1. These petitioners are accused Nos. 13, 12, 8, and 14 respectively in C.C. 64/84 pending on the file of the J.M.F.C., Shorapur, Gulbarga District, They and others have been charge-sheeted for various offences including the offence of murder.
2. They were arrested in this connection by the Shorapur Police in their Crime No. 51 of 1983 on 8-11-1983 at about 5-30 a m. and were produced before the jurisdictional Magistrate at about 8 p.m. on that very day. The Learned Magistrate exercising his powers under Section 167 of the Code remanded them to custody from time to time till 7-2-1984. On 6-2-1984 the accused requested the J.M.F.C., through an application to release them on bail and offered sureties on their behalf. When this application was pending consideration that very day i e., 6-2-1984 at4.45 p.m. the police placed their final report in the case.
3. If the date of arrest of these accused i.e., 8-11-4983 is also taken into consideration or reckoned in counting the period of 90 days, that period of 90 days expires or had expired at the end of 5-24984, i.e., by mid-night of 5-2-1984.
4. Now we will assume that after the police filing the final report, the Learned Magistrate had taken cognizance of these offences. Even then, according to the Learned Counsel for the petitioners, his clients' right to get them-selves released on bail in accordance with the proviso to Sub-section (2) of Section 167 of the Code of Criminal Procedure (Code) cannot be taken away. Whereas, accordingto the Learned State Public Prosecutor, the moment the Learned Magistrate takes cognizance of the offence, Section 167 of the Code ceases to apply and Section 309 of the Code takes its place in the matter.
5. It is true, Section 309 of the Code comes into play if the Magistrate in any enquiry or trial pending before him adjourns the enquiry or trial for some valid reason but wants to detain the accused during the pendency of the enquiry or trial as the case may be. Sub-section (l) of Section 309 says that in such an event he (the Magistrate) 'may by a warrant remand the accused if in custody....but he shall not remand for a term exceeding 15 days at a time.' Apart from relying on Section 309, the other ground on which the learned Public-Prosecutor opposes the claim of the accused is that the 90 days period had not expired since their date of arrest in a case like this ought to be excluded.
6. The question that arises for consideration in this petition is as to whether the accused could have been remanded beyond 6-2-1984 by the Court below either in exercise of its powers U/s. 167 or U/s. 309 of the Code.
7. Sub-section (2) with its proviso and the two explanations and sub-section (1) of Section 167 which are relevant for our purpose may be noted :
'167 (1) :- Whenever any person is arrested and detained in custody, and it 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 fit, for a term not exceeding fifteen days in thewhole ; and if he has no jurisdiction to try the case or commit it for trial, and consider a further detentionunnecessary, he may order the accused to be forwarded to a Magistrate having such jurisdiction :
(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 thedetention 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 the provisions of Chapter XXXIII for the purpose of that Chapter.
(b) Explanation I:- For the avoidance of doubts it is hereby declared that, notwithstanding the expiry of the period specified in paragraph (a) the accused shall be detained in custody so long as he does not furnish bail.
II. If any question arises whether an accused was produced before the Magistrate as required under paragraph (b) the production of the, accused person may be proved by hissignature on the order authorising;detention.'
8. As can be seen from clause (a) of the proviso to sub-section (2) of Section 167 of the Code 'no Magistrate shall authorise detention of the accused person in custody for a total period exceeding 90 days' in a case like this. It is further provided therein that 'on the expiry of that period of 90 days....the accused person shall be released on bail, if he is prepared to and does furnish bail...'
9. In support of his contention that while reckoning the period of 90 days the date of arrest should be excluded, thePublic Prosecutor places strong reliance on a decision of Madhya Pradesh High Court in Jagadish & Others -v.-State of Madhya Pradesh, 1984 Crl. L.J. 79. It is true that the Learned Judge after referring to several decisions of the Delhi High Court and Madhya Pradesh High Court is of the view that the date on which the accused have been arrested has to be excluded. The Learned Counsel for the petitioners, on the other hand, in this connection placed strong reliance on a Division Bench decision of Orissa High Court in Fakira Naik & Others -v.- State of Orissa, 1983 Crl. L.J. 1336. The following observations in FAKIR NAIK be noted :
'Under proviso (a) to Section 167(2) 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 and not from the date of production before the Magistrate white computing the aforesaid period. The day on which 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 mid-night and another. So, the fraction of a day which the accused is under detention is also a day for the purpose of proviso(a) to Section 167(2)'
I am inclined to agree with the views expressed by the Orissa High Court in FAKIR NAIK. As is well known 'If two reasonable constructions are possible the Court should lean towards that which exempts the subject from penalty rather than the one which imposes the penalty (See (i) Sajjan Singh -v.- State of Punjab, : 1964CriLJ310 and (ii) Tolaram Relumal -v.- State of Bombay, : 1SCR158 ). So, in the circumstances, Section 167(2) of the Code could not have been availed of to detain in custody these persons beyond the midnight of 5-2-1984.
