alamkhan umarkhan jatmalek jenjari tal,dashada dist,(r scr.a 5243 2014 j 3)

R/SCR.A/5243/2014 JUDGMENT

IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

SPECIAL CRIMINAL APPLICATION (DEFAULT BAIL) NO. 5243 of 2014

FOR APPROVAL AND SIGNATURE:

HONOURABLE MR.JUSTICE J.B.PARDIWALA

================================================================

1 Whether Reporters of Local Papers may be allowed to see the judgment ? Yes

2 To be referred to the Reporter or not ? Yes

3 Whether their Lordships wish to see the fair copy of the judgment ? No

4 Whether this case involves a substantial question of law as to the interpretation of the Constitution of India, 1950 or any order made thereunder ?

No

5 Whether it is to be circulated to the civil judge ? Yes

Yes Circulate urgently to all Judicial Magistrates & Sessions Judges

================================================================

ALAMKHAN UMARKHAN JATMALEK JENJARI TAL,DASHADA DIST,

SURENDRANAGAR, & 1....Applicant(s)

Versus

STATE OF GUJARAT....Respondent(s)================================================================Appearance:

MR. I.H. SYED, ADVOCATE with RIMA P PATEL, ADVOCATE for the Applicant(s) No. 1 - 2

MR. K.L.PANDYA, ADDL.PUBLIC PROSECUTOR for the Respondent(s) No. 1

================================================================

CORAM: HONOURABLE MR.JUSTICE J.B.PARDIWALA

Date : 08/01/2015

ORAL JUDGMENT

By this application, the applicants- original accused

persons call in question the legality and validity of the order

dated 27.11.2014 passed by the learned Additional Sessions

of 23


Judge, Dhangandhra in Criminal Misc. Application No.214 of

2014, by which, the learned Additional Sessions Judge rejected

the application filed by the applicants herein, praying for

default bail under Section 167(2) of the Code of Criminal

Procedure, 1973.

2. It appears that the applicants were arrested in

connection with C.R. No.I-86 of 2014 registered at the Patdi

Police Station, Surendranagar of the offence punishable under

Sections-302, 147, 148, 149 of the IPC and Section 135 of the

Bombay Police Act.

3. The applicants were arrested on 11.08.2014 and were

produced on the next day i.e. on 12.08.2014 before the Court

of the learned Magistrate, Patdi, District- Surendranagar. The

learned J.M.F.C. thereafter remanded the applicants to judicial

custody.

4. It appears that the period of 90 days expired on

09.11.2014. However, till 09.11.2014, no chargesheet was

filed in the Court of the learned Magistrate. The charge-sheet

came to be filed on 10.11.2014 i.e. on the 91st day at 04:00

p.m.

5. The applicants herein filed an application for default bail

under Section 167(2) at 10.35 in the morning, in the Court of

the learned Judicial Magistrate First Class, Patdi. There is an

endorsement made by the Registrar of the Principal Civil Court,

Patdi, below the application that the same was filed on

10.11.2014 at 10.35 A.M. There is also an endorsement made

by the Superintendent, JMFC, Patdi that upto 10.35 A.M of 10th

of 23


November, 2014, the charge-sheet was not filed in the Court.

The learned JMFC issued notice to the Investigating Officer and

the Additional Public Prosecutor, and fixed the hearing of the

bail application on the next day i.e. on 11.11.2014.

6. It is also not in dispute that the charge-sheet was filed by

the Investigating Officer on 10th November, 2014 at 4.00 P.M

in the evening.

7. It appears that the bail application was considered by the

learned JMFC, Patdi and vide order dated 14.11.2014, rejected

the same. On a plain reading of the order, it appears that the

learned Magistrate took the view that there was no delay on

the part of the Investigating Officer in filing the charge-sheet

and the same was actually filed on the 90th day. According to

the learned Magistrate, the accused-applicants were remanded

to the judicial custody on 12th August, 2014, and therefore,

the period of 90 days could be said to have expired on

9.11.2014. Such calculation of the learned Magistrate is

suggestive of the fact that 12th August, 2014 i.e. the date on

which the applicants were produced before the learned

Magistrate and remanded to judicial custody was not counted

for the purpose of computing the period of 90 days by taking

recourse to the Section 9 of the General Clauses Act, 1897.

