/60 days. He must pass an order of bail and communicate the same to the accused to furnish the requisite bail bonds.

In Umashankar''s case 1982 JLJ 697, it was first observed:

A plain reading of proviso (a) makes it clear that an accused is entitled to be released on bail on the expiry of 90 days or 60 days, as the case may be, "if he is prepared to and does furnish bail." The right to release arises on the expiry of the aforesaid period when the accused intimates the Court that he is prepared to furnish hail although the release naturally has to follow as stated in the explanation when bail in furnished. The proviso does not in terms say that the accused has not to make a formal written application for exercising the right of being released on bail. All that he has to do is to intimate that he is prepared to furnish bail that may be ordered by the Court. If he does so intimate the Court whether orally or in writing, the Court cannot refuse to pass an order directing his release on bail for went of a written application. Indeed as held by the Supreme Court in Hussainars Khatoon ''s, it is the duty of the Magistrate to inform the accused that he has a right to be released on bail under the proviso and if the accused is prepared to furnish bail as ordered and does, furnish bail, he has to be released. If a challan is filed before the expiry of the maximum period for which an accused can be detained in custody u/s 167 further remand to custody can he ordered u/s 309. No maximum period of remand is provided for u/s 309. The Magistrate, however, cannot postpone the release of an accused under proviso (a) to Section 167(2) after the expiry of 90 days or 60 days, as the case may be, just to enable the police to file the challan and to alter the detention u/s 167 to one u/s 309. It the accused of his own or on being told of his right by the Magistrate, is prepared to furnish bail, the Magistrate must order the accused to be released on bail, without waiting for the challan and must release him when bail is furnished.

The Court went on to say at paragraph 5 as follows:

The learned Deputy Government Advocate, who appeared for the State, has relied upon a Division Bench ruling of the Gujarat High Court in Umesingh v. State (1) which was followed by a Single Bench of the Madras High Court in Pandi v. State (2). The view in these cases is that if pending an application for bail under proviso (a) to Section 167(2) a challan is filed, the right of the accused to get bail under the proviso ceases. With great respect we are unable to agree with this view. If an accused is not released on bail under proviso (a) to Section 167(2) after expiry of the maximum period of detention allowed under that provision due to inaction of the Magistrate although he is prepared to furnish bail, his right cannot be defeated by tiling of the challan.

Hence, Bhanu Pratap Singh''s case 1986 CriLJ. 47 has not binding effect. The contention of the State (stated at paragraph 32, Supra.) is rejected.

In the result, I hold that applicant Ashok Sharma has got the statutory right under the proviso to Sub-section (2) of Section 167 of the Code of Criminal Procedure to be released on bail.