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Jagdish Babulal v. State Of Madhya Pradesh
Factual and Procedural Background
This opinion disposes of Misc. Criminal Case Nos. 517 of 1983 (Karan Singh and two others v. State of M. P.) and 518 of 1983 (Baliram and Anr. v. State of M. P.), because all three bail applications arise out of Crime No. 112 of 1982 registered under Secs. 395, 397 and 452 read with Section 149, I.P.C. and Section 27 of the Arms Act.
On the night intervening 27/28-10-1982 there were two dacoities in village Padlye, P.S. Khalwa, district Khandwa, involving some 12–13 dacoits. At Bhagirath Prasad's house cash of Rs. 6,000/-, gold ornaments weighing 5½ tolas and silver ornaments were looted. At Mangilal's house cash of Rs. 55,000/- and gold and silver ornaments were looted. A report was lodged by Bhagirath on 28-10-1982 at 8:15 p.m. at a police station 25 kms away.
Ten applicants and two co-accused (Totaram and Karansingh), all residents of Chalpi, were arrested on the evening of 19-11-1982. On memorandum of each applicant cash and ornaments were recovered. The applicants were identified in an identification parade after 15 days of arrest; the recovered properties were identified on 29-11-1982.
The trial Court granted bail to co-accused Totaram because his active participation was not prima facie made out and he was not identified. Co-accused Karansingh was released on bail by this Court in M. Cr. C. No. 31 of 1983 on similar grounds (order dated 20-1-1983). The bail applications of the ten applicants were earlier rejected by this Court. After that rejection, the challan was filed on 17-2-1983. The applicants then filed fresh bail applications under Section 167(2) Cr.P.C. contending that the challan had been filed on the 91st day and therefore they were entitled to be released on bail; the learned Additional Sessions Judge held that the challan was filed on the 90th day and rejected the bail applications.
Legal Issues Presented
- How is the period of "90 days" in the proviso to Section 167(2) Cr.P.C. to be calculated for the purpose of the mandatory release-on-bail when a challan is not filed?
- Whether, on the merits, the applicants should be granted bail given (a) alleged undue delay in holding the identification parade, (b) recoveries of cash and ornaments from the applicants, and (c) the prior detention period.
Arguments of the Parties
Applicants' Arguments
- The trial Court miscalculated the period under Section 167(2), and the challan was filed on the 91st day, entitling the applicants to be released on bail under the proviso to Section 167(2) Cr.P.C.
- On merits: there was undue delay in conducting the identification parade; seizure of cash from each applicant is of no consequence; the ornaments recovered are of common use and cannot be connected with the dacoity; they have already been detained for more than four months and therefore deserve bail.
The opinion does not contain a detailed, distinct account of the State's or prosecution's separate pleaded arguments beyond the trial Court's and Additional Sessions Judge's conclusions.
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| Inre V. S. Mehta | Interpretation of statutory time periods by excluding the day of knowledge (applying General Clauses Act and Limitation Act) — "within 3 months" construed as three calendar months excluding the day of inspection. | Used as authority for the principle that the day from which the period is reckoned should be excluded when computing statutory time periods; supports excluding the date of arrest when computing the 90 days under Section 167(2). |
| Raju alias Raj Kishore v. State of Bihar ILR (1976) 55 Pat 1021 | Held that the Legislature meant clear 60 days in Section 167(2)(a) Cr.P.C. and the date on which the accused surrenders in Court has to be excluded in computing the period. | Relied upon to support the position that the initiating date (surrender/arrest date) must be excluded so that the prescribed custody period is computed as full clear days. |
| L. R. Chawla v. Murari 1976 Cri LJ 212 | Explained that custody periods are measured in calendar days (midnight to midnight); it is incorrect to aggregate fractions of days; the day on which custody is granted cannot be excluded. | Addressed counting of custody days and supported the approach to calculate custody in whole calendar days rather than fractional aggregation; cited in context of when counting should commence. |
| Raj Kumar v. State of Punjab | Held that the date of arrest has to be excluded in computing the period of 60 days under the earlier provision. | Used as additional authority favouring exclusion of the arrest date when computing the statutory custody limit. |
| State (Delhi Admn.) v. Ravindra Kumar 1982 Cri LJ 2366 | Held that police custody up to 15 days begins to run immediately when the accused is produced before the Magistrate (i.e., custody counting starts on production), not from the date of arrest. | Clarified that custody counting begins on production before the Magistrate, informing the proper starting point for computation of remand/custody days. |
| Umashankar v. State of M. P. 1982 Cri LJ 1186 | Division Bench of this Court calculated the period of 90 days by excluding the date of arrest; applied exclusion-of-first-day principle in a comparable factual matrix. | Directly relied upon as analogous authority: the Court applied the same method of excluding the date of arrest to conclude the period of 90 days had expired in that case; used to support the present calculation. |
Court's Reasoning and Analysis
The Court first set out the statutory scheme in Section 167: under Sub‑section (1) arrested persons must be produced within 24 hours; under Sub‑section (2) magistrates may remand up to 15 days at a time, police custody in the whole not to exceed 15 days, and the proviso permits detention beyond 15 days but not for a total period exceeding 90 days where the offence attracts high punishment — and on expiry of 90 days the accused shall be released on bail if the challan has not been filed.
