IN THE HIGH COURT OF JUDICATURE AT BILASPUR CHHATTISGARH f-Lj .Cr.yl, p. No. / of2006 ^S!a» Applicants jri ja^J 1>A-" l.Sunil Singh @ Raju S/o Shreeniwas Singh Aged about 26 years, Caste-Rajput, R/o Village-'Badkagaon,T'hana-Chalgali, Teh.- Wadrafnagar, Distt. Sarguj'a (C.G.) 'f.l. .^ G. ^G ^° '^ Q^^^ w^'^ |t? 2. Kuldeep YAdaw S/o Roopdev Yadaw Aged about 25 years, R/'o Vill. Chalgali Thana-Chalgali, Teh.- Wadrafnagar, Distt. Sarguja (C.G.) 3. DhsEsai S/o Gendaram Aged about 30 years, R/o Vill.Bartikala T'hana-Chalgali, Teh.- Wadrafnagar, Distt. Sarguja (C.G.) ,\S9- G VERSUS Respondent : State of Chhattisgarh , Through- Station .House Officer P.S.-Bhatgaon, Distt. Sarguja ($^G.) APPLICATION U/S 48J2 OF THE CODE OF CRIMINAL. PROCEDURE 1973. HI6H COURT OF CHHATTIS6ARH ATBILASPUR Cr. -Apgeet-No. y-L/&oofc ^" Sunil Singhand two others Vs. State of Chhattisgarh Post for Order: 03 .10.2006 Sd-/ sosaheb 1 Judge ^ ^ ^. <"'?^' :;';3r HI6H COURT OF fcHHATTESSARH AT BILASPUR Criminal Misc.Petition No. 71/2006 Sefore: Hon'bie Shri Dilip Raosaheb Deshmukh. J. ••»', Sunil Singh and two others. ys. o'i. ,:it ' State of Chhattisgarh ^ Present: Ms. Sharmila Singhai, Counsel for the cpplicants. Shri fi.K.Beriwal, tSy. Advocate ©eneralfor the Stute. OR &ER ff>tssssd on ihis 3"4 day of Oc.fcAeC . 2006) l^ ' ' \J ' Being aggrieved by the order dated 12.07.2006 passed by Shri V. B. Singh, leamed 1 Additional Sessions Judge, Surajpur in Criminal Revision No. 156/2006 affirming the order dated 30.06.2006 piissed by the Additional Chief Judicial Magistrate, Surajpur in Criminat Case No. 405/2006whereby the application under Section 167 (2) Cr.P.C. filed by the applicants on 29.06.2006 was dismissed, •Hie opplicants herein have fited this petition under Section 482 Cr.P.C. 2. Undisputed focts are that the applicants were arrested on 31.03.2006 in crime No.08/2006 by Police Outpost Bhotgaon, Pollce Station Pratoppur for an offence under' Section 395 I.P.C. The appticants were produced before the >Additional Chief Judicial Magistrate, Surajpur on the same day who authorized their detention in judicial custody from time to time. On 29.06.2006 before the filing of chollon, cn applicort-ion was moved at 11.00 A.M. on behalf of the applicants under Section 167 (2) of the Cr.P.C. Arguments were 'neard on thesaid appticaition. At about 4.00 P.M. chatlan was filed by Police Outpost Bhatgaon, P.S. PAttappur against the appliconts in the aforesaid crime No.08/2006 under Section 3951.P.C. On 30.06.2006 the learned Additional Chief Jlidicial Magistrate, Surajpur dismissed the opplication on the sole ground that the date of arrest of the applicants was to be excluded white computing •the period of authorization for detention in judicial custody ond for deciding <? whether the challom was filed withih. the said period or not. Computing in this nnanner, the ledmed Addl.'Chief Judicial Magistrate excluded the date of arrest i.e. 31.03.2006 and held that the challcin hwing been filed on the 90 day 1+ie right to be released under Section 167(2) Cr.P.C. did not accrue to the applicouits. It is also not disputed that in an offence under Section 395 I.P.C., the period for which the Magistrate may authorize detention of the accused-person is 90 days. 3. Ms. Sharmila Sin9hai, leamed counsel for the appliconts argued that the challan wos filed on the 91 day at 4.00 P.AA. The applicants hwing exercised their- right under the proviso to Section 167 (2) Cr.P.C. prior to filing of challan, on indefeasible right had accrued in favour of the applicimts for being released on bail. Reliance was placed on Chaaanti 5atycinarayana and oihers v. 5'tate of Andhrw Prade^. Uday Mohtmlal Acharva v. State of Mc/iavshtreF and State of Mahaivshtra v. Mrs. Bharati Chemdma! Varma^ilias Ayesha Khcv?. It was also contended that exclusion of the day of arrest in computing the period of detention as envisaged under the proviso to Section 167 (2) Cr.P.C. by both the cour;ts below was wholly iile9al since the period of detention is to be'coinpleted from the day of gnant of remand. On the other hand, Shri 6.K. Beriwat, leorned Dy. Adwcate Seneral argued in support of the impugned order. 