IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Criminal Misc. No. M-17764 of 2009 (O/M). Date of Decision : September 03, 2009. Mehar Singh son of Suchet Singh r/o H. No. 233, Prem Nagar, Thekewali Gali, Ward No. 4, Ajnala Road, Amritsar. (Now confined in Central Jail, Amritsar). ...... Petitioners . Versus. The State of Punjab. ..... Respondents. CORAM: HON'BLE MR. JUSTICE AUGUSTINE GEORGE MASIH. Present:- Mr. B.S. Jaswal, Advocate, for the petitioner . Mr. Aman Deep Singh Rai, A.A.G., Punjab, for the respondent-State. AUGUSTINE GEORGE MASIH, J. The present petition has been moved by the petitioner for grant of regular bail on the ground that he is entitled to the benefit of Section 167 (2) Cr.P.C. as the Investigating Agency has failed to present the challan within the stipulated period of 90 days from the date of detention of the petitioner in custody. Briefly the facts of the case are that the petitioner is an accused in F.I.R., which was registered against him on 16.02.2009, at Police Station Sadar, Amritsar. The petitioner had surrendered before the learned Judicial Magistrate on 28.02.2009. On an application moved by him for surrender, the learned Additional Chief Judicial Magistrate, Amritsar, vide its order dated 28.02.2009, took the petitioner in custody uptil 13.03.2009 and the Criminal Misc. No. M-17764 of 2009. Assistant Public Prosecutor for the State was on the same day informed about surrender of the accused, so that the concerned S.H.O. may be intimated so that he may apply for arrest of accused, if required for the purpose of investigation. The petitioner was, on an application moved by S.H.O. Police Station Sadar, Amritsar, sent to police remand for two days on 06.03.2009 and thereafter, the petitioner was again sent to judicial custody on 08.03.2009. Till 31.05.2009, the prosecution failed to file the challan against the petitioner, though, 90 days from the date of his custody had passed. An application for grant of bail under Section 167(2) Cr.P.C. was filed by the petitioner-accused before the learned Additional Chief Judicial Magistrate, Amritsar, but the said application was rejected by the Court, vide order dated 02.06.2009 (Annexure-P-3). The grounds taken for rejection of the application moved by the petitioner under Section 167(2) Cr.P.C. was that the custody of the accused has to be judicial and not police custody. This conclusion was drawn by the learned Additional Chief Judicial Magistrate relying on sub-clause (a) of Section 167 of the Code of Criminal Procedure and held that the custody period of the accused is to be calculated from the date when he was sent to judicial custody i.e. 08.03.2009. The accused surrendered in the Court and the period he remained in jail till the prosecution demanded the police remand of the petitioner, cannot be taken into consideration for calculating the period as mentioned in Section 167 Cr.P.C. The police custody of the accused cannot be termed as judicial custody as the accused had voluntarily come to the Court and the Magistrate can calculate the custody period only after the accused had been arrested in a specific case excluding the period of police -2- Criminal Misc. No. M-17764 of 2009. remand and as by 02.06.2009 the period of 90 days in judicial custody had not expired, thus, the application was premature and dismissed accordingly. This has led to the filing of the present petition before this Court, praying for the benefit of Section 167(2) Cr.P.C. for grant of regular bail. Counsel for the petitioner contends that the petitioner had surrendered before the Court on 28.02.2009 and the period of custody starts from that date onwards. He further contends that 90 days have to be counted from the date the accused was taken in custody and not from the date when the accused was sent to judicial custody after the expiry of police remand. He further contends that the order dated 02.06.2009 (Annexure-P-3), passed by the learned Additional Chief Judicial Magistrate, Amritsar, is contrary to the provisions of Section 167 Cr.P.C. as also the law laid down by Hon'ble the Supreme Court in the case of Uday Mohanlal Acharya Versus State of Maharashtra, 2001 (2) R.C.R. (Criminal) 452 (S.C.) and also the law as laid down by this Court in the case of Balwinder Singh Versus State of Punjab, 2004 (1) R.C.R. (Criminal) 1002 and Ravinder Singh Versus State of Punjab, 2005 (2) R.C.R. (Criminal) 340. He further contends that it has been clearly and specifically held by Hon'ble the Supreme Court as well as this Court that after the accused is taken in custody, the period of 90 days is to be counted from the date of such surrender and if the challan is not presented within the period as stipulated under Section 167 Cr.P.C., the accused