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State Of Karnataka v. Babu

Karnataka High Court

Oct 14, 1993

Judgment

Subsequent
References

CaseIQ

Smart Summary (Beta)

Structured Summary of the Opinion (Krishnan, J.)

Factual and Procedural Background

The State filed a petition under Section 439(2) Cr. P.C. seeking cancellation of bail granted to the respondent (accused) in S.C. No. 165/92 on the file of the I Additional Sessions Judge, Bangalore.

Procedural history and material facts as recorded in the opinion:

The accused was apprehended by Head Constable 1822 on 18.2.1992.
The accused was produced before the Magistrate on 19.2.1992 and remanded to judicial custody till 4.3.1992.
The charge sheet was submitted to the Court on 18.5.1992.
The accused had earlier preferred I.A. II under Section 167 Cr. P.C. before the learned Sessions Judge for release on bail on the ground that the charge sheet had not been filed within 90 days from the date of arrest.
The learned Sessions Judge granted bail under Section 167(2)(a)(i) Cr. P.C., concluding that the charge sheet had not been filed within 90 days from either the date of arrest or from the date of remand by the Jurisdictional Magistrate to judicial custody.
The State challenged the legality and correctness of that order in the present petition.

Legal Issues Presented

Whether the period of 90 days (under proviso (a) to Section 167(2) Cr. P.C.) is to be computed from the date of arrest of the accused or from the date of first production of the accused before the Magistrate / date of remand by the Magistrate.
Whether, for computing the 90-day period under Section 167(2) Cr. P.C., the relevant date is the submission of the charge sheet to the court or the date on which copies of the documents referred to in Section 173 Cr. P.C. are furnished to the accused.
Whether the bail granted by the learned Sessions Judge was legally tenable in view of the above questions and the timing of the charge sheet submission in this case.

Arguments of the Parties

State / Public Prosecutor (Appellant)

Contended that the 90-day period under proviso (a) to Section 167(2) Cr. P.C. must be counted from the date on which the accused was produced before the jurisdictional Magistrate (i.e., from the date of remand), not from the date of arrest.
Asserted that the charge sheet was filed within 90 days from the date the accused was first produced before the Magistrate (calculation in para 5 of the Petition was relied upon).
Maintained that, on the above basis, there was no scope for the Sessions Judge to direct release of the accused on the ground that the charge sheet had been filed beyond 90 days.

Respondent / Accused

Advanced an application under Section 167 seeking bail on the ground that the charge sheet had not been filed within 90 days from the date of arrest.
Relied on a decision of a Single Judge of this Court (Ramu v. State of Karnataka, ILR 1991 KAR 1861) to argue that periods during which the police kept surveillance over the accused before formal arrest should be counted.
Also sought support from Rajnikant Jivanlal Patel v. Intelligence Officer, Narcotic Control Bureau (1989 3 SCC 532) to support the contention that the date of arrest should be taken into account for calculating the 90 days (this was urged by the respondent's counsel).
Contended alternatively that the date to be taken into account is the date on which copies of the documents referred to in Section 173 Cr. P.C. were furnished to the accused (citing Dodha @ Chainsai v. State of M.P. and Govardhan v. State of M.P.).