10. In the submission made by the State Public Prosecutor that the Court below, having taken cognizance of the offence on the final report submitted by the police on 6-2-1984, could have remanded the accused exercising his powers under Section 309 and that order that he has made relates back to 5-2-1984 and authorises the detention of the accused between this interregnum i.e., mid-night of 5-2-1984 till presentation of the final report by the police on 6-2-1984, there is no merit. The Court could have made an orderunder Section 309 of the Code remanding these accused, if they were in custody, in the sense in propercustody....authorised by law. In the instant case these persons could not have been detained by an order made U/s. 167(2) of the Code for a period beyond 90 days. Their detention, sub-sequent to that period, shall have to be taken as one not authorised by law. The law says that on the expiry of the period of 90 days 'the accused person shall be released on bail, if he is prepared to and does furnish bail.' In fact in HUSSAJNARA KHATOON's case 1979 Crl. LJ 1052 the Supreme Court observed that if an under-trial prisoner 'has been in detention for 90 days....the Magistrate must, before making an order of further remand to judicial custody, point out to the under-trial prisoner that he is entitled to be released on bail.' It is thus clear that on the expiry of 90 days the accused gets a right to claim bail provided he is prepared to and does furnish bail. In the instant case the petitioners had requested the Court to release them after obtaining bail. Therefore in the circumstances, Section 309 of the Code could not have been availed of by the Court below to further remand these persons to custody.
11. It was also argued by the State Public Prosecutor that 5-2-1984 was a Sunday and, therefore, the police, even if they wanted to, could not have filed their final report into the Court and that in the circumstances, in view of Section 10 of the General Clauses Act, the 90th day will have to be taken as falling on 6-2-1984. This reasoning appears to have appealed to the Learned Magistrate also. But Section 10 of the General Clauses Act is not attracted to a case like this. Section 10 provides that 'if any act or proceeding is directed or allowed to be done or taken in any Court or office on a certain day or within a prescribed period, then if the Court or office is closed on that day or the last day of the prescribed period, the act or proceeding shall be cons-trued as done or taken in due time if it is done or taken on the next day afterwards on which the Court or office is opened.' In the instant case, there was no time limit within which the police had to place their final report. Therefore, they cannot take advantage of Section 10 of the General Clauses Act.
12. For the reasons stated by me above, on 6-2-1984, these accused were entitled to be released on bail in the Court below. The order of the Court below refusing to release them on bail, in my view, is not correct. It is true that in this petition, admittedly filed under Section 439 of the Code, that order is not challenged. However, exercising my powers of revision under Section 397 of the Code, I set aside that order also in this proceeding.
13. For reasons stated above, the petitioners are ordered to be released on bail by the J.M.F.C., on each of them executing a bond in a sum of Rs. 3000/- with a surety for the like sum to his satisfaction. This order shall be taken as the one made under Section 439 of the Code.
The Order also is subject to the following conditions: The accused shall not visit their village. They shall stay either at Gulbarga town or at Yadgir. It was submitted by the State Public Prosecutor that the accused also may be directed to give their attendance either at Gulbarga police station or Yadgir police station once a week. However, I feel that the Learned Magistrate will apply his mind to this plea of the prosecution and pass appropriate orders, after hearing both the parties. It is open to the local Public Prosecutor to make a formal request to the J.M.F.C., on this aspect of the matter i.e., as to whether the accused should give their attendance at any police station. However.if that Court decides that they shall give their attendance, it shall be once a week only on any day and time fixed by him. The Court below will give effect to the order made by this Court without waiting for his decision in the matter of the accused giving their attendance at the police station.