gets an indefeasible right to bail and even if the challan is presented after the period prescribed under Section 167 Cr.P.C., the right will not be extinguished. He on this basis contends that the petitioner is entitled to be released on bail. -3- Criminal Misc. No. M-17764 of 2009. On the other hand counsel for the respondent-State has made a valiant efforts to support the order dated 02.06.2009, passed by the learned Additional Chief Judicial Magistrate, Amritsar. However, in the light of law as laid down by Hon'ble the Supreme Court and by this Court, which were referred to by counsel for the petitioner, he has not been able to make any dent in the arguments as raised by counsel for the petitioner. I have heard counsel for the parties and have gone through the records of the case as well as the judgments, which have been referred to at the bar. There is no dispute with regard to the facts as has been enumerated herein above. Section 167 (1) and (2) of the Code of Criminal Procedure reads as follows :- “167.Procedure when investigation cannot be completed in twenty four hours. (1) Whenever any person is arrested and detained in custody and it appears that the investigation cannot be completed within the period of twenty-four hours fixed by section 57, and there are grounds for believing that the accusation or information is well-founded, the officer in charge of the police station or the police officer making the investigation, if he is not below the rank of sub-inspector, shall forthwith transmit to the nearest 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 -4- Criminal Misc. No. M-17764 of 2009. 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 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 ;] (b) no Magistrate shall authorise detention in any custody under this section unless the accused is produced before him; (c) no Magistrate of the second class, not specially empowered in this behalf by the High Court, shall authorise detention in the custody of the police. [Explanation I.-For the avoidance of doubts, it is hereby declared that, notwithstanding the expiry of the period specified in paragraph (a), the accused shall be detained in custody so long as he does not furnish bail.]. [Explanation II.}-If any question arises whether an accused person was produced before the Magistrate as required under paragraph (b), the production of the accused -5- Criminal Misc. No. M-17764 of 2009. person may be proved by his signature on the order authorising detention.] [(2A) Notwithstanding anything contained in sub-section (1) or sub-section (2), the officer in charge of the police station or the police officer making the investigation, if he is not below the rank of a sub-inspector, may, where a Judicial Magistrate is not available, transmit to the nearest Executive Magistrate, on whom the powers of a Judicial Magistrate or Metropolitan Magistrate have been conferred, a copy of the entry in the diary hereinafter prescribed relating to the case, and shall, at the same time, forward the accused to such Executive 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.]” Hon'ble the Supreme Court in the case of Uday Mohanlal Acharya (supra), has held that the accused has indefeasible right to be released on bail under Section 167(2) Cr.P.C. on account of default on the -6- Criminal Misc. No. M-17764 of 2009. part of the Investigating Agency to present the challan within the time stipulated under Section 167 Cr.P.C. Even after the presentation of challan, but beyond the period as prescribed under the statute, the right, which is crystalized in favour of the accused, cannot be defeated. Their Lordships of Hon'ble the Supreme Court on consideration of the provisions of the statute and discussing the same in detail, as also the earlier judgments culled out following conclusions :- “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 in the whole. 2. Under the proviso to aforesaid sub-section (2) of Section 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. 4. When an application for bail is filed by an accused for enforcement of his indefeasible right alleged to have accrued in his favour on account of default on the part of the Investigating Agency in completion of the -7- Criminal Misc. No. M-17764 of 2009. investigation within the specified period, the Magistrate/Court must dispose of it 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 charge-sheet 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 1 and proviso to sub-section (2) of Section 167, the continued custody of the accused even beyond the specified period in paragraph (a) will not be un- authorised, and, therefore, if during that period the investigation is complete and charge-sheet is filed then the so-called 