Law Web: Bombay HC: Period for grant of default bail U/S 167 of CRPC includes the first day of remand of accused

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 19 th 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.

IN THE HIGH COURT OF JUDICATURE AT BOMBAY

CRIMINAL APPELLATE JURISDICTION

LDVC BAIL APPLICATION NO.400 of 2020

Kapil Wadhawan Vs Directorate of Enforcement,

CORAM: SMT. BHARATI DANGRE, J.

DATED : 20th AUGUST, 2020.

1 LDVC Bail Application No.400/2020 is filed by

Kapil Wadhawan and LDVC Bail Application No.401/2020 is

filed by Dheeraj Wadhawan. Since both the applicants are

arraigned as accused in the same ECIR registered by Directorate

of Enforcement, and since both the applications seek mandatory

default bail with the aid of 167(2)(a)(ii) of Cr.P.C, both the

applications were argued together and decided by this common

order.

2 The applicants came to be arraigned as accused in

ECIR/MBZO-I/3/2020 registered by the Enforcement

Directorate for the alleged commission of offence under Section 3

of the Prevention of Money Laundering Act, 2002 (PMLA). The

said ECIR was registered on 7th March 2020. Both the applicants

were shown to be arrested by the respondents in the said ECIR

from Taloja Jail where they were confined in judicial custody

since 10th May 2020 in RC No.219/2020 registered by the CBI.

On 14th May 2020 itself, the applicants were produced before the

learned Special Court, Mumbai and were remanded to police

custody. On 27th May 2020, the applicants were remanded to

judicial custody. Since these are the limited facts which are

necessary for determination of the question involved, I need not

refer to further details of the case. Shorn off the unnecessary

details about the nature of accusation levelled against the present

applicants and their plea of denial, these bare necessary facts

being not in dispute, I will advert the neat question of law and

adjudge the same which arises in the present two applications.

After hearing the learned senior counsel Shri Amit

Desai for the applicants and the learned Additional Solicitor

General Shri Anil Singh opposing him in the applications seeking

default bail for the applicants, the question which arises for

consideration can be formulated in a forthright manner as

under :-

“Whether in computing the period of 90 days or 60 days as

contemplated in Section 167(2)(a) of Cr.P.C, the day of

remand is to be included or excluded”.

3 Learned Senior counsel Shri Amit Desai has

extensively referred to Section 167 of the Code of Criminal

Procedure (hereinafter referred to as ‘the Code’) and in the

backdrop of the facts involved submit that the applicants came to

be arrested on 14th May 2020 and on the very same day, they was

remanded before the Magistrate. Remand orders were passed by

the Magistrate from time to time and it is on 11th July 2020, a

complaint was filed by the Enforcement Directorate (ED)

through e-mail, which according to him was the entire complaint

but only a forward. The said day being Saturday. On 13th July

2020 i.e. on Monday, the copy of the complaint in its physical

form was tendered before the Court.

4 Learned counsel assert the period of 60 days from the

date of remand of the applicants i.e. 14th May 2020 expired on

12th July 2020 (Sunday). On 13th July 2020, the applicants

moved an application seeking enlargement of bail under Section

167(2)(a)(ii) of the Code of Criminal Procedure. The application

was transmitted through an e-mail of the counsel for the

applicants at 8.53 a.m. On the very same day, at around 11.00

am, the Bail Application was presented for physical filing in the

Sessions Court and a token was issued and the said application

came to be numbered. The roznama placed on record dated 13th

July 2020 take note of the details of the filing and receipt of the email by the Special Court. The respondent claimed to have

forwarded complaint on 11/7/2020 through e-mail. On 13th July

itself, an application was moved by the respondent seeking

extension of judicial remand of the applicants. The in-charge

Court extended the judicial custody by one day till 14th July 2020

and the Bail Application was taken up for hearing through video

conferencing. The respondent filed their reply and contended

that 60 days period from the date of remand would be completed

on 13th July 2020 and the complaint has been filed physically on

that day. Shri Desai would submit that there was a roster for

Judges who were functional on 11th and 12th July 2020 though it

was Saturday and Sunday.

On 14th July 2020, the day on which the application

was heard, it came to be rejected by the Special Judge, refusing to

extend the benefit of default bail to the present applicants. The

learned Special Court did not dispute the factual aspect that the

applicants were arrested on 14th May 2020 and produced for

remand before the Court on the same day and the complaint was

filed by the E.D on 13th July 2020. The learned Judge also also

agreed that the offence under Sections 3 read with 4 of PMLA

Act prescribe punishment which may extend to 7 years and

hence, the time limit for filing of complaint is 60 days. On the

debatable question as to from what date the period of 60 days for

filing complaint shall be calculated, the learned Judge took a view

that it will have to be computed from 15th May 2020, by

excluding the date of first remand. With this conclusion being

recorded, the application came to be rejected.

