TaxTMI 
TaxTMI 
2020 (7) TMI 832
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....409, 420, r/w 34 of Indian Penal Code, 1860 and Section 3 and 4 of MPID Act. The FIR was lodged on 26th February, 2020. (b) The applicant was produced before the Learned District and Additional Judge, Thane on the date of arrest itself i.e. 26th February, 2020. The learned Judge vide Order dated 26th February, 2020 remanded applicant to police custody till 4th March, 2020. (c) The applicant was thereafter remanded to custody from time to time. On 26th May, 2020 at about 10.35 a.m. the applicant filed an application for bail before the aforesaid Court under Section 167(2) of Cr.P.C. At the time when the said application was preferred the charge-sheet was not presented by the police. Hence, the applicant had contended before the aforesaid Court that the period of 90 days from the date of production/first remand of the applicant/accused, is over on 25th May, 2020 and hence, the application was preferred on 91st day from the date of first remand and Since, the charge-sheet is not filed, the applicant be released on bail as per Section 167(2) of Cr.P.C. (d) From the documents on record, it is apparent that the learned Session Judge, called report from the offi....
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....within 15 days time limit. The prosecution would often took recourse to provisions of Section 344 of Cr.P.C., 1898 and file preliminary or incomplete report before the Magistrate to keep the accused in custody. The Law Commission in its 41st Report proposed to increase the time limit for completion of investigations to 60 days. The report indicated that the use of Section 344 for remand beyond statutory period fixed under Section 167 can lead to serious abuse, as an arrested person can in this manner be kept in custody indefinitely while the investigation can go on in a leisurely manner. It is therefore desirable, as was observed in the Fourteenth Report, that some time limit should be placed on the power of the police to obtain a remand while the investigation is still going on, and if the present time limit of 15 days is short, it would be better to fix a longer period rather than countenance a practice which violates the spirit of the legal safeguard. It was proposed to follow recommendation in the Fourteenth Report that maximum period under Section 167 should be fixed at 60 days. The recommendations of Law Commission were accepted. The considerations for acceptance were reflect....
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....arest Judicial Magistrate a copy of the entries in the diary hereinafter prescribed relating to the case, and shall at the same time forward the accused to such Magistrate. (2) The Magistrate to whom an accused person is forwarded under this section may, whether he has or has 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 to be forwarded to a Magistrate having such jurisdiction: Provided that- (a) the Magistrate may authorise 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) ninety days, where the investigation relates to an offence punishable with death, imprisonment for life or imprisonment for a term of not less t....
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....ve Magistrate, and thereupon such Executive Magistrate, may, for reasons to be recorded in writing, authorise the detention of the accused person in such custody as he may think fit for a term not exceeding seven days in the aggregate; and, on the expiry of the period of detention so authorised, the accused person shall be released on bail except where an order for further detention of the accused person has been made by a Magistrate competent to make such order; and, where an order for such further detention is made, the period during which the accused person was detained in custody under the orders made by an Executive Magistrate under this sub-section, shall be taken into account in computing the period specified in paragraph (a) of the proviso to sub-section (2): [Provided that before the expiry of the period aforesaid, the Executive Magistrate shall transmit to the nearest Judicial Magistrate the records of the case together with a copy of the entries in the diary relating to the case which was transmitted to him by the officer in charge of the police station or the police officer making the investigation, as the case may be.] (3) A Magistrate authorising und....
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....itled to keep an arrested person in custody for a maximum period of Twenty Four hours for the purposes of investigation. Hence, the initial period of custody of an arrested person, till he is produced before a Magistrate is neither referable to nor in pursuance of an order of remand passed by a Magistrate. The powers of remand given to a Magistrate, become exercisable after an accused is produced before him in terms of Sub-Section (1) of Section 167. Sub-section (1) of Section 167 covers this procedure and also state that the police officer while forwarding the accused to the nearest Magistrate should also transmit a copy of entries in the diary relating to the case. The entries in the diary are meant to afford to the Magistrate the necessary information upon which he can take the decision whether the accused should be detained in the custody or not. The law enjoins upon the investigating agency to carry out the investigation, in a case where a person has been arrested and detained, with utmost urgency and complete the investigation promptly in prescribed period. The proviso to sub-section (2) fixes the outer limit within which investigation must be completed and in case the same i....
