1. This matter has been referred to us because of the difference of opinion in respect of the construction of Section 167 of the Criminal Procedure Code, 1973 (hereinafter referred to as the Code). Justice Surti in Criminal Revn Appln No. 509 of 1974 decided on 13-11-1974 (Guj) took the view that under the provisions of Section 167 of the Code the accused must be automatically released on bail and the circumstance that the police subsequently submitted a charge-sheet to the Court need not come in way of the accused being so released. Justice Trivedi in Criminal Revn. Appln. No, 516 of 1974 decided on 3-12-1974 took the view that if the charge-sheet was filed pending an application of bail under Section 167 of the Code, the accused cannot be said to be in detention under the provisions of Section 167 of the Code and that no order could be passed to release him on bail under proviso (a) to sub-section (2) of S. 167 of the Code and the Court has to exercise discretion under the provisions of Section 437 of the Code.
2. Shortly stated the facts of this case are that the five petitioners original accused Nos. 1 to 5 respectively, armed with deadly weapons like Dharia, axes, stick, etc. are alleged to have assaulted one Jitubha on September 20, 1974 and that petitioner No. 3, original accused No. 3, had caused injuries on the head of Jitubha by means of a Dharia blow. Jitubha, the injured, was then removed to Irvin Hospital, Jamnagar on the same day and he died on September 26, 1974. The offence that was initially registered was under Section 307 of the Indian Penal Code but subsequently the accused were alleged to have committed offences punishable under Sections 147, 148,149 and 302 of the Indian Penal Code. Petitioners Nos 1to 4 were arrested on September 21, 1974 and petitioner No. 5 was arrested on September 23. 1974. An application for bail was filed before the learned Magistrate on September 30. 1974 which was rejected by him on October 3, 1974. An application for bail was also filed by the petitioners before the learned Sessions Judge but the same was rejected on October 11, 1974. Thereafter a revision application was filed in this Court against the order of the learned Sessions Judge refusing bail to the petitioners but the same was subsequently withdrawn on October 19, 1974. The petitioners then filed the present miscellaneous application for bail on November 29, 1974. In the meanwhile the police filed a charge-sheet on November 22, 1974 in the Court of the learned Magistrate having jurisdiction. The criminal miscellaneous application came up for hearing before Justice Rane who in view of the aforesaid conflict in decisions referred the matter to a Division Bench.
3. Now sub-section (1) of S. 167 of the Code provides that where any person is arrested and detained in custody and it appears that the investigation cannot be over by 24 hours fixed by S. 57, and there is no around for believing that the accusation or information is well-founded, the officer in charge of the police station shall forthwith transmit to the nearest Judicial Magistrate a copy of the entries in the diary and shall at the same time forward the accused to such Magistrate. The relevant part of sub-section (2) of Section 167, which requires interpretation is as follows:
'(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 the whole; and if he has no jurisdiction to try the case or commit it for trial, and considers further detention unnecessary, he may order the accused to be forwarded to a Magistrate having such jurisdiction:
(a) The Magistrate may authorise detention of the accused person, otherwise than in custody of police, beyond the period of fifteen days if he is satisfied that adequate grounds exist for doing so, but no Magistrate shall authorise the detention of the accused person in custody under this section for a total period exceeding sixty days, and on the expiry of the said period of sixty days, the accused person shall be released on bail if he is prepared to and does furnish bail; and every person released on bail under this section shall be deemed to be so released under the provisions of Chapter XXXIII for the purposes of that Chapter;' Sub-section (3) of S. 167 provides that a Magistrate authorising under this section detention in the custody of the police shall record his reasons for so doing, Sub-section (5) of Section 167 provides that if in any case triable by a Magistrate as a summons-case, the investigation is not concluded within a period of six months from the date on which the accused was arrested, the Magistrate shall make an order stopping further investigation into the offence unless the -officer making the investigation satisfies the Magistrate that for special reasons and in the interests of justice the continuation of the investigation beyond the period of six months is necessary. Chapter XXXIII of the Code contains provisions as to bail and bonds. Section 436 relates to the granting of bails in a case of bailable offence. Section 437 provides for granting of bail in non-bailable cases and provides that the accused shall not be released by the Court on bail if there appears reasonable grounds for believing that he has been guilty of an offence punishable with death or imprisonment for life. Sub-section (2) of Section 437 provides that, if it appears to such officer or Court at any stage of inquiry or trial that there are not reasonable grounds for believing that the accused has committed a non-bailable offence, but that there are sufficient grounds for further inquiry, the accused shall pending Inquiry be released on bail or at the discretion of such officer or Court, on the execution by him of a bond without sureties subject to the provisions of the section that follow. Subsection (5) of Section 437 provides that, any Court which has released a person on bail under sub-section (1) or sub-section (2), may if it considers it necessary so to do direct that such person be arrested and commit him to custody.