1. WOt 1986 SC 2130 2. (2001) 5 SCC 453 3. ASR 2002 SC 285 4. Having considered the rival submissions, I haye perused the documents annexed to the petition. Ssction 167 of the Cr.P.C. lays down the procedure when- investigation connot be completed in 24 hours. A duty is cast upon the Police Officer to produce ony person arrested ond detained in custo^y to be produced before the nearest Magistrate if investigation cannt)t be completed within a period of 24 hours fixed by Section 57 of the Code of Criminal Procedure. Under sub-section (2) of Section 167, the Ma9istrate to whom an accused person is forwarded mny, whether he has or has no jurisdiction to try the case, from time to time authorize the detention of accused in such custody as such Magistrate thinks fit for a term not exceeding fifteen dcys in the whole; and if he has no jurisdiction to try the case or commit it for triat, and considers further detention unnecessary, he may order the accused to be forwarded to a Atagistrate hming such jurisdiction. Here a reference to proviso to sub-section (2) becomes necessary whidi is reproduced as under: "Provided that— [(a) the Magistrate mcy authorize the detention of the accused person, o-therwise thim in •the custody of the police, beyond the period of fifteen days, if he is satisfied that adequcrte grounds exist for doing so, but no Magistrate shall au-thorize the detention of the accused person in custody under this paragraph for a total period exceeding,—,- f (i) ninety days, where the investigation rela-tes to an offence punishable with death, imprisonment for life or imprisonment for a term of not less than ten years: (ii) sixty doys, where the investigation relates to ony other offence, and, on -the expiry of -the ^^1, .i^ said period of ninety days, or sixty days, as the case may be, •the accused person riiall be released on bdl if he is prepared to and does furnish bail, ond every person released on bail under this sub-section shall be deemed to be so released under the provisions of Chapter XXXTEI for the purposes of that Chapter];" 5. In Uday ttohanlal Ach<?jrya vs. State of Maharashtra (supra), .'•I I. it was observed by the Apex Court as under; "Section 167 is in fact supptementary to Section 57, in conspnance with the principle that the aceused is entitled to demand that Justice is not detayed. The object of requiring -the accused to be produced before a Magistrate is to enabte the Magistrate to see that remand is necessary and also to enable the accused to make a representation which he may wish to maks. The power under Section 167 is given to detain a person in custody while the police goes on with the investigation ond before the Magistrate starts the enquiry. Section 167, therefore, outhorizes -rfie Magistrate to permit detention of an accused in custody and prescr-ibes -the mcD<imum period for which such detention could be ordered. Under sub-section (2) of Section 167, a Magistrate before whom an accused is produced while the police is investigating into the offence, can autiiorize' detention of the accused in aich custody as the AAagistrate thinks fit for a term not exceeding 15 days on tiie whole. Having prescribed the maximum period whot would be the consequences thereafter has been indicated in the proviso to sub-section (2) of Section 167. On the expiry of the said period of 90 days or 60 days, as the case mcty be, an irtdefeasible right accrues in favour of the acaised for being released on bail on account of default by the inyestigating agency in the comptetion of the investigort'ion within the period prescribed dnd the accused is entitled to be released on bail, if he is prepcred to and does furnish the bail as directed by the Magistrate. The proviso is unambiguous ond clear and stipulates Ihat the acwsed shall be released on bail ifhe is prepwed to and does