Rajasthan High Court - Jaipur
Jawahar Singh vs State Of Rajasthan on 21 December, 1989
Equivalent citations: 1989WLN(UC)396
JUDGMENT V.S. Dave, J.
1. This reference has been placed before us to answer the question "whether the date of identification parade can be taken as a date of arrest of the accused in a case even if the accused is under arrest in some other case and has been sent to judicial custody in that case?" The question arose before Mahendra Bhushan, J. who was hearing SB Criminal Bail Application No 3206/89 Jawahar Singh v. State of Rajasthan. The facts giving rise to the present controversy are as under:
2. A dacoity was committed with the jurisdiction of Police Station Todabhim on 20th February, 1988 and case FIR No. 33/88 was registered in the said Police Station on that date under Sections 395/397 IPC (the present case). Since the Police could not trace the accused persons of the present case the investigation was closed. Subsequently Jawahar Singh (petitioner) and some other persons were arrested by the Police of Police Station Mahuwa in case-FIR Mo. 178/88 under Sections 399 & 408 IPC(here in after to be referred the Mahuwa case). During the investigation of the Mahuwa case some case some case property was recovered by the Mahuwa Police and an information was received by Police Station Todabhim about the arrest of the applicant and his co-accused persons and about the recovery of some stolen property from them. On receipt of this information the Police of Police Station Todabhim reopened the investigation of this case and the IO went to Police Station Mahuwa and interrogated the petitioner on 8-12 1988 while he was in Police custody at that Police Station. During interrogation the petitioner is said to have confessed his involvement in the present case. After the petitioner was sent to judicial custody an Identification Parade was arranged in the jail at the instance of the IO. of the present case and during those proceedings the petitioner has been identified by the witnesses. The I.O. continued with the investigation of the case and filed the challan in the Court of the learned Magistrate on 19th August, 1989. Along with the challan papers the memo of arrest dated 9th June, 1989 was also.
3. The petitioner moved the learned Magistrate for grant of bail on the ground that he should be deemed to have been arrested in this case on 16th December, 1988 when the Identification Parade was arranged in jail and that the challan having been filed after more than 90 days of that date, he was entitled to be released on bail in view of Sub-section (2) of Section 161 of the Code of Criminal Procedure (here in after to be referred 'the Cod'). His application was rejected by the learned Magistrate on the ground that the was arrested on 9th June, 1989 as shown in the arrest memo and could not be taken to have been arrested on 16-12-88 when the Identification Parade was held at the instance of the I.O. of the present case. He moved the Sessions Court but the learned Additional Sessions Judge Karauli Camp Hindon also took a similar view and dismissed his bail application. The petitioner thereafter moved this Court Under Section 439 Cr.P.C.. The bail application came up before M.B. Sharma, J. During the course of arguments it was contended that the date of arrest has to be the date of Identification Parade and not the date when formal arrest memo is prepared. The reliance was placed on behalf of the petitioner on the decision of G.K. Sharma, J. in S.B. bail application No. 1855/84 (wrongly noted as bail application No 876/80 which in fact relates to an application Under Section 438 of the Code) and decision of Mrs. Mohini Kapur, J. in S. B Bail Application No. 853, 864 and 865 of 1989 M.B. Sharma J. how ever did not agree with the uied expressed in the above said single Bench decision by the two learned Judges and as such referred the matter to Hon'ble the Chief Justice to constitute a Larger Bench to decide the dispute once for all. This is bow this reference has been placed before us under the Orders of Hon'ble the Chief Justice.
4. We have heard the Shri N.A. Naqvi Advocate for the petitioner, Shri G.C. Chatterjee for the State and have also perused the case diary produced before us through S.I. Girraj Prasad of Police Station Todabhim who is investigating the present case.
5. Section 167 of the Code on which reliance has been placed at the time of arguments reads as under:
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 be is not below the rank of sub-inspector, shall forth with transmit to the nearest Judicial Magistrate a copy of the entries in the diary here in after prescribed relating to the case, and shall at the same time forward the accused to such Magistrate.
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 be has no jurisdiction to try the case or commit it for trial, and considers further detention unnecessary, be 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 be 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 lie 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 the 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.
6. Shri G.C. Chatterjee, the learned P.P., has contended that the petitioner was not arrested by the Police in the present case prior to 9th June, 1989 when the arrest memo was prepared by the IO. He has contended that the IO is required to arrest the accused person according to the provisions of Section 46 of the Code.
7. It is not disputed that the arrest of accused person has to be made in accordance with Section 46 of the Code if such person is a free man. The policy behind Section 46 of the Code is to inform the person-concerned that he is no more a free person but under custody. If, how ever, a person is already in custody and is not a free man no formal arrest in accordance with Section 46 of the Code is required to be made and the mere fact that he is joined in the investigation of another case, shows that he is under arrest in the subsequent case as well. Bare reading of Section 107, quoted above, shows that the legislature intended that the investigation of the case should be completed as early as possible and the Police can detain a person for a period of not more than 24 hours without the authority of the Magistrate and if the investigation cannot be completed within that period an accused person has to be forwarded to the Magistrate, who may authorise the detention of the accused in custody. In such a situation it is obligatory that the investigation must be completed within the period of 90/60 days from the date of such order of remand passed by the Magistrate, depending upon the nature of offence with which the accused is charged. If, however, the investigation is not completed within the above said period, the accused becomes entitled to be released on bail.
8. The learned Public Prosecutor has relied on the decision of Supreme Court in the case Satya Narain and Ors. v. State of Andhra Pradesh AIR 1986 Supreme Court 2131. We have gone through the case cited at the Bar. The point before the Supreme Court was as to whether the date of arrest was the starting point of limitation for the purposes of Section 167 of the Code or starting point for the purpose of the said limitation was the date when the order of remand is made by a Magistrate before whom the accused is produced by the Police. Dealing with the wordings used in Section 167 of the Code of the Court held that the maximum period for which the Magistrate could authorise the remand of an accused was 90 days in serious cases and question of remand arises only when the accused is produced by the Police for the detention of the accused. In other words, if an accused person is produced before the Magistrate on the day of his arrest, itself the accused will be entitled to bail, if the investigation is not completed within 90 days of the date of the arrest but if toe accused is produced before the Magistrate on the date following the date of his arrest and an order of remand is passed on that subsequent day the period of limitation will start running from the said date The case does not thus throw any light on the controversy which is before this Court.
9. From the language of Section 167 of the Code and from the policy behind the said section it can be safely said that the starting point of limitation would be the date of which the accused person is available to the Police for investigation, while in detention under the orders of the Court. It is not disputed that the accused petitioner was in the judicial custody and joined the investigation in jail on 16th December, 1988 when the Identification Parade was arranged. The joining of the accused in the Identification Parade by the IO impliedly amounted to his arrest in the present case. It is not disputed that even when the arrest memo was prepared the accused was in jail and only formal arrest was shown by preparing the memo dated 8th June, 1989.
10. We, therefore, answer the above question by saying that if an accused person is already in custody in another case and is available to the Police in a subsequent case for investigation the period of limitation would start running from the date when he so available to the Police. The reference stands answered accordingly.
11. Ordinarily we would have sent back the case to the learned Single Judge for disposal but since the only question to be decided was as answered above and it has to be held that the challan was filed after more than 90 days of the date of the arrest of the accused he has to be granted bail and accordingly instead of sending back the case we allow the bail application and direct that the petitioner should be released on bail during the pendency of the trial subject to his furnishing a bond in a sum of Rs. 10,000/-with the surities of Rs. 3,000/- each.