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Smart Summary

Factual and Procedural Background

The petitioners were arrested on 3-9-1982 on allegations including the offence of murder. They were produced before the Magistrate on 4-9-1982. A charge-sheet was filed on 2-12-1982. The learned Sessions Judge refused to grant bail, leading the petitioners to approach the Court under consideration.

Legal Issues Presented

  1. Whether under proviso (a) to sub-section (2) of section 167 of the Code of Criminal Procedure, 1973, the period of 60 days or 90 days is to be computed from the date of arrest of the accused or from the date of production before the Magistrate.

Arguments of the Parties

Petitioners' Arguments

  • The period under proviso (a) to sub-section (2) of section 167 should be computed from the date of arrest, not from the date of production before the Magistrate.
  • The provisions should be liberally construed to protect liberty and alleviate harassment caused by dilatory investigations.
  • The total period of detention including that under section 57 and the remand authorized under proviso (a) should not exceed 60 or 90 days as applicable.
  • Reliance was placed on various precedents, including Hussainara Khatoon v. Home Secretary, State of Bihar, where the Supreme Court observed that the period commenced from the date of arrest.
  • The Supreme Court’s obiter observations are binding and support the contention that the period starts from the date of arrest.
  • Strict literal interpretation of proviso (a) would defeat the legislative intent.

Respondent's Arguments

  • The period of detention prior to production before the Magistrate authorized under section 57 should not be included in the computation of the 60 or 90 days under proviso (a) to section 167(2).
  • The provision in proviso (a) was framed against the backdrop of section 57 and the detention before production is distinct and not part of the Magistrate-authorized detention period.
  • Relied on decisions such as Jai Singh v. State of Haryana, Tarsem Kumar v. State, L.R. Chawla v. Murari, and Raj Kumar v. The State to support this interpretation.

Table of Precedents Cited

Precedent Rule or Principle Cited For Application by the Court
Mohd. Shafi v. The State (1975 Crl. L.J 1309) Accused entitled to bail unless charge-sheet filed within 60/90 days from date of arrest Supported petitioners' contention that period starts from arrest
State of Rajasthan v. Bhanwarn Khan (1975 Crl. L.J 1981) Same principle as above regarding computation from arrest Reinforced petitioners' argument on period calculation
Khinvdan v. The State of Rajasthan (1975 Crl. L.J 1984) Same principle on period computation Supported petitioners' position
Prem Raj v. The State Of Rajasthan (1976 Crl. L.J 455) Same principle on computation of period Reinforced petitioners' argument
Darshan Singh v. State of Punjab (1977 Criminal Law Times 243) Same principle Supported petitioners' contention
Smt. Indaro Devi v. Raja Ram (1979 Raj. Crl. Cases 91) Same principle Supported petitioners' argument
Gurbachan Singh v. State of H.P (1979 Simla Law Cases 1) Explanation of police and judicial custody and limitation periods Clarified that 60 days limitation starts from arrest including police custody
Gurcharan Singh v. State of Himachal Pradesh (1979 Chandigarh Law Reports Cri 1 H.P) Police custody limited to 15 days; 60 days limitation includes police and judicial custody Used to confirm period starts from arrest
Hussainara Khatoon v. Home Secretary, State of Bihar (1980 1 SCC 108) Period of 60/90 days computed from date of arrest; accused entitled to bail if charge-sheet not filed within period Supreme Court obiter used as binding authority
Mangal Hemrum v. State of Orissa (1982 C.L.T 259) Accused entitled to bail if charge-sheet not filed within 60/90 days from arrest Applied to petitioners’ case
Ramesh Chandra Sahu v. State (1982 C.L.T 345) Same principle on entitlement to bail Supported petitioners’ entitlement
Jai Singh v. State of Haryana (1980 Crl. L.J 1229) Period computation excluding detention under section 57 Relied on by respondent; Court noted it did not consider Hussainara Khatoon case
Tarsem Kumar v. The State (1975 Crl. L.J 1303) Period computation excluding section 57 detention Relied on by respondent but predated Hussainara Khatoon
L.R. Chawla v. Murari (1976 Crl. L.J 212) Counting of day of arrest as a full day for period computation Applied to confirm counting method
Raj Kumar v. The State (A.I.R 1979 Punj. & Har. 80) Period computation excluding section 57 detention Relied on by respondent but predated Hussainara Khatoon

Court's Reasoning and Analysis

The Court examined the language and scheme of proviso (a) to sub-section (2) of section 167 of the Code of Criminal Procedure, 1973, in conjunction with section 57. Section 57 limits police detention without Magistrate's order to 24 hours (excluding journey time), requiring production before the Magistrate thereafter. Section 167 authorizes Magistrate to remand the accused for police or judicial custody, with police custody limited to 15 days and total detention under proviso (a) limited to 60 or 90 days depending on the offence.

