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Jai Singh and anr. Vs. State of Haryana - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtPunjab and Haryana High Court
Decided On
Judge
Reported in1980CriLJ1229
AppellantJai Singh and anr.
RespondentState of Haryana
Cases ReferredDarshan Singh v. State of Punjab
Excerpt:
- - the state of punjab 1976 chand lr (cri) 411 (punj & har), in which the learned single judge, relying on the full bench decision of surinder kumar's (1977 cri lj 1266) (punj & har) (supra), expressed the view that the order of the magistrate, remanding the accused person to judicial custody after the expiry of sixty days from the date of his arrest, is clearly illegal and without jurisdiction......into operation, whether the detention can be allowed to continue even after the period of sixty days in view of the provisions of rule 184 of the defence and internal security of india rules 19715. now i take up the single bench decisions of this court relied on by the learned counsel for the petitioners in support of his contention that the period of ninety or sixty days is to be computed from the date of the arrest of an accused person. jiwan lal v. state of punjab 1975 chand lr (cri) 626 was the case in which the learned state counsel did not oppose the proposition. similarly, in swaran singh v. state of punjab 1975 chand lr (cri) 307 the learned counsel for the state made the concession. the next ruling relied on was dharampal v. the haryana state 1976 chand lr (cri) 409 (punj &.....
Judgment:

S.C. Mital, J.

1. Proviso (a) of Sub-section (2) of Section 167 of the Code of Criminal Procedure of 1973 as amended by Act 45 of 1978 lays down that no Magistrate shall authorise the detention of an accused in custody for a total period exceeding ninety days, where the investigation relates to offence punishable with death, imprisonment for life or for a term not less then ten years and on the expiry of the said period of ninety days the accused shall be released on bail if he is prepared to furnish the bail bond. It may also be mentioned that the proviso now prescribes a total period of sixty days where the investigation relates to any other offence. The question for determination is, whether the period of detention of ninety or sixty days, as the case may be, is to be computed from the date of the arrest of the accused or not?

2. In Raj Kumar v. The State , I considered this aspect of the proviso. Having regard to the terms of the proviso I expressed the view that the period of ninety or sixty days, as the case may be, has to commence from the date the Magistrate authorised the detention of an accused-person. My view was based,on the plain reading of the terms of the proviso. Now learned Counsel for the State has, in support of my view, cited Bashir v. The State of Haryana : 1978CriLJ173 wherein at page 57 their lordships have observed:

Sub-s. (2) of Section 167 and proviso (a) thereto make it clear that no Magistrate shall authorise the detention of the accused person in custody under this section for a total period exceeding sixty days. On the expiry of sixty days the accused person shall be released on bail if he is prepared to and does furnish bail.

Thus, it would be seen that the emphasis is on the period of detention as authorised by the Magistrate.

3. Learned Counsel for the State then invited my attention to Tarsem Kumar v. The State 1975 Cri LJ 1303, (Delhi) decided by V.D. Misra, J. (now Hon'ble Chief Justice of Himachal Pradesh High Court) laying down that' in computing total period of sixty days referred to in' Proviso (a) to Sub-section (2) of Section 167 of the Code of Criminal Procedure, the period of detention by the Police under Section 57 of the Code of Criminal Procedure has to be excluded. The learned Judge again expressed the same view in L.R. Chawla v. Murari 1976 Cri LJ 212 (Delhi). I may mention here that while deciding Raj Kumar's case (supra), the effect of the provision of Section 57 of the Code of Criminal Procedure was not raised before me but now upon a consideration of this matter I find myself in respectful agreement with V.D. Misra, J., that after arresting a person, the police in the exercise of their power under Section 57 of the Code of Criminal Procedure can keep him in custody for a limited period of 24 hours excluding the time taken in journey. that custody is obviously not under the authority of the Magistrate but under the powers conferred by the statute on the Police. If the police is unable to complete the investigation within the prescribed limit of 24 hours, it is then that they are required to produce the accused before a Magistrate for remand under Section 167 of the Code of Criminal Procedure. It is thus clear that detention under the authority of the Magistrate, with respect to the period whereof proviso (a) to Section 167(2) makes specific reference, commences from the date the Magistrate passes the order of remand.

