Riaz Ahmad and ors. Vs. State - Court Judgment

R.P. Sethi, J.

1. The following points of law formulated by one of us (Sethi J.) have been referred to this Division Bench for decision and to consequently decide the application of the petitioners for the grant of bail :--

1. Whether an accused person arrested in connection with the commission of some offence is entitled to the grant of bail after the expiry of the period of sixty days from the date of his arrest irrespective of the nature of the custody and the number of cases in which he is involved;

2. What is the meaning and scope of the words 'authorised custody' of the accused person 'in the case' used in Section 167 of Cr. P.C.;

3. Whether the custody of the accused person initially arrested in a particular case can be an authorised in another case disentitling him the benefit of the grant of bail under proviso to Sub-section (2) of Section 167 of the Cr. P.C.; and

4. Whether the period of detention has to be separated in each case and not tagged for the purposes of deciding the right of the accused to the grant of bail under Section 167, Cr. P.C.

2. The facts giving rise to the present reference are that the accused persons were taken into custody on Aug. 21, 1987 in FIR No. 166 of 1987 Police Station City Jammu allegedly for the commission of offences punishable under Sections 302/34 RPC, 3/25, 4/ 27 Arms Act. It is alleged that the petitioners had murdered Ashok Kumar alias Binny on Aug. 18, 1987 in the City of Jammu. The challan against the petitioners were produced in the Court of law after the statutory period of sixty days which prompted them to claim bail in terms of proviso to Section 167 of the Cr. P.C. as a matter of right. The State submitted in the objections that the mere filing of the case after sixty days did not entitle the accused to the grant of bail as the purport of proviso to Sub-section (2) of Section 167 Cr. P.C. was that if during investigation a Magistrate authorised the detention of the accused for a total period of exceeding sixty days only then the accused was entitled to bail if he was prepared to furnish the bail bonds. The prayer of the petitioners was rejected by the trial Court of Additional Sessions Judge, Jammu, mainly on the ground that the accused had not been detained for a total period of sixty days in FIR No. 166 of 1987 and their custody stood transferred to another case in FIR No. 48 of 1987 Police Station Kana Chack for an offence punishable under Section 302 R.P.C., they were alleged to have remained in custody in FIR No. 166 of 1987 for less than sixty days. It was further held that the provisions of Section 167 of the Cr. P.C. are to be read along with Section 61 of the Cr. P.C. and the combined reading of the both will make it clear that the arrest period of the petitioners envisaged under all circumstances was in a particular case and not in multiple cases. The trial Court was of the opinion that where the detention of the accused had been authorised in multiple cases the period of sixty days was to be reckoned from the date of arrest in a particular case so as to entitle the accused to claim bail. The trial Court further opined that the word 'under all circumstances of the case' used in Section 61 of the Cr. P.C. qualify a detention for a period of sixty days in A case and not in Many Cases. Aggrieved by the order of the trial Court the petitioners filed this Bail Application which was heard by one of us and the points of law formulated whereafter the application referred to this Bench as already stated.

3. We have heard the learned counsel for the parties and perused the record.

4. Proviso (a) to Sub-section (2) of Section 167 of Cr. P.C. was substituted vide Act No. XXXVII of 1978 and provides :--

'(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 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 XXXIX for the purposes of that Chapter.'

Section 61 authorises the Police Officer to detain in custody a person arrested without warrant for a period of 24 hours under all circumstances. A combined reading of provisions of Section 167, Cr. P.C. and Section 61, Cr. P.C. would reveal that a person can be detained in police custody only for 24 hours if required and thereafter his detention is to be authorised by a competent Magistrate who has the power to remand him to police custody for a total period of fifteen days and the total custody both police and Judicial custody for a period of sixty days in all. After the expiry of sixty days the 'Magistrate has no authority to authorise his further detention in any particular case. The purpose of incorporating proviso to Sub-section (2) of Section 167, Cr. P.C. was apparently to ensure speedy trial which forms part of the Fundamental Right to life and liberty guaranteed by Article 21 of the Constitution of India. The amendment was apparently made with the object to eliminate the chronic malady of protracted investigation and making it obligatory for the police to produce the accused before the Magistrate at the time of making remand thereby putting a time limit for continuation of investigation of a case and stopping of the investigation after a prescribed period. It was intended to afford protection to the accused person against unnecessary harassment during investigation by a Police Officer on account of harsh attitude adopted in criminal investigation. With the change of time the Police agency has to change its working and to acknowledge and honour the civil liberties of the citizen as guaranteed by Articles 21 and 22 of the Constitution of India. Putting any other interpretation to the said proviso would amount doing violence to the object sought to be achieved facilitating violation of the Fundamental Rights which no Court or agency can afford to do. If the Police agency is given a latitude of transferring the custody from one case to the other without completion of the investigation in either, the object of bringing before the Magistrate arrested person with least possible delay would be defeated. The principle incorporated under the proviso is in accordance with the principles of Anglo Saxon Criminal Law on which our judicial system is based namely that the accused is entitled to demand that justice was not delayed.