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 (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 sub-section (2) of Section 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 through 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.” -8- Criminal Misc. No. M-17764 of 2009. This Court relying upon the judgment of Hon'ble the Supreme Court in the case of Balwinder Singh (supra), has granted the benefit of Section 167(2) Cr.P.C. to the accused, where the prosecution has filed the challan, but beyond the period as prescribed under the statute and released him on bail. The object of Section 167 Cr.P.C. is that a citizen should not be unnecessarily deprived of his freedom on the ground that he is an accused of an offence. Amendment in the section has been brought with a view to speed up the investigation and prevent unnecessary and prolonged custody during the investigation and for this purpose proviso has been inserted to Section 167 (2) Cr.P.C. Proviso (a) is divided into two parts i.e. in case of offences punishable with death or imprisonment for life or for a term of imprisonment not less than 10 years, the maximum period of custody during investigation was extended to 90 days and in case of other offences, the period of 60 days has been provided. Explanation (1) makes it clear that on the expiration of period of 60 days or 90 days, as the case may be, although, the accused may get an indefeasible right of bail, but that would not be an automatic release of the accused, but would be only on furnishing bail. If, an accused moves an application or shows an intention that he is ready and willing to furnish bail, the Magistrate is not entitled to detain the accused in jail beyond the prescribed period. An order, which is passed under proviso (a) to Section 167 (2) cannot be defeated by filing a charge-sheet after the said order has been passed. Entitlement of a person to be released on bail in view of provisions of Section 167 (2) Cr.P.C. does not depend upon the question whether there is a prima-facie case against the accused and whether the offence is of a serious nature. The Court has only to look into the -9- Criminal Misc. No. M-17764 of 2009. question whether report under Section 173 (2) Cr.P.C. is submitted to the Court within the prescribed period or not. If the report is not submitted within the prescribed period, then the provisions of Section 167 (2) Cr.P.C. come into play and the Court cannot look into the merits of the case for refusing bail to such an accused. Thus, an accused is entitled to the benefit of Section 167 (2) Cr.P.C. as of right, as soon as, it is established that the report under Section 173 (2) Cr.P.C. is not submitted to the Court within the prescribed period. It can, thus, be said that right to be released on bail under Section 167 (2) Cr.P.C. is an independent right and not subject to the conditions of Section 437 (1) and (2) Cr.P.C. The learned Additional Chief Judicial Magistrate, Amritsar, vide order dated 02.06.2009, had read the provisions of Section 167 Cr.P.C. in such a manner so as to try and distinguish the police custody and the judicial custody as being different from the word 'custody' which has been used in Section 167 (2) (a) Cr.P.C. Perusal of Section 167(1) Cr.P.C. leaves no manner of doubt that the word 'custody' as has been used in Section 167 Cr.P.C. includes both arrest and detention because for the purpose of arrest, the movement of the person, so arrested, is restricted and he is in custody for all intents and purposes. Section 167 (2) Cr.P.C. clearly specifies that the Magistrate to whom an accused is forwarded from time to time, may authorise the detention of the accused in custody as the Magistrate thinks fit, but for a term not exceeding 15 days in the whole. Proviso (a) to Section 167 (2) Cr.P.C. clearly specifies that the Magistrate may authorise the detention of the accused person otherwise than in the custody of the police, beyond the period of 15 days, if he is satisfied that the adequate grounds exist for doing so, and thereafter the period for which an accused person can -10- Criminal Misc. No. M-17764 of 2009. be detained in custody without submission of challan as has been stated above. Personal liberty is one of the cherished objects of the Indian Constitution and depriving a person of the same can only be in accordance with law. When the law provides that the Magistrate can authorise the detention of the accused in custody upto a maximum period as stipulated in the proviso to 167 (2), any further detention beyond the period without filing of a challan by the investigating agency would not be in accordance with law and in conformity with the provisions of Code of Criminal Procedure and, thus, violative of