fumi^) ihe Aa// which has been termed by judiciai_ pronouncement to be "compulsive bail" andsuch bail would be deemed to be a bail under Chopter 33. The proviso to sub-section (2) of Section 167 is a beneficial provision for curing' the mischief of indefinitely protonging the investigation and thereby affecting Ihe libsrty of a citizen." The words "if he is prepwed to and does furnish bait" have a\w 'ti. been interpreted by the ApeX'iCourt in Uduy Mohnnlal Acharya (supra) as under: "If, however, the accused is unabte to furnish the bail as directed by the Mcgistrate, 1hen on a conjoint reading of Explonation I and the proviso to sub-section (2) of Section 167, the continued custody of the accused even beyond the specified period in para (ff) will not be uniauthorized, and Iherefore, if during that period the investjgoction is complete ond the charge-sheet is filed tiien the so-cailed indefeasible right of the accused would stand extingui^ied. The indefeasible right of the accu^d does not airvive or remain enforceable on the chatfan being filed, if already not avaited of, as has been he!d by the Constitution Bench of the Supreme Court in Scanjay S>utt cas^. The e?<pression "if not already avaited of" used in Sanjey Dutt case must be understood to mean when the accused files on application ond is prepared to offer bail on being directed. In o-ther words, on expiry of tiie period specified in para (ff) of the proviso to sub-section (2) of Section 167 if the accused files an cpplication for bail, alleging that no challan has been fited ond he is prepared to offer the bail that is ordered, and it is found <xs a fnct that no challan has been fiied within the period prescribed from the date of 1+ie arrest of the accused, Ih^n it has to be held that the accused has availed of.-.his indefeasible right even though the court- has not cSnsidered the said opplication ond hos not indicated •the terms cnd conditions of bail <xnd the accused has not furnished 4.1994 SCC (Cri) 1433 (Semjay Outt v. State^ f .."• the same. With' the aforesaid interpretation of the expression "availed of", if the charge-sheet is filed subsequent to the availing of •rtie indefeosible right by •the accused -then that right would not stand frustrated or extin9uished. Necessou-ily therefore, if on accused entitled to be refeased on bait by opplication of the proviso to sub-section (2) of Section 167, makes the application before the Magistrate, but the Magistrate erroneously refuses ^fthe same and rejects the application and then -'ttie accused moves the higher forum and while the matt'er remains pending before the higher forum for consideration, a charge-sheet is filed, the so-called indefeasible right of the accused woutd not stcmd extin9uished thereby and on the other hand, the accused has to be releosed on bail." 6. In view of the law laid down by the Apex Court, the only point thot arises for consideration is whether for considering if an indefeasible right accrues in fwour of the accused for being released on bail under the proviso (o) (ii) to aib-section (2) of Section 167 Cr.P.C. the date of orrest should be excluded in computntion of the period for which the Magistrate mcy authorize detention of the accused-person even where the accused is produced on the same day before the AAagistrate and remonded to Judicial custody. Under Section 167(2) of Cr.P.C., detention can be authorized by the AAagistrate only from the time the order of remand is passed. The earlier period during which the aceused is in custody of a Police Officer in exercise of powers under Section 57 of the Cocte of Criminat Procedure cannot constiluite detention pursuant to outhorization issued by the Magistrate. It is thus clear that the period during which the Magistrate -'my authorize the detention of the accused in judicial custody is to be computed from the date of judicial renrond granted by the Magistrate. It is only when the accused after being arrested is produced on -the next day before the Ma9istrate that