V.D Misra, C.J:— “Whether the period of detention of an accused person in police custody under sub-sec. (2) of Section 167 of the Code of Criminal Procedure, is to be included while calculating the period of 90 days or 60 days under clauses (i) and (ii) respectively of paragraph (a) of the proviso to sub-section (2) of Section 167 of the amended Code?” is the question referred to this Bench by one of us (H.S Thakur. J.) The relevant part of Section 167, before its amendment by Code of Criminal Procedure (Amendment) Act, 1978, was in the following terms:—
“167(1) whenever any person is arrested and detained in custody, and if appears that the investigation cannot be completed within the period of twenty-four hours fixed by Section 57, and there are grounds for believing that the accusation or information is well-founded, the officer-in-charge of the police station or the police officer making the investigation, if he is not below the rank of sub-inspector, shall forthwith transmit to the nearest, judicial Magistrate a 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.
(2) The Magistrate to whom an accused person is forwarded under this Section may, whether he has or has not jurisdiction to try the case, from time to time authorise the detention of the accused in such custody as such Magistrate thinks lit, for a term not exceeding fifteen days in the whole; and if he has no jurisdiction to try the case or commit it for trial, and considers further detention unnecessary, he may order the accused to be forwarded to a Magistrate having such jurisdiction:
Provided that—
(a) the Magistrate may authorise detention of the accused person, otherwise than in the custody of the police, beyond the period of fifteen days if he is satisfied that adequate grounds exist for doing so but no Magistrate shall authorise the detention of the accused person in custody under this section for a total period exceeding sixty days, and on the expiry of the said period of sixty days, the accused person shall be released on bail if he is prepared to and does furnish bail; and every person released on bail under this Section shall be deemed to be so released under the provisions of Chapter XXXIII for the purposes of that Chapter.
2. The amending Act of 1978 did not make any change in sub-sections (1) and (2) but amended the proviso to sub-section (2). The proviso now reads thus:—
“(a) the Magistrate may authorise the detention of the accused person, otherwise than in the custody of the police, beyond the period of fifteen days, if he is satisfied that adequate grounds exist for doing so, but no Magistrate shall authorise the detention of the accused person in custody under this paragraph for a total period exceeding—
(i) ninety days, where the investigation relates to an offence punishable with death, imprisonment for life or imprisonment for a term of not less than ten years,
(ii) sixty days, where the investigation relates to any other offence,
and, on the expiry of the said period of ninety days, or sixty days, as the case may be the accused person shall be released on bail if he is prepared to and does furnish bail, and every person released on bail under this sub-section shall be deemed to be so released under the provisions of Chapter XXXIII for the purposes of that Chapter;”
3. Now, a police officer has been authorised by Section 56 to arrest a person without warrant. He is, however, duty bound, if he does not release the person on bail, to send the arrested person before a Magistrate without unnecessary delay. The maximum period for which the police officer can detain in custody such a person, without a special order of a Magistrate under Section 167, cannot exceed 24 hours exclusive of the time necessary for the journey from the place of arrest to the Magistrate's Court: (Section 57). Needless to add that situations may arise where the time taken for the journey may amount to a number of days. In that event the custody of the police officer for all those days shall be lawful without special orders of a Magistrate under Section 167. When an accused person is produced before a Magistrate under Section 167, it is the duty of the police officer to produce a copy of the entries in the case diary along with the accused, (sub-section (1) of Section 167). The Magistrate can, under sub-section (2) authorise the detention of the accused in police custody for a maximum period of 15 days in the whole. This period of 15 days is exclusive of the period during which the police officer had the custody under Section 57; (See 1975 Cri LJ 1303 (Delhi), Tarseem Kumar v. State).
4. It is contended before us that the period during which the police had the custody of the accused should be included in the 15 days for which the Magistrate can authorise police custody under sub-section (2). We see no force in this contention. As already noticed. Section 57 authorises a police officer to have the custody of the accused for a period of 24 hours plus the time taken for the journey to produce the accused before a Magistrate. The police officer does not require the permission of a Magistrate for this period. The power of a Magistrate to grant police custody for 15 days is unaffected by the period of detention in police custody under Section 57. We respectfully differ from the observations made by the then learned Chief Justice of this Court in ILR (1978) Him Pra 529, which give the impression that the period of detention in police custody under Section 57 has to be included.
5. It is not disputed that under paragraph (a), as it stood before its amendment, power of the Magistrate to authorise the detention of an accused person extended to a total period of 60 days including the period of police custody granted under sub-section (2). It was the duty of the Magistrate to pass an order of bail after the expiry of sixty days in case the police failed to file the charge-sheet.
6. The necessity to amend the proviso arose because in some heinous cases of extraordinary complexity, it was not possible for the police to complete the Investigation within sixty days and the accused had to be released on bail on the expiry of 60 days of detention authorised by the Magistrates. The Supreme Court in AIR 1975 SC 1465, Natabar Parida v. State of Orissa, remarked; “if it is not possible to complete the investigation within a period of 60 days, then even in serious and ghastly types of crimes the accused will be entitled to be released on bail. Such law may be a “paradise for the criminals,” but surely it would not be so, as it is sometimes supposed to be, because of the Courts. It would be so under the command of the Legislature.”