4. Now the provision, of S. 167 are contained in Chapter XII of the Code which is headed as 'Information to the Police and their Powers to Investigate.' Sections 154 to 176 occur in this Chapter and all these sections pertain to the collection of evidence during investigation. The procedure of arrest, detention and remand during the investigation is incorporated in Section 167. A person cannot be detained in police custody beyond 24 hours of his arrest. Such a person has to be produced before a Magistrate. The Magistrate before whom he may be produced may be the Magistrate having jurisdiction to try the case or may be the Magistrate having no such jurisdiction. Either of the aforesaid Magistrate can authorise detention of the accused in such custody as such Magistrate thinks fit, for a term not exceeding 15 days in the whole. If the accused was produced before the Magistrate having no jurisdiction to try the case or to commit for trial, and he considers further detention unnecessary he may order the accused to be forwarded to the Magistrate having such jurisdiction. The aforesaid provisions of Section 167 apply to any person accused of an offence punishable with death or imprisonment for life or an offence punishable otherwise than that. Now proviso (a) to sub-section (2) of Section 167, provides that the Magistrate may authorise detention of the accused person otherwise than in custody of the police, beyond the period of 15 days, if he is satisfied that adequate grounds exist for doing so. The power of remand therefore, is not a mechanical act but the Magistrate has to exercise his discretion and can order remand only if he is satisfied that adequate grounds exist for doing so, The powers of Magistrate to authorise detention of the accused during the investigation are again not unlimited. On the expiry of total period of 60 days, the accused person is entitled to be released on bail if he is prepared to and furnishes bail. Proviso (a) to Section 167(2) is not a general provision relating to granting of bail but is integrally connected with the scheme relating to investigation and regarding arrest and remand. The power of remand is exercised by the Magistrate to facilitate investigation. The function of the Magistrate under the provisions of Section 167(2) is to see that the police does not abuse the power of investigation. The Magistrate's functions at this stage are intended to prevent abuse. Continuation of the arrest and detention of a person for the purpose of investigation from time to time has to be authorised by the Magistrate under the provisions of Section 167(2) of the Code. The legislature requires the investigation to be completed within 24 hours if possible and at any rate before the expiry of 60 days. If the investigation is not completed within the period of 60 days the accused is entitled to bail. The provisions of Section 167 operate during the investigation and a Magistrate exercises the power of authorising detention of the accused at a stage when he has not taken cognizance of the case. Under the provisions of Section 167, it is the Magistrate who exercises the power. Under the provisions of Section 437 of the Code it is the Court which exercises the power of granting bail in non-bailable of fences. Under Section 437 the Court cannot release a person accused of an offence if there appears reasonable ground for believing that he is guilty of the offence punishable with death or imprisonment for life. In exercising the power under Section 437 the Court has to exercise its judicial discretion after examining the merits of the case. Under the provisions of Section 167(2) the Magistrate while granting a remand order has only to satisfy himself as to whether there exist adequate grounds for authorising further detention pending investigation. The Magistrate has not to decide while exercising power of granting bail under Section 167 of the Code as to whether there are reasonable grounds for believing that the accused has been guilty of an offence punishable with death or imprisonment for life.
