In State of M.P. v. Rustam and Ors. 1995 Supp (3) SCC 221 , this Court has laid down the law that while computing period of ninety days, the day on which the accused was remanded to the judicial custody should be excluded, and the day on which challan is filed in the court, should be included. That being so, in our opinion, in the present case, date 5.7.2013 is to be excluded and, as such, the charge sheet was filed on ninetieth day, i.e., 3.10.2013. Therefore, there is no infringement of Section 167(2) of the Code.
13. For the reasons, as discussed above, in our opinion, the High Court has not erred in law in dismissing the petition Under Section 482 of the Code, and upholding the refusal of bail to Appellant prayed by him Under Section 167(2) of the Code.Reportable
IN THE SUPREME COURT OF INDIA
CRIMILAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO.325 OF 2015
Ravi Prakash Singh @ Arvind Singh V State of Bihar
Dated;February 20, 2015.
Prafulla C. Pant, J.
This appeal is directed against the judgment and order
dated 24.12.2013 passed by the High Court of Judicature at
Patna in Criminal Miscellaneous No. 48019 of 2013 whereby
said Court has dismissed the petition under Section 482 of
the Criminal Procedure Code, 1973 (for short “the Code”)
and declined to interfere with the order dated 22.10.2013,
passed by Sessions Judge, In-charge, Kaimur at Bhabua in
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2
Bail Petition No. 542 of 2013, and upheld the refusal to
release the appellant on bail under Section 167(2) of the
Code.
2.
Brief facts of the case are that appellant Ravi Prakash
Singh @ Arvind Singh surrendered before Chief Judicial
Magistrate, Kaimur on 5.7.2013 in connection with Crime No.
89 of 2013, registered at Police Station, Chainpur, relating to
offences punishable under Section 302 read with Section 34
and Section 120B of the Indian Penal Code and under
Section 27 of Arms Act.
custody till 19.7.2013.
He was remanded to judicial
His remand was extended under
Section 167 of the Code from time to time, and the last
remand under said provision was granted till 3.10.2013. On
3.10.2013, the appellant moved an application under Section
167(2) of the Code for his release on the ground that the
charge sheet has not been filed.
On the same day, i.e.,
3.10.2013, it was endorsed in the order sheet by the Chief
Judicial Magistrate that as per report of the clerk of the
Court, charge sheet has already been received, as such, the
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3
bail application moved under Section 167(2) of the Code was
rejected by the Magistrate on the very day and further
remand order was passed under Section 209 of the Code.
Endorsement “seen” was also made by the Magistrate on
3.10.2013 on the charge-sheet.
3.
On 22.10.2013, the case was committed to the Court of
Sessions Judge.
The applicant moved bail application No.
542 of 2013 before the Sessions Judge, Kaimur at Bhabua
seeking bail on the ground that he was entitled to be
released on bail under Section 167(2) of the Code.
He
further pleaded that the Chief Judicial Magistrate has erred in
law in rejecting his bail application on said ground.
However, the In-charge Sessions Judge, who disposed of the
above bail application, also opined that since the charge
sheet had already been submitted, as such, the appellant
was not entitled to bail on the ground that charge-sheet was
not received within time.
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4
4.
On this, appellant Ravi Prakash Singh @ Arvind Singh
appears to have moved a petition under Section 482 of the
Code before the High Court of Judicature at Patna, praying
that order passed by the Sessions Judge, as above, and the
one passed by the Magistrate be quashed.
But the High
Court also took the view that since the charge sheet had
already been filed within the period of ninety days, as such,
it did not find any error in the orders passed by the courts
below.
5.
We have heard learned counsel for the parties and
perused the original record of the case.
6.
Sub-section (2) of Section 167 of the Code reads as
under: -
“167(2) The Magistrate to whom an accused
person is forwarded under this section may,
whether he has or 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
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to be forwarded to a Magistrate having such
jurisdiction:
Provided that-
(a)
The Magistrate may authorize the detention
of the accused person, otherwise than in the
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 paragraph for a
total period exceeding-
(i) (ii)
(b)
Ninety days, where the investigation
relates to an offence punishable with
death,
imprisonment
for
life
or
imprisonment for a term of not less than
ten years;
Sixty days, where the investigation
relates to any other offence, and, on the
expiry of the said period of ninety days,
or sixty days, as the case may be, 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 sub-section shall be deemed
to be so released under the provisions of
Chapter XXXIII for the purposes of that
Chapter;
No Magistrate shall authorize detention of the
accused in custody by the police under this
section unless the accused is produced
before him in person for the first time and
subsequently every time till the accused
remains in the custody of the police, but the
Magistrate may extend further detention in
judicial custody on production of the accused
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either in person or through the medium of
electronic video linkage;
(c)
No Magistrate of the second class, not
specially empowered in this behalf by the
high Court, shall authorize detention in the
custody of the police.
