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Smt. Indra Devi and ors. Vs. Raja Ram and anr. - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtRajasthan High Court
Decided On
Case NumberS.B. Criminal Application No. 362/76
Judge
Reported in1978(11)WLN525
AppellantSmt. Indra Devi and ors.
RespondentRaja Ram and anr.
DispositionApplication dismissed
Cases ReferredIn Karamvir v. Stale and Ors. A.I.R.
Excerpt:
.....within 60 days of arrest of accused--magistrate enlarged accused on bail--held, custody includes police custody also--period of 15 days not to be excluded in computing period of sixty days--no interfence with order of magistrate is called for.;the magistrate can authorise the detention of the accused in such custody, meaning thereby police custody, for a term not exceeding fifteen days in the whole. it would mean that the total period of the police custody can in no way exceed fifteen days and not that this total period in police custody would be fifteen days from the date of production of the accused before the magistrate. similarly in this context, if the proviso is re id, the total period, for which detention can be authorised by the magistrate in custody under this provision, is..........section 167(2), crpc, and the magistrate can further authorise the detention of the accused in police custody by exercising powers under sub-section (2) of section 167 crpc, for a term not exceeding 15 days. the learned counsel urged that this period of 15 days is exclusive of the period of custody of the accused by the police under section 57, crpc, and he further submitted that the total period of detention for which the code authorises the magistrate under the proviso (a) to sub-section (2) of section 167, is sixty days. this period of sixty days is also exclusive of the period of police custody under section 57, crpc. his submission is that the period of detention under section 57 should not have been reckoned by the magistrate under sub-section (2) of section 167. the period of.....
Judgment:

M.C. Jain, J.

1. This is an application for cancellation of bail under Section 439(2), CrPC.

2. The non-applicant Rajaram was enlarged on bail by the Sessions Judge, Ganganagar, by his order dated 6th July, 1978, under Section 167(5), CrPC, as challan was not presented within sixty days from the date of his arrest. Rajaram was arrested on a charge under Section 302, IPC, on 10-4-1978. Charge-sheet was submitted on 9-6-1978. The learned Sessions Judge did not enter into the merits of the bail application and proceeded to enlarge the accused on bail on the basis that the charge-sheet was submitted beyond sixty days from the date of arrest.

3. On behalf of the applicant it is urged that Section 167(2) has not been correctly construed Rajaram was produced before the Munsif and Judicial Magistrate, Karanpur, for remand on 1-14-1978 Under Section 57 of the Code of Criminal Procedure the police was entitled to detain the accused in custody for a period of twenty-four hours exclusive of the time necessary for the journey from the place of arrest to the Magistrate's Court, and if investigation is not completed within this period the police can seek remand under Section 167(2), CrPC, and the Magistrate can further authorise the detention of the accused in police custody by exercising powers under Sub-section (2) of Section 167 CrPC, for a term not exceeding 15 days. The learned Counsel urged that this period of 15 days is exclusive of the period of custody of the accused by the police under Section 57, CrPC, and he further submitted that the total period of detention for which the Code authorises the Magistrate under the proviso (a) to Sub-section (2) of Section 167, is sixty days. This period of sixty days is also exclusive of the period of police custody under Section 57, CrPC. His submission is that the period of detention under Section 57 should not have been reckoned by the Magistrate under Sub-section (2) of Section 167. The period of detention authorised by the Magistrate would begin only after the production of the accused before the Magistrate for remand. The custody thereafter would be in pursuance o$ the authorisation by the Magistrate. The learned Counsel in support of his contention placed reliance on the two decisions of the Delhi High Court, Tarsen Kumar v. The State 1975 Cr.L.J. 1393 and L.R Chawla and Ors. 1976 Cr.L.J. 212. He further placed reliance on Artatran Mahacusera and Ors. v. State of Orissa A.I.R. 1956 Orissa 129and Dr. Niranjan Bhattacharies v. Manipur Administration A.I.R. 1958 Manipur 33.