7. It may be noticed that the Code of Criminal Procedure, 1973 (2 of 1974) had made important changes in the then Code of Criminal Procedure, 1898, keeping in view the recent trends in penology. Paragraph (a) of the proviso to sub-section (2) was one of such provisions. In all the civilized countries right of a citizen to liberty has been recognised. His detention has been authorised only in exceptional cases. Whenever a person has been accused of a crime, his period of detention has been cut to the minimum. Some of the countries are proud not only for expeditiously completing the investigations against the criminals, but even for completing their trials in a period of about 60 days from the data of their arrest.
8. Before the enforcement of the Code of Criminal Procedure, 1973, investigation of the cases in this country was lethargic indeed. Since no period was fixed for completing the investigation of a case (except a pious hope under Section 173(1) requiring the investigation “to be completed without unnecessary delay”) the investigations used to linger on indefinitely in cases involving heinous crimes like murder, dacoity etc. The accused had to remain under detention for months on and since the courts would not grant bail in the circumstances of those cases. Indeed it was a hell for a person accused of a crime since the courts could not force the police to expeditiously complete the investigation. It was in these circumstances that the said paragraph (a) was incorporated to force the police to complete the investigation within a reasonable period of 60 days, and to ensure that an accused person shall not be kept under detention unnecessarily. It was indeed a sanctuary for the forlorn and not a paradise of the criminals (ILR (1978) 2 Delhi 442, Noor Mohd v. State).
9. As already stated, the object to amend paragraph (a) of the proviso was to grant further time of 30 days to the police to complete the investigation in heinous offences of a complicated nature. It will be noticed that whereas clause (ii) of the proviso maintained the existing period of 60 days, it is clause (i) which prescribes 90 days for the investigation of offences punishable with death, imprisonment for life or imprisonment of a term not less than 10 years.
10. It is in this backdrop that we must construe the amended paragraph (a) to the proviso. We must at once record that the proviso is not happily worded. But then this is nothing unusual. It is contended that whereas in the old paragraph the Magistrate's power of detention was limited to 60 days “under this section” but the amended paragraph refers to the total period “under this paragraph”. It is submitted that this change in phraseology from ‘section’ to ‘paragraph’ shows that the maximum period of detention allowed under the ‘paragraph’ is exclusive of the period of detention authorised under sub-section (2). In our opinion the change in the phraseology does not make any difference. It may be noticed that when the words ‘under this section’ were used in the old paragraph, the reference was being made to Section 167. But the paragraph is of the proviso to sub-section (2). Whereas sub-section (2) does not lay down the outside limit of the detention of a person, it limits the police custody to 15 days only. It is obvious that during or after the expiry of this period, a Magistrate is authorised to commit the accused to judicial custody. But for this paragraph, the Magistrate would have had no jurisdiction to authorise the detention of an accused person in judicial custody in case the Magistrate was of the opinion that the accused should not be sent to police custody. And this paragraph lays down the outside limit. The paragraph makes a reference to sub-section (2) and lays down that in addition to the police custody for a period of 15 days, a Magistrate could authorise the detention for a further period. The ‘total period’ referred to in this paragraph thus obviously includes the period of detention authorised by the Magistrate under sub-section (2). Any other interpretation would lead to anomalous results. For example, where a Magistrate refuses to grant any police custody then, according to the contention of the learned Advocate General, the maximum period for which the accused can be detained would be 90 days, and where an accused is sent to police custody for 15 days, he could be kept in detention for a further period of 90 days, that is, for 105 days in all. This difference in the two cases would be without any reason whatsoever we have, therefore, no hesitation in concluding that the outside limit of 90 days and 60 days laid down by clauses (i) and (ii) respectively of paragraph (a) include the period of detention authorised by the Magistrate under sub-section (2).
11. We are fortified in our conclusion by the “Notes on clauses” circulated with the Code of Criminal Procedure (Amendment) Bill, 1978 (Bill No. 92 of 1978). Clause 13, relating to proposed amendment on Section 167, is in the following terms:
“Section 167 is being amended to empower the Magistrate to authorise detention, pending investigation, for an aggregate period of 90 days in cases where the investigation relates to offences punishable with death, imprisonment for life or imprisonment for not less than ten years and up to 60 days in any other case. These amendments are intended to remove difficulties which have been actually experienced in relation to the investigation of offences of a serious nature.”
(emphasis supplied)
12. The Supreme Court in (1980) 1 SCC 108 : AIR 1979, SC, 1377, Hussain Ara Khatoon v. Home Secy., State of Bihar, observed that once an accused person has been under detention for a period of 90 days or 60 days (under clauses (i) and (ii) respectively) it is the duty of the Magistrate to inform the accused person that he was entitled to be released on bail. It is true that from the judgment it does appear that the Supreme Court was taking a note of the change of phraseology in the amended paragraph (as pointed out by us) but we cannot hold that the Court did not have change in view. We would, therefore, answer the question thus:
“While calculating the period of 90 days or 60 days under clauses (i) and (ii) of paragraph (a) of sub-section (2) of Section 167 of the Code of Criminal Procedure, the period of detention authorised by the Magistrate under sub-section (2) of Section 167 must be included.”
13. The matter may now be placed before the learned single Judge to decide the case.
14. Answered accordingly.