The learned Magistrate also relied upon an over-ruled decision

of the Supreme Court in the case of State of M.P. Vs. Rustom

and ors., reported in 1995 Supp. (3) SCC 221.

8. Being dis-satisfied, the applicants thereafter filed

application before the Sessions Court and the Sessions Court

of 23


also computed the period of ninety days excluding the day on

which the applicants were produced before the learned

Magistrate and remanded to the judicial custody. It appears

from a plain reading of paragraph 6 of the order passed by the

learned Additional Sessions Judge that so far as the month of

August was concerned, only 19 days were calculated, thereby

suggesting that the first day of remand i.e. 12th August, 2014

was excluded.

9. At this stage, it needs to be stated, as pointed out by the

learned Additional Public Prosecutor Mr. Pandya that

irrespective of the reasonings assigned by the Courts below in

rejecting the bail applications filed by the applicants under

Section 167(2) of the Code, the Courts below missed one

important aspect that the 8th and 9th November, 2014 were

holidays. The 8th November, 2014 was a second Saturday and

therefore, was a non-working day for the Court, whereas the

9th November, 2014 was a Sunday. According to Mr. Pandya,

in such circumstances, the Investigating Officer was left with

no other option, but to file the charge-sheet on 10.11.2014,

although it was the 91st day from the date of remanding the

applicants to the judicial custody for the first time. According

to Mr. Pandya, the learned APP, Section 10 of the General

Clauses Act could be brought in aid in cases in which charge-

sheet is not filed within 90 days on account of an intervening

holiday.

10. Having heard the learned counsel appearing for the

parties and having gone through the materials on record, I am

of the view that the following three questions fall for my

consideration.

of 23


1. Whether the accused-applicants had the indefeasible

right of being released on bail on expiry of the period

of 90 days in the absence of any charge-sheet filed

even on the 90th day.

2. Whether the period of 90 days/60 days envisaged by

proviso (a) begins to run from the date of the order of

remand or the first day of the production of the

accused is to be excluded while computing the period

of 90 days/60 days.

3. Whether Section 10 of the General Clauses Act can be

brought in aid in cases in which the charge-sheet is

not filed within 90 days and 60 days, as envisaged by

Section 167(2) of the Criminal Procedure Code.

First question:-

11. So far as the first question is concerned, the law is well

settled that the accused gets an indefeasible right of being

released on bail if the charge-sheet is not filed within the

period of limitation. I may quote with profit the decision of the

Supreme Court in the case of Uday Mohanlal Acharya Vs. State

of Maharashtra, reported in AIR 2001 SC 1910

"...... In the aforesaid premises, we are of the considered opinion that an accused must be held to have availed of his right flowing from the legislative mandate engrafted in the proviso to subsection (2) of S. 167 of the Code if he has filed an application after the expiry of the stipulated period alleging that no challan has been filed and he is prepared to offer the bail, that is ordered, and it is found as a fact that no challan has been filed within the period prescribed from the date of the arrest of the accused. In our view, such interpretation would subserve the purpose and the object for which the provision in question was brought on to the Statute Book. In such a case, therefore, even if the application for consideration

