Orissa High Court
Ada Alias Adeita Behera vs State on 26 April, 1996
Equivalent citations: 1996CRILJ3130, 1996(I)OLR589
Author: P.K. Misra
Bench: P.K. Misra
JUDGMENT P.K. Misra, J.
1. An allegedly libertine person is claiming liberty on the ground of alleged violation of provisions of Section 167(2), Proviso, of the Code of Criminal Procedure, 1973 (hereinafter referred to as the "Code"). The petitioner has been arrayed as one of the accused persons in G. R. Case No. 507 of 1995 in the file of the Sub-Divisional Judicial Magistrate, Dhenkanal, on the allegation that he alongwith two others forcibly violated a helpless and insane lady. The petitioner surrendered before the Sub-Divisional Judicial Magistrate on 11-12-1995 who passed orders of remand from time to time pending submission of charge-sheet. On 27-2-1996, the Sub-Divisional Judicial Magistrate directed remand of the petitioner till 11-3-1996. On 10-3-1996, the petitioner filed an application before the Sub-Divisional Judicial Magistrate for grant of bail on the ground that charge-sheet having not been filed within ninety days, he is entitled to be released on bail, as envisaged under Section 167(2), Proviso, of the Code. It was contended that maximum period of remand of ninety days was completed on 9-3-1996 and as such bail should be granted as charge-sheet had not been filed. The Sub-Divisional Judicial Magistrate repelled this contention in the following words :
"...The remand of 90 days is over as a matter of fact on 9-3-96. Today is the 91 days. According to the section of 167, Cr PC the accused can be remanded in total for a period of 90 days and if the C. S. is not filed he accrues a right for bail. But in the instant case the C.S. is submitted and I find accused has no right to exercise for such privilege and 167 ceases to operate. ..."
The Sub-Divisional Judicial Magistrate also refused to enlarge the petitioner on bail on merit.
2. The petitioner filed Criminal Misc. Case No. 82 of 1996 before, the Sessions Judge, Dhenkanal-Angul. The Sessions Judge rejected the contention regarding applicability of Section 167(2), Proviso, in the following words :
" The petitioner in this case surrendered before the learned SDJM, Dhenkanal on 11-12-1995 and he was remanded to custody. Ninety days from that date expired on 10.3.1996. But it appears from the final form submitted by the I.O., that the investigation of the case was complete before 8-3-1966 and the I.O. signed in the F.F. on that date. But it was received by the concerned Magistrate on 11-3-1996. So it cannot be said that the investigation of this case was not complete within the statutory period of 90 days as required under Section 167, Cr PC ........."
Needless to say that the prayer for bail on merit of the case was rejected on the ground that similar petitions for bail had been rejected on earlier occasions.
3. In this application for bail, the learned counsel appearing for the petitioner has contended that the petitioner is entitled to be released on bail under Section 167(2), Proviso, of the Code. Alternatively, it is submitted that since investigation is complete and charge-sheet has been submitted, the petitioner may be released on bail.
The learned Standing Counsel appearing on behalf of the prosecution has opposed the bail application.
4. I have heard the counsels appearing for the parties and perused the lower Court records which had been called for. There is some controversy at the Bar as to when ninety days expired. Even there is some confusion in that regard in the orders of the Sub-Divisional Judicial Magistrate and the Sessions Judge. The Sub-Divisional Judicial Magistrate was of the view, as revealed from his order dated 10-3-1996 that ninety days' period was over on 9-3-1996 and 10-3-1996, when bail was moved, was the 91st day. On the other hand, the Sessions Judge in his order has observed that ninety days expired on 10-3-1996. Ft is not known as to how the Sessions Judge came to such conclusion. It may be that the Sessions Judge excluded 11-12-1995, the date of surrender before the Magistrate, when order of remand was passed by the Magistrate, or it may be that the Sessions Judge inadvertently counted the month of February, 1996, to be 28 days and not 29 days. In course of argument, the learned Standing Counsel has faintly suggested that applying the principle contained in Section 9 of the General Clauses Act and in Section 12 of the Limitation Act, the date of remand is to be excluded. If the period of ninety days is to be computed excluding the date of remand, i. e. 11-12-1995, then 10-3-1996 should be the ninetieth day as observed by the Sessions Judge. If computation of 90 days will begin from the date of remand itself, the 90th day would have expired on 9-3-1990, as calculated by the Sub-Divisional Judicial Magistrate.