Explanation I. – For the avoidance of doubts,
it is hereby declared that, notwithstanding the
expiry of the period specified in paragraph (a), the
accused shall be detained in Custody so long as he
does not furnish bail.
Explanation II. – If any question arises
whether an accused person was produced before
the Magistrate as required under clause (b), the
production of the accused person may be proved
by his signature on the order authorizing detention
or by the order certified by the Magistrate as to
production of the accused person through the
medium of electronic video linkage, as the case
may be.
Provided further that in case of a woman
under eighteen years of age, the detention shall
be authorized to be in custody of a remand home
or recognized social institution.”
Above Proviso (a) to sub-section (2) of Section 167 of the
Code provides that the Magistrate shall not authorize
detention of an accused in custody in which the investigation
relating to offence punishable with death, imprisonment for
life or imprisonment for a term not less than ten years and if
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the investigation not completed within ninety days, the
accused shall be entitled to be released on bail.
7.
Admittedly,
the
appellant
Magistrate on 5.7.2013.
surrendered
before
the
It is also not disputed that on
3.10.2013 the appellant moved an application for his release
on bail under proviso (a) to sub-section (2) of Section 167 of
the Code. However, the order sheet of the case shows that
there is endorsement of the Magistrate on 3.10.2013 that
the charge sheet has already been received.
8.
The charge sheet against the appellant, in the original
record, shows that the Investigating Officer signed it and
submitted the same on 30.9.2013.
Though the clerk
concerned has not made any endorsement as to when
actually the charge sheet was received, but there is
endorsement of the Chief Judicial Magistrate which shows
that he has mentioned “seen” on 3.10.2013 and signed at
the top of the first page of the charge sheet. Order sheet of
the court of the Magistrate also corroborates that on
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8
3.10.2013 the clerk concerned reported to Chief Judicial
Magistrate that the charge sheet had already been received.
9.
It is argued on behalf of the learned senior counsel for
the appellant that the appellant should have been given
benefit of Section 167(2) of the Code. According to him, it
was 91st day of detention on 3.10.2013.
It is further
contended by Mr. Nagendra Rai, learned senior counsel, that
even Sunday or holiday on ninetieth day cannot deprive the
benefit of proviso (a) to sub-section (2) of Section 167 of the
Code. In support of his arguments he relied upon cases of
Powell
Nwawa
Ogechi
v.
The
State
(Delhi
Administration)1 and State of Maharashtra v. Sharan
B. Sarda2.
In Sharan B. Sarda (supra) single Judge of
Bombay High Court, and in Powel Nwawa Ogechi (supra)
the Division Bench of Delhi High Court took the view that
even if last day for filing charge sheet is holiday, the accused
cannot be deprived of benefit of Section 167(2) of the Code.
1
2
1986 (3) Crimes 577
1983 (2) Crimes 254 (Short Note)
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10. Contrary to this, in N. Nureya Reddy and another v.
State of Orissa3, the Division Bench of Orissa High Court,
interpreting the provisions of Section 167(2) of the Code
read with Section 10 of the General Clauses Act, held that if
ninetieth day is a holiday, filing of charge sheet on the next
day should be treated sufficient compliance of filing of
charge sheet within a period of ninety days and it cannot be
said that provision contained in Section 167(2) of the Code is
infringed.
11. In Chaganti Satyanarayana and others v. State of
Andhra Pradesh4, it has been held by this Court that period
of ninety days under Section 167(2) of the Code shall be
computed from the date of remand of the accused and not
from the date of his arrest under Section 57 of the Code.
However, in the present case, we have to see the relevant
date as the date when the accused surrendered and
remanded by the court.
3
4
1985 CRLJ 939 (Orissa)
(1986) 3 SCC 141
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12. In State of M.P. v. Rustam and others5, this Court
has laid down the law that while computing period of ninety
days, the day on which the accused was remanded to the
judicial custody should be excluded, and the day on which
challan is filed in the court, should be included. That being
so, in our opinion, in the present case, date 5.7.2013 is to be
excluded and, as such, the charge sheet was filed on
ninetieth day, i.e., 3.10.2013.
Therefore, there is no
infringement of Section 167(2) of the Code.
13. For the reasons, as discussed above, in our opinion, the
High Court has not erred in law in dismissing the petition
under Section 482 of the Code, and upholding the refusal of
bail to appellant prayed by him under Section 167(2) of the
Code.
14. Accordingly, the appeal is dismissed.
Lower court
record be sent back forthwith.
....................................J.
[Dipak Misra]
5
1995 Supp (3) SCC 221
Page 10
11
.....................................J.
[Prafulla C. Pant]
New Delhi;
February 20, 2015.
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