5 As per learned Senior Counsel Shri Amit Desai, the

latest judgment deciding the issue in question is delivered by the

learned Single Judge of this Court, (Justice Prakash D. Naik)

recently and to be precise on 29th July 2020. According to him,

the judgment in Deepak Satyavan Kudalkar Vs. State of

Maharashtra (LDVC Criminal Bail Application No.197 of 2020),

has put the issue involved in the application to rest. In this case,

according to Shri Desai, it has been held that the period envisaged

under Section 167(2) of Cr.P.C. has to be calculated from the first

day of remand/order and the said day cannot be excluded. The

counsel submits that the learned Single Judge has taken into

consideration the entire spectrum of the existing position of law

and held that there cannot be exclusion of any period from

authorized detention while computing the period of 60 days/90

days as the case may be by invoking the provisions of General

Clauses Act, 1897. By recording the said finding, the applicant

came to be released on bail in accordance with sub-section (2) of

Section 167.

6 His opponent, the learned Additional Solicitor

General however resists his claim and raise question over the

binding effect of the judgment in case of Deepak Kudalkar. The

submission of the learned Senior counsel for Enforcement

Directorate is to the effect that the said judgment is not good law

and he says so in light of two pronouncements of the Apex Court

being in case of State of Madhya Pradesh Vs. Rustom and ors,

1995 (Supp) 3 SCC 221 which is followed in Ravi Prakash Vs.

State of Bihar, 2015 (8) SCC 340. In light of the position where

the adversarial counsels are at loggerhead over the binding effect

of the judgment in case of Deepak Kudalkar, it has become

imperative for me to refer to the decisions relied by respective

parties in brief.

7 The counsel for the applicants has anchored his

submission on Chaganti Satyanarayan Vs State of Andhra

Pradesh, 1986 (3) SCC 141. Followed by judgment in case of

CBI Special Investigation Cell, New Delhi Vs Anupama

Kulkarni, 1992(3) SCC 141. The next judgment on which

reliance is placed is in case of Pragyna Singh Thakur Vs. State of

Maharashtra, 2011(10) SCC 445, where judgments in case of

Chaganti and Anupam Kulkarni were taken note of. Apart from

the aforesaid said three judgments, Shri Desai has also relied on

the following judgments:-

(1) State Vs. Mohd Ashraf Bhat,

1996 (1) SCC 432

(2) State of Maharashtra Vs. Bharati Chand Verma,

2002, (2) SCC 121.

(3) Uday Acharya Vs. State of Maharashtra

2001 (5) SCC 453

(4) S.Kasi Vs. State, 2020 SCC Online SC 529.

(5) Sanjay Dutt Vs. State, 1994 (5) SCC 410.

The learned senior counsel has also relied upon the

judgments of different High Courts including the judgment of

the Bombay High Court in case of State of Maharashtra Vs.

Sharad Sarda, 1982 SCC Online 287.

The fulcrum of arguments of Shri Anil Singh is the

judgment in case of Rustam and Ravi Prakash (supra) which

follow Rustam. His submission is, in Ravi Prakash’s case the

judgment in Chaganti is considered. He also rely on judgment of

a Single Judge (Justice S.B. Shukre) of this Court in case of

Shaikh Nasir Shaikh Rehman vs. State of Maharashtra, (Criminal

WP No.228 of 2017). According to the learned counsel, the

consistent view taken from the year 1995 in case of Rustam is, the

first day of remand is to be excluded by applying the well known

principle contained in Section 9 of the General Clauses Act. He

would asseverate that the learned Single Judge in case of Deepak

has not given due weightage to the consistent position of law in

excluding the first day of remand and he is in vehement

opposition of the learned counsel for the applicants relying upon

the judgments which, according to him, do not directly involve

the issue which has been put to rest by the verdicts in Rustam and

Ravi Prakash (supra).

8 The bone of contention between the parties is the

judgment in case of Deepak Kudalkar (supra). The said

judgment penned down in an elaborate manner has taken into

consideration the catena of decisions holding the field as per the

version of the opponents, as to the claim whether the first day of

remand has to be included or excluded. With the well researched

efforts put in by my brother Judge, in Deepak’s case, I will

cursorily refer to the ratio flowing from the judgment so as to

discern the stand of the respective parties in the backdrop of the

statutory scheme which I would briefly refer to.

9 The Code of Criminal Procedure which chart out the

procedure to be followed for investigation into an offence provide

machinery for prosecution, trial and punishment of offenders

under the various substantive criminal laws. Followance of the

procedure ensure a fair trial, in which the rights of the accused are

weighed in the scales of justice to the rights of the victim and of

the Society at large and an appropriate balance is struck. The

Scheme contained in the Code confer power to arrest person with

or without warrant who is suspected to be an offender. The

investigation contemplated under the Code includes all the

proceedings for collection of evidence collected by a police officer

or by any person who is authorized by a Magistrate in this behalf.

On completion of investigation into a cognizable/non-cognizable

offence as contemplated under Chapter XII of the Code, Section

173 stipulate submission of a report. The Code contemplates

every investigation under Chapter XII to be completed without

unnecessary delay. What should be contained in the report which

is to be forwarded to the Magistrate, empowered to take

cognizance of an offence on a police report is also prescribed by

the Code. Pertinent to note that there is no express limitation or

outer limit prescribed for completion of investigation. Barring

sub-section (1) of Section 173 which provide that every

investigation under this Chapter shall be completed without

unnecessary delay, no time frame is to be found. Sub-section (8)

of Section 173 authorizes the officer in charge of a police station,

who even after submission of the report of investigation to the

Magistrate, on obtaining further evidence can forward a further

report regarding such evidence.