5. In Natabar Parida v. State of Orissa AIR 1975 SC 1465 : (1975 Cri LJ 1212) it was held.--

'But then the command of the Legislature in proviso (a) is that the accused person has got to be released on bail if he is prepared to and does furnish bail and cannot be kept in detention beyond the period of 60 days even if the investigation may still be proceeding. In serious offences of criminal conspiracy-murders, dacoities, robberies by inter-State gangs or the like it may not be possible for the Police in the circumstances as they do exist in the various part of our country, to complete the investigation within the period of sixty days. Yet the intention of the legislature seems to be to grant no discretion to the Court and to make it obligatory for it to release the accused on bail. Of course, it has been provided in proviso (a) that the accused released on bail under Section 167 will be deemed to be so released under the provisions of Chapter XXXIII and for the purposes of that Chapter. That may empower the Court releasing him on bail, if it considers necessary so to do to direct that such person be arrested and committed to custody as provided in Sub-section (5) of Section 437 occurring in Chapter XXXIII. It is also clear that after the taking of the cognizance the power of remand is to be exercised under Section 309 of the new Code. But it is not possible to complete the investigation within a period of 60 days then even in serious and ghastly types of crimes the accused will be entitled to be released on bail. Such a law may be a 'paradise for the criminals', but surely it would not be so, as sometimes it is supposed to be cause of the Courts. It would be so under the command of the Legislature.'

Such a view was upheld by another Bench of the Hon'ble Supreme Court in Raghubir Singh v. State of Bihar AIR 1987 SC 149 : (1987 Cri LJ 157), with the addition that the bail granted to a person under Section 167(2), Cr. P.C. can be cancelled at the instance of the prosecution on the ground that there existed circumstances showing that the accused has committed non-bailable offence and that it was necessary to arrest him and commit him to custody under the circumstances of the case. Right to obtain bail was however held absolute in terms of the aforesaid proviso of Sub-section (2) of Section 167 of the Cr. P.C. Reading Section 61 and Section 167 of Cr. P.C. together it would be clear that the Legislature intended the investigation to be completed within the period of 24 hours and if authorised under Section 167, within 15 days from the date when the petitioner was first produced before the Magistrate and not beyond 60 days in any case. If the prosecution is negligent and not prompt in completing the investigation, the accused gets an absolute right to be released on bail. The prosecution if aggrieved of the order of bail passed under proviso to Sub-section (2) of Section 167, Cr. P.C. can move the Court for cancellation of the bail after its grant and if the circumstances of that particular case justify the cancellation the trial Court may pass appropriate orders. This Court can also cancel the bail in the exercise of its revisional jurisdiction under law.

6. It may be pointed out that a different time has been prescribed under the Central Act for completion of the investigation of heinous offences of Complicated nature punishable with the imprisonment of not less than ten years. Our legislature, however restricted the period for completion of investigation in all cases to 60 days instead of 90 days as provided under the Central Act.

7. It was held by Delhi High Court in Tarsem Kumar v. the State, 1975 Criminal Law Journal 1303 that the total authorised period of detention cannot exceed the limit prescribed by law under Sub-section (2) of Section 167, Cr. P.C. However while calculating such period, the period of detention, under Section 57 of the Cr. P.C. has to be excluded. Such a view was also taken by Punjab and Haryana High Court in Jai Singh v. State of Haryana, 1980 Cri LJ 1229 by holding.--

'Proviso (a) of Sub-section (2) of Section 167 of the Cr. P.C. 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 of exceeding ninety days, where the investigation relates to offence punishable with death, imprisonment for life or for a term not less than 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 period of custody contemplated by proviso (a) to Sub-section (2) of Section 167 of the Cr. P.C. envisages arrest and detention of a person in police custody and detention and does not deal with any other custody. In S. K. Nair v. State of Punjab, 1984 Cr. LJ 1090 the period of custody of the accused under the Air Force authorities was held not to be computed or brought within the ambit of this proviso.

8. This High Court while dealing with such a situation held in Vijay Kumar and Kulvinder Singh v. State 1982 KLJ 315: (1983 Cri LJ (NOC) 11).--

'After the insertion of the new proviso to Sub-section (2), therefore, an indefeasible right to be enlarged on bail accrues in favour of the accused, if the police fail to complete the investigation and put up a challan against him in a court of law in terms of Section 173. This right, it is obvious, he may exercise at any time till the conclusion of the trial and the same cannot be defeated by the mere fact that before he has been able to offer bail and charge sheet on completion of the investigation has been put up against him in a court of law. And, nor is an application on his behalf a condition precedent for the accrual of this right in his favour. Section 167 itself takes care of it and does not cast any obligation on the accused to move an application for the exercise of the right. It, on the other hand, casts an implied obligation on the court itself to inform the accused that the valuable right of being released on bail has accrued in his favour.'

9. From the above discussion it is clear that the principle governing the grant of bail under proviso (a) to Sub-section (2) of Section 167 of the Cr. P.C. are.--

(a) detention beyond 60 days if no charge sheet is filed against the accused person is unwarranted and illegal;

(2) Period of sixty days has to be computed from the day the accused person is produced before the Magistrate and the period spent by him in terms of Section 57, Cr. P.C. has to be excluded;

(3) the right of bail does not cease if charge sheet is submitted after the prescribed period;

(4) There is no distinction of bail granted under Section 167(2) or bail granted under Chapter 39 of the Code.