The Court observed that the legislative intent was to prevent prolonged deprivation of liberty due to dilatory investigation. Hence, the period of 60 or 90 days must be computed from the date of arrest, not from the date of production before the Magistrate. This interpretation aligns with the Supreme Court's obiter in Hussainara Khatoon, which was binding on this Court, where it was noted that the period commenced from the date of arrest.

The Court rejected the respondent’s argument that the detention period under section 57 should be excluded from the computation, noting that the cases cited by the respondent predated the authoritative Hussainara Khatoon decision and did not consider it. The Court further clarified that even a fraction of a day of detention counts as a full day for the purpose of proviso (a).

Applying this reasoning to the facts, the petitioners’ 90-day period expired on 1-12-1982, but the charge-sheet was filed on 2-12-1982, entitling the petitioners to bail.

Holding and Implications

The Court held that the period of 60 days or 90 days under proviso (a) to sub-section (2) of section 167 of the Code of Criminal Procedure, 1973, commences from the date of arrest and not from the date of production before the Magistrate.

Accordingly, since the charge-sheet was not filed within the prescribed period computed from the date of arrest, the petitioners were entitled to be released on bail. The decision directly affects the parties by granting bail to the petitioners. No new precedent was set beyond affirming the binding nature of the Supreme Court's obiter in Hussainara Khatoon and clarifying the correct computation of the period under section 167(2)(a).

    Fakira Naik & Others v. State Of Orissa Opp. Party.

    R.C Patnaik, J.:— The short question posed for consideration is whether under proviso (a) to sub-section (2) of section 167 of the Code of Criminal Procedure, 1973 the period of 60 days or 90 days, as the case may be, is to be computed from the date of arrest of the accused or from the date of production before the Magistrate. The petitioners were arrested on 3-9-1982, inter alia, an allegations of commission of offence of murder. They were produced before the Magistrate on 4-9-1982. On 2-12-1982 charge-sheet was filed. The learned Sessions judge refused to grant bail, so, the petitioners are before us.

    2. Mr. P.K Misra, the learned counsel for the petitioners, has urged that the provisions discloses an assent on liberty and should be liberally construed. He has submitted that the period under Proviso (a) should be computed from the date of arrest and not from the date of production before the Magistrate. The period of remand authorised should be such that it, together with the period of detention under section 57, does not exceed the period of 60 days or 90 days, as the case may be. When the legislature introduced the reform, the object was to alleviate the harassment that was being suffered by an accused on account of lethargic and dilatory investigation. He has relied upon Mohd. Shafi v. The State . 1975 Crl. L. J 1309., State of Rajasthan v. Bhanwarn Khan . 1975 Crl. L.J 1981., Khinvdan v. The State of Rajastan . 1975 Crl. L.J 1984. Prem Raj v. The State Of Rajasthan . 1976 Crl. L.J 455., Darshan Singh v. State of Punjab . 1977 Criminal Law Times 243., Smt. Indaro Devi v. Raja Ram . 1979 Raj. Crl. Cases 91., Gur-bachan Singh v. Stae of H.P . 1979 Simla Law Cases 1., Gurcharan Singh v. State of Himachal Pradesh . 1979 Chandigarh Law Reports Cri 1 H.P and Hussainara Khatoon v. Home Secretary, State of Bihar . 1980 1 SCC 108, and two decisions of this Court in Mangal Hemrum v. State of Orissa . 53 1982 C.L.T 259., and Ramesh Chandra Sahu v. State . 53 1982 C.L.T 345.. In all these cases, it has been held that the accused is entitled to bail unless charge-sheet was filed within the period of 60 days or 90 days, as the case may be, from the date of his arrest. Mr. Misra has contended that it is difficult to accept that these Courts while rendering the decisions in the aforesaid cases were oblivious of the meaning of the proviso and made a casual observa-tion that the period commences from the date of arrest. He especially invited our attention to the observation of the Supreme Court in Hussainara Khatoon's Case (supra) where Bhagwati, J. observed.

    “……we are also very doubtful whether on the expiry of 90 days or 60 days, as the case may be, from the date of arrest the attention of the undertrial prisoners was drawn to the fact that they were entitled to be released on bail under proviso (a) of sub-section (2) of section 167……”

    3. Mr. Misra has urged that the Supreme Court was construing proviso (a) to sub-section (2) of section 167 of the Code. In that context, it observed that the period commenced from the date of arrest. Mr. Misra has vehemently urged that it is difficult to contend that the Supreme Court was not aware of the provision contained in section 57 of the Code and that the period of deten-tion contemplated by section 57 was authorised by that section.