of 23


of an order of being released on bail is posted before the Court after some length of time, or even if the Magistrate refuses the application erroneously and the accused moves the higher forum for getting formal order of being released on bail in enforcement of his indefeasible right, then filing of challan at that stage will not take away the right of the accused. Personal liberty is one of the cherished object of the Indian Constitution and deprivation of the same can be only in accordance with law and in conformity with the provisions thereof, as stipulated under Art. 21 of the Constitution. When the law provides that the Magistrate could authorise the detention of the accused in custody up to a maximum period as indicated in the proviso to subsection (2) of S. 167, any further detention beyond the period without filing of challan by the Investigating Agency would be a subterfuge and would not be in accordance with law and in conformity with the provisions of the Criminal Procedure Code, and as such, could be violative of Art. 21 of the Constitution. There is no provision in the Criminal Procedure Code authorising detention of an accused in custody after the expiry of the period indicated in the proviso to subsection (2) of S. 167 excepting the contingency indicated in Explanation I, namely, if the accused does not furnish the bail. It is in this sense it can be stated that if after expiry of the period, an application for being released on bail is filed, and the accused offers to furnish the bail, and thereby avail of his indefeasible right and then an order of bail is passed on certain terms and conditions but the accused fails to furnish the bail, and at that point of time a challan is filed then possibly it can be said that the right of the accused stood extinguished. But so long as the accused files an application and indicates in the application to offer bail on being released by appropriate orders of the Court then the right of the accused on being released on bail cannot be frustrated on the oft chance of Magistrate not being available and the matter not being moved, or that the Magistrate erroneously refuses to pass an order and the matter is moved to the higher forum and a challan is filed in interregnum.This is the only way how a balance can be struck between the socalled indefeasible right of the accused on failure on the part of the prosecution to file challan within the specified period and the interest of the society, at large, in lawfully preventing an accused for being released on bail on account of inaction on the part of the prosecuting agency. On the aforesaid premises, we would record our conclusions as follows :

1. Under subsection (2) of S. 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 in the whole.

2. Under the proviso to aforesaid subsection (2) of S. 167, the Magistrate may authorise detention of the accused otherwise than the custody of police for a total period not exceeding 90 days where the investigation relates to offence punishable with death, imprisonment for life or imprisonment for a term of not less than 10 years, and 60 days where the investigation relates to any other offence.

3. On the expiry of the said period of 90 days or 60 days, as the case may be, an indefeasible right accrues in favour of the accused for being released on bail on account of default by the Investigating Agency in the completion of the investigation within the period prescribed and the accused is entitled to be released on bail, if he is prepared to and furnish the bail, as directed by the Magistrate.

of 23


4. When an application for bail is filed by an accused for enforcement of his indefeasible right alleged to have been accrued in his favour on account of default on the part of the investigating agency in completion of the investigation within the specified period, the Magistrate/Court must dispose it of forthwith, on being satisfied that in fact the accused has been in custody for the period of 90 days or 60 days, as specified and no chargesheet has been filed by the Investigating Agency. Such prompt action on the part of the Magistrate/Court will not enable the prosecution to frustrate the object of the Act and the legislative mandate of an accused being released on bail on account of the default on the part of the Investigating Agency in completing the investigation within the period stipulated.

5. If the accused is unable to furnish bail, as directed by the Magistrate, then the conjoint reading of Explanation I and proviso to subsection (2) of S. 167, the continued custody of the accused even beyond the specified period in paragraph (a) will not be unauthorised, and therefore, if during that period the investigation is complete and chargesheet is filed then the socalled indefeasible right of the accused would stand extinguished.

6. The expression 'if not already availed of' used by this Court in Sanjay Dutt's case (1994 AIR SCW 3857 : 1995 Cri LJ 477) (supra) must be understood to mean when the accused files an application and is prepared to offer bail on being directed. In other words, on expiry of the period specified in paragraph (a) of proviso to subsection (2) of S. 167 if the accused files an application for bail and offers also to furnish the bail, on being directed, then it has to be held that the accused has availed of his indefeasible right even though the Court has not considered the said application and has not indicated the terms and conditions of bail, and the accused has not furnished the same.

With the aforesaid interpretation of the expression 'availed of' if chargesheet is filed subsequent to the availing of the indefeasible right by the accused then that right would not stand frustrated or extinguished, necessarily therefore, if an accused entitled to be released on bail by application of the proviso to subsection (2) of S. 167, makes the application before the Magistrate, but the Magistrate erroneously refuses the same and rejects the application and then accused moves the higher forum and while the matter remains pending before the higher forum for consideration a chargesheet is filed, the socalled indefeasible right of the accused would not stand extinguished thereby, and on the other hand, the accused has to be released on bail. Such an accused, who thus is entitled to be released on bail in enforcement of his indefeasible right will, however, have to be produced before the Magistrate on a chargesheet being filed in accordance with S. 209 and the Magistrate must deal with him in the matter of remand to custody subject to the provisions of the Code relating to bail and subject to the provisions of cancellation of bail, already granted in accordance with law laid down by this Court in the case of Mohd. Iqbal v. State of Maharashtra (1996 (1) SCC 722) (supra).