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....3446. (6) Basram Vs. State of Rajasthan (S.B. Criminal Misc. Bail No. 2326 of 2018) 2018 (3) CR.L.R.(RAJ) 1332. (7) Smt. Shalini Verma & Anr. Vs. State of Chhattisgarh (C.R. MP No. 2551 of 2018 and CR. MP. No. 225 of 2019) decided by High Court of Chhattisgarh. 10. Learned APP opposed the application. It is submitted that there is no error in the order passed by Sessions Court. The period of 90 days has to be calculated by excluding the first day of remand. It is further submitted that either one day has to be excluded i.e. day when the accused is remanded or the day when the charge-sheet is filed. In the present case, by excluding the date of remand, the 90th day would fall on 26th May, 2020 and on that day, the charge-sheet was filed and hence, the right under Section 167(2) of Cr. PC did not accrue in favour of the applicant. 11. Learned APP strongly relied upon the following decisions: (1) State of MP Vs. Rustam & Ors. (Supra). (2) Achpal alias Ramswaroop and Anr. Vs. State of Rajasthan. (3) Ravi Prakash Singh alias Arvind Singh Vs. State of Bihar AIR 2015 Supreme Court 1294. 12. Thus, from the factual matrix of this case, i....
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....troducing the Magistrate from authorising the detention of an accused person in custody 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 not less than 10 years and beyond total period of 60 days in other cases. 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 90 days/60 days. Detention can be authorised by Magistrate only from the time the order of remand is passed. The total period of 90 days or 60 days can begin to run only from the date of order of remand. The intention of the legislature can also be gathered by comparing proviso (a) of sub-section (5) of Section 167. The legislature has consciously referred to the date of arrest in Section 167(5) but had made no such reference in Section 167(2) of proviso (a) thereto. If it was the intention of the legislature that the period of remand of 15 days in the whole envisaged in Sub-section (2) or the total period of 90 days/60 days prescribed in proviso (a) should be calculated from date of arrest then legislature would have express....
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.... of remand passed by the Executive Magistrate. The earlier period of custody till the production of the accused before the Executive Magistrate is not directed to be taken into consideration by sub-section (2A). Such being the case, there cannot be different modes of computation of the period of remand depending upon whether the accused person is forwarded to a Judicial Magistrate or an Executive Magistrate for purposes of remand. 22. The intention of the Legislature can also be gathered by comparing proviso (a) of sub-section (5) of Section 167. Sub-section (5) of Section 167 is in the following terms: "If in any case triable by a Magistrate as a summons case, the investigation is not concluded within a period of six months from the date on which the accused was arrested, the Magistrate shall make an order stopping further investigation into the offence unless the officer making the investigation beyond the period of six months is necessary". 23. The Legislature has consciously referred to the date of arrest in Section 167 (5) but has made no such reference in Section 167(2) or proviso (a) thereto. If it was the intention of the Legislature that the peri....
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....date of remand of the accused and not from date of arrest under Section 57. 16. It would be relevant to reproduce paragraph 8, 9 & 13 of the said decision: "8. Having regard to the words "in such custody as such Magistrate thinks fit a term not exceeding fifteen days in the whole" occurring in Sub-section (2) of Section 167 now the question is whether it can be construed that the police custody if any should be within this period of first fifteen days and not later or alternatively in a case if such remand had not been obtained or the number of days of police custody in the first fifteen days are less whether the police can ask subsequently for police custody for full period of fifteen days not availed earlier or for the remaining days during the rest of the periods of ninety days or sixty days covered by the proviso. The decisions mentioned above do not deal with this question precisely except the judgment of the Delhi High Court in Dharam Pal's case. Taking the plain language into consideration particularly the words "otherwise than in the custody of the police beyond the period of fifteen days" in the proviso it has to be held that the custody after the expiry of....