5. My attention was drawn to the decision of the Supreme Court reported in AIR 1986 SC 2130 : Chaganti Satyanarayana and Ors. v. State of Andhra Pradesh) where it was held that the total period of ninety days or sixty days, as the case may be, has to be calculated only from the date of remand and not from the date of arrest. The question as to whether the date of remand itself has to be excluded was not pointedly raised before the Supreme Court, as the Supreme Court was concerned as to whether a period of ninety days or sixty days should be calculated from the date of arrest itself, in paragraph-23 of the said decision, it was observed :
" Thus in any view of the matter i. e. construing proviso (a) either in conjunction with Sub-section (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."
However, in paragraph-30 of the decision, it was observed :
" 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."
From the aforesaid observations of the Supreme Court, it can be justifiably concluded that the period of ninety days or sixty days, as the case may be, has to be computed from the date of remand itself without excluding such day. My aforesaid conclusion is further bolstered by the following observations of the Supreme Court in the case of Central Bureau of Investigation, Special investigation Cell-I, New Delhi v. Anupam J. Kulkarni : AIR 1992 SC 1763 (at p. 1773) :
"......It is also well-settled now that the period of fifteen days starts running as soon as the accused is produced before the Magistrate."
Though the Supreme Court in the aforesaid case was mainly concerned with the question of interpretation of the expression for a term not exceeding fifteen days in whole the ratio of the said decision can be pressed into service. Though there are some decisions of some High Courts indicating that the date of remand should be excluded, in view of the aforesaid two decisions of the Supreme Court, I am inclined to take a different view and hold that the period of ninety days or sixty days, as the case may be, is to be calculated from and including the date of first remand by the Magistrate under Section 167. In aforesaid view of the matter, in this particular case the ninetieth day for filing the charge-sheet expired on 9-3-1996 and the petitioner had a right to avail of statutory bail envisaged under Section 167, if, in fact, it is held that the charge-sheet had not been filed on or before the completion of the ninetieth day.
6. The learned Standing Counsel then contended that since 9-3-1696 and 10-3-1996 being second Saturday and Sunday respectively were holidays and the ninetieth day expired during a holiday, the charge-sheet could have been filed on the next working day i.e. 11-3-1996. For the aforesaid submission, obviously he has drawn inspiration from the Division Bench decision of this Court reported in 1985 (I) OLR 105 (N. Sureya Reddy and Anr. v. State of Orissa). in the said case, charge-sheet was submitted on 6-8-1984, i. e. on the 91st day of arrest (at that time the decision reported in AIR 1986 SC 2130 had not been rendered and as such, the period of ninety days was being calculated from the date of arrest following the Division Bench decision of the Orissa High Court in 1983 Crl LJ 1336 (Fakira Naik v. State of Orissa) which was subsequently expressly overruled in AIR 1986 SC 2130), the ninetieth day as per the said calculation fell on 5-8-1984 which, was a Sunday. Referring to the decision of the Supreme Court reported in AIR 1957 SC 271(error) (Harinder v. KarnaiI Singh and Ors.)and relying upon Section 10 of the General Clauses Act, it was held that if the last day for filing charge-sheet fell on a holiday, the charge-sheet could be filed on the next working day disentitling the accused to avail of the statutory bail mandated by Section 167(2), Proviso. The view expressed in the aforesaid decision clearly support the contention raised by the learned Standing Counsel. However, it appears that the underlying logic of the aforesaid decision was not accepted in the decision reported in AIR 1986 SC 2130. After referring to several decisions in paragraph-27 of the Judgment including the decision in 1985 Cri LJ 939 (which corresponds to 1985(I) OLR 105), it was observed in paragraph-28 as follows :
"In these decisions even though a contrary view has been taken we find the conclusions are not based on the reasoning taken by us....... In Jagdish's case (Jagdish v. State of Madhya Pradesh, 1984 Cri. LJ 79 (MP) it has been held that the date of arrest is to be excluded in computing the total period of detention by application of Section 9 of the General Clauses Act and by bearing in mind Section 12 of the Limitation Act. In Sureya Reddy's case (1985 Cri LJ 939 (Orissa), the view taken is that Section 10 Of the General Clauses Act would be attracted for interpreting the proviso if the last day happens to be a Sunday or holiday and even otherwise the principle enunciated therein should be invoked on considerations of justice and expediency. In that case the 90th day from the date of arrest happened to be a Sunday and hence the Court was of the view that Section 10 of the General Clauses Act would be attracted."
