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TMI Blog1991 (4) TMI 462X X X X Extracts X X X X X X X X Extracts X X X X ..... r and deceased Savitha. He intended to marry her and when the parents of deceased Savitha resisted the proposal, there was some altercation between the petitioner and the family of deceased Savitha. On 30-9-1989 at about 9-30 a.m. in Siddartha Layout near Karanji Tank Road, the petitioner met Savitha and stabbed her with a knife and also attempted to commit suicide by stabbing himself on his stomach. Subsequently Savitha died in the hospital. The police registered a case on the complaint of one Manjunatha of Siddartha Layout, a colleague of the petitioner, at Crime No. 114 of 1989 for the offences punishable under Section 302 read with Section 307 and Section 309 I.P.C. 4. The doctor who conducted the post mortem examination over the dead body of the deceased has opined that the death of the deceased was due to bleeding and shock as a result of stab injury to heart and liver by single edged weapon and he noticed 10 injuries on the dead body of Savitha. In respect of the petitioner, the doctor noticed two incised wounds and the doctor has opined that the injuries were grievous in nature. In view of the post mortem report on the dead body of deceased Savitha, it will have to be he ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... earned Government Pleader relied on Ashak Hussain Allah Detha Alias Siddique And Anr. V. Assistant Collector of Customs (P) Bombay And Anr. wherein the Bombay High Court has held as follows:- The word 'arrest' is a term of article. It starts with the arrestor taking a person into his custody by action or words restraining him from moving anywhere beyond the arrester's control, and it continues until the person so restrained is either released from custody or having been brought before a Magistrate, is remanded in custody by the Magistrate's Judicial Act. In substance, 'arrest' is the restraint on a men's personal liberty by the power or colour of lawful authority. In its natural sense also 'arrest' means the restraint on or deprivation of one's personal liberty. It stands to reason therefore, what that label the investigating officer affixes to his act of restraint is irrelevant. For the same reason, the record of the time of arrest is not an index to the actual time of arrest. The arrest commences with the restraint placed on the liberty of the accused and not with the time of 'arrest' recorded by the Arresting Officers. He a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or some other restriction by the police. Arrest commences with the restraint placed on the liberty of the accused and not with the time of the formal arrest recorded by the Arresting Officer. In this case, it is not in dispute that the petitioner was under police surveillance during his period of stay for treatment in the hospital from 30-9-1989 to 12-11-1989. There were restrictions on the movement of the petitioner even in the hospital. Therefore, there were restrictions placed in the form of surveillance on the movement of the petitioner even when he was in the hospital. The period of surveillance over the petitioner in the hospital from 30-9-1989 to 12-11-1989 will have to be considered as a period of custody in the light of the various Rulings cited above. Besides, there is a mahazar produced at Annexure D which is drawn by the police on 12-11 -1989 at the time when this petitioner was taken into the formal custody. In that mahazar the wordings are as follows:- From this averment also, it can be seen that the petitioner was under custody even before this mahazar was drawn up. Taking into consideration all these factors, I am of the opinion that the period from 30-9-1989 to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the power of the Magistrate to authorise detention beyond the period of sixty days, can be exercised, provided that the Magistrate is satisfied that adequate grounds exist for doing so, and the Magistrate would be right in remanding the concerned accused to judicial custody, He has also relied on Nawal Sahni v. State of Bihar wherein it has been held as follows:- Even in a case where charge sheet has been submitted beyond the statutory period but if the prayer for grant of bail is being considered after submission of such charge sheet then the stage of applicability of Section 167(2) proviso is over. With the submission of the charge sheet an enquiry shall be deemed to have commenced, as such, there is no question of lack of power in the Magistrate to remand such an accused; he can remand in exercise of power under Section 309(2). Of course, if the prayer for bail is being considered after the expiry of the statutory period and before the submission of the charge sheet there is no option with the Magistrate except to release the accused on bait if he furnishes bail bond. 1988 Pat IJR (HC) 201 overruled. Another Ruling relied upon by the learned Government Pleader is St ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... has been in detention for 90 days 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. The State Government must also provide at its own cost a lawyer to the undertrial prisoner with a view to enable him to apply for bail in exercise of his right under proviso (a) to Sub-section (2) of Section 167 and the Magistrate must take care to see that the right of the under-trial prisoner to the assistance of a lawyer provided at State costs is secured to him. The learned Counsel for the petitioner has also relied on Raghubir Singh And Ors. v. State Of Bihar, 1987 CriL J157 wherein it has been held as follows:- An order for release on bail made under the proviso to Section 167(2) is not defeated by lapse of time, the filing of the charge-sheet or by remand to custody under Section 309(2). The order for release on bail may however be cancelled under Section 437(5) or Section 439(2). Generally the grounds for cancellation of bail, broadly, are interference or attempt to interfere with the due course of administration of justice, or evasion or a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Ors. v. State of Bihar their Lordships of the Supreme Court have held that the right that has accrued to an accused under Section 167(2) Cr.P.C. is not defeated by lapse of time, by filing of the charge sheet or by remand to custody under Section 309(2) Cr.P.C. Their Lordships of the Supreme Court have held that the order for release on bail may however be cancelled under Section 437(5) Cr.P.C. or Section 439(2) Cr.P.C. 12. His Lordship Justice Jagannatha Shetty in Rajnikant Jivanlal Patel and Anr. v. Intelligence Officer, Narcotic Control Bureau, New Delhi quoted above has stated that the right to bail under Section 167(2) proviso (a) Cr.P.C. thereto is absolute and it is a legislative command and not Court's discretion. His Lordship has stated in clear words that the Magistrate has no powers to remand a person beyond the stipulated period of 90/60 days, and the accused must be released on bail. If the investigation reveals that the accused has committed a serious offence and charge-sheet is filed, the bail granted to the petitioner under proviso (a) to Section 167(2) Cr.P.C. could be cancelled. 13. The learned Government Pleader contended that the observation of his Lor ..... X X X X Extracts X X X X X X X X Extracts X X X X
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