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
1986 (2) Crimes 678 (S.C.)	This decision was brought to the notice of the learned Sessions Judge during the bail hearing.	The opinion records that this Supreme Court decision was placed before the Sessions Judge; the court later proceeds to apply the clear precedent laid down in Chaganti Satyanarayana (see next row) when resolving the computation issue.
Chaganti Satyanarayana v. State of Andhra Pradesh, 1986 3 SCC 141	Holds that the 90/60 days provided by proviso (a) to Section 167(2) Cr. P.C. begin to run from the date of the order of remand (i.e., date of remand by the Magistrate), not the date of arrest.	The court relied on this decision as laying down the unequivocal law on point and applied it to conclude that the 90-day period must be computed from the date of first remand/production before the Magistrate; accordingly, the Sessions Judge's contrary view was held to be incorrect.
Ramu v. State of Karnataka, ILR 1991 KAR 1861	Held by a Single Judge that periods during which police kept surveillance over the accused in the hospital before formal arrest and production should be counted for purposes of the time-limit under Section 167.	The court observed that this decision runs practically contrary to the Supreme Court's Chaganti Satyanarayana decision; therefore, it held that Ramu's case could not be relied upon to override the Supreme Court's mandate.
Shivanna v. State, 1992 Cr. L.J. 2287	Followed the Supreme Court (Chaganti) in holding that the 90 days should be counted from the date of remand and not from the date of arrest.	The decision was cited as consistent with the Supreme Court and therefore supportive of the position that computation must start from the remand date.
Rajnikant Jivanlal Patel v. Intelligence Officer, NCB, 1989 3 SCC 532	Referenced by the respondent's counsel in support of counting from the date of arrest.	The court found that there is "practically nothing" in this decision to say the 90 days must be counted from the date of arrest and that it does not lay down any proposition contrary to Chaganti; thus it could not be pressed into service for the respondent's contention.
Dodha @ Chainsai v. State of M.P., 1992 2 Crimes 1171	Held that for purposes of counting 90 days under Section 167(2) Cr. P.C., the relevant date is the date on which copies of challan papers were furnished to the accused (not merely submission of the charge sheet).	The court expressed reluctance to follow this decision, noting there is "practically no warrant" for equating the 90-day limit to the date of furnishing copies; the single judge's reasoning did not persuade the court to follow that approach.
Govardhan v. State of M.P., 1993 3 Crimes 104	Similar holding to Dodha: computed 90 days up to the date of furnishing copies to the accused.	The court declined to follow this approach for the reasons stated: that Section 167 makes no mention that the 90-day period should be counted up to the date of supply of copies under Section 173(5), and the court was not persuaded by the reasoning in these decisions.

Court's Reasoning and Analysis

The court's analysis proceeded in a structured manner, confined to the material on record and existing authorities cited in the opinion:

Establishment of undisputed material facts: the accused's arrest (18.2.1992), first production before the Magistrate (19.2.1992), remand to judicial custody and the date of submission of the charge sheet (18.5.1992) were accepted as recorded and not disputed by the respondent's counsel.
Identification of the controlling legal principle: the court noted that the question whether the 90 days begins from the date of arrest or from the date of remand was "fairly well settled" by the Supreme Court in Chaganti Satyanarayana, which held that the period begins to run from the date of the order of remand because detention authorised by a Magistrate commences only on remand.
Evaluation of conflicting authorities: the court considered the Ramu decision (Single Judge, Karnataka) which reached a contrary result but observed that it runs "practically contrary" to the Supreme Court and was rendered after the Supreme Court's decision without reference to it; hence Ramu could not be relied upon to override the Supreme Court's mandate. The court also observed a later decision (Shivanna) that followed the Supreme Court, confirming the remand-date approach.
Assessment of other cited Supreme Court precedent: Rajnikant Jivanlal Patel was considered and the court concluded it did not lay down any proposition contrary to Chaganti; thus it offered no support for counting from arrest.
Consideration of the "furnishing of copies" argument: the respondent cited two Single Judge judgments from Madhya Pradesh (Dodha and Govardhan) which held that the 90-day computation should run up to the date on which copies of the challan papers are furnished to the accused. The court rejected this approach, stating there is "practically no warrant" in Section 167 to treat the supply of copies under Section 173(5) as the date up to which the 90 days must be counted, and found the reasoning in those decisions unpersuasive.
Application to facts: because the charge sheet was filed within 90 days counted from 19.2.1992 (the date of first production/remand), the Sessions Judge erred in concluding that the charge sheet had been filed beyond 90 days. The court noted the Sessions Judge's operative order was ambiguously worded ("within 90 days from the date of his arrest or from the date of his remand") and could not be reconciled with the settled law that computation starts from the date of remand.
Remedial and procedural directives: the court held that bail granted by the Sessions Judge should be cancelled. It also observed that because the Sessions Judge had not considered other grounds for release, the accused remained at liberty to file an appropriate application before the Sessions Judge on other grounds; the Sessions Judge was directed to consider any such application on its merits. The opinion also sets out practical directions regarding surrender, custody and the issue of a non-bailable warrant if the accused does not surrender.

Holding and Implications

Holding:

BAIL CANCELLED

The court allowed the State's petition, held that the Sessions Judge erred in granting bail on the ground that the charge sheet was filed beyond 90 days, and directed that the bail granted to the respondent be cancelled and that the respondent be taken into custody (subject to surrender or issuance of a non-bailable warrant as directed).

