Fakira Naik and Others vs State of Orissa

R.C. Patnaik, J.—The short question posed for consideration is whether under proviso (a) to Sub-section (2) of Section 167 of the Cr. P.C. 1973 the period of 60 days or 90 days, as the case may be, is to be computed from the date of arrest of the accused or from the date of production before the Magistrate. The petitioners were arrested on 3-9-1982, inter alia, on allegation of commission of offence of murder. They were produced before the Magistrate on 4-9-1982. On 2-12-1982 charge-sheet was filed. The learned Sessions Judge refused to grant bail; So, the petitioners are before us.

Mr. P. K. Misra, the learned Counsel for the petitioners, has urged that the provision discloses an accent on liberty and should be liberally construed. He has submitted that the period under Proviso (a) should be computed from the date of arrest and not from the date of production before the Magistrate. The period of remand authorised should be such that it, together with the period of detention u/s 57 does not exceed the period of 60 days or 90 days, as the case may be. When the Legislature introduced the reform, the object was to alleviate the harassment that was being suffered by an accused on account of lethargic and dilatory investigation. He has relied upon Mohd. Shafi and Another Vs. State, State of Rajasthan Vs. Bhanwaru Khan and Others, : Khinvdan Vs. The State of Rajasthan, : Prem Raj and Another Vs. The State of Rajasthan, (1977) 4 Cr LT 243 Darshan Singh v. State of Punjab 1979 Raj Cri C 91 Smt. Indaro Devi v. Raja Ram 1979 Sim LC 1 Gurubachan Singh v. State of Him Pra 1979 (Cri)LR 1 (Him Pra) Gurucharan Singh v. State of Himachal Pradesh and Hussainara Khatoon and Others Vs. Home Secretary, State of Bihar, Patna, and two decisions of this Court in Mangal Hemrum and Others Vs. State of Orissa, and (1982) 53 Cut LT 345 : 1982 Cri LJ 117 Ramesh Chandra Sahu v. State. In all these cases, it has been held that the accused is entitled to bail unless charge-sheet was filed within the period of 60 days or 90 days, as the case may be, from the date of his arrest. Mr. Misra has contended that it is difficult to accept that these Courts while rendering the decisions in the aforesaid cases were oblivious of the meaning of the proviso and made a casual observation that the period commences from the date of arrest. He especially invited our attention to the observation of the Supreme Court in Hussainara Khatoon and Others Vs. Home Secretary, State of Bihar, Patna, where Bhagwati, J. observed:

... We are also 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....

Mr. Misra has urged that the Supreme Court was construing Proviso (a) to Sub-section (2) of Section 167 of the Code. In that context, it observed that the period commenced from the date of arrest. Mr. Misra has vehemently urged that it is difficult to contend that the Supreme Court was not aware of the provision contained in Section 57 of the Code and that the period of detention contemplated by Section 57 was authorised by that section. He has submitted that in the context and the scheme of the provision, having regard to the object sought to be achieved, the Supreme Court and other High Courts laid down that the period would commence from the date of arrest. It is immaterial whether the period of detention prior to production before the Magistrate is one contemplated by Section 57. A strict and literal interpretation of Proviso fa) to Sub-section (2) of Section 167 of the Code would defeat the object. According to him, the Supreme Court was construing Proviso (a) and the rule that the period is to be computed from the date of arrest is the ratio of the case. Even the obiter of the Supreme Court is binding on this Court and so he persuades us to accept his contention. He has also drawn our attention to the case of Gurucharan Singh v. State of Himachal Pradesh 1979 (Cri) LR 1 (Him Pra) (supra) where it was observed:

The scheme which is revealed from the provisions of Section 167, Cr. P.C. is that the Magistrate can authorise two types of custodies, namely, (1) the police custody and (2) the judicial custody. In other words, Section 167 contemplates not merely the judicial custody, but also the police custody. So far as the police custody is concerned, there is a limitation to the effect that the same cannot exceed more than 15 days. After the expiry of these fifteen days of police custody, the arrested person is required to be taken in judicial custody. Sixty days'' limitation which is contemplated by the proviso (e) of Section 167(2) is with regard to both the types of custodies contemplated by this section. It, therefore follows that sixty days'' limitation would start running from the time the person is arrested by the police....

The learned Government advocate has submitted that the provision contained in Proviso (a) to Sub-section (2) of Section 167 of the Code was framed against the backdrop of Section 57. When the period of detention preceding production before the Magistrate is one authorised by Section 57, it would not be sound interpretation to hold that the said period would be a part of the period contemplated by Proviso (a) to be one authorised by the Magistrate. He has referred us to the decisions reported in Jai Singh and Another Vs. State of Haryana, Tarsem Kumar Vs. The State, L.R. Chawla Vs. Murari, etc., and Raj Kumar Vs. The State of Punjab, .

Chapter XII of the Code contains the provisions relating to information to the police and investigation. Section 57 reads as hereunder:

No police officer shall detain in custody a person arrested without warrant for a longer period than under all the circumstances of the case is reasonable, and such period shall not, in the absence of a special order of a Magistrate 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.

Section 57 commands the police to produce the accused before the Magistrate whenever it appears to it that the investigation cannot be completed within a period of twenty-four hours. The time taken for the journey from the place of arrest to the Magistrate''s Court is excluded. Then comes Section 167. It says that upon such production of the accused, the Magistrate may remand him to such custody, i. e. police custody. The remand to police custody, however, would not exceed fifteen days on the whole. Proviso (a) says that the Magistrate may authorise the detention of the accused if he is satisfied that adequate grounds exist even after the period of fifteen days under police custody. The period of detention, however, would not exceed 90 days where the investigation relates to an offence punishable with death, imprisonment for life or imprisonment for a term not less than ten years, and 60 days where the investigation relates to another offence. In our opinion, having regard to the intention of the Legislature in enacting the new provision that where the investigation is dilatory an accused should not suffer the deprivation of his liberty for more than 60 days or 90 days, as the case may be, the commencement of the deprivation of liberty is from the date of arrest and not from the date of production. If this approach is adopted, the authorisation under Proviso (a) for detention should be for such a period which together with the period contemplated by Section 57 would make the period of 60 days or 90 days, as the case may be. We agree with Mr. Misra that an obiter of Supreme Court is binding on us. When in construing Proviso (a) the Supreme Court said that

.... on the expiry of 90 days or 60 days, as the case may be, from the date of arrest ...

It necessarily repelled the theory that the period commenced from the date of production. It may be observed that in Jai Singh and Another Vs. State of Haryana, the observations of the Supreme Court are not noticed. The other cases relied upon by the earned Government advocate were decided before Hussainara Khatoon and Others Vs. Home Secretary, State of Bihar, Patna, .

So, we hold that the period of 60 days or 90 days, as the case may be, commences from the date of arrest and not from the date of production of the accused before the Magistrate.

We may also observe that the day the accused suffers deprivation of his liberty by arrest would also count for one day. A calendar day as a unit of time is the interval between one midnight and another. So, a fraction of a day which the accused is under detention is also a day for the purpose of proviso (a) to Sub-section (2) of Section 167 of the Code. See L.R. Chawla Vs. Murari, etc., . The petitioners were arrested on 3-9-1982. The period of 90 days expired with 1-12-1982. Charge-sheet was not filed within the said period. The petitioners were, therefore, entitled to be released on bail notwithstanding the filing of charge-sheet on 2-12-1982. See (1982) 53 Cut LT 259 : Mangal Hemrum and Others Vs. State of Orissa, .

R.N. Misra, C.J.

I agree.