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.... 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. 13. Whenever any person is arrested under Section 57 Cr.P.C. he should be produced before the nearest Magistrate within 24 hours as mentioned therein. Such Magistrate may or may not have jurisdiction to try the case. If Judicial Magistrate is not available, the police officer may transmit the arrested accused to the nearest Executive Magistrate on whom the judicial powers have been conferred. The Judicial Magistrate can in the first instance authorise the detention of the accused in such custody i.e. either police or judicial from time to time but the total period of detention cannot exceed fifteen day in the whole. Within this period of fifteen days there can be more....
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....ing 90 days for filing the charge-sheet is the date of first order of remand and not the date of arrest. This proposition has been clearly stated in Chaganti Satyanarayan Vs. State of AP (Supra). Paragraph 51, 52 and 53 of this decision can be quoted for reference which reads as under: "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 2....
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....raph 13 of aforesaid decision, it was observed that the two bench decision in State of MP Vs. Rustam setting aside the order of grant of bail by the High Court on conclusion that, on the date of the order the prosecution had already submitted a police report and therefore, the rights would extinguish, does not express the correct position in law of the expression "if already not availed of" used by the Constitution Bench in Sanjay Dutt Vs. State. (1994) 5 SCC 410. In the case of Uday Acharya, the Hon'ble Supreme Court had arrived at the conclusions in paragraph 13 of the said decision which are as follows: "1. Under sub-section (2) of Section 167, a Magistrate before whom an accused is produced while the police is investigating into the offence can authorise detention of the accused in such custody as the Magistrate thinks fit for a term not exceeding 15 days on the whole. 2. Under the proviso to the aforesaid sub-section (2) of Section 167, the Magistrate may authorise detention of the accused otherwise than in the custody of police for total period not exceeding 90 days where the investigation relates to offence punishable with death, imprisonment for life o....
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....ed the said application and has not indicated the terms and conditions of bail, and the accused has not furnished the same." 20. On analysing the aforesaid decision, it is clear that the Court has not observed that the period of 90 days or 60 days has to be computed by excluding the first date of remand or excluding either first day or the date of filing charge-sheet. The decision also do not refer to aid of clause (9) and (10) of General Clauses Act. 21. In Hitendra Thakur and Others v. State of Maharashtra and Others (1994) 4 SCC 602 it is observed that Section 57 of Cr.P.C. provides that a person arrested shall not be detained in custody by the police for a period longer than that which is reasonable but such period shall not exceed 24 hours exclusive of time necessary for journey from date of arrest to the Court of Magistrate in the absence of order under Section 167 of the Code. The object of Section 167 of the Code was that detention of accused should not be permitted in custody pending investigation for longer period. The proviso creates indefeasible right in an accused person on account of the default by the investigating agency in completion of investigation within m....
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....h 44 of this decision also mentions that in Uday Acharya's case it was held that, the decision in the case of Rustam have not stated correct position of law and the same should not have been considered in Pragyna Singh Thakur's case while expressing view in paragraph 54 and 58 of the said decision. 24. In the case of Achpal @ Ramswarup Vs. State of Rajasthan, the Hon'ble Supreme Court had considered the right of the accused under Section 167(2) of Cr.P.C. After analysing Section 167 of Cr.P.C., its historical background, view expressed by Law Commission of India relating to Section 167(2) of the Code, it was observed that the letter of and spirit behind enactment of Section 167 of Code as it stands mandates that the investigation ought to be completed within the prescribed period. Ideally, the investigation, going by provisions of the Code ought to be completed within first Twenty Four hour itself. If it appears that the investigation cannot be completed within Twenty Four hours, the concerned officer to transmit the entries in the diary relating to the case, and at the same time to forward the accused to such Magistrate. Thereafter, it is for the Magistrate to consi....
