Orissa High Court
N. Sureya Reddy And Anr. vs State Of Orissa on 17 December, 1984
Equivalent citations: 1985(I)OLR105
Author: D.P. Mohapatra
Bench: R.C. Patnaik, D.P. Mohapatra
JUDGMENT D.P. Mohapatra, J.
1. Though the application under Section 439 read with Section 482 of the Code of Criminal Procedure was filed by N. Sureya Reddy and N. Pandeyya @ Pandeyya Reddy for being enlarged on bail, at the time of argument the learned counsel pressed the application for petitioner No. 1 N. Sureya Reddy alone. The sole ground on which the application is filed is that the investigating agency having failed to file the charge-sheet within a period of 90 days from the date of arrest of the petitioners, they are entitled to be released on bail as provided under Section 167(2), Proviso (a) (i), Cr. P. C.
2. The admitted factual position is that the petitioner was arrested by the police on 8. 5. 1954 in connection with Chatrapur P.S. Case No. 99 of 1984 which is now pending before the Court of Session, Berhampur, in S.C. No. 155 of 1984. The charge-sheet was submitted on 6. 8. 1984, i.e, on the 91st day of arrest. The 90th day from the date Of arrest fell on 5. 8. 1984, a Sunday.
While the learned counsel for the petitioner submits that the provisions under Section 167(2), Proviso (a) (i) have been infringed in the case, the learned Additional Government Advocate contends that the said provisions have been duly complied with. He places reliance on Section 10 of the General Clauses Act (X of 1897), which reads as follows:
"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 afterwards 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 (XV of 1877) applies.
2) This Section applies also to all Central Acts and Regulations made on or after the fourteenth day of January, 1887."
Even if the provisions of Section 10 of the General Clauses Act do not in terms apply to the case, consideration of justice and expediency would require that the accepted principle which underlies Section 10 of the General Clauses Act, should be applied in a case where it does not otherwise in terms, apply.
3. The short question that arises for consideration is, whether Section 10, General Clauses Act or the principles underlying the provisions apply to the present case. If the answer is in the affirmative, then the provisions of Section 167(2), Proviso Cr. P. C., cannot be said to have been infringed, due to filing of the charge-sheet on the 91st day, the 90th day having fell on a holiday (Sunday).
The Supreme Court in the casa of Harinder Singh v.S. Karnail Singh and others : A.I.R. 1957 S. C. 271, has observed:
"Broadly stated, the object of Section 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 Section, the Act 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. For that Section to apply, therefore, all that is requisite is that there should be a period prescribed and that period should expire on a holiday."
Now it is to be seen whether under the proviso to Section 167(2), a period can be said to have been prescribed for submission of the charge-sheet by the investigating agency. No doubt, the Section makes no such provision in express terms, but by necessary implication what the Section provides is that if the investigating agency fails to submit charge-sheet within 90 days, then they are not entitled to approach a Magistrate to authorise detention of the accused person, who is in custody. Further, it is an accepted position that the proviso to Section 167(2) was added as a drastic measure to compel the police to complete investigation expeditiously after the accused is taken into custody. In these circumstances, it cannot be said that the period of ninety days is. not a period prescribed under Section 167, Cr. P. C. The learned counsel for the petitioners has tried to highlight the importance of provision of Section 167(2), proviso, Cr. P. C., which deals with the liberty of a citizen. He has cited some decisions in support of his contention. There is no denying this principle. But the question for determination in this case is whether the investigating agency can be said to have failed to comply with the requirement by not submitting the charge-sheet within 90 days, in the facts and circumstances of this case. As such, it is not necessary to refer the decisions cited by the learned counsel for the petitioners. He has brought to our notice a decision of Bombay High Court in the case of State of Maharastra v. Sharan B. Sarada : reported in 1983(2) Crimes, page 254 (short notes) in support of his contention that Section 10 of the General Clauses Act has no application to this case. Unfortunately, the full report is not available in the journal. The reasons which prompted the Hon'ble Court to come to the decision are not available to us. With great respect we are unable to accept the view taken by the Bombay High Court.
4. Viewed from another angle, we are fortified in talding the view in favour of applicability of Section 10 of the General Clauses Act to the facts of this case. Since the maximum period of remand of an accused person in custody by the Magistrate during investigation is fixed at 90 days under the statute, the inaction of the investigating agency in submitting the charge-sheet till 90th day cannot be questioned. If the authority had right to submit charge-sheet on the 90th day, which happened to fall on a holiday then by all standards of justice and fairness, he should be held to have complied with the mandate of law, if he has taken the action at the earliest instance which could be only on the working day following the holiday.
5. In view of the aforesaid discussions, we are unable to accept the contention of the learned counsel for the petitioners that Section 167(2)(a), Cr. P. C. has been infringed in the facts and circumstances of the case. Accordingly, the application for bail is rejected.
R.C. Patnaik, J.
6. I agree.