12. I may also quote with profit the recent judgment of the

Supreme Court in the case of 'Union of India through C.B.I.

of 23


Vs. Nirala Yadav @ Raja Ram Yadav @ Deepak Yadav'

reported in 2014 (2) GLH 557. The Supreme Court after review

of all its earlier decisions, including one of Uday Mohanlal

Acharya (supra) has taken the view that if the chargesheet is

not filed within the period of limitation, then on the 91st day,

the accused gets an indefeasible right of being released on

bail. I may quote with profit the observation made by the

Supreme Court in Para-41, as under:-

“41. Coming to the facts of the instant case, we find that prior to the date of expiry of 90 days which is the initial period for filing the chargesheet, the prosecution neither had filed the chargesheet nor had it filed an application for extension. Had an application for extension been filed, then the matter would have been totally different. After the accused respondent filed the application, the prosecution submitted an application seeking extension of time for filing of the chargesheet. Mr. P.K. Dey, learned counsel for the appellant would submit that the same is permissible in view of the decision in Bipin Shantilal Panchal (supra) but on a studied scrutiny of the same we find the said decision only dealt with whether extension could be sought from time to time till the completion of period as provided in the Statute i.e., 180 days. It did not address the issue what could be the effect of not filing an application for extension prior to expiry of the period because in the factual matrix it was not necessary to do so. In the instant case, the day the accused filed the application for benefit of the default provision as engrafted under proviso to sub Section (2) of Section 167 Cr.PC the Court required the accused to file a rejoinder affidavit by the time the initial period provided under the statute had expired. There was no question of any contest as if the application for extension had been filed prior to the expiry of time. The adjournment by the learned Magistrate was misconceived. He was obliged on that day to deal with the application filed by the accused as required under Section 167(2) Cr.PC. We have no hesitation in saying that such procrastination frustrates the legislative mandate. A Court cannot act to extinguish the right of an accused if the law so confers on him. Law has to prevail. The prosecution cannot avail such subterfuges to frustrate or destroy the legal right of the accused. Such an act is not permissible. If we permit ourselves to say so, the prosecution exhibited sheer negligence in not filing the application within the time which it was entitled to do so in law but made all adroit attempts to redeem the cause by its conduct.”

of 23


13. It is very unfortunate to note that the learned J.M.F.C.

while dealing with the application under Section 167 of the

Code relied on the decision of the Supreme Court in the case of

'State of Madhya Pradesh Vs. Rustam and Others'

reported in 1995 Suppl. (3) SCC 221, whereas this decision is

no longer a good Law as the same was overruled by the Larger

Bench of the Supreme Court. It is, thus, the ratio of the

judgment of 'Uday Mohanlal Acharya Vs. State of

Maharashtra' reported in (2001) 5 SCC 453, which

governs the field and confirmed by the Supreme Court in the

recent decision of 'Union of India through C.B.I. Vs. Nirala

Yadav @ Raja Ram Yadav @ Deepak Yadav' (Supra).

14. As the period of limitation of 90 days expired on

09.11.2014, on the very next date i.e. on 10.11.2014 at 10:35

a.m. in the morning, the applicants filed an application.

However, no orders were passed on the same immediately by

the concerned Court and ultimately, at 4:00 O'clock in the

evening, the charge-sheet came to be filed. In my view,

although no orders were passed on the said application, yet,

the accused persons did exercise their right of being released

on bail by filing the application early in the morning at 10:35

a.m., as even at that point of time, their detention could be

said to be unlawful. In my view, the subsequent filing of the

charge-sheet at 4:00 O'clock in the evening would not save the

situation. I may reiterate the observations made by the

Supreme Court in the case of 'Union of India through C.B.I. Vs.