5. The provisions of Section 167(2) and the provisions of Section 437 thus operate in different fields. The Magistrate has to exercise his power of releasing the accused on bail under Section 167(2) if the total period of detention of the accused exceeds 60 days. But this power is to be exercised durin2 the pendency of investigation only. The power under Section 167(2) of granting bail cannot be exercised by the Magistrate when the investigation is over or to put in other words, when he takes cognizance of the case either under the provisions of Section 170 or 173 of the Code. If the Magistrate takes cognizance of the offence under either of the aforesaid section the Magistrate can exercise Power only under Section 437 of the Code. Therefore, if an application is made under Section 167 for bail by an accused person who is detained in custody pending investigation for a period exceeding 60 days, he is entitled to bail. But if pending such an application for bail a charge-sheet is filed in the Court the investigation comes to an end and so also the power of the Magistrate of granting bail to the accused under the provisions of Section 167(2). The Magistrate then can exercise power of granting bail only under Section 437. The Magistrate to whom an application for bail under Section 167(2) is made has to take the subsequent event into consideration - the subsequent, event being the filing of the charge-sheet. In the case before Mr. Justice Surti, the offence was committed on June 24, 1974 and the accused were taken in judicial custody on June 29. 1974. The Charge-sheet was filed on August 24, 1974 and on the same day the accused filed an application for bail under the provisions of Section 167 of the Code. Justice Surti took the view that the accused was automatically entitled to be released on bail in view of, the provisions of Section 167 and the circumstance that the police subsequently submitted the charge-sheet to the Court could not come in the way of the accused to be released on bail. Neither the limitation that the power of granting bail under Section 167 can be exercised only pending investigation nor the provisions of See. 437 were brought to the notice of the Court. The provisions of Section 167(2) operate only during the investigation. No sooner a charge-sheet is filed the provisions of S. 437 are attracted in a case of an offence punishable with death or imprisonment for life. If in a case the investigation is not completed within the period of 60 days and the accused is released on bail under the provisions of Section 167 of the Code then the order of bail operates even after the charge-sheet is filed. This is so because of the deeming fiction provided in proviso (a) to sub-section (2) of S. 167 of the Code. The proviso provides that every person released on bail under this section shall be deemed to be so released under the provisions of Chapter XXXIII for the purposes of that Chapter. The effect of these provisions is that if a person is released on bail during the pendency of investigation, the order of release on bail operates even after the charge-sheet is filed. The deeming fiction is very widely worded. Under the said deeming provisions every person released on bail under the provisions of S. 167(2) shall be deemed to be released under the provisions of Chapter XXXIII for the -purposes of that Chapter. The effect of this deeming provision is that if an accused person is released on bail as per the provisions of Section 167(2)(a), the bail order continues even after the charge-sheet is filed. But in view of the provisions of deeming fiction it is open to the prosecution to make an application for cancellation of bail under the Provisions of sub-section (5) of Section 437 of the Code. It was argued that the effect of the deeming fiction contained in Section 167(2)(a) is that only procedural provisions relating to bail and bonds contained in Chapter XXXIII of the Code are attracted in cases where the bail is granted under Section 167 of the Code. In support of this contention reliance was sought to be placed on the judgment of Justice Trivedi in Criminal Revision Application No. 516 of 1974* (supra) wherein it was observed that the deeming provision is enacted with a view that other incidental provisions as to bail and bonds contained in Chapter XXXIII may apply to the order of bail and bonds granted under S. 167 of the Code. This observation does support the said argument but with greatest respect to the learned Judge we are unable to agree with him. Such a narrow construction cannot be given to the deeming fiction because the deeming fiction is broadly worded and there is nothing in the statutory fiction to limit its applicability only to the procedural provisions of Ch. 33 of the Code. The Supreme Court has considered in M. K. Venkatachalarn v. Bombay Dyeing and Mfg. Co. Ltd., AIR 1958 SC 875, the scope of deeming fiction, The Supreme Court in the said case approved the observations made by Lord Asquith of Bishopstone in East End Dwellings Co. Ltd. v. Finsbury Borough Council. 1952 AC 109 at p. 132, wherein he observed as under:
'The statute says that you must imagine a certain state of affairs; it does not say that having done so, you must cause or permit your imagination to boggle when it comes to the inevitable corollaries of the state of affairs'.
It is thus clear that because of the deeming fiction contained in Section 167 all the provisions of Chapter XXXIII including the provisions of Section 437(5) shall apply to a case in which bail has been granted under the provisions of Section 167(2)(a) of the Code.
6. So far as the present case is concerned, it is evident that an application for bail was made in this Court after the charge-sheet was filed before the learned Magistrate. Therefore, only the provisions of Section 437 can apply and while granting bail, the Court has to exercise its discretion as per the provisions of the said section. The accused have asked for bail but we are now told that the sessions trial has already begun and, therefore, Mr. Vyas, appearing for the petitioners, does not press his application for bail on merits.
7. The result is that the application for bail is, therefore, rejected.
8. Orders accordingly.
9. Application rejected.