In paragraph-30 of the decision, the Supreme Court did not approve of the underlying logic of the decisions discussed in paragraphs 27 and 28 and observed that the terms of Proviso (a) with reference to the total periods of detention can be interpreted on the plain language of the proviso itself and it is not necessary to invoke the provisions of the General Clauses Act or seek guidance from the Limitation Act to construe the terms of the proviso.
In fact, if the logic of the decision reported in 1985 (I) OLR 105, is extended, the same should also apply to production of the arrested accused person in accordance with Section 57 of the Code which envisages that an accused should be produced before the nearest Magistrate within twenty-four hours excluding the time of journey. If provisions of Section 10 of the General Clauses Act were to apply, it can be argued that if the outer limit for production of an arrested accused person falls on a holiday including Sunday, he can be produced on the next day In fact, it has never been even remotely suggested in any reported decision that an accused in custody need not be produced within twenty-four hours in accordance with Section 57, if such outer limit falls on a holiday or Sunday. Similarly, the period of remand of 15 days on the whole cannot be extented if the 15th day falls on a holiday or Sunday. Any other interpretation is likely to defeat the very purpose underlying the provisions contained in Sees. 57 and 167 of the Code. Moreover, if provisions of Section 10 of the General Clauses Act would be applicable to such cases, there is no reason as to why Section 9 of the Genera! Clauses Act and Section 12 of the Limitation Act should not apply. In other words, applying the provisions of Section 9 of the General Clauses Act or Section 12 of the Limitation Act, the period of ninety days should be calculated excluding the date of remand. As already indicated, such a course had not been approved of in the decisions in AIR 1986 SC 2130 and AIR 1992 SC 1768. In view of the underlying ratio of the aforesaid two decisions of the Supreme Court, the ratio of the decision reported in 1985 (I) OLR 105 can be said to have been impliedly overruled.
7. It was next contended by the learned Standing Counsel relying upon a very recent decision of the Supreme Court reported in 1996 (1) SCALE 123 (Mohamed Iqbal Madar Sheikh and Ors. v. The State of Maharashtra) that since the charge sheet has been filed before the statutory right under Section 167 could be availed of, the petition for bail has been rightly rejected by the Sub-Divisional Judicial Magistrate as well as the Sessions Judge. The said decision of the Supreme Court does not lay down the law in such wide terms as contended by the learned Standing Counsel. in the said case arising under the Terrorist and Disruptive Activities (Prevention) Act. 1987, charge-sheet though not filed within the stipulated period was filed subsequently. The accused filed bail application after filing of the charge sheet and contended that an indefeasible right to be released on bail had accrued in his favour and the said right could not be defeated by subsequent filing of charge-sheet. Repelling the aforesaid contention, the Supreme Court observed that at a time when charge sheet had not been filed within the stipulated period, the accused could have availed of his right of being enlarged on bail, but as the accused had not, in fact, availed of the said right, and had not prayed for bail before filing of charge sheet, he should not be enlarged on the basis of his subsequent bail application filed after the filing of the charge sheet as he had forfeited his right. The ratio of the aforesaid decision may not apply to this case if it is ultimately held that in fact, the charge sheet had not been filed within the stipulated period i. e. on or before 9-3-1996, as as the petitioner had, in fact, moved for bail pointing about his entitlement in his petition dated 10-3-1996 In other words, if it is held that the charge sheet had not been filed by the time the bail application was filed, the petitioner is entitled to be released on bail notwithstanding the fact that by the time the bail petition was being considered charge sheet had been filed. On the other hand, if it is held that the charge sheet was, in fact, filed within the stipulated period or before the bail application was, in fact, filed, the petitioner would not be entitled to bail.