Implications:

Direct effect on the parties: the respondent's bail is cancelled and he is to be taken into custody; if he surrenders he shall be taken into custody, and if he does not, a non-bailable warrant is to be issued to secure his presence and custody.
Procedural consequence preserved for the respondent: the accused is permitted to file an application before the Sessions Judge on any other grounds for bail; the Sessions Judge is directed to consider such an application on its merits.
Broader precedent: the court applied the Supreme Court decision in Chaganti Satyanarayana to resolve the computation issue and rejected conflicting single-judge decisions; the opinion does not purport to create a new precedent beyond applying existing rulings.

Result: Petition allowed in the terms stated in the opinion.

Show all summary ...

Krishnan, J.:—

The State has preferred this Petition under Section 439(2) Cr. P.C for cancellation of the bail granted to the respondent herein who is the accused in S.C No. 165/92 on the file of the I Addl. Sessions Judge, Bangalore.

2. It is seen that the accused preferred I.A II before the learned Sessions Judge under Section 167 of the Cr. P.C for being released on bail on the ground that the charge sheet had not been filed within 90 days from the date of arrest, by the investigating officer. Despite the objection by the learned Public Prosecutor that the period of 90 days had to be counted from the date on which the accused was produced before the Jurisdictional Magistrate and not from the date of arrest and that the charge sheet had been filed within 90 days from the date on which the accused was produced before the Jurisdictional Magistrate, by the police and despite the fact that the Decision of the Supreme Court in 1986 (2) Crimes 678 (S.C) was brought to the notice of the learned Sessions Judge, he came to the conclusion that the charge sheet had not been filed within 90 days from the date of arrest or from the date of his remand by the Jurisdictional Magistrate to Judicial Custody and granted bail under Section 167(2)(a)(i) Cr. P.C It is the legality and correctness of this order that have been questioned by the State in this Petition.

3. The records in the case indicate that the accused was apprehended by Head Constable 1822 on 18.2.1992 and he was produced before the Magistrate on 19.2.1992 and he was remanded to Judicial Custody till 4.3.1992 The charge sheet has been submitted to the Court on 18.5.1992 These aspects are not disputed by the learned Advocate for the respondent-accused and they are borne out by the records of the learned Magistrate. Whether the period of 90 days as provided by Proviso (a)(i) to Section 167(2) Cr. P.C has to be counted from the date of arrest of the accused or from the date of first production of the accused before the Magistrate is fairly well settled. The Supreme Court in the Decision reported in Chaganti Satyanarayana v. State of Andhra Pradesh . 1986 3 SCC 141 has laid down in an unequivocal terms, the law to the effect that the period of 90 days or 60 days envisaged by Proviso (a) to Section 167(2) Cr. P.C begins to run from the date of order of remand and not from the earlier date when the accused was arrested. It has been observed in paragraph 18 of the Judgment at page 2135 as hereunder:—

“The words used in proviso (a) are “no Magistrate shall authorise the detention of the accused person in custody”, “under this paragraph”, “for a total period exceeding i.e, 90 days/60 days”. Detention can be authorised by the Magistrate 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.”

4. Learned Advocate for the respondent invited my attention to the Decision of a learned Single Judge of this Court reported in Ramu v. State Of Karnataka* . ILR 1991 KAR 1861.. It has no doubt been held in this Decision that the period during which the police had kept surveillance over accused in the hospital before formal arrest of the accused and production before the Magistrate should also be counted for purposes of finding out whether the charge sheet had been filed within the time prescribed under the aforesaid Section. But this Decision runs practically contrary to the Decision of the Supreme Court referred to above and in a later Decision of this Court reported in Shivanna v. State* . 1992 Cr. L.J 2287. it has been held following the Decision of the Supreme Court that the period of 90 days should be counted from the date on which the accused was remanded and not from the date of arrest. The Decision of the learned Single Judge in Ramu's Case relied upon by the learned Advocate for the accused was rendered after the Decision of the Supreme Court, in Chaganti Satyanarayana's case adverted to above. Nevertheless no reference has been made to this Decision by the Apex Court in Ramu's case. When the Apex Court has laid down the law in this regard and when the Decision of the learned Single Judge relied upon by the learned Counsel for the respondent practically runs contrary to that Decision, it is needless to say that this Decision cannot be relied upon to overcome the mandate of the Decision of the Supreme Court.