4. Learned Counsel for the accused placed reliance on Gurcharan Singh v. State of Himachal Pradesh 1979 Chand LR (Cri) 1 (Him Pra) wherein T.U. Mehta, C.J. expressed a contrary view. The head note of the report reads:

Held, that sixty days limitation would start running from the time the person is arrested by the police. This view is further justified by the fact that Section 167 finds its place in the scheme of the Act in Chapter XII which contemplates the various stages of police investigation and the power of the police during the course of investigation. If that is so, it should follow that the limitation of sixty days for the purpose of custody refers to the stage of investigation by the police. In other words, the police is expected to put the challan within sixty days. Reference to Sub-section (8) of Section 173 shows that investigation can be continued even after the challan is put. But so far as the submission of the challan to the court is concerned, the period of limitation which is contemplated by proviso (a) of Section 167(2) is sixty days and since these sixty days are to be counted from any custody under Section 167, the period would begin to run from the date a person is arrested and taken into custody by the police.' In view of the discussion in the paragraphs preceding the citation under consideration, with utmost respect, I am unable to agree with the view quoted above. The learned Counsel for the petitioners then placed reliance on single Bench decisions of this Court. Before adverting to them, it is worthwhile mentioning that in State of Orissa v. Su-dhensu Sekhar Misra : (1970)ILLJ662SC , their lordships laid down:

A decision is only an authority for what it actually decides. What is of the essence in a decision is its ratio and not every observation found therein nor what logically follows from the various observations made in it. It is not a profitable task to extract a sentence here and there from a judgment and to build upon it.

In view of the authoritative pronouncement quoted above, the Full Bench decision of this Court in Baldev Singh v. State of Punjab, (1975) 77 Pun LR 534: 1975 Cri LJ 1662 has no bearing on the question under consideration. In that case, the point determined was whether any accused against whom a criminal case was registered prior to the enforcement of the Code of Criminal Procedure, 1973 was entitled to the beneficial provisions of sub-clause (a) of the proviso to Sub-section (2) of Section 167 of the said Code. It was in that context that the learned Judges of the Full Bench considered sub-clause (a) of the said proviso. that being so, any reference to this Full Bench decision in the rulings discussed hereinafter, would be of no avail to the petitioners. Likewise, the decision of Surinder Kumar v. The State of Punjab (1976) 78 Pun LR 643 : 1977 Cri LJ 1266 has also to be kept out of consideration, because therein the question referred to the Full Bench was:Where the provisions of proviso (a) to Section 167(2) of the Criminal Procedure Code come into operation, whether the detention can be allowed to continue even after the period of sixty days in view of the provisions of Rule 184 of the Defence and Internal Security of India Rules 1971

5. Now I take up the single Bench decisions of this Court relied on by the learned Counsel for the petitioners in support of his contention that the period of ninety or sixty days is to be computed from the date of the arrest of an accused person. Jiwan Lal v. State of Punjab 1975 Chand LR (Cri) 626 was the case in which the learned State counsel did not oppose the proposition. Similarly, in Swaran Singh v. State of Punjab 1975 Chand LR (Cri) 307 the learned Counsel for the State made the concession. The next ruling relied on was Dharampal v. The Haryana State 1976 Chand LR (Cri) 409 (Punj & Har) in which the learned single Judge observed:

According to the proviso to Sub-section (2) of Section 167, Criminal Procedure Code, 1973, the Court is bound to release the accused on bail if the challan against him is not put in Court within a period of sixty days after his arrest.

With due respects, as already discussed in paragraphs 2 and 3 of this judgment, the attention of the learned Judge was not drawn to the terms of the proviso which speak of detention of an accused person under the authority of a Magistrate. It may be that in Dharampal's case (supra), the Magistrate authorised the detention of the accused persons on the very day of their arrest, but it is not very clear from the facts given in the report.

6. Learned Counsel for the petitioners then referred to Sukhwinder Singh v. The State of Punjab 1976 Chand LR (Cri) 411 (Punj & Har), in which the learned single Judge, relying on the Full Bench decision of Surinder Kumar's (1977 Cri LJ 1266) (Punj & Har) (supra), expressed the view that the order of the Magistrate, remanding the accused person to judicial custody after the expiry of sixty days from the date of his arrest, is clearly illegal and without jurisdiction. As to the Full Bench decision, I have already clarified the position. Hence, any observation made therein is of no avail to the petitioners. For the same reason, Darshan Singh v. State of Punjab 1977 Cri LT 243 wherein also support was sought from the Full Bench decision of Surinder Kumar's case is also not helpful to the petitioners.

7. In the result, I am of the view that the period of ninety or sixty days, as the case may be, referred to in proviso (a) to Sub-section (2) of Section 167 of the Code of Criminal Procedure, 1973 is to be computed from the date the Magistrate authorises the detention of an accused person. In a given case, if the Magistrate authorises the detention on the very date of arrest of an accused person, then the period of detention of ninety or sixty days is to be computed from the date of his arrest.

8. As regards the merits of this case, it may be mentioned that this petition had become infructuous even before arguments were addressed, but, in view of the general importance of the question of law involved, we heard the learned Counsel for the parties at length. The petition is accordingly dismissed.


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