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.... envisaged by Section 167(2) of the Code. It was observed that the words total period of 60 days or 90 days relate to the custody of an accused person authorised by the Magistrate. The custody of the accused under Section 57 of the Code should be excluded in construing the total period of detention of the accused. In paragraph 9 the Court observed that on plain reading of Section 167 of the Code, it cannot be said that it admits two possible meaning thereof. It is well settled rule of construction that the intention of the legislature must be found in the words used by the legislature itself. It is very plain when it says the "total period in custody for 60 days or 90 days as the case may be" it means that the accused cannot be allowed to remain in custody for more than 60 days or 90 days. The date of arrest under Section 57 cannot be included while computing the period of 60 days or 90 days. 28. In the case of Powell Ogechi decided by Division bench of Delhi High Court, bail was refused by the Sessions Court on the ground that the normal rule is to exclude the first day and include the last day and the Sessions Court also invoked the aid of Section 10 of General Clauses Act and....
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....umar Bafna Vs. State of Maharashtra the earlier view has to be accepted. It was also observed that in Rakesh Kumar Paul Vs. State of Assam (Supra) the judgment was delivered by Bench of Three Judges and the date of remand was included in calculating the period of 90 days. 31. In another decision placed for consideration by the learned counsel for the applicant is by the High Court of Chhattisgarh in the case of Shalini Verma Vs. State of Chhattisgarh (Supra). In this case, an application was filed for default bail on completion of 60 days in custody, which was refused on the ground that subsequently, Section 467 of IPC was added in Charge-sheet. The Court relied upon the decision in the Chaganti Satyanarayan, CBI Vs. Anupam Kulkarni, Uday Mohanlal Acharya Vs. State of Maharashtra, Rakesh Kumar Paul Vs. State of Assam and held that computation of period of detention of the accused in custody under Section 167(2) of Cr.P.C. will start from the date of remand and period of detention in custody for the offence punishable under Section 467 of IPC shall be governed by sub-clause (ii) of Section 167(2) (a) of Cr.P.C. and would be of 60 days. 32. Similar issue had also arisen before ....
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....delivered after decision in Rustam's case. 34. Thus, consistently, it has been held that the detention is authorised 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. 35. In the decision of full Bench of this Court in the case of Kamlesh Kumar Ishwardas Patel Vs. Union of India 1994 MH.L.J. It was observed that what has been made binding under the provision of 141 of the Constitution of India is the law declared by the Supreme Court. If there is a clear enunciation or declaration of law the same will be binding even though such declaration not strictly necessary for the disposal of the case or the declaration of law is not followed by actual application thereof in the case in question. The Court also made observations about course to be followed by the High Court when confronted with contrary decision of the Supreme Court, emanating from the benches of co-equal strength. It would be relevant to reproduce paragraph 14 and 15 of the said decision which are as follows: "14. It has been pointed out by one of us, while speaking fo....
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....tax Officer, AIR 1961 Mys 3 at p. 7 and the decision of the Division Bench of the Bombay High Court in Vasant v. Dikkaya. A Full Bench of the Allahabad High Court in U.P. State Road Transport Corpn. v. Trade Transport Tribunal has also ruled to that effect. The view appears to be that in case of conflicting decisions by Benches of matching authority, the law is the latest pronouncement made by the latest Bench and the old law shall change yielding place to new." "The other view is that in such a case the High Court is not necessarily bound to follow the one which is later in point of time, but may follow the one which, in its view, is better in point of law. Sandhawalia, C.J. in the Full Bench decision of the Punjab & Haryana High Court in Indo-Swiss Time Ltd. v. Umarao took this view with the concurrence of the other two learned Judges, though as to the actual decision, the other learned Judges differed from the learned Chief Justice. In the Karnataka Full Bench decision in Govinda Naik v. West Patent Press Co., the minority consisting of two of the learned Judges speaking through Jagannatha Shetty, J. also took the same view (supra, at p. 95) and in fact the same has bee....