During the course of investigation, when a person is

arrested suspecting his alleged involvement in the offence by a

police officer, the Code levies a limitation on his detention and it

is found in Section 57 which reads as under :-

“No police officer shall detain in custody a person arrested

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 for the journey from the place of arrest

to the Magistrate' s Court”

10 This provision stands in harmony with Article 22 of

the Constitution, which enumerates protection against arrest and

detention in certain cases and sub-section (2) of the said Article

confer a right on a person who is arrested and detained in custody

to be produced before the nearest Magistrate within 24 hours of

such arrest and prohibits his detention in custody beyond the said

period without the authority of a Magistrate.

11 If the investigation is not completed within 24 hours

when the accused is arrested, the procedure to be adopted is set

out in Section 167 of the Code. When a person is arrested and

detained in custody (by police) and it appears to the police officer

that the investigation cannot be completed within the period

available under Section 57 and there are grounds for believing

that the information received or the accusation against him is well

founded, the police officer making investigation is duty bound to

transmit the accused to the Magistrate along with the copy of the

entries in the diary. This is the mandate of sub-section (1) of

Section 167. Sub-section (2) then set out the course of action to

be followed by the Magistrate to whom the accused person is

forwarded. The Magistrate is assigned a role to oversee the course

of investigation and to prevent abuse of law by the Investigating

Agency.

The Magistrate in terms of sub-section (2) may

authorize the detention of the accused in such custody as he

thinks fit for a term not exceeding 15 days in the whole but if he

has no jurisdiction to try the case or commit it for trial and

consider that the detention is unnecessary, on perusal of the

entries in the diary, he may release the accused or forward him to

the Magistrate having jurisdiction. The sub-section is appended

with a proviso which places an embargo on the power of the

Magistrate and authorizes detention of the accused person

beyond period of 15 days, other than in the custody of the police,

if he is of the opinion that adequate grounds demand so but the

Magistrate shall not authorize the detention of the accused person

in custody for a total period exceeding 90 days in clause (i) or 60

days in clause (ii). A right accrues to the accused if the

investigation is not completed within the period prescribed in

clause (i) or clause (ii) and on expiry of the said period, the

accused person shall be released on bail if he is prepared to and

furnish bail for his release.

12 The procedure prescribed in Section 167 charter a

course of action for an accused who has been arrested by a police

officer and on expiry of period of 24 hours, which is the

maximum period for which the police officer can detain him, and

his further detention is subject to authorization by the Magistrate.

Sub-section (1) and (2) of Section 167 of the Code contains a

linkage and as soon as the period of 24 hours fixed by Section 57

is over, it is followed by the production of the accused before the

Magistrate and the procedure contemplated in sub-section (2)

immediately ensue in line. The wording applied in sub-section

(2) makes it amply clear. The Magistrate to whom the accused

person is forwarded shall “authorize the detention of the accused”

in custody as he thinks fit for a term not exceeding 15 days in the

whole. The mandate of the Magistrate is, therefore, to authorize

the detention of the accused in custody i.e. either the police

custody or the Magisterial custody but the words “not exceeding

15 days in the whole”, again put fetters on the power of the

Magistrate. The proviso contained in sub-section (a) authorizes

further detention of the accused produced before him but with a

rider that he shall not authorize his detention in police custody

for more than 15 days. If the Magistrate is satisfied that adequate

grounds exist for continuing the custody exceeding 15 days, he is

empowered to do so and such detention will be an authorized

one. The authorized detention is however, circumscribed by

period of 90 days and 60 days depending upon the nature of

offence and on expiry of such period, the accused person has an

indefeasible right to be released on bail.

13 While enacting the Code of Criminal Procedure as

early in 1898, the Code inserted a provision which set out the

procedure to be followed in the event the investigation into an

offence cannot be completed within 24 hours. The legislature

intended expeditious completion of investigation, however, on

the practical side, the complexities of the investigation in serious

offence failed to adhere to the intention of the legislature,

completing the investigation in 24 hours. Though the

expectation of the legislature surfaced through Section 167

enacted in the Code, 1898, it did not make any distinction in the

nature of offence or the punishment. The Law Commission of

India in its 41st Report, proposed to increase the time limit for

completion of investigation to 60 days with an expectation that

such extension may result in maximum period becoming the rule

in every case as a matter of routine. The recommendation of the

Law Commission were carefully examined and accepted and

keeping in view the broader perspective of an accused getting a

fair trial, but at the same time, avoiding any unnecessary delay in

investigation and particularly when it was not only harmful to the

accused but to those seeking justice and to the Society. The

provision therefore, came to be amended by Act 45 of 1978

inserting sub-section (a) which included clauses (i) and (ii).

