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TMI Blog1982 (12) TMI 230X X X X Extracts X X X X X X X X Extracts X X X X ..... 5 p.m. wherein he claimed the right to be released on bail as per the provision of section 167 Clause 2(a) of the Code of Criminal Procedure. It was contended by the accused that since 90 days have expired on the date when the charge-sheet was filed he became entitled to be released on bail. The learned Judicial Magistrate after hearing the accused and the prosecution rejected the said application on September 15, 1982. Feeling aggrieved by the said order of the Magistrate the accused filed a Criminal Revision Application No. 306 of 1982. The said revision application was heard by the learned Additional Sessions Judge Pune and by his judgment and order dated October 2, 1982 was pleased to release the accused on bail of Rs. 15,000/- with one surety in the like amount. Certain conditions were imposed on the accused that the accused shall not directly or indirectly make any inducement, threat or promise to any person acquainted with the facts of the case so as to dissuade him from disclosing such facts to the Court. The second condition against the accused was that he shall not stay within the limits of Pune and District Beed till the disposal of the case and he should stay at Auranga ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion of the period of 90 days is also erroneous. It is submitted, that while computing the period of 90 days or 60 days, as the case may be as laid down in section 167, the initial detention under section 57 of the Code is to be excluded. It is urged by the learned Counsel that the powers of the learned Magistrate under section 167 of the Code of Criminal Procedure come into existence from the time and the date when the accused is produced before him by the police after the period of detention under section 57. According to Mr. Hudlikar the detention period of 24 hours by the policy ought to have been excluded and thereafter the authorised period of detention by the learned Magistrate should have been taken into consideration for computing the period of 90 days. Having regard to the facts of this case it is urged that the period of 90 days was to end on a day when the Court had a holiday. The said day of holiday has to be excluded in view of the provisions of section 10 of the General Clauses Act, 1897. 4. Mr. R.S. Bhonsale who appears on behalf of the accused, contended that on the expiry of 90 days from the date of detention the accused gets an absolute right to be released on ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. Clause (1) of section 167 deals with the power of the Police Officer. Section 57 empowers the Police Officer to arrest and detain a person without a warrant for not more than 24 hours exclusive of the time necessary for the journey from the place of arrest to the Magistrate's Court. The said section 57 lays down that no Police Officers shall detain in custody a person arrested without a warrant for a longer period than under all the circumstances if the case is reasonable, and such period shall not, in the absence of the special order of a Magistrate under section 167, exceed 24 hours exclusive of the time necessary for the journey from the place of arrest to Magistrate's Court. It is clear from section 57 of the Code that Police Officer must obtain authorisation from the Magistrate with jurisdiction or without jurisdiction for detaining a person exceeding 24 hours. Reading section 57 together with Clause (1) of section 167, it becomes clear that a Police Officer investigating an offence cannot detain a person for more than 24 hou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... otherwise than the Police custody beyond a period of 15 days, if he is satisfied that there are grounds for doing so, he may order detention of the accused for a period of 90 days or 60 days, as the case may be. After the expiry of the total period of 90 days or 60 days, as the case may, this power of the Magistrate to authorise further detention comes to an end and in the absence of such power, Clause (2) of the said proviso casts a duty on the Magistrate to release accused on bail if he is prepared to and does furnish bail. The words total period exceeding 90 days or 60 days, as the case may be has got to be given proper meaning. The words used in the proviso (a): accused person in custody under this paragraph for a total period . The word custody relates to an accused person and the words total period of custody also deals with the custody of accused person. Without any ambiguity it lays down that the accused cannot be kept in the custody for a total period of 60 days or 90 days as the case may be. While giving a proper meaning to the words total period , it must be construed to mean the custody of the accused authorised by the Magistrate. In my judgment the words tot ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y contract and the question arises whether the computation is to be made inclusively or exclusively of the first-mentioned or of the last-mentioned day, regard must be had to the context and to the purpose for which the computation has to be made. These decisions show that courts have drawn a distinction between a term created within which an Act may be done and a time limit for doing of act or time within which an act may be done and a time for doing of an act the rule is well-established that where a time is given from certain date within which an act is to be done the day on that date is to be excluded. In view of the Supreme Court judgment even the detention by police under section 57 will have to be excluded for the purpose of computing the period of 60 days or 90 days, as the case may be. 8. From the language used in the provisions of section 167 of the Code it appears that the legislature intended to restrict the detention up to 90 days or 60 days, as the case may be, and not more than that. This provision has been introduced in the new Code of Criminal Procedure with an object that the under trial prisoners should not be detained for more than specified days. The Code ma ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Parliament intervened in 1978 and stepped on the demand of restoration of the old provisions. The clock could not be put back. A clause prescribing a period of 90 days where investigation relate to an offence punishable with death, imprisonment for life or imprisonment for a term not less than 10 years was, however inserted. The essential features of section 167 were not altered despite protests from the champions of the old order. The intention of the legislature seems to be to grant no discretion to the Court and to make it obligatory for it to release the accused on bail . 