Nirala Yadav @ Raja Ram Yadav @ Deepak Yadav' (Supra) that

the procrastination frustrates the legislative mandate. A Court

cannot act to extinguish the right of an accused if the law so

of 23


confers on him. The law has to prevail. In Uday Mohanlal

(supra), the word used by the Supreme Court is "forthwith".

The plain dictionary meaning of the word "forthwith" means

immediately. If that be so, then the Court concerned owed a

duty to pass the necessary order immediately, more

particularly when the bail application contained an

endorsement put by the Superintendent that upto 10:35 in the

morning the charge-sheet was not filed. The Court should

have immediately called upon the Public Prosecutor, however,

instead of doing so, it erroneously issued notice and fixed the

hearing on the next day i.e. on 11.11.2014.

Second Question:

15. The above takes me to deal with the second question as

regards computation of the period of 90 days/60 days. This

issue is no longer res-integra.

16. The Supreme Court in the case of 'Chaganti

Satyanarayana and Others Vs. State of A.P.' reported in

AIR 1986 SC 2130 has taken the view that the period of 90

days/60 days envisaged by Proviso (a) begins to run from the

date of order of remand. In the said case, the issue before the

Supreme Court was whether the period of 60 days or 90 days

as the case may be should be computed from the date of

arrest or from the date of the order of remand or production.

The Supreme Court explained that the earlier date when the

accused is arrested, is not to be counted for the purpose of 90

days/60 days. Therefore, atleast the decision of the Supreme

Court makes one thing very clear that the period of 90 days/

60 days would begin to run from the date of order of remand/

of 23


production.

17. I may quote with profit the observations made by the

Supreme Court as contained in paras-18, 19, 20, 21 and 23,

are as under:-

“18. 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 authorised 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 authorisation 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.

19. Approaching the matter from another angle also we find it necessary to construe the proviso in the manner set out above. We have earlier referred to subsection (2A) newly introduced by Act 45 of 1978 to Section 167. This subsection has been introduced for pragmatic reasons. In order that the production of an accused, arrested under Section 57, before a Magistrate is not delayed on account of the nonavailability of a Judicial Magistrate, the Legislature has deemed it necessary to confer powers of remand on such of those Executive Magistrates on whom the powers of a Judicial Magistrate have been conferred. The subsection states that if an arrested person is produced before an Executive Magistrate for remand the said Magistrate may authorise the detention of the accused "for a term not exceeding 7 days in the aggregate". It is further provided that the period of remand ordered by an Executive Magistrate should also be taken into account for computing the period specified in paragraph (a) of the proviso to subsection (2). Let us assume a case where a person arrested under Section 57 on the previous day is produced before an Executive Magistrate on the next day, but within the expiry of 24 hours and the remand order is obtained for a period of 7 days. How is the Judicial Magistrate, who is competent to make further orders of detention to calculate the period of detention so as to conform to the requirements of proviso (a)? As per subsection (2A) he is obliged to take into consideration only the period of detention actually undergone by the accused pursuant to the orders 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

of 23


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.

20. The intention of the Legislature can also be gathered by comparing proviso (a) of subsection (5) of Section 167. Subsection (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". (Emphasis supplied)

21. 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 period of remand of 15 days in the whole envisaged in subsection (2) or the total period of 90 days/60 days prescribed in proviso (a) should be calculated from the date of arrest then the Legislature would have expressly said so as it had done under Section 167(5).

23. Thus in any view of the matter i.e. construing proviso (a) either in conjunction with subsection (2) of Section 167 or as an independent paragraph, we find that the total period of 90 days under clause (i) and the total period of 60 days under clause (ii) has to be calculated only from the date of remand and not from the date of arrest.”