14 The provisions of the Code, in particular, section 57

and section 167 manifest the legislative anxiety that once the

liberty of the person is interfered with by the police arresting him

without a Court’s order or the warrant, the investigation must be

carried out with utmost promptitude and completed within a

period allowed by proviso (a) to Section 167(2). On failure of

prosecuting agency to grab the urgency and a default on its part to

file a challan within the stipulated period, the accused would be

entitled to be released on bail.

15 The Section contemplate a continuous process in subsection

(1) and sub-section (2) and sub-section (2) authorizes the

custody by a police officer for 24 hours which he had availed for

the purposes of investigation. The power of Magistrate in further

authorizing his detention exceeding 15 days with a limitation of

15 days in the police custody, if adequate grounds exist, serves

two-fold purpose. The detention of the accused in custody of

police is only on the authorization of the Magistrate. Sub-section

(3) of Section 167 makes it mandatory for the Magistrate to

record reasons whenever custody is granted to the police. The

Magistrate may refuse the custody of an accused to the police if he

is of the view that the custodial interrogation is unwarranted.

However, when the accused is forwarded to the Magisterial

custody, the investigation can still continue. i.e. the collection of

evidence, with only reprieve that when the accused is in

magisterial custody, he can seek his release on bail.

16 The purpose of the proviso to Section 167(2) is to

impress upon the need for expeditious completion of

investigation by the police officer within the prescribed limitation

and to prevent laxity in that behalf. On a default being

committed, the Magistrate shall release the accused on bail if he is

ready to furnish the same. This is subject to the restriction

imposed in Section 436-A providing for maximum period for

which an under-trial prisoner can be detained. Chapter XXXVI

provides for limitation for taking cognizance of certain offences.

Section 468 imposes a bar on taking cognizance of an offence

specified in sub-section (2) after the expiry of the period of

limitation. Section 469 provides for commencement of period of

limitation and it is to be noted that while setting out the date on

which the period of limitation would be said to have started, subsection

(2) state that in computing the period of limitation, the

day from which such period is to be computed, shall be excluded.

Barring the said provision contained in Section 468 and Section

436A, there is no limitation prescribed in completion of

investigation and the investigation can continue but for the right

which accrues to the accused on expiry of 60th and 90th day in

terms of sub-section (2) of Section 167. This being the entire

scheme of investigation of offences contemplated under the Code

of Criminal Procedure which serves a twin purpose, firstly speedy

trial of the accused which would transform him into a convict or

his release on culmination of the trial and secondly, to assure

justice to the victim and to the society in general.

17 In light of the statutory scheme, I would refer to the

judgments relied upon by the parties during the course of

arguments. The judgment in case of Chaganti (supra) clearly dealt

with the proviso (a) of Section 167(2) and the question which fell

for consideration was whether total period of 90 days or 60 days

prescribed in sub-clause (i) & (ii) of proviso (a) to be computed

from the date of remand of the accused or from the date of his

arrest. The question arose in the backdrop of the fact that the

accused was arrested on 19th July 1985 produced before the Addl.

Munsif Magistrate on 20th July 1985, remanded to judicial

custody for a period of 15 days and the remand was extended

from time to time till 18th October 1985. The charge-sheet was

filed on 17.10.1985 i.e. on 90th day of remand in the offence of

murder and rioting. After analyzing the historical background of

the legislative provision, Their Lordships held as under :-

14 Apart from these anomalous features, if an

accused were to contend that he was taken into custody

more than 24 hours before his production before the

Magistrate and the police officer refutes the statement, the

Magistrate will have to indulge in a fact finding inquiry to

determine when exactly the accused was arrested and from

what point of time the remand period of 15 days is to be

reckoned. Such an exercise by a Magistrate ordering

remand is not contemplated or provided for in the Code. It

would, therefore, be proper to give the plain meaning of

the words occurring in sub-section (2) and holding that a

Magistrate is empowered to authorise the detention of an

accused produced before him for a full period of 15 days

from the date of production of the accused.

16 As sub-section (2) of Section 167 as well as

proviso (1) of sub-section (2) of Section 309 relate to the

powers of remand of a Magistrate, though under different

situations, the two provisions call for a harmonious

reading in so far as the periods of remand are concerned.

It would, therefore, follow that the words "15 days in the

whole" occurring in sub-section (2) of Section 167 would

be tantamount to a period of "15 days at a time" but

subject to the condition that if the accused is to be

remanded to police custody the remand should be for such

period as is commensurate with the requirements of a case

with provision for further extensions for restricted periods,

if need be, but in no case should the total period of remand

to police custody exceed 15 days. Where an accused is

placed in police custody for the maximum period of 15

days allowed under law either pursuant to a single order

of remand or to more than one order, when the remand is

restricted on each occasion to a lesser number of days,

further detention of the accused, if warranted, has to be

necessarily to judicial custody and not otherwise. The

Legislature having provided for an accused being placed

under police custody under orders of remand for effective

investigation of cases has at the same time taken care to

see that the interests of the accused are not jeopardised by

his being placed under police custody beyond a total

period of 15 days, under any circumstances, irrespective of

the gravity of the offence or the serious nature of the case.