Because the Code does not specify the precise method of calculating the 90 days, the Court resorted to statutory construction principles: Section 9 of the General Clauses Act (exclude the first day and include the last in ordinary computation) and Section 12 of the Limitation Act (exclude the day from which the period is to be reckoned). The Court surveyed authorities (including Inre V. S. Mehta; Raju alias Raj Kishore; L.R. Chawla; Raj Kumar; State (Delhi Admn.) v. Ravindra Kumar; and Umashankar v. State of M.P.) which interpreted similar statutory periods and custody-counting rules, and which consistently support calculating clear calendar days and excluding the initiating day in computing the custody limit.
Applying that settled principle, the Court excluded the date of arrest (19-11-1982) from the computation. With the date of arrest excluded, the challan filed on 17-2-1983 fell on the 90th day, not beyond it, and therefore the proviso to Section 167(2) did not mandate release on bail.
On merits the Court noted that the applicants had previously had bail applications rejected by this Court and that there was a prima facie case against them: they were identified in an identification parade and recoveries of stolen ornaments were made from each applicant. The Court said these matters (quality of identification, validity of recoveries) could not be examined at the bail stage and were matters for trial. No fresh ground for reconsideration of bail was established.
Holding and Implications
Applications for bail are rejected.
Implications:
- The applicants are not entitled to release on bail under the proviso to Section 167(2) Cr.P.C. because, applying the excluded-first-day rule, the challan was filed on the 90th day.
- On merits, the Court found prima facie involvement (identification and recoveries) and declined to re-open the earlier rejection of bail; questions about the propriety of identification and the connection of recoveries to the offence remain to be examined at trial.
- The opinion does not announce any broad new precedent beyond applying established principles of time computation; the decision's direct effect is limited to the parties (the bail applications are refused) and no additional wider rule was laid down by the Court in this order.
1. By this Order Misc. Criminal Case Nos. 517 of 1983 Karan Singh and two others v. State of M. P. and 518 of the 1983 Baliram and Anr. v. State of M. P. are also disposed of as all these three bail applications arise out of Crime No. 112 of 1982 registered under Secs. 395, 397 and 452 read with Section 149, I.P.C. and Section 27 of the Arms Act.
2. On the night intervening 27/28-10-1982 there were two dacoities in village Padlye, police station Khalwa district Khandwa in which 12 to 13 dacoits participated. The first dacoity was committed in the house of Bhagirath Prasad and cash of Rs. 6000/-, gold ornaments weighing 51/2 Tolas and silver ornaments were looted. The second dacoity was in the house of Mangilal in which cash of Rs. 55,000/- and gold and silver ornaments were looted. A report was lodged by Bhagirath on 28-10-1982 at 8.15 p.m. in police station 25 kms., away. These 10 applicants and two co-accused Totaram and Karansingh who are all residents of Chalpi were arrested in the evening of 19-11-1982. On the memorandum of each of the applicants cash and ornaments were recovered. They were identified in the identification parade after 15 days of their arrest and the recovered properties were identified on 29-11-1982. The trial Court granted bail to co-accused Totaram because his active participation in the dacoity was not prima facie made out and he was also not identified. Another co-accused Karansingh was released on bail by this Court in M. Cr. C. No. 31 of 1983 on 20-1-1983 on similar grounds but this Court rejected the bail application of these 10 applicants. After rejection of the bail applications, challan was filed in the case on 17-2-1983 and then fresh applications for bail were moved under Section 167(2) of the Cr. P. C. on the ground that the challan has been filed on the 91st day and, as such, they are entitled to be released on bail. The learned Addl. Sessions Judge held that the challan was filed on the 90th day and, as such, he rejected the bail applications.
3. The present applications are pressed firstly on the ground that there is wrong calculation by the trial Court and the applicants ought to have been released on bail as the challan was filed on 91st day and secondly on merits saying that there was undue delay in holding identification parade and the seizure of cash from each of the applicants is of no consequence, the ornaments recovered are of common use and they cannot be connected with dacoity, so they be released on bail as they are already under detention for more than four months.