exclusion of the day of arrest while computingthe, 7 period of detention in jitdicial custody would be justified. I om fortified in my view by the decision of the Supreme Court in Chaganti Satyanarayana and others (supra) wherein it was held as under:- The words used in proviso (a) to S. 167(2) are "no Magistrate shai! authorize the detention of the accused person in custody", "unjifer this paragroph", "for a tota! period exceeding i.e. 90 tfays/60 days". betention can be authorized by the Magistrate only from the time the order of remoaid is passed. The eartier period when the accused is in the custody of a public officer in exercise of his powers under S. 57 cannot constitute detention pursuont cn authorization issued by the Magistrate. It, therefore, stcmds to reason that the total period of 90 days or 60days Con begin to run only from the date of order of remand." 7. It is thus clear that the date of grant of judicial remand being 31.3.2006 it must be inctuded while computing the period during which the Magistrate may authorize detention before filin9 of Ihe charge sheset by the Police. Computing in this manner, it is crystal cleor that on 29.06.2006 when the applicants moved on application at 11.00 A.M. for release on bail, a period of 90 days had already e?<pired. 29.06.2006 was the 91 day on which the appliconts exercised their right under Section 167 (2) Cr.P.C. before filin9 of charge dieet. On 29.06.2006 since arguments on the said opplication were also heard by the Additiona! Chief Judicial Magistrate, he ought to hwe disposed of the said application forthwith instead of keeping it pending titt chaltan was filed. The challcn was filed at 4.00 R.M. on 29.06.2006. 8. In Uday Mohanlal Acharya (supro), it was held by tiie Apex Court that on the expiry of said period of 90 days, an indefeasible right accrues in fayour of the oppliconts for being released on bail on gl account of default byvthe Investi90ting Agency in the completion of investigation within the prescribed period, if the accused is prepared and does fumish the bail, as directed by the Magistrate. The proviso is unambiguous omd clear and stipulates that the accused Aall be released on bait. The indefeasible right of •the accused does not survive if the accused does not exercise such right before the filing of challan even though the cllallon may be filed after the prescribed period of 90 days or the 60 days, os the case moy be. 9. In th®above mentioned ciraimstances, an indefeasible right had accrued in favour of the appticonts for being releosed on bail under the proviso (a) of sub-section (2) of Section 167 of CrP.C. The applicants/accused-persons did exercise their right by moving an application under the proviso (a) to sub-section (2) of 167 Cr.P.C. In this manner, the mere filing of challan subsequently on the same day at 4.00 P.M. could not in any manner frustrate the indefeasible right of being reieased on bail that had accrued in favour of the applicants. Negation of that right under the orders passed by both the Courts below is thus perverse occasionin9 failure of justice. 10. In the result, the petition under Section 482 Cr.P.C. aicceeds. The impugned order dated 12.07.2006 passed by the 1 Additional Sessions Judge, Surajpur as o.lso the order passed by the Addl. Chief Judicici Ma9istrate, Surajpur on 30.06.2006 ar-e set oside. The application under the proviso to subrsection (2) of Section 167 Cr.P.C. filed by the (^plicants on 29.06.2006 is allowed. It is ordered that the appliccBnts diall be released on bail on their furnishing a personat bond of fts.50,000/- each along with a locol sotvent surety in the iike sum to the satisfaction of learned trial Judge for their_regulat' ^.::'^g^ 5 appedronce during trial o&.and when directed. It is directed that the Magistrate shatl verify the surety bond ond personal bond before acceptance and shall ensure'that photograph of the suret/ is affixed on the suret/ bond. Certified copy as per rules. | •'. Sd-/ DUip Raosaheb Deshmukh Judae