4. The learned Counsel for the accused non-applicant Rajaram, on the other hand, referred to a decision of this Court in (sic) Singh v. The State of Rajasthan 1978 Cr.L.R. 343 and urged that the period under Section 167(2), CrPC, is inclusive of the period under Section 57, CrPC. The period of remand under the main Sub-section (2) and under the proviso to Sub-section (2) of Section 167 is to be reckoned from the date of the arrest and not from the date of the production of the accused before the Magistrate.

5. I have carefully considered the rival contentions advanced before me.

6. In order to appreciate the contentions of the learned Counsel the two provisions may be read. They ere as under:

57. Person arrested not to be detained more than twenty-four hours:

No police officer shall detain in custody a person 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 a Magistrate under Section 167, exceed twenty four hours exclusive of the time necessary from the place of arrest to the Magistrate's Court.

167. Procedure when investigation cannot be completed in twenty four hours:

(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 ft, 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 Magistrate having such jurisdiction.

Provided that-

(a) The Magistrate may authorise detention of the accused person, otherwise than in custody of the police, beyond the period of fifteen days if he is satisfied that adequate grounds exist fordoing 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 provision of Chapter XXXIII for the purpose of that Chapter.

7. On perusal of the above provisions, it would appear that Section 57 provides the period upto which an accused person arrested without warrant can be detained in custody by the police. The first limit is that it should be a reasonable period which may be even less than twenty-four hours and it shall in no case exceed twenty-four hours exclusive of the time necessary for the journey from the place of arrest to the Magistrate's Court. Sub-section (1) of Section 167 further provides that in case investigation cannot be completed within the period provided under Section 57, in that circumstance the police officer is required to forward the accused to the Magistrate and there is a further obligation to transmit the copy of the entries in the diary relating to the case to the nearest Judicial Magistrate. Sub-section (2) of section 167 further provides a period up to which detention can be authorised by the Magistrate in police custody. This period shall not exceed fifteen days in the whole. It may be stated that the Magistrate can authorise the detention of the accused in police custody from time to time and this period roust not exceed fifteen days in the whole. The expression 'in the whole' no doubt it to be read in the context of the words 'from time to tine' but the expression 'in the whole' further needs to read along with the expression 'in such custody'. It is true that Vyas Dev Misrs, J. in both the judgments of Delhi High Courts interpreted Section 167(2) & proviso (a) in a manner whereby the period of detention under Section 57 was excluded. The reasoning given in Tarsem Kumar's case (supra) was that the period of detention under Section 57 does not reed and authorisation by the Magistrate. It is only when twenty-four hours expire, a police officer needs authorisation if a Magistrate for further detention He farther stated that the total authorisation which can be made for police custody by the Magistrate, is not to exceed fifteen days and the words 'in the whole' have been used with reference to the context that the Magistrate may 'from time to time', authorise the detention of the accused in police custody and they have no reference to the period of detention during which a police officer can detain the accused under Section 57. He further slated that similarly when the proviso (a) to Sub-section (2) refers to 'a total period of sixty days', it relates to the period of detention authorised by the Magistrate in police custody as well as the custody other than police custody. The same view is reiterated by him in L.R. Chawla's case (supra).

8. In the Orissa case, cited by the counsel for the applicant, it was observed that reading Sections 61 and 167 of the Old Code, it is clear that the Legislature contemplated that the investigation of the offence in the case of a person arrested without warrant should be completed in the first instance within twenty-four hours under Section 61 or if not, under Section 167 within fifteen days from the date when he was first produced before the Magistrate This is in accordance with the principle of Anglo-Saxon Criminal Law on which the Indian Law is based that the accused is entitled to demand that the justice is not delayed.

9. In the Manipur case (supra) it was observed that each arrest is an independent, transaction & the period for it must be counted from the date of production before the Magistrate, in connection with that arrest, as is clearly indicated by the language of Section 167 and it is not permissible to indirectly exceed the limit of this period, in the manner suggested.