19 Now coming to proviso (a) itself, the proviso

authorises a Magistrate to order further detention of an

accused person, otherwise than in police custody which as

already stated means that the maximum period under

which a Magistrate can place an accused in police custody

is only 15 days. A limitation to the powers of further

remand is, however, placed by interdicting the Magistrate

from authorising the detention of an accused person in

custody beyond a total period of 90 days where the offence

is punishable with death, imprisonment for life or for a

term of not less than 10 years and beyond a total period of

60 days in other cases. The interdiction will, however,

operate only in those cases where the accused persons are

in a position to furnish bail.

20 The words used in proviso (a) are "no Magistrate

shall authorise the detention of the accused person in

custody", "under this paragraph", "for a total period

exceeding i.e. 90 days/60 days". Detention can be

authorized by the Magistrate only from the time the order

of remand is passed. The earlier period when the accused

is in the custody of a police officer in exercise of his

powers under Section 57 cannot constitute detention

pursuant to an authorization issued by the Magistrate. It,

therefore, stands to reason that the total period of 90 days

or 60 days can begin to run only from the date of order of

remand.

18 As regards the applicability of the provisions of

General Clauses Act in light of the submissions advanced by the

learned counsel for the State, the judgment overrules a series of

judgments relied upon from various High Courts and in

paragraph no.32, it is held as under :-

“As the terms of proviso (a) with reference to the total

periods of detention can be interpreted on the plain language

of the proviso itself we do not think it is necessary to invoke

the provisions of the General Clauses Act or seek guidance

from the Limitation Act to construe the terms of the proviso”.

19 The next judgment relied upon is in the case of CBI

Vs. Anupam Kulkarni (supra) where the issue was slightly

different. The question that arose for consideration was whether

a person arrested and produced before the nearest Magistrate as

required under Section 167(1), can still be remanded to police

custody after expiry of initial period of 15 days. Since this was a

first judgment on the said point, the provision was considered in

great depth along with its legislative history. While deliberating

on the said issue in paragraph no.9, the judgment in Chaganti was

referred to and the following observations made :-

“9 At this juncture we want to make another aspect

clear namely the computation of period of remand. The

proviso to Section 167(2) clearly lays down that the total

period of detention should not exceed ninety days in cases

where the investigation relates to serious offences mentioned

therein and sixty days in other cases and if by that time

congnizance is not taken on the expiry of the said periods the

accused shall be released on bail as mentioned therein. In

Chaganti Satyanarayan's case it was held that "It, therefore,

stands to reason that the total period of 90 days or 60 days

can begin to run from the date of order or remand."

Therefore the first period of detention should be computed

from the date of order or remand. Section 167(2A) which has

been introduced for pragmatic reasons states than if an

arrested person is produced before and Executive Magistrate

for remand the said Magistrate may authorise the detention

of the accused not exceeding seven days in aggregate. It

further provides that the period of remand by the Executive

Magistrate should also be taken into account for computing

the period specified in the proviso i.e. aggregate periods of

ninety days or sixty days. Since the Executive Magistrate is

empowered to order detention only for seven days in such

custody as he thinks fit, he should therefore either release the

accused or transmit him to the nearest Judicial Magistrate

together with the entries in the diary before the expiry of

seven days. The Section also lays down that the Judicial

Magistrate who is competent to make further orders of

detention, for the purposes of computing the period of

detention has to take into consideration the period of

detention ordered by the Executive Magistrate. Therefore on

a combined reading of Section 167(2) and (2A) it emerges

that the Judicial Magistrate to whom the Executive

Magistrate has forwarded the arrested accused can order

detention in such custody namely police custody or judicial

custody under Section 167(2)for the rest of the first fifteen

days after deducting the period of detention ordered by the

Executive Magistrate. The detention thereafter could only be

in judicial custody. Likewise the remand under Section 309

Cr. P.C. can be only to judicial custody interims mentioned

therein. This has been concluded by this Court and the

language of the Section also is clear. Section 309 comes into

operation after taking cognizance and not during the period

of investigation and the remand under this provision can only

be to judicial custody and there cannot be any controversy

about the same., vide Natabar Parida and other v. State of

Orissa, [1975] 2 SCC 220.

20 Conclusively, it upheld the judgment of the High

Court which allowed the petition holding that period of 90 days

envisaged by the proviso to Section 167(2) has to be computed

only from the date of remand as against the finding of Magistrate

who held it to be reckoned from the date of arrest. Mr.Desai has

heavily relied upon the judgment in case of Chaganti and has

submitted that this judgment excludes the applicability of

General Clauses Act and Limitation Act to the provision in

question after a detailed discussion and therefore, this is an

authoritative pronouncement on the issue that the period of

60/90 days should be computed from the date of remand and

therefore, the first day of remand cannot be excluded. This

judgment has been consistently followed and in Pragyna Thakur

(supra) while determining the issue as to what is the relevant date

for counting 90 days for filing charge-sheet, it has been

unequivocally held that date of first order of remand is the

relevant date and not the date of arrest. Though this judgment

has been impliedly overruled on an aspect whether this right is

absolute and can be availed after the charge-sheet is filed.