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....ary decisions of the Supreme Court emanating from Benches of co-ordinate jurisdiction, the task, however uncomfortable, has got to be performed." "We are inclined to think that a five-Judge Bench of the Supreme Court in Atma Ram v. State of Punjab, has also indicated (at p. 527) that such a task may fall on and may have to be performed by the High Court. After pointing out that when a Full Bench of three Judges was inclined to take a view contrary to another Full Bench of equal strength, perhaps the better course would have been to constitute a larger Bench, it has, however, been observed that for otherwise the subordinate Courts are placed under the embarrassment of preferring one view to another, both equally binding on them. According to the Supreme Court, therefore, when confronted with two contrary decisions of equal authority, the subordinate Court is not necessarily obliged to follow the later, but would have to perform the embarrassing task "of preferring one view to another". ".... We are, however, inclined to think that no blanket proposition can be laid down either in favour of the earlier or the later decision and, as indicated hereinbefore, and as has....
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..... We may, however, note that the Full Bench of the Allahabad High Court in Ganga Saran (supra) has failed to notice an earlier Full Bench decision of that Court itself in U.P. State Road Transport Corporation (AIR All 1) which laid down a contrary proposition." 36. Relying on decision of the Apex Court in the case of Sundeep Kumar Bafna (Supra) learned counsel for applicant submitted that, when two or more mutually irreconcilable decisions of the Supreme Court are placed for consideration, as observed in the said decision the inviolable recourse is to apply the earliest view as succeeding ones would fall in the category of per in curium. 37. This Court in the case Jaydeo Mahadeo Parate vs. State of Maharashtra 2006 (2) Mh.L.J. 497 was confronted with two conflicting decisions of Apex Court. This Court in paragraph 24 of in the above decision observed as follows: "24. The Full Bench of this Court in the case of Kamleshwar Ishwardas Patel v. Union of India and Ors. reported in 1994 Mh.L.J. 1669 dealing with a question as to what course has to be followed by the High Court when confronted with contrary decisions of the Supreme Court emanating from Benches of coequal str....
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....Land Acquisition Officer Vs. Municipal Corporation AIR 1988 Bombay 9. It was observed that, " We are in agreement with the view expressed by the Full Bench of Punjab and Haryana High Court in the case of M/s. Indo Swiss Time Limited Vs. Umrao, (AIR 1981 Punjab and Haryana 213) (Supra) especially when the Supreme Court while deciding Qamaruddin's case (1990 ALL WC 308) (Supra) did not notice the U.P amendment to S. 115 CPC and earlier decision of the Supreme Court. 41. The learned Additional Session Judge while rejecting application for default bail has held that the calculation of period in accordance with Section 167(2) of Cr.P.C., in the case of Uday Acharya Vs. State of Maharashtra would indicate that the accused therein had surrendered before Special Judge and was remanded to Judicial custody by Order dated 17.06.2000. The period of sixty days for filling charge-sheet was completed on 16.08.2000. The learned Judge inferred that the Supreme Court had calculated 60 days, excluding the date either of production or the day on which charge-sheet has to be filed. Hence, in the present case 90 days would complete on 26.05.2020. It is pertinent to note that the Hon'ble Supre....
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....Sanjay Dutt's case must be understood to mean when the accused files an application and is prepared to offer bail on being directed. It was also observed that, a two Judge Bench decision of this Court in State of M.P. Vs. Rustam grant of bail by the High Court on a conclusion that on the date of order the prosecution had already submitted a police report and the right stood extinguished does not express the correct position in law of the expression "if already availed of" used by Constitution Bench in Sanjay Dutt's case. 42. The learned Sessions Judge has apparently based his conclusion on the surmise that either day of production or the day on which charge-sheet has to be filed has to be excluded. It was not the contention of the prosecution that there would be extension of day to file charge-sheet due to holiday. The Court has also not entered into such issue. In any case considering the several judicial pronouncement it can be seen that the theory of exclusion by invoking Section 9 and 10 of General Clauses Act would not arise in case of Section 167(2) of Cr.P.C. 43. In Rustam's case it was held that the day on which accused remanded to judicial custody should ....