10. These four cases, no doubt, support the view of the learned Counsel for the applicant, but in Darshan Singh's case (supra) this Court has taken a contrary view and both the decisions of Delhi High Court referred to above were considered. Two earlier cases of this Court were also referred but in those earlier decisions the point was rot directly in issue, though there were observations that the period is computed from the date of arrest Those cases are Premraj v. The State of Rajasthan 1976 RLW 8 and Khinvdan alias Khinu Singh v. State of Rajasthan 1975 WIN 132. The question arises as to whether the view taken in Darshan Singh's case needs any consideration. In my opinion it does not even when it is taken, that the other view is, as well, possible on the construction of the provision contained in Sub-section (2) of Section 167, and the proviso (a) thereof still the construction which advances the cause of liberty should be adopted. It cannot be said that the view taken in Darshan Singh's case is not borne out from the provision contained in Sub-section (2) of Section 167. I have pointed out above that the Magistrate can authorise the detention of the accused in such custody, meaning thereby, police custody, for a term not exceeding fifteen days in the whole. It would mean that the total period of the police custody can in no way exceed fifteen days and not that this total period in pt lice custody would be fifteen days from the date of production of the accused before the Magistrate. Similarly in this context is, if the proviso is read, the total period for which detention can be authorized by the Magistrate in custody under this provision, is not to exceed sixty days. In the proviso there is only mention of 'custody', which will include police custody or otherwise, so such custody is not required to exceed sixty days in any case. Thus, it well include the police custody Under Section 57, CPC I am in respectful agreement with the view taken in Darshansingh's case & this view does not require any further consideration as the same is in harmony with the intent and spirit of the provision If the Parliament intended to exclude the period under Section 57, CrPC, it would have explicitly stated so, leaving no ambiguity.

11. Maxwell in his celebrate treatise on the Interpretation of Statutes (11th edition, 1962) stated as follows:

The effect of the rule of strict construction might almost be summed up in the remark that where an equivocal word or ambiguous sentence leaves a reasonable doubt of its meaning which the canons of interpretation fail to solve, the benefit of the doubt should be given to the subject and against the legislature which has failed to explain itself.

12. In S.S Yusuf v. Rex : AIR1950All69 it was observed as under in respect of interpretation of statutes affecting liberty of the subject:

Statutes affecting the liberty of the subject must not only be strictly construed but the Courts must take care to see that every condition which the law lays down has been fulfilled before the liberty of the subject is curtailed.

The functions of the Court are not, however, to circumvent or render nugatory any provisions of the law but to see them carried out, if, therefore, the effect of the words of the enactment are ascertained they must have effect given to them It is only, if the meaning is doubtful that the Court will adopt that construction which is favourable to the subject rather than the one which is unduly severe.

13. In Karamvir v. Stale and Ors. A.I.R. 1954 Patna 57 it was observed as under:

If a particular statute is found to be ambiguous, that is susceptible if two meanings, one leading to the invasion of the liberty of the subject and the other not, the latter has to be preferred on the ground that there is always the presumption that it is not the ordinary intention of a legislature to interfere with the liberty of the subject.

14. Thus firstly on the wordings of the provision of Section 167(2)(a) the period of custody under Section 57 can not be excluded. Secondly, if thin prevision is susceptible of two meanings, that meaning is to be given which is favourable to the subject.

15. The learned Counsel for the applicant has also contended that sixty days at the most be computed from the actual hour of arrest The accused was arrested on 10-4-1978 at 8.00, p.m., and if reckoned, from this actual hour of arrest the sixtieth day will expire on 9th June, 1978, at 8.00, p.m., and the challan was submitted on 9-6-1976 during morning hour?, so the challan was presented on the sixtieth day. I am unable to agree with this contention of the learned counsel. In my opinion fraction of a day will be considered as one day. In L.R. Chawla's case (supra) it was observed that 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.

16. I need not go into the merits of the matter as the accused was enlarged on bail only by virtue of the provision of Section 167(2) proviso (a), CrPC.

17. In the result, I do not find any force in this application, so it is hereby dismissed.

18. The learned Counsel for the applicant prays for leave to appeal to the Supreme Court. In the circumstances of the case, I am not inclined to grant leave. The prayer for leave to appeal is, therefore, refused.


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