9. On plain reading of section 167 of the Code I do not find that it admits two possible meaning thereof. It is a well settled rule of construction that the intention of the legislature must be found in the words used by the legislature itself. In [1958] 1SCR 360 , in Kanai Lal Sur v. Paramnidhi Sadhukhan, it is observed that The first and primary rule of construction is that the intention of the legislature must be found in the words used by the legislature itself. If the words used are capable of one construction only then it would not be open to the courts to adopt any other hypothetical construction on ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed on bail. Mr. Hudlikar also wanted to press service this authority to submit that the Supreme Court when it refers to 90 days or 60 days as the case may be, is only referred to authorised detention by the Magistrate, and the detention and arrest by police under section 57 has not been considered or finally decided in the case. Whereas Mr. Bhosale submitted that the Supreme Court has used the words very carefully that on the expiry of 90 days or 60 days, as the case may be, from the date of arrest and not from the date of authorisation by the magistrate. It is true that the said authority has not dealt specifically with the point raised by Mr. Hudlikar that detention or arrest by police under section 57 is to be excluded or not. However, the words from the date of arrest has been mentioned. The reference to the date of arrest is with regard to any under trial prisoner to the judicial custody, but this case clearly lays down a proposition of law that it is the duty of the magistrate to bring to the notice of the accused, so detained or arrested, that he has been in detention for 90 days or 60 days, as the case may be. The Magistrate must before making the order of further judicia ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f detention of the accused falls on Sunday i.e. on September 12, 1982, so on the next opening of the courts a charged sheet is filed on September 13, 1982 and therefore, the proceeding shall be considered as done or taken in due time, on the next day after wards on which the Court is opened. Section 10 of General Clauses Act lays down that whereby any Central Act or regulation made after the commencement of this act, any act or proceedings is directed or allowed to be done or taken in any Court or office on a certain day or within a prescribe period then if the Court or office is closed on that day or the last day of the prescribed period the Act or the proceeding shall be considered as done or taken in due time. According to Mr. Hudlikar, filing of the charge sheet on September 13, 1982 on opening of the Court on that day was saved by section 10 of the General Clauses Act. It is true that the Court was closed on September 1982. The question is as to whether under the Code any time has been prescribed for filing of a charge-sheet. Mr. Hudlikar fairly conceded that there is no prescribed period mentioned in the Code to file a charge sheet. What is required under section 10 of the Ge ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Magistrate should see as to whether the said case is triable by him or exclusively triable by the Court of Sessions. On filing of the report and the charge-sheet by the police, if it appears to the Magistrate that the offence is exclusively triable by the Court of sessions he shall commit the accused, after applying the provisions of section 207 or 208 of the Code as the case may be, subject to the provisions of this Code relating to bail he shall remand the accused to the custody until last commitment is made. If the charge sheet is filed within 90 days or 60 days, as the case may be, the Magistrate gets power under section 209 made but if a charge sheet is not filed it is not possible for the Magistrate to know as to whether the offence is triable by himself or exclusively by the Court of sessions and in the absence of charge sheet there is no alternative or discretion with the Magistrate except to give benefit of provisions of proviso (a) to section 167(2) of the Code. So on merely filing of the charge sheet after the expiry of the period of 90 days or 60 days as the case may be the accused is not deprived of a right earned by him to be released on bail. Mr. Bhonsale is rig ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... il. Such a procedure has not been followed by the prosecution, and, therefore, this revision application itself is not maintainable. I am afraid that I cannot accept this submission for obvious reason that the Magistrate refused bail to the accused under section 167(2). The accused filed a revision application before the Additional Sessions Judge to set aside the order of the Magistrate and the learned Sessions Judge allowed that revision application and granted application made by the accused for bail. The legality and propriety of that order of the Additional Sessions Judge, Pune, has been challenged in this application will have to be allowed and it not legally tenable then the order passed by the Magistrate will have to be set aside. In this view of the matter, there is no question of cancellation of bail by the prosecution under section 437(5) of the Code. (Sic) Accordingly, this application is maintainable. 16. Thus having held that the date of arrest by police under section 57 is to be excluded while computing the period of 90 days, the accused was in custody for more than 90 days the order of the learned Magistrate and he earned a right to be release on bail and the lear ..... X X X X Extracts X X X X X X X X Extracts X X X X
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