21 August 2020

In computing period of 60/90 days for default bail u/s.167(2) of CrPC, first day of remand is to be included

The applicability of the aforesaid principle and also of the provision contained in Section 9 of the General Clauses Act would be of some semblance/relevance, where the law/statute prescribes a limitation and in terms of Section 9, if in any Central Act or Regulation made after the commencement of the General Clauses Act, 1897 it shall be sufficient for the purpose of excluding the first in a series of days or any other days or any other period of time, to use the word ‘from’ and ‘for the purpose of including the last in a series of days or any other period of time to use the word ‘to’. The principle would be attracted when a period is delimited by a Statute or Rule, which has both a beginning and an end; the word ‘from’ indicate the beginning and then the opening day is to be excluded and then the last day is included by use of words ‘to’. The requisite form for applicability of Section 9 is prescribed for a period ‘from’ and ‘to’, i.e. when the period is marked by terminus quo and terminus ad quem.

    If this principle is the underlining principle for applicability of Section 9 of the General Clauses Act, 1897, perusal of Section 167 (2) would reveal that there is no starting point or an end point. In the scheme of the Code, as has been elaborated above, the provisions contained in sub-section (1) of Section 167 runs in continuation of sub-section (2). Production of the accused before the Magistrate is a sequel of his arrest by the police in exercise of their power and the mandate of the police, and at the same time, a right of the accused to be produced before the Magistrate within 24 hours. The day on which the accused is brought on remand before the Magistrate, sub-section (2) of Section 167 empowers the Magistrate to authorize the detention with the police either by continuing it or remanding him to Magisterial custody. There cannot be a pause/break between the two processes. There is no de-limitation conceptualized in Section 167 nor can it be befitted into a period of limitation ‘from’ and ‘to’ as there is no limitation for completion of investigation and filing of the charge-sheet. The production before the Magistrate is a process in continuation of his arrest by the police and the Magistrate will authorize his detention for not more than 15 days in the whole but if he is satisfied that sufficient ground exist, he may authorise his detention beyond 15 days otherwise than in custody of police. There is no starting point or end point for the authorities to complete their action but if the investigation is not completed and charge-sheet not filed within 60 days or 90 days, a right accrues to the accused to be released on bail.

In computing period of 60/90 days for default bail u/s167(2) of CrPC, first day of remand is to be included

    The anterior period of custody with the police prior to the remand is no detention pursuant to an authorization issued from the Magistrate. The period of detention by the Magistrate runs only from the date of order of first remand. Sub-section (2) of Section 167 of the Cr.P.C pertain to the power of the Magistrate to remand an accused and there is no reason why the first day has to be excluded. The sub-section finds place in a provision which prescribe the procedure when investigation cannot be completed in 24 hours and distinct contingencies are carved out in sub-section (2); the first being the Magistrate authorizing the detention of the accused for a term not exceeding 15 days in the whole, secondly, when the Magistrate do not consider further detention necessary and thirdly, the Magistrate authorise the detention beyond period of 15 days if adequate grounds exists for doing so. However, there is no time stipulated as to extension of custody beyond period of 15 days with a maximum limit on the same. The accused can be in magisterial custody for unlimited point of time if he is not admitted to bail. In order to avoid the long incarceration of an accused for the mere reason that the investigation is being carried out in a leisurely manner, prompted the legislature to confer a right on the accused to be released on bail if he is prepared to do so and the investigation can still continue. This is the precise reason why the General clauses Act cannot be made applicable to sub-section (2) of Section 167 and the submission of Mr.Singh to the effect that the first day of remand will have to be excluded, would result into a break in the continuity of the custody of the accused which begin on his arrest and which could have continued till conclusion of investigation but for insertion of proviso to subsection (2) of Section 167.

    As regards the applicability of the provisions of Limitation Act, 1963 is concerned, which prescribe limitation in filing of suits, appeals and applications is concerned, the right of release being claimed as by way of default, there is no scope of applicability of the said enactment and in particular, Section 12 (1) and (2) since there is no decision/order, against which any Appeal/ Application is being preferred.[Para No.27]

    It is pertinent to note the recent three Judge bench decision of the Apex Court in case of S. Kasi Vs. State (Criminal Appeal No.452 of 2020 decided on 19th June 2020) where it is reiterated that the period u/s.167 is inviolable and cannot be extended by the Supreme Court even while exercising its power under Article 142. The power of Magistrate authorizing detention of accused in custody by prescribing the maximum period, cannot be extended directly or indirectly by any Court with an exception contained in Special Statutes, which to that extent modify the applicability of Section 167 of the Code. Undue delay is not conducive to administration of criminal justice. By this time, crossing several hurdles, the position of law which has clearly emerged is that if the charge-sheet is not filed and right for ‘default bail’ has ripened into a status of indefeasibility, it cannot be frustrated by prosecution nor by the Court on any pretext. It is time and again reiterated through authoritative pronouncements that no subterfuge should be resorted to defeat the indefeasible right of the accused for default bail. The mandatory default bail is a sequel to non-filing of the charge-sheet/challan within the period set out by clause (i) and (ii) as the case may be of Section 167(2) (a) of the Code. The merits of the matter cannot be gone into at this stage.

    As a corollary to the aforesaid discussion, the impugned order passed by the Sessions Judge, excluding the first day of remand while computing the period of 60 days cannot be sustained and is liable to be set aside and the filing of the chargesheet by the Directorate of Enforcement on 13th July 2020, being after of 60 days, by excluding the day of remand i.e. 14th May 2020, make the applicants entitled for default bail. They deserve to be released on bail in light of the right conferred u/s.167(2)(a) (ii), if they are prepared to and furnish the bail. Hence, I pass the following order :-........[Para No.28]

Bombay High Court

Kapil Wadhawan
State of Maharashtra

Decided on 20/08/2020

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