5. An attempt was also made by the learned Advocate for the respondent to derive some support for his proposition that the date of arrest has to be taken note of for calculating the 90 days, on the Decision of the Supreme Court reported in Rajnikant Jivanlal Patel, Petitioners v. Intelligence officer, Narcotic Control Bureau, New Delhi, Respondent . 1989 3 SCC 532. There is practically nothing in this Decision to say that the 90 days period has to be counted from the date of arrest. No proposition contrary to the Decision of the Supreme Court in Chaganti Satyanarayana's case has been laid down in this Decision. Therefore, this Decision cannot be pressed into service by the learned Counsel for the respondent to canvass that the date of arrest shall count for the purposes of counting the period of 90 days, to find out whether the charge sheet had been filed within the time prescribed under Section 167(2) Cr. P.C

6. An attempt was also made by the learned Counsel for the respondent to contend that it is not the date of submission of the charge sheet that should be taken note of but it is the date on which the copies of the documents referred to in Section 173 Cr. P.C are furnished to the accused and if so counted, the documents in the present case have been supplied to the accused long after the expiry of 90 days from the date of first production of the accused before the Magistrate and in that view of the matter, it is to be held that his client is entitled to be released on bail. He cited the Decisions of a Learned Single Judge of the Madhya Pradesh High Court reported in (1) Dodha @ Chainsai v. State of M.P . 1992 2 Crimes 1171. (2) Govardhan v. State of M.P . 1993 3 Crimes 104.. It is no doubt true that in these Decisions, the learned Single Judge of the Madhya Pradesh High Court has held that for the purposes of counting 90 days in relation to Section 167(2) of the Cr. P.C, it is not the date of submission of the charge sheet, but the date on which the copies of the challan papers were furnished to the accused that had to be take note of. With due respect to the learned Single Judge there is practically no warrant to hold that 90 days has to be counted up to the date of furnishing of the copies, there is absolutely no mention in Section 167 of the Cr. P.C to say that submission of the charge sheet is not expected to be taken note of and the date of supply of copies of the documents referred to in Section 173(5) Cr. P.C should be within 90 days from the date of first production of the accused before the Magistrate and that if the documents are not supplied within 90 days, the accused is entitled to be released on bail. There is practically no reasoning in these two Decisions to arrive at the aforesaid conclusion. Hence with due respect to learned Single Judge, I am not at all persuaded to follow these two Decisions cited by the learned Counsel for the respondent.

7. Therefore, it is clear that what is to be seen is whether the charge sheet has been submitted within 90 days from the date of production of the accused for the first time before the Magistrate. It is not disputed by the learned Counsel for the respondent that the charge sheet had in fact been filed within 90 days from 19.2.1992, the date on which the accused was produced for the first time before the Magistrate. The calculation made by the State Public Prosecutor in para 5 of the Petition is perfectly alright and the charge sheet has been filed well within 90 days from the date of first remand of the accused and therefore there was absolutely no scope for the learned Sessions Judge to have directed release of the accused on the ground that the charge sheet had been filed beyond 90 days.

8. The operative portion of the order of the learned Single Judge also makes a little curious reading. It reads:—

“As the Investigating Officer has not filed the charge sheet against the-accused within 90 days from the date of his arrest or from the date of his remand by the Jurisdictional Magistrate to Judicial custody.”

9. It cannot be made out whether the learned Sessions Judge was trying to count 90 days from the date of arrest or from the date of remand. If the date of arrest is 18.2.1992 and the date of production of the accused before the Magistrate is 19.2.1992 and if the law mandates that the date of production before the Magistrate should be taken note of for counting 90 days, the learned Sessions Judge could not have adverted to the filing of the charge sheet being beyond 90 days from the date of arrest or from the date of remand because it cannot be disputed that if the date of production of the accused before the learned Magistrate is taken note of and 90 days is counted from that date, the submission of the charge sheet would be within the period of 90 days as enjoined by Section 167 of Cr. P.C Therefore, it is clear that the bail granted to the respondent-accused should be cancelled.

10. However, as the learned Sessions Judge has not considered the aspect whether the accused is entitled to be released on bail on any other ground, the accused is at liberty to file an appropriate application before the learned Sessions Judge for canvassing that he is entitled to be released on bail on other grounds. If such an application is filed, the learned Sessions Judge shall consider it on merits and dispose of the same.

11. In the result, the bail granted to the respondent is cancelled and it is directed that he shall be taken to the custody of the Court. The learned Counsel for the respondent states that he would surrender the accused before the Court. If he surrenders, he shall be taken into custody and if not, non-bailable warrant shall be issued against him and thereafter his presence is secured and thereafter, he shall be taken into custody.

In these terms, the Petition is allowed.