9911796707
TMI Blog1986 (5) TMI 265X X X X Extracts X X X X X X X X Extracts X X X X ..... g 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 an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t 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 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 followe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 prescr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... risdiction 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 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 .... fo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... trate, 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 accuse ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... agistrate 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 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 exceed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... etention 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 bey ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 dec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he 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 claus ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