However, the following observations in Pragyna’s case in

paragraph nos. 49 to 52 still hold the field.

49 As far as Section 167(2) of the Criminal

Procedure Code is concerned this Court is of the firm

opinion that no case for grant of bail has been made out

under the said provision as charge sheet was filed before

the expiry of 90 days from the date of first remand. In any

event, right in this regard of default bail is lost once charge

sheet is filed. This Court finds that there is no violation of

Article 22(2) of the Constitution, because on being arrested

on October 23, 2008, the appellant was produced before

the Chief Judicial Magistrate, Nasik on October 24, 2008

and subsequent detention in custody is pursuant to order of

remand by the Court, which orders are not being

challenged, apart from the fact that Article 22(2) is not

available against a Court i.e. detention pursuant to an

order passed by the Court.

50 The appellant has not been able to establish that

she was arrested on October 10, 2008. Both the Courts

below have concurrently so held which is well founded and

does not call for any interference by this Court.

51 Though this Court has come to the conclusion

that the appellant has not been able to establish that she

was arrested on October 10, 2008, even if it is assumed for

the sake of argument that the appellant was arrested on

October 10, 2008 as claimed by her and not on October 23,

2008 as stated by the prosecution, she is not entitled to

grant of default bail because this Court finds that the

charge sheet was filed within 90 days from the date of first

order of remand. In other words, the relevant date of

counting 90 days for filing charge sheet is the date of first

order of the remand and not the date of arrest. This

proposition has been clearly stated in the Chaganti

Satyanarayana and Others vs. State of Andhra Pradesh

(1986) 3 SCC 141.

52 If one looks at the said judgment one finds that

the facts of the said case are set out in paragraphs 4 and 5

of the judgment. In paragraph 20 of the reported decision it

has been clearly laid down as a proposition of law that 90

days will begin to run only from the date of order of

remand. This is also evident if one reads last five lines of

Para 24 of the reported decision. Chaganti Satyanarayana

and Others (Supra) has been subsequently followed in the

following four decisions of this Court :

(1)Central Bureau of Investigation, Special Investigation

Cell-I, New Delhi vs. Anupam J.

Kulkarni (1992) 3 SCC 141, para 9 placitum d-e, para 13

placitum c where it has been authoritatively laid down

that :

"The period of 90 days or 60 days has to be computed from

the date of detention as per the orders of the Magistrate

and not from the date of arrest by the police".

(2) State through State through CBI vs. Mohd.

Ashraft Bhat and another (1996) 1 SCC 432, Para 5.

(3) State of Maharashtra Vs. Bharati Chandmal Varma

(Mrs) (2002) 2 SCC 121 Para 12, and (4) State of Madhya

Pradesh vs. Rustom and Others 1995 Supp. (3) SCC 221,

Para 3.

53 Section 167(2) is one, dealing with the power of

the learned Judicial Magistrate to remand an accused to

custody. The 90 days limitation is as such one relating to

the power of the learned Magistrate. In other words the

learned Magistrate cannot remand an accused to custody

for a period of more than 90 days in total. Accordingly, 90

days would start running from the date of first remand. It is

not in dispute in this case that the charge sheet is filed

within 90 days from the first order of remand. Therefore,

the appellant is not entitled to default bail.

21 Now, I deal with the two judgments on which Shri

Anil Singh has placed heavy reliance; first being in case of Rustam

(supra). A short judgment delivered in the peculiar facts while

dealing with the indefeasible right of the accused exclude the date

of remand and include the date of filing of the charge-sheet by

applying Section 9 of the General Clauses Act. Para 3 of the said

judgment needs a reproduction :-

3 We find that the High Court was in error - both in the

matter of computation of the period of 90 days prescribed as

also in applying the principle of compulsive bail on

entertaining a petition after the challan was filed as the socalled

"indefeasible right" of the accused, in our view, stood

defeated by efflux of time. The prescribed period of 90 days,

in our view, would instantly commence either from 4-9-1993

(excluding from it 3-9-1993) or 3-12-1993 (including in it 2-

12-1993). Clear 90 days have to expire before the right

begins. Plainly put, one of the days. Sections 9 and 10 of the

General Clauses Act warrant such an interpretation in

computing the prescribed period of 90 days. The period of

limitation thus computed on reckoning 27 days of September,

31 days of October and 30 days of November would leave two

clear days in December to compute 90 days and on which

date the challan was filed, when the day running was the 90th

day. The High Court was, thus, obviously in error in assuming

that on 2-12-1993 when the challan was filed, period of 90

days had expired”

The judgment sketchily refers to the facts but

highlight the date of remand to be 3.9.1993 and state that the

date of submission of challan was 2.12.1993. In para 3 while

counting the period of 90 days, it has been counted from

4/9/1993 (excluding 3/9/1993) i.e. the date of remand. The

judgment in Chaganti was not noted.