    4. He has submitted that in the context and the scheme of the provision, having regard to the object sought to be achieved, the Supreme Court and other High Courts laid down that the period would commence from the date of arrest. It is immaterial whether the period of detention prior to production before the Magistrate is one contemplated by section 57. A strict and literal interpretation of proviso (a) to sub section (2) of section 167 of the Code would defeat the object. According to him, the Supreme Court was construing proviso (a) and the rule that the period is to be computed from the date of arrest is the ratio of the case. Even the obiter of the Supreme Court is binding on-this Court and so he persuades us to accept his contention. He has also drawn our attention to the case of Gurcharan Singh v. State of Himachal Pradesh, (supra) where it was observed:

    “The scheme which is revealed from the provisions of Section 167, Criminal Procedure Code is that the Magistrate can authorize two types ot custodies, namely, (1) the police custody and (2) the judicial custody. In other words, Section 167 contemplates not merely the judicial custody, but also the police custody. So as the police custody is concerned, there is a limitation to the effect that the same cannot exceed more than 15 days, after the expiry of these fifteen days of police custody, the arrested person is required to be taken in judicial custody. Sixty days' limitation which is contemplated by the proviso (a) of section 167(2) is with regard to both the types of custodies contemplated by this section. It, therefore, follows that sixty days limitation would start running from the time the person is arrested by the police……..”

    5. The learned Government Advocate has submitted that the provision contained in proviso (a) to sub-section (2) of section 167 of the Code was framed against the backdrop of section 57. When the period ot detention preceeding production before the Magistrate is one authorised by section 57, it would not be sound interpretation to hold that the said period would be a part of the period contemplated by proviso (a) to be one authorised by the Magistrate. He has referred us to the decisions reported in Jai Singh v. State of Haryana . 1980 Crl. L.J 1229.; Tarsem Kumar v. the State . 1975 Crl. L.J 1303.; L.R Chawla v. Murari . 1976 Crl. L.J 212. and Raj Kumar v. The State . A.I.R 1979 Punj. & Har. 80.

    6. Chapter XII of the Code contains the provisions relating to information to the police and investigation. Section 57 reads as hereunder.

    “No police officer shall detain in custody a person arrested without warrant for a longer period than under all the circumstances of the case is reasonable, and such period shall not, in the absence of a special order of Magistrate under section 167, exceed twenty-four hours exclusive of the time necessary for the journey from the place of arrest to the Magistrate's Court”

    7. Section 57 commands the police to produce the accused before the Magistrate whenever it appears to it that the investigation cannot be completed within a period of twenty-four hours. The time taken for the journey from the place of arrest to the Magistrate's Court is excluded. Then comes section 167. It says that upon’ such production of the accused, the Magistrate may remand him to such custody, i.e police custody. The remand to police custody, however, would not exceed fifteen days on the whole. Proviso (a) says that the Magistrate may authorise the detention of the accused if he is satisfied that adequate grounds exist even after the period of fifteen days under police custody. The period of detention, however, would not exceed 90 days where the investigation relates to an offence punishable with death, imprisonment tor life or imprisonment for a term not less than ten years, and 60 days where the investigation relates to any other offence. In our opinion, having regard to the intention of the legislature in enacting the new provision that where the investiga-tion is dilatory an accused should not suffer the deprivation of his liberty for more than 60 days or 90 days, as the case may be, the commencement of the deprivation of liberty is from the date of arrest and not from the date of production. If this approach is adopted, the authorisation under proviso (a) for detention should be for such a period which together with the period contemplated by section 57 would make the period of 60 days or 90 days, as the case may be. We agree with Mr. Misra that on obiter of Supreme Court is binding on us. When in construing proviso (a) the Supreme Court said that:

    “on the expiry of 90 days or 60 days, as the case may be, from the date of arrest,”

    8. It necessarily repelled the theory that the period commenced from the date of production. It may be observed that in Jai Singh's case (supra) the observations of the Supreme Court are not noticed. The other cases relied upon by the learned Government Advocate were decided before Hussainara Khatoons case (supra). So, we hold that the period of 60 days or 90 days, as the case may be, commences from the date of arrest and not from the date of production of the accused before the Magistrate.

    9. We may also observe that the day the accused suffers deprivation of his liberty by arrest would also count for one day. A calendar day as a unit of time is the interval between one midnight and another. So, a fraction of a day which the accused is under dentention is also a day for the purpose of proviso (a) to sub-section (2) of section 167 of the Code. See L.R Chawla v. Murari (supra). The petitioners were arrested on 3-9-1982. The period of 90 days expired with 1-12-1982. Charge-sheet was not filed within the said period. The petitioners were, therefore, entitled to be released on bail notwithstanding the filing of charge-sheet on 2-12-1982. (See Mangal Hemrum v. State of Orissa).

    R.N Misra, C.J:— I agree.

    10. Ordered accordingly.

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    Comments

    Fakira Naik & Others v. State Of Orissa Opp. Party.
    (Mar 11, 1983)