State of Maharashtra vs Wasudeo Mahadeo Butke

M.R. Waikar, J.—This is a revision by the State challenging the order passed by the learned Sessions Judge, Wardha allowing the application of the accused arrested for the offence punishable u/s 302 of the Indian Penal Code solely on the ground that the charge sheet has been filed beyond 90 days of his arrest.

The relevant dates to be mentioned are that the accused was arrested on 25-4-1980, the charge-sheet was filed on 24-7-1980 and the present application for bail was filed on 29-7-1980.

Thus, obviously the application for bail has been filed after the presentation of the charge-sheet, in the Court, assuming it was filed after the period of 90 days of his arrest. As observed in Shrawan v. State of Maharashtra 1976 Mh. L J 654 , a right created u/s 167 (2) of the Criminal Procedure Code can be exercised by the accused before the completion of the investigation and filing of the charge-sheet. Once the charge-sheet has been filed, section 167 (2) has no application, though a Magistrate can exercise power to grant bail u/s 437 of the Code of Criminal Procedure. Thus the detention of the accused beyond a period of 90 days is not ipso facto illegal, nor is the trial vitiated on that ground. A right that is conferred on an accused u/s 167 (2), therefore, is not an indefeasible, a consummate right which he can reserve to exercise any time after the presentation of the charge sheet and at any stage of the trial as and when he chooses to exercise it. This aspect of the matter was never considered by the learned Sessions Judge in allowing the application. Whether the charge-sheet was really presented beyond a period of 90 days after the arrest as observed by the Sessions Judge is the next question. If the date of arrest (25-4-1980) is to be excluded, then the charge sheet was presented exactly on the 90th day (i.e. 24-7-1980) and if it is to be excluded, the presentation is late by one day. There appears a welter of judicial opinion on the point. In L.R. Chawla Vs. Murari, etc., . following the earlier decision of that Court reported in Tarsem Kumar Vs. The State, , the Delhi High Court held that while computing the total period referred to in section 167(2) proviso (a), the period of detention u/s 57 of the Code of Criminal Procedure has to be excluded. So also the High Court of Punjab and Haryana in Jai Singh and Another Vs. State of Haryana, and the High Court of Himachal Pradesh in Batna Ram v. State of Himachal Pradesh 1980 Cri. L J 74, have taken the same view.

I am in respectful agreement with the view taken in these decisions. The opening words of proviso (a) to section 167 (2) of the Code are:

(a) the Magistrate may authorise detention of the accused person....

Thus the emphasis is on the period of detention as authorised by the Magistrate. In exercise of powers u/s 57 of the Code of Criminal Procedure, the police are empowered to detain in custody a person arrested without warrant for a period not longer than 24 hours exclusive of the time necessary for the journey from the place of arrest to the Magistrate''s Court. After the expiry of the said period, the arrested person is bound to be produced before the Magistrate and it is thereafter that further detention is authorised by the Magistrate u/s 167 of the Criminal Procedure Code. Thus the detention under the authority of the Magistrate must commence from the date the Magistrate passes and is authorised to pass the order of remand. The period of 90 days or 60 days as the case may be as referred to in Proviso (a) to sub-section (2) of section 167 of the Code obviously has to be computed from the date the Magistrate authorises the detention of an accused person. In this view of the matter, therefore, the date of arrest i. e. 25-4-1980 has to be excluded and as such the charge-sheet in this case was filed on 90th day and not beyond that period as observed by the learned Sessions Judge.

In the result, the order passed by the learned Sessions Judge has to be set aside and this revision application has to be allowed. The accused, however, is at liberty to move the Sessions Court for grant of bail u/s 437 of the Code of Criminal Procedure. Criminal Application No. 88 of 1981 filed by the non-applicant accused in this Court u/s 439 has been withdrawn by him.