Article 21 of the Constitution. The maximum period in the present case within which the challan could be filed by the Investigating Agency would have been 90 days from the date of the accused is either arrested or detained in custody. What has been provided under Section 167 Cr.P.C. is the maximum period for which a person can be kept in custody during investigation without presentation of challan. There is no distinction between the custody being police custody or judicial custody. However, it has been clarified that the maximum period provided for police custody is 15 days as a whole which could be in one go or in parts, but during the period prescribed within which the challan is expected of the prosecution to be filed in the Court. If the custody under the police is to be dealt with separately from that of judicial custody, that would be in violation of the provisions of Section 167 Cr.P.C. Section 167, as a matter of fact, is supplementary to Section 57 Cr.P.C. and in consonance with the principles that an accused is entitled to a demand that justice is not delayed. On surrender by the accused before the Magistrate, he is taken into custody and the period of custody starts therefrom. The Magistrate would have total control over the accused, who is in his custody and would in exercise of its -11- Criminal Misc. No. M-17764 of 2009. powers under Section 167 Cr.P.C., authorise his detention in the custody, whether it is police or judicial. He is under the control of the Court and is physically available and present in Court, so that his custody can be regulated by the Magistrate. The statute does not provide under Section 167 Cr.P.C. separate or additional period terming it to be police custody or judicial custody. What it provides for is that during the period which is specified for detention of the accused in custody, the maximum period for police custody is 15 days, which again is at the discretion of the Magistrate authorising such detention. The word 'total period custody' in proviso (a) to Section 167 (2) Cr.P.C. clearly spells out that in no case the period of detention under Section 167 Cr.P.C. can be beyond the period prescribed, which would obviously be inclusive of the custody of the police. However, on presentation of the challan, if the same is produced within the time specified, provisions under Section 309 Cr.P.C. would regulate the detention of the accused. In the case of Ravinder Singh (supra), where the facts were similar as in the present case, this Court in para-5 of the judgment held as follows :- “5. It is not in dispute that the offence is triable by the Court of Magistrate. Besides, the petitioner surrendered before the Magistrate and was taken into custody of the Magistrate on 09.08.2004 and the challan was filed on 08.11.2004 after a period of ninety days having been expired on 07.11.2004. The fact that he was taken in police remand on 11.08.2004 is inconsequential as it is the Magistrate who could control his custody and regulate the same in accordance with the provisions of Section 167 (2) Cr.P.C. A person is said to be taken in the custody of the Magistrate when he is under the -12- Criminal Misc. No. M-17764 of 2009. control of the Court when he has offered himself to the Court's jurisdiction and submitted to its order by physical presence. A person who is in the physical hold of the Magistrate and who has the authority to issue remand is in its custody. The challan having been presented after expiry of ninety days, the indefeasible right of the accused to get bail would not be extinguished in view of the aforesaid dictum of the Hon'ble Supreme Court and this Court.” In the light of the above, the order dated 02.06.2009 (Annexure- P-3), passed by the learned Additional Chief Judicial Magistrate, Amritsar, cannot be sustained and the interpretation, which has been given by the Court below, is totally erroneous. The accused, who surrenders before the Magistrate and who is taken into custody, is under the control of the Court. He surrenders to the jurisdiction of the Court and is in the physical hold of the Magistrate, who has the authority to issue remand and is, thus, in its custody. In the present case, it is not in dispute that the petitioner surrendered before the learned Additional Chief Judicial Magistrate, Amritsar, on 28.02.2009, and on that very day when the Court took the accused into custody, intimated the Assistant Public Prosecutor for the State about surrender of the accused. The prosecution sought the police remand which was granted, vide order dated 06.03.2009 for two days and thereafter on 08.03.2009, the accused was sent to judicial custody by the Court. Till 31.05.2009, the prosecution failed to file the challan against the petitioner i.e.