18. Thus, the day of the production of the accused before the

learned Magistrate and order of remand will have to be

calculated for computing the period of 90 days/60 days, as the

case may be. In the present case, the Courts below

erroneously by applying Section 9 of the General Clauses Act,

excluded the day of production and remand and thereby

counted only 19 days so far as the month of August was

concerned. The correct calculation should have been 20 days

of August plus 30 days of September, plus 31 days of October,

plus 10 days of November. The mathematics is simple. 20 +

of 23


30 + 31 + 10 = 91. The eighth of November was the 89th day

and the 9th of November was the 90th day. In my view,

Section 9 of the General Clauses Act has no application in the

present case. Since the learned JMFC has touched this issue of

Section 9 of the General Clauses Act, let me explain what is

the true purport of Section 9 of the Act.

19. Section 9 of the General Clauses Act, 1897 gives

statutory recognition to the well-established principle

applicable to the construction of statutes that ordinarily in

computing the period of time prescribed, the rule observed is

to exclude the first and include the last day.

20. In Halsbury Laws of England, 37th Edition, Volume 3,

page 92, it is stated as follows :-

"Days included or excluded - When a period of time running from a given day or even to another day or event is prescribed by law or fixed as contract, and the question arises whether the computation is to be made inclusively or exclusively of the first-mentioned 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 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

of 23


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 to be noted is whether the period of limitation is

delimited by a series of days or by any fixed period. This is

intended to obviate the difficulties or inconvenience that may

be caused to some parties. For instance, if a policy of

insurance has to be good for one day from the 1st January, it

might be valid only for a few hours after its execution and the

party or the beneficiary in the insurance policy would not get

reasonable time to lay claim, unless the 1st January is

excluded from the period of computation [See Tarun Prasad

Chatterjee Vs. Dinanath Sharma - AIR 2001 SC 36(1)]

22. The application of Section 9 of the General Clauses Act

has to be on the basis of the terminology used in the statutes

or orders of the Court. In the instant case, no such

terminology has been used. In fact, Section 167 of the Code

does not provide any method for calculating the period of 90

days or 60 days, as the case may be.

23. After a person is arrested, the Police can keep him in

custody for a limited period under Section 57 of the Code.

Thereafter, the accused has to be produced before a

Magistrate for remand under Section 167 of the Code. Where

the Magistrate decides to grant the remand, the custody

of 23


thereafter is under orders of the Magistrate. The custody

under this section cannot be granted for a period 'exceeding

sixty days' or 'ninety days', as the case may be. A calendar

day as a unit of time is the interval from one midnight to

another. It is not correct to take into consideration the

fractions of two days to make up one day. Thus, the day on

which the custody is granted cannot be excluded.

Third Question:

24. The above takes me to deal with the Section 10 of the

General Clauses Act. But before I do so, I may notice S.10 of

the General Clauses Act of 1897 which 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 after wards on which the Court or office is open:

Provided that nothing in this section shall apply to any act or proceeding to which the Indian Limitation Act, 1877 (XVI of 1877) applies."

25. In Harinder Singh case (AIR 1957 SC 271) (Supra) the

Supreme Court while interpreting S.10 of the General Clauses

Act ruled that the object of S.10 is to enable a person to do

what he could have done on a holiday, on the next working

day. Where, therefore, a period is prescribed for the

performance of an act in a Court or office, and that period

expires on a holiday, then according to the section, the act

of 23


should be considered to have been done within that period, if it

is done on the next day on which the Court or office is open. It

has further ruled that to attract the application of S. 10 of

General Clauses Act all that is requisite is that there should be

a period prescribed, and that period should expire on a

holiday.

26. A plain reading of S.10 of General Clauses Act would,

therefore, go to 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 S.10 comes into play and makes it

permissible to do that act on the next day when the Court or

office opens. Section 10 of the General Clauses Act, therefore,

clearly pre-supposes that there must be in existence a positive

act to be performed by person and for the performance of

which there is in existence a period prescribed by law. It will

have no application in any other situation.

27. With this in mind let me now examine the provisions of

sub-s.(2) of S.167, Cr.P.C. which reads as under:-

"S.167(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

of 23


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 than ten years;

(ii) 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."

28. A bare reading of the aforesaid provision of the Code

would go to show that this provision merely confers power on

the Magistrate to commit to custody an accused person and

there is limitation of 90 days and 60 days, as the case may be.