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....here there is room for doubt, the enactment or instrument ought to be so construed as to effectuate and not to defeat the intention of Parliament or of the parties, as the case may be. Expressions such as "from such a day" or "until such a day" are equivocal, since they do not make it clear whether the inclusion or the exclusion 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 the first day and to include the last day." 21. Section 9 says that 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 period of time, to use the word "from", and, for the purpose of including the last in a series of days or any period of time, to use the word "to". The principle is that when a period is delimited by statute or rule, which has both a beginning and an end and the word "from" is used indicating the beginning, the opening days is to be excluded and if the last day is to be excluded the word "to" is to be used. In order to exclude the first day of the period, the crucial thing....
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....e vs. Sharad Sarda (Supra). In all these decisions applicability of Section 10 has been negatived. Section 10 of General Clauses Act reads as under: "Where, by any Central Act or Regulation made after the commencement of this Act, any act or proceeding is directed or allowed to be done or taken in any Court or office on a certain day or within a prescribed period then, if the Court or office is closed on that day or the last day of the prescribed period, the act or proceeding shall be considered as done or taken in due time if it is done or taken on the next day afterwards on which the Court or office is open: "Provided that nothing in this Section shall apply to any act r proceeding to which the Indian Limitation Act, 1877 (XVI of 1877) applied." The Division Bench of Delhi High Court in Powell Ogechi case has observed that a plain reading of Section 10 of General Clauses Act would, therefore show that there should be a period prescribed for the performance of an act in a Court or office. It is only in such cases that if the last date of limitation prescribed expires on a holiday then Section 10 comes into play and make it permissible to do that act on t....
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....hat any act or proceeding directed or allowed to be done or taken in any Court on a certain day or within prescribed period then the Act or the proceedings shall be considered as done or taken on the next day afterwards on opened. No certain day was fixed by the order of Court or any period prescribed for filing of the charge-sheet. The prosecution could have filed the charge-sheet earlier. Except filing of the charge-sheet on 13.09.1982 nothing has been done as directed or allowed to be done and it is therefore, that provision of Section 10 of the General Clauses Act will not apply. An absolute right accrued to the accused on expiry of 90 days and cannot be defeated by merely filing of the charge-sheet on 13.09.1982. The right is accrued the moment 90 days are over, whether 90th day falls on a holiday or not. The accused continued to be in custody and therefore, the provisions of Section 167(2) lays down that he can be in the custody only for a period of 90 days or 60 days, as the case may be. The absolute right cannot be allowed to be defeated by resorting to the provisions of Section 10 of General Clauses Act. Hence the said provision does not apply to the case. The Gujarat High....
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.... be. The words 'total period' would mean the custody of the accused authorised by the Magistrate. The legislature intended to restrict detention upto 90 days or 60 days as the case may be and not more than that. The accused cannot be allowed to remain in authorised custody for more than 60 days or 90 days. By excluding the date of production for remand on the first day the accused would be construed to undergo custody for more than stipulated period. The code do not prescribe period to file the charge-sheet. The day of production of the accused before Magistrate and order of remand will have to be calculated for computing the period of 90 days/60 days as the case may be. Section 167 of the Code does not provide any method for calculating the period of 90 days or 60 days. 49. In Chaganti Satyanarayana and Others, CBI Vs. Anupam Kulkarni, Pragyna Singh Thakur Vs. State of Maharashtra, it is held that period enumerated in Section 167(2) proviso has to be calculated from date of production of accused for first remand. There is no exclusion of the first day of remand. In Chaganti Satyanarayana it is also held that it is not necessary to invoke provisions of General Clauses Ac....