8. In view of the aforesaid, though it seems that the petitioner has won the "legal battle", the actual war is not over or rather the "factual war" begins now. The core question now boils down to one of fact, namely whether the charge sheet had been filed within the stipulated period, or, at any rate, before the bail application was actually filed by the petitioner.
The Magistrate in his order dated 10-3-1996 has observed :
"...But in the instant case the C.S. is submitted and I find accused has no right to exercise for such privilege and 167 ceases to operate...."
The Sessions Judge has observed :
"...But it appears from the final form submitted by the I. O. that the investigation of the case was complete before 8-3-1996 and the I. O. signed in the F. F. on that date. But it was received by the concerned Magistrate on 11-3-1996. So it cannot be said that the investigation of this case was not complete within the statutory period of 90 days as required under Section 167, Cr PC..."
The view of the Sessions Judge is to the affect that since investigation was complete before 8-3-19 6, and the Final Form had been signed on that day, there was compliance with Section 167(2), Proviso. Strictly speaking the aforesaid view may not be correct. If, in fact, the I. O. completes the investigation and signs the Final Form before the stipulated date, but does not submit the charge sheet within the stipulated period, it cannot be said that there is sufficient compliance with the provisions of Section 167(2), Proviso of the Code, In the present case, on a perusal of the records of the Magistrate and from the endorsement on the left side top portion of the Final Form, it is apparent that in fact, the Final Form was submitted on 8-3-1996 as evident from the endorsement ' R" with date "8-3-1996" thereunder. Though the formal order signed by the Sub-Divisional Judicial Magistrate in the order-sheet indicating about receipt of the charge sheet is dated 11-3-1996, from the order dated 10-3-1996 passed by the Sub-Divisional Judicial Magistrate, it is clear that by the time the bail petition was filed, charge sheet was already filed. Thus from the intrinsic materials appearing from the record, it is apparent that charge sheet was filed within the stipulated period, or, at any rate, before the bail application was filed. In such view of the matter, the contention of the learned counsel for the petitioner that the accused is entitled to be released on bail under Section 167(2); Proviso, of the Cods is not acceptable.
I understand from the Bar that as a matter of routine, charge-sheets are received in the office of the C. S. I. even during holidays. It is quite well-known that accused persons are very often produced before the Magistrate even on holidays. In order to obviate such avoidable controversies regarding date of filing of charge sheet, it would be better if the concerned Court Sub-Inspector obtains an endorsement from the Magistrate regarding submission of charge-sheet and if for some reason it is not possible to place the record before the Magistrate, soon after the receipt of charge-sheet, the C. S. I. should note down in unmistakable terms the date and time of receipt of such charge sheet.
9. The learned counsel for the petitioner had also submitted that on merit, the petitioner's case for bail should be allowed as investigation has been completed and charge-sheet has been submitted. It is further contended that in the absence of any clinching medical evidence and other materials on record, the petitioner should be released on bail. Having regard to the nature of the allegations and the manner in which the alleged offence had taken place, I do not consider it a fit case to enlarge the petitioner on bail. The Criminal Misc. Case is accordingly dismissed.
10. Any observations made in this order regarding factual merit of the case should not embarrass the committal Court or the trial Court, as the ease may be, and the matter should be disposed of in accordance with law without being influenced in any manner by any of the observations made in this order.