This provision of the Code falls under Chap. XII of the Code

relating to information to the police and their powers to

investigate. It is thus clear that this is a power which is only

exercisable during the course of investigation of a case. The

power to commit an accused person to custody after

investigation is over and after the charge-sheet is presented

before the Court, is derived from S.309, Cr.P.C. Any further

remand to judicial custody beyond 90 days and 60 days

without the charge-sheet being presented before the Court will

be without the authority of law.

29. Sub-sec.(2) of S.167 of the Code nowhere prescribes a

of 23


period within which the police is required to present charge-

sheet before the court nor does it envisage the performance of

an act by an accused person within a particular period before a

Court or office. In fact, nowhere in the Code a period is

prescribed for investigation to produce the charge-sheet

before a Court of law. Since the Legislature in its wisdom has

not prescribed a period within which the investigation has to

present charge-sheet against an accused person before a

Court, it would be wrong to say that the provision of S.167(2)

of Code had prescribed the limit by implication. If the

Legislature had aimed it to be so, there was nothing to prevent

it from saying so explicitly. By invoking the doctrine of

implication we will be importing something in the provision

which the Legislature has deliberately refrained to do. It will

not only have the effect of distorting the provision but will also

defeat the legislative intent.

30. Mr. Saiyed, the learned advocate has placed reliance on

the decision of this Court in the case of 'Meghji Jethabhai

Vankar & Others Vs. State of Gujarat' reported in 1987 (1)

GLH 288, wherein, the learned Single Judge of this Court has

taken the view that while computing the limitation under

Section 167(2), method of computation under the General

Clauses Act or under the Limitation Act would not apply. I may

quote with profit the observations made in paragraphs- 3 and

4, as under:-

“3. Mr. Chinoy has submitted that the method of computation in the Limitation Act as well as General Clauses Act do not apply in this case. For this submission, he has relied on the decision of the Supreme Court reported in (1986) 3 CCC 141 (154), wherein the Supreme court has observed as under:

of 23


“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.”

It is quite clear that the Supreme Court has negatived the submission that for the purpose of computation of limitation, the principle of Limitation Act or General Clauses Act could be enacted while calculating the Limitation under Section 167(2) of the Criminal Procedure Code. The reason is quite obvious. As far as the limitation under the Limitation Act and the General Clauses Act are concerned, they pertain to the causes related to the filing of claims etc., whereas the provisions of Section 167 of the Code pertain to the personal liberty of the undertrial prisoners. The individual liberty of a citizen is guaranteed by the Constitution. It is an invaluable right. Any infringement or abridgment thereof, however small, has to be viewed seriously. In the case of limitation under Section 167(2) of the Code, the limitation period has to be construed strictly which means that the 90 days or 60 days limitation has to be regarded as exactly the 90th day or 60th day as the case may be and not a day beyond. The prosecution should be vigilant to see that the chargesheet is filed as early as possible. It should not take chance and wait till the last day. If it does wait and the last day happens to be a closed holiday, the limitation would expire on that day and the accused would be entitled to bail as a matter of right. Hence, it is held that in computing the limitation under Section 167(2) of the Code, the method of computation under the General Clauses Act or under the Limitation Act cannot be brought in. The computation has to be strictly the number of days as set out in the aforesaid provisions of the Code.

4. In the result, the petition succeeds. Rule is made absolute to the extent that those of the petitioners in whose case the chargesheet has been filed beyond 90 days, will be released on bail in the Sum of Rs.5,000/ each and a surety for the like amount on condition that they will report at Bhavnagar City Police Station DivisionA once a week during the trial. Order accordingly.”

31. Mr. Pandya, the learned APP vehemently submitted that

the accused-applicants are facing charge of murder punishable

under Section 302 of the IPC and they should not be extended

the benefit of default bail on such a technical plea. I am afraid,

I am unable to accept the argument canvassed by the learned

of 23


APP.