4. Section 167(1) provides that when any person is arrested and detained in custody and it appears that the investigation cannot be completed and there are grounds for believing that the accusation is well founded, he has to be produced before a judicial Magistrate for remand within 24 hours. Under Sub-section (2) the Magistrate can grant remand not exceeding 15 days at a time but police custody cannot be given exceeding 15 days in the whole. Under the proviso the Magistrate may authorise detention of the accused person beyond the period of 15 days if he is satisfied that adequate grounds exist for doing so but no Magistrate shall authorise detention of the accused in custody under this proviso for a total period exceeding 90 days where the investigation relates to an offence punishable with death, imprisonment for life or imprisonment for a term not less than 10 years and on the expiry of the period of 90 days the accused person shall be released on bail if he is prepared to furnish bail.
5. Now the question to be considered is how these 90 days have to be calculated. Proviso to Section 167(2) provides that on the expiry of the period of 90 days the accused has to be released on bail if the challan is not filed. The Code does not provide as to how this 90 days period has to be calculated. So we have to refer to Section 9 of the General Clauses Act which gives statutory recognition to the well-established principle applicable to the construction of statutes that ordinarily in computing time the rule observed is to exclude the first and to include the last; This embodies principle of equity. Similarly Section 12 of the Limitation Act provides that in calculating the period, of limitation for any suit, appeal or application, the day from which such period is to be reckoned shall be excluded. Applying this principle, a Division Bench of the Andhra Pradesh High Court in Inre V. S. Mehta has held while considering Section 106 of the Factories Act which provided that no Court shall take cognizance of any offence under this Act unless complaint is made within 3 months of the date of knowledge of the alleged offence. "Within 3 months" means within 3 calendar months after the commission of the offence came to the knowledge of the Inspector. This interpretation based on common law as well as on the provisions of the Limitation Act and the provisions of the General Clauses Act results in the exclusion of the day of the knowledge i. e the date of inspection and the "three months" being calculated as three calendar months. In the view all the prosecutions are within time. A Division Bench of the Patna High Court in Raju alias Raj Kishore v. State of Bihar ILR (1976) 55 Pat 1021 held that the Legislature meant clear 60 days in Section 167(2)(a) of Cr. P. C. and the date on which the accused surrenders in Court has to be excluded from counting of the period of 60 days mentioned in the section and if that date is excluded, charge-sheet can be said to have been submitted on the 60th day and as such the accused could not have been ordered to be released on bail on that account. In that case, the incident took place on 3-5-1976, the applicant surrendered before the Court on 6-5-76 and the charge-sheet was filed on 5th July 1976. Same view has been taken by Delhi High Court in L. R. Chawla v. Murari 1976 Cri LJ 212 holding that the custody under this section cannot be granted for a period exceeding sixty days, a calendar day as a unit of time is the interval from one midnight to another. It is not correct to take into consideration fractions of two days to make up one day. Thus the day on which the custody is granted cannot be excluded. In that case the date of arrest was excluded but it was counted from the day when remand was granted. Similar view has been taken by the Punjab and Haryana High Court in Raj Kumar v. State of Punjab and held that the date of arrest has to be excluded in computing the period of CO days. It may be mentioned that in the aforesaid 3 cases the arrest under Section 167 was before its amendment by Amending Act No. 45 of 1978 extending the period from 60 days to 90 days. The Delhi High Court in State (Delhi Admn.) v. Ravindra Kumar 1982 Cri LJ 2366 while considering as to when police custody can be given held that the arrested person has to be produced within 24 hours and the police custody for a term not exceeding 15 days in the whole begin to run immediately the accused is produced before Magistrate and not from the date of arrest. A Division Bench of this Court in Umashankar v. State of M. P. 1982 Cri LJ 1186 while considering whether bail has to be granted under Section 167(2) although challan is filed after period of 90 days, calculated the period of 90 days by excluding the date of arrest. In that case the accused was arrested on 18-9-1981, remand was granted up to 22-12-81, application for bail was moved on 19-12-81 and challan was also filed on that date, it was held that 90 days expired on 17-12-81 by excluding the date of arrest. The view expressed in the aforesaid cases appears to be correct because the period of 90 days can only exceed by excluding the date of arrest because on that day, the day starts and it is completed after 24 hours.
6. Therefore, in the present case if the date of arrest which is 19-11-82 is excluded and since the challan was filed on 17-2-83 which was 90th day, the applicants are not entitled to be released on bail under proviso to Section 167(2). On merits, their application for bail was rejected by this Court and no ground has been made out for reconsideration. Suffice it to say that there is prima facie case to show involvements of these 10 applicants in the commission of dacoity at two places on the night of 27/28-10-82. They have also been identified and there are recovery of stolen ornaments from each of the applicants. At this stage, we cannot go into the question whether identification was proper or recovery of the property connect the applicants with the offence. All these things will be seen at the time of trial.
7. Accordingly, the applications are rejected.
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