(5) The bail granted under Section 167(2) can be cancelled on the grounds well established in law after the filing of charge-sheet and this Court in appropriate cases can cancel the bail in exercise of its revisional powers.

10. Reading anything else in between the lines in the proviso (a) to Sub-section (2) of Section 167 of the Cr. P.C. would result in defeating the purpose for which the provision was made keeping in view the Fundamental Rights guaranteed under the Constitution. It is well settled that no sooner the authority of detention lapses the citizen is entitled to be freed subject to his complying with the statutory requirements. No one can be allowed to infringe the fundamental rights or the liberty of a citizen as guaranteed by the Constitution without the sanction of law.

11. We would, therefore, hold that an accused person arrested in connection with an offence is entitled to the grant of bail after the expiry of the period prescribed by proviso (a) to Sub-section (2) of Section 167 of the Cr. P.C. from the date he is first produced before the Magistrate after authorised custody of the police to investigate within a period of 24 hours. Such period of detention would be computed irrespective of the arrest of the accused in more than one case. The Investigating Agency is under an obligation to complete the investigation in one case before transferring the custody to another case and if the transfer of the custody is imminent specific orders be obtained in that behalf where the Court may pass consciously a speaking order.

12. The words 'authorised custody' would mean police custody and judicial custody in a particular case. Such custody cannot be diverted or transferred except in accordance with provisions of law and the period of limitation which commences to run in a particular case for the purposes of proviso (a) to Sub-section (2) of Section 167 of the Cr. P.C. can neither be transferred nor diverted or stopped. The police force in our Country has to reconcile itself with the changed situation and realize that the people and the State are governed by a democratic Constitution which confers Fundamental Rights upon the citizens and does not authorise any individual or authority to infringe any one of them. A scientific approach to the situation of criminal investigation is expected from the modern police of this Democratic Country. No police Officer can be allowed to play with the civil liberties of the citizens without authority of law nor authorised to detain a person beyond the period sanctioned in that behalf by the Legislature. The investigations are hoped to be completed strictly according to law and within the frame work of the Constitution and the boundaries of Limitation prescribed by the statute governing the curtailment of civil libery of an individual.

13. In view of what we have observed hereinabove it is held that the custody of an accused person arrested in a particular case cannot be authorised in another case without a conscious and speaking judicial order in accordance with the provisions of law. No person can be deprived of the benefits of the grant of bail conferred upon him under proviso (a) to Sub-section (2) of Section 167 of Cr. P.C. the period of detention has to be computed in a particular case uninterruptedly from the date when an accused is produced before the Magistrate and cannot be tagged or separated if the accused person is involved in more than one case.

14. The reference is replied accordingly.

15. In the instant case the accused persons were arrested in FIR 166 of 1987 on 21st of Aug. 1987 and produced before the Magistrate on 22nd of Aug. 1987 who remanded them to the police custody for a period of five days. The period of sixty days, therefore commenced from 22nd of Aug. 1987 requiring the Investigating Agency to produce the charge-sheet in a Court of law on or before 25th of Oct. 1987. However the S.P.O. presented the charge-sheet in the instant case in the Court of Chief Judicial Magistrate, Jammu on 17th of Nov. 1987, admittedly after the period prescribed under Sub-section (2) of Section 167 Cr. P.C. It may be pointed out that the prosecution in its objections filed before the lower Court never took the plea of the accused's custody having been transferred to any other case. It however appears that after the filing of the objections a copy of a remand order of the accused in FIR No. 48 of 1987 Police Station Kana Check was produced to assert that his custody stood transferred in another case. The order of the Chief Judicial Magistrate, Jammu remanding the accused in Police custody in FIR 48 of 1987 Police Station Kana Check is a routine order and not a conscious or speaking order not even noting the detention of the petitioners in FIR No. 166 of 1987 Police Station City Jammu. The custody has not been transferred and order of remand in FIR No. 48 of 1987 of Police Station Kana Check appears to have been obtained in routine in the application dt. Sept. 27, 1987 filed by Deputy Superintendent of Police City North, Jammu, seeking remand. It is mentioned that the accused persons had been taken in custody only one day earlier which shows that the material facts were suppressed and not brought to the notice of the Magistrate remanding the accused to Police custody in FIR No. 48 of 1987 in Police Station Kana Check.

16. Under the circumstances we hold that the petitioners are entitled to bail in terms of proviso (a) to Sub-section (2) of Section 167 of the Cr. P.C. We direct that the accused persons shall be released on bail in connection with the commission of offences covered by FIR No. 166 of 1987 Police Station City Jammu under Section 302/34 RPC, 3/25, 4/27 Indian Arms Act on furnishing two surety-bonds of Rs. 10,000/- each with personal bonds in the amount of Rs. 20,000/- each to the satisfaction of trial court provided they are not required or to be required in any other case. The file of the trial Court shall be immediately sent back for disposal according to law.