32. The provisions of S.167(2) of the Code cast a duty upon

the Magistrate to offer bail. In this regard, I may make a

reference also to the case of Natabar Parida v. State of Orissa,

AIR 1975 SC 1465: (1975 Cri LJ 1212). While considering the

scope of the provisions of S.167(2) of the Code their Lordships

of the Supreme Court in para 8 of the judgment at page 1469

(of AIR): (at p.1216 of Cri LJ) have made the following

observations:-

"In serious offences of criminal conspiracy murders, dacoities, robberies by interState gangs or the like, it may not be possible for the police, in the circumstances as they do exist in the various parts of our country, to complete the investigation within the period of 60 days. Yet the intention of the Legislature seems to be to grant no discretion to the Court and to make it obligatory for it to release the accused on bail. Of course, it has been provided in proviso (a) that the accused released on bail under S.167 will be deemed to be so released under the provisions of Chap.XXXIII and for the purposes of that Chapter. That may empower the Court releasing him on bail, if it considers necessary so to do, to direct that such person be arrested and committed to custody as provided in subsec.(5) of S.437 occurring in Chap.XXXIII. It is also clear that after the taking of the cognizance the power of remand is to be exercised under S.309 of the new Code. But if it is not possible to complete, the investigation within a period of 60 days then even in serious and ghastly types of crimes the accused will be entitled to be released on bail. Such a law may be a "paradise for the criminals", but surely it would not be so, as sometimes it is supposed to be because of the Courts. It would be so under the command of the Legislature."

33. In the result, my final conclusions are as under:-

1. Under the provision of Section 167(2), an accused

person against whom charge-sheet is not presented

before the Court within the period of 90 days or 60 days,

as the case may be, is entitled to be offered bail as a

matter of right.

of 23


2. The first day of production of the accused before the

Magistrate is to be counted for computing the period of

90 days/60 days, as envisaged by proviso (a) to Section

167(2) of the Code. Section 9 of the General Clauses Act

is not applicable in such a situation.

3. Section 10 of the General Clauses Act is not applicable in

such a situation and it cannot be invoked to defeat the

accrued right of an accused person to be freed. The

Magistrate's should monitor the remand proceedings

during the investigation in such a manner so that a full

account of the remand is handy and bail is offered to

such accused person at the end of 90 or 60 days, as the

case may be.

34. For the foregoing reasons, this application is allowed. The

applicants are ordered to be released on regular bail in

connection with an offence being C.R.No.I-86 of 2014

registered with Patdi Police Station, Surendranagar, on

executing a personal bond of Rs.25,000/- (Rupees Twenty Five

Thousand only) with one surety of the like amount for each

applicants, to the satisfaction of the learned Trial Court and

subject to the conditions that they shall;

[a] not take undue advantage of liberty or misuse

liberty;

[b] not act in a manner injurious to the interest of the

prosecution;

[c] surrender passport, if any, to the lower court within

of 23


a week;

[d] not leave the State of Gujarat without prior

permission of the Sessions Judge concerned;

[e] mark their presence before the Patdi Police Station

once in a week on Evey Sunday of every English

Calendar Month between 11:00 a.m. and 2:00 p.m.

for six months only;

[f] furnish the present address of residence to the

Investigating Officer and also to the Court at the

time of execution of the bond and shall not change

the residence without prior permission of this Court;

(g) shall not enter into the revenue limits of Taluka:

Patdi till the completion of the trial except for

marking presence at the concerned police station.

35. The Authorities will release the applicants only if he is not

required in connection with any other offence for the time

being. If breach of any of the above conditions is committed,

the Sessions Judge concerned will be free to issue warrant or

take appropriate action in the matter. Bail bond to be executed

before the learned Lower Court having jurisdiction to try the

case. It will be open for the concerned Court to delete, modify

and/or relax any of the above conditions, in accordance with

law.

Rule is made absolute to the aforesaid extent. Direct

service is permitted.

of 23


(J.B.PARDIWALA, J.) Mohandas

of 23

alamkhan umarkhan jatmalek jenjari tal,dashada dist,(r scr.a 5243 2014 j 3)

Documents