TMI Blog2018 (9) TMI 1863X X X X Extracts X X X X X X X X Extracts X X X X ..... custody of such person ought not to be guided by mere suspicion that he may have committed an offence or for that matter, to facilitate pending investigation. In the present case as on the 90th day, there were no papers or the charge-sheet in terms of Section 173 of the Code for the concerned Magistrate to assess the situation whether on merits the Accused was required to be remanded to further custody. Though the charge-sheet in terms of Section 173 came to be filed on 05.07.2018, such filing not being in terms of the order passed by the High Court on 03.07.2018, the papers were returned to the Investigating Officer. Perhaps it would have been better if the Public Prosecutor had informed the High Court on 03.07.2018 itself that the period for completing the investigation was coming to a close - In the absence of any such similar provision empowering the Court to extend the period, no Court could either directly or indirectly extend such period. In any event of the matter all that the High Court had recorded in its order dated 03.07.2018 was the submission that the investigation would be completed within two months by a Gazetted Police Officer. The order does not indicate that i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... period of two months from the date of receipt of certified copy of this order by the Investigating Officer. The petition was disposed of in terms of the submissions so recorded. 5. Since the Appellants had been in custody from 08.04.2018, the investigation, in terms of Section 167 of the Code of Criminal Procedure (the Code for Short) had to be completed by 07.07.2018. On 05.07.2018 a report Under Section 173 of the Code was filed by the police before the concerned Judicial Magistrate. Since said report was filed by a police officer lower in rank than an ASP and was thus contrary to the order passed by the High Court on 03.07.2018, an application was filed by the complainant placing certified copy of the aforesaid order dated 03.07.2018. The Magistrate having noted the contents of said order, returned the charge-sheet with certified copy of the order dated 03.07.2018 to the police for due compliance. Thus as on the expiry of 90th day i.e. on 07.07.2018 no report Under Section 173 of the Code was on record with the Magistrate. 6. Immediately after the expiry of 90 days the Appellants filed an application for bail under the provisions of Section 167(2) of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the papers in compliance of the order dated 03.07.2018 ought to be construed as a step towards further investigation in the matter. 10. The law on the point as to the rights of an Accused who is in custody pending investigation and where the investigation is not completed within the period prescribed Under Section 167(2) of the Code, is crystallized in the judgment of this Court in Uday Mohanlal Acharya v. State of Maharashtra (2001) 5 SCC 453. This case took into account the decision of this Court in Hitendra Vishnu Thakur and Ors. v. State of Maharashtra and Ors. (1994) 4 SCC 602, Sanjay Dutt v. State through C.B.I., Bombay (II) (1994) 5 SCC 410 and Bipin Shantilal Panchal v. State of Gujarat (1996) 1 SCC 718. Justice Pattanaik (as the learned Chief Justice then was) speaking for the majority recorded conclusions in para 13 of his judgment. For the present purposes, we may extract conclusions 3 and 4 as under: ... 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 inv ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e High Court. It was for this reason that the papers were returned by the Magistrate. All this happened before the expiry of 90th day. Can it be said that the investigation was complete for the purposes of Section 167(2) of the Code so as to deny the benefit to the Accused in terms of said provision. Additionally another issue which arises for consideration is whether the order passed by the High Court could be construed as one under which the period for completing the investigation was extended. 13. We may at this stage extract the relevant provisions namely Section 167 (1) (2) of the Code: 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 herein ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... laws tend to be misused whenever opportunity knocks, and Section 167 of the Code of Criminal Procedure, 1898 was no exception. Since there was a practical difficulty in completing investigations within the 15-day time-limit, the prosecution often took recourse to the provisions of Section 344 of the Code of Criminal Procedure, 1898 and filed a preliminary or incomplete report before the Magistrate to keep the Accused in custody. The Law Commission of India noted this in its 41st Report (after carefully studying several earlier Reports) and proposed to increase the time-limit for completion of investigations to 60 days, acknowledging that: 14.19. ... such an extension may result in the maximum period becoming the Rule in every case as a matter of routine; but we trust that proper supervision by the superior courts will prevent that. The view expressed by the Law Commission of India and its proposal is as follows: 14.19. Section 167.--Section 167 provides for remands. The total period for which an arrested person may be remanded to custody--police or judicial--is 15 days. The assumption is that the investigation must be completed within 15 days, and the fi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e thinks fit, for a term not exceeding fifteen days at a time and sixty days in the whole. If he has no jurisdiction to try the case or commit it for trial, and considers further detention unnecessary, he may order the Accused to be forwarded to a Magistrate having such jurisdiction: Provided that-- (a) no Magistrate shall authorise detention in any custody under this Section unless the Accused is produced before him; (b) 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. ** * (4) Any Magistrate other than the Chief Judicial Magistrate making such order shall forward a copy of his order, with his reasons for making it, to the Chief Judicial Magistrate. 12. The recommendations of the Law Commission of India were carefully examined and then accepted. The basic considerations for acceptance, as mentioned in the Statement of Objects and Reasons dated 7-11-1970 for introducing the (new) Code of Criminal Procedure, 1973 were: 3. The recommendations of the Commission were examined carefully by the Government, keeping in view among o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e case may be. It is further stipulated that on the expiry of such period of 90 and 60 days, as the case may be, the Accused person shall be released on bail, if he is prepared to and does furnish bail. 17. The provision has a definite purpose in that; on the basis of the material relating to investigation, the Magistrate ought to be in a position to proceed with the matter. It is thus clearly indicated that the stage of investigation ought to be confined to 90 or 60 days, as the case may be, and thereafter the issue relating to the custody of the Accused ought to be dealt with by the Magistrate on the basis of the investigation. Matters and issues relating to liberty and whether the person Accused of a charge ought to be confined or not, must be decided by the Magistrate and not by the Police. The further custody of such person ought not to be guided by mere suspicion that he may have committed an offence or for that matter, to facilitate pending investigation. 18. In the present case as on the 90th day, there were no papers or the charge-sheet in terms of Section 173 of the Code for the concerned Magistrate to assess the situation whether on merits the Accused w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ming to an end. Mere recording of submission of the Public Prosecutor could not be taken to be an order granting extension. We thus reject the submissions in that behalf advanced by the learned Counsel for the State and the complainant. In our considered view the Accused having shown their willingness to be admitted to the benefits of bail and having filed an appropriate application, an indefeasible right did accrue in their favour. 19. We must at this stage note an important feature. In Rakesh Kumar Paul (supra), in his conclusions, Madan B. Lokur, J. observed in para 49 as under: 49. The Petitioner is held entitled to the grant of default bail on the facts and in the circumstances of this case. The trial Judge should release the Petitioner on default bail on such terms and conditions as may be reasonable. However, we make it clear that this does not prohibit or otherwise prevent the arrest or re-arrest of the Petitioner on cogent grounds in respect of the subject charge and upon arrest or re-arrest, the Petitioner is entitled to petition for grant of regular bail which application should be considered on its own merit. We also make it clear that thi ..... X X X X Extracts X X X X X X X X Extracts X X X X
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