Judgment:
R.R. Prasad, J.
1. This writ application is directed against the order dated 23.3.2010 passed by the learned Special Judicial Magistrate (Railway), Dhanbad in Koderma G.R.P.S case No. 3 of 2009 whereby Special Judicial Magistrate (Railway), Dhanbad has rejected the petition dated 23.3.2010 wherein prayer had been made to grant the petitioner compulsive bail in terms of Section 167(2) of the Code of Criminal Procedure.
2. The facts leading to filing of this case are that a dacoity was committed in Howrah-Dehradun Express on 12.2.2009 as soon as it left Hazaribagh Road Station and for that a case was lodged which was registered as Koderma G.R.P.S. case No. 3 of 2009 under Section 395 of the Indian Penal Code against 7-8 unknown persons. In course of investigation, involvement of this petitioner and other accused persons got transpired, upon which two persons were arrested against whom charge sheet was submitted on 22.5.2009 and the investigation was kept open for other accused persons. On submission of the charge sheet, cognizance of the offence was taken against the accused, who were sent up for trial and the case was committed to the court of sessions after splitting the case of the other co-accused. Subsequently, a petition was filed on 14.12.2009 by the Investigating Officer before the Judicial Magistrate (Railway), Dhanbad praying therein to remand the petitioner, who has been in judicial custody in connection with Markacho P.S case No. 68 of 2009, in the present case. On the said application, learned Judicial Magistrate on the same day, i.e, 14.12.2009 issued a production warrant for production of the petitioner on 21.12.2009 from Koderma Jail but in stead of producing the petitioner on 21.12.2009, he was produced in the court on 21.2.2010 and then he was remanded to jail custody. Thereafter on 23.3.2010, a petition was filed under Section 167(2) of the Code of Criminal Procedure praying therein to grant him compulsive bail he has been in custody for 97 days but the charge sheet has not been submitted. That petition was rejected on the ground that though production warrant was issued on 14.12.2009 but, in fact, the petitioner was produced in the court on 21.2.2010 and from this day if computation is made statutory period of 90 days has not expired.
3. Learned Counsel appearing for the petitioner while assailing the order submitted that from the day, i.e. 14.12.2009, when the order was passed for production of the petitioner in the court, the petitioner would be deemed to in custody and as such, if the computation is made from that date, the petitioner would certainly be entitled to be released on bail, on the date when the application for bail was filed, as admittedly no charge sheet had been submitted on that date.
4. Submission advanced on behalf of the petitioner necessarily attracts attention to the relevant provision as enshrined under Section 167(1) and (2) of the Code of Criminal Procedure. Sub-section (1) of Section 167 does stipulate that when a person is arrested and detained in custody and it appears that investigation cannot be completed within 24 hours fixed under Section 57 and there are grounds of believing that accusation or information is well founded, the officer-in-charge of the police station or the police officer making the investigation not below the rank of Sub- Inspector shall produce the accused before the nearest Judicial Magistrate. In other words, the mandate of Sub-section (1) of Section 167 of the Code of Criminal Procedure is that when it is not possible to complete investigation within 24 hours then it is the duty of the police to produce the accused before the Magistrate. Police cannot detain any person in their custody beyond that period. Therefore, Sub-section (1) pre-supposes that the police should have custody of an accused in relation to certain accusation for which the matter is under investigation. This check is on police for detention of any citizen. Sub-section (2) says that if the accused is produced before the Magistrate and if the Magistrate is satisfied looking to accusation then he can give a remand to the police for investigation not exceeding 15 days in the whole. But the proviso further gives a discretion to the Magistrate that he can authorize detention of the accused otherwise than the police custody beyond the period of 15 days but no Magistrate shall authorize detention of the accused in police custody for a total period of 90 days for the offences punishable with death, imprisonment for life and imprisonment for a term of not less than ten years and no Magistrate shall authorize the detention of the accused person in custody for a total period of 60 days when the investigation relates to any other offence and on expiry of the period of 90 days or 60 days, as the case may be, and he shall be released if he is willing to furnish bail. Therefore, the reading of Sub-sections (1) and (2) with proviso clearly transpires that the incumbent should be, in fact, under the detention of police for investigation.
5. When almost similar question, not exactly the same, fell for consideration before the Supreme Court in the case of State of West Bengal v. Dinesh Dalmia : (2007) 5 SCC 773, their Lordship after taking into account the provision of Sub-section (1) and (2) of Section 167 of the Code of Criminal Procedure has been pleased to hold that police custody means police custody in a particular case for investigation and not judicial custody in another case.
6. Thus, the point remains no longer res integra that period of 60 days or 90 days should be counted from the date of actual production of the accused in the court in a particular case and not from the date of judicial custody in another case.
7. Accordingly, I do not find any illegality in the impugned order and hence, this application is dismissed.