22 In case of Union of India Vs. Nirala Yadav, 2014 (9)

SCC 457, a Co-ordinate Bench of the Apex Court overruled State

of M.P. Vs. Rustam and in paragraph 22, it referred to the

judgment in Uday Mohanlal Acharya with the following

observation:-

“13 … Since the legislature has given its mandate, it would

be the bounden duty of the Court to enforce the same and it

would not be in the interest of justice to negate the same by

interpreting the expression ‘if not availed of’ in a manner

which is capable of being abused by the prosecution. A two

Judge Bench decision of this Court in State of M.P.

Vs.Rustom setting aside the order of grant of bail b the High

Court on a conclusoin that on the day of order, the

prosecution had already submitted a police report and,

therefore, the right stood extinguished, in our considered

opinion, does not express the correct position in law of the

expression ‘if already not availed of’ used by the Constitution

Bench in Sanjay Dutt”.

Further, while disapproving the ratio in Pragyna

Singh Thakur’s case as recorded in para 56 – 58 based on the

decision in Rustam, Bipin Shantilal Panchal, Dinesh Dalmia and

Mustaq Ahmed Mohd. Isaq and Uday Mohanlal Acharya, it was

held as under :-

“44. At this juncture it is absolutely essential to delve

into what were the precise principles stated in Uday

Mohanlal Acharya’s case and how the two Judge bench has

understood the same in Pragnya Singh Thakur. We have

already reproduced the paragraphs in extenso from Uday

Mohan Acharya case and the relevant paragraphs from

Pragnya which has drawn support from Rustom’s case to

buttress the principle it has laid down though in Uday

Acharya the said decision has been held not to have stated

the correct position of law and therefore, the same could not

have been placed reliance upon”.

The Judgment in Rustam was thus overruled with the

finding that the High Court had passed an erroneous order and

particularly, paragraph no.4 of the judgment in case of Rustam

where it was held that the dates when the High Court entertained

the petition for bail, and granted it to the accused, undeniably, the

challan stood filed in the Court and then the right as such was not

available.

23 The judgment in Rustam was then followed in Ravi

Prakash (supra) but Ravi Prakash also contain a reference to

Chaganti and the proposition that period of 90 days shall be

computed from the date of remand of the accused and not from

the date of his arrest, was followed. However, on the factual

aspect being the appellant Ravi Prakash who has surrendered

before the CJM on 5th July 2013 for the offence punishable under

sections 302 read with Section 34 and 120B of the IPC and who

was remanded to judicial custody till 19th July 2013 and the last

remand being granted till 3rd October 2013 on which date an

endorsement was made by the CJM that charges-sheet has already

been received, as such, Bail Application moved under Section

167(2) was rejected. On facts of the case, it was held that the

relevant date as the date when the accused surrendered and was

remanded by the Court should be taken into consideration and

relying upon Rustam, the date on which the accused was

remanded to judicial custody was excluded and date on which

challan was filed, was included. 5th July 2013 was therefore,

excluded and the charge-sheet filed on 3rd October 2013 was

therefore, held not to confer any right on the accused to seek bail

as there was no infringement of Section 167(2) of the Code. The

Appeal came to be dismissed.

24 The judgment in case of Deepak Kudalkar (supra) in

great detail, has referred to the judgment in case of Nirala Yadav

(supra) and it has been extensively relied upon and particularly,

para 44 of the said decision, finds a mention to the effect that

decision in case of Rustam did not state the correct position of law

and it should not have been considered in Pragyna Singh

Thakur’s case while expressing view in para 54 and 58 of the said

decision. In Deepak Kudalkar (supra), Reliance was placed on

State of Maharashtra Vs. Sharad Sarda where in paragraph no.9, it

was held that on plain reading of Section 167 of the Code, it do

not admit two meanings and plainly read and giving effect to the

intention of the legislature, the accused cannot be allowed to

remain in custody for more than 60 or 90 days. The date of arrest

under Section 57 cannot be included while computing the period

of 60 or 90 days. I need not repeat the exercise undertaken by the

learned Judge in Deepak in dealing with the judgment in case of

Shaikh Nasir relied by the learned ASG. In paragraph no.33, the

learned Single Judge held as under :-

“33 It is evident from various decisions referred to

hereinabove that the Apex Court has examined the provision

of Section 167(2) of Cr.P.C and has held that the detention of

the accused is authorized on the date when he is produced

before the Court and remanded to custody. The period of 60

days/90 days would start running from the date of remand.

The first decisino delivered after in depth analysis of the

right of bail construed under Section 167(2) of Cr.P.C in the

case of Chaganti Satyanarayan. Undisputedly, the said

decision was not placed before the Hon’ble Supreme Court

while deciding the case of State of M.P. Vs. Rustam and Ors.

From the ratio in CBI Vs. Anupam Kulkarni also, it is crystal

clear that the period of detention envisaged under Section

167(2) shall be calculated from the date of remand. In both

these decisions, the Apex Court has not observed that the

date of remand is to be excluded and in the light of Section

57 and Section 167 of Cr.P.C, it was held that the period has

to be counted from the date when the accused produced

before the Court and remanded to the custody. Although,

decision in the case of Rustam was delivered subsequently,

both the aforesaid decisions in Chaganti Satyanarayan and

CBI Vs. Anupam Kulkarni judgment was not placed for

consideration while deciding Rustam’s case. In the case of

Pragnya Singh Thakur (supra) also it was observed that the

period as stated above starts running from the date of order

of remand. This decision was delivered after decisions in

Rustam’s case.

34 Thus, consistently, it has been held that the

detention is authorized from the date of remand and

therefore, the period of 60 days or 90 days starts running

from the date of the order of the remand. The date of remand

has not been excluded in those decisions.

The judgment in Deepak has in great detail dealt with the law of

precedent and as to what decision of the Apex Court would be

followed in case of a conflict and para 42 it is conclusively held

that the earlier decisions including the date of remand were not

placed for consideration while deciding Rustam. As far as the

applicability of the General Clauses Act is concerned, in case of

Chaganti, the Supreme Court in paragraph 32 (which is quoted

above), has excluded the applicability of provisions of General

Clauses Act or Limitation Act.

25 The exclusion of the provisions of General Clauses

Act, 1897 to Section 167 of the Code, is based on the practical

implementation of the procedural aspect contained in the said

Section and need a little more deliberation, since Rustam and

Ravi Prakash has taken into account Section 9 of the General

Clauses Act, 1897. It would be appropriate to reproduce the said

section :-

9 Commencement and termination of time :-

(1) In any Central Act or Regulation made after the

commencement of this Act, it shall be sufficient, for the

purpose of excluding the first in a series of 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”.

(2) This section applies to all Central Act made after the

third day of January, 1868, and to all Regulations made on or

after the fourteenth day of January, 1887.

The principle contained in the said section is based

on the principle of Halsbury Law of England, 37th Edition, Vol.3,

page 92 and it would be appropriate to quote the same.

“Days included or excluded – when the period of time

running from a given date or even to another date or event is

prescribed by law or fixed as a contract, and the question

arises whether the computation is to be made inclusively or

exclusively of the first mention or of the last mentioned day,

regard must be had to the context and to the purposes for

which the computation has to be made. Where there is a

room for doubt, the enactment or instrument ought to be

construed as to effectuate and not to defeat the intention of

Parliament or of the purpose as the case may be. Expression

such as “from such a day’ or ‘until such a day; are equivocal

since they do not make it clear whether the inclusion or

inclusion of the day named, may be intended. As a general

rule, however, the effect of defining a period in such a

manner is to exclude a first day and to include a last day”.

26 In Marren Vs. Dawson Bentley and Co. Limited,

[1961] 2 All ER 270 – (S 127 MCA), while excluding the day of

accident and computing the period within which action should be

brought, reliance was placed on the passage from Halsbury Law of

England. In the said case, an accident occurred on 8.11.1954,

whereby the plaintiff was injured in the course of his employment

with the defendant. On 8.11.1957, he filed a Suit claiming

damages for the injuries which he alleged were caused by the

defendants’ negligence. The defendants pleaded, inter alia, that

the plaintiffs cause of action, if any, accrued on 8.11.1954 and the

proceedings had not been commenced within the period of three

years, contrary to Section 2(1) of Limitation Act, 1939. While

excluding the day of accident and rejecting the plea of the

defendant, it was held as under :-

“207. …..The general rule in cases in which a period is

fixed within which a person must act or take the

consequences if day of the act or event from which the

period runs, should not be counted against him. This rule

is especially reasonable in the case in which that person is

not necessarily cognisant of the act or event; and further in

support of it there is consideration that in case the period

allowed, was one day only, the consequence of including

that day would be able to reduce a few hours or minutes the

time within which the person affected should take action.

208. In view of these considerations, the general rule is

that as well in cases where limitation of time is imposed by

an act of the parties as in those where it is imposed by a

statute, the day from which the time begins to run is

excluded; thus, where a period is fixed within which a

criminal prosecution or a civil action may be commenced,

the day on which the offence is committed or the cause of

action arises is excluded in the computation...”

The principle enunciated above has been extensively

quoted in case of Haroo Das Gupta Vs State of West Bengal,

1972 (1) SCC 639 and in a further decision of Three Judges

Bench in case of Econ Antri Ltd. Vs Rom Industries, 2014 (11)

SCC 769. In case of Haroon Das Gupta (supra), the petitioner

was arrested and detained on 5th February 1971 by order of

Magistrate passed on that day. The order of confirmation and

continuation which was to be passed within three months from

the date of detention, that was 5th May 1971. The question for

decision was as to when the period of three months can be said to

have expired. The contention of the petitioner was that the

period of three years expired on midnight of 4th May 1971 and

any confirmation and continuation of detention thereafter could

not be valid. After having reference to several English decisions

on the point, the submission advanced that the date of

commencement of detention i.e. 5th February 1971 is to be

included was rejected with the following observation :

“These decisions show that Courts have drawn a

distinction between the term created within which an act

may be done and the time limited for doing of an act. The

rule is well established that where a particular time is

given from a certain date within which an act is to be

done, the day on that date is to be excluded”.

27 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.

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.

28 It is pertinent to note the recent three Judge bench