Afroz Akhtar vs State (Through Delhi ...
1996 Latest Caselaw 521 Del

JUDGMENT

S.K. Mahajan, J.

(1) The points involved in this case are :- 1)Where the accused had surrendered before the Magistrate and was sent to judicial custody and was arrested by the police only after a notice had been sent by the Magistrate to the police, the whether the period of 90 days will begin from the date of surrender before the Magistrate or from the date of arrest by the police? 2) Whether the petitioner is entitled to the grant of bail as a matter of right after the expiry of the period of 90 days even if the challan has been filed in the Court on the 91st day i.e. the same day when the accused had made an application to the Court for being admitted to bail?

(2) Before I deal with these points, a few facts relevant to matter may be noted:

(3) Case Fir No.289/95 was registered at Ps Shakarpur under Section 302 against the petitioner and another person. Fir was registered on May 22, 1995 and the petitioner could not be arrested. He surrendered in the Court on May 27, 1995 and was taken into judicial custody. Notice of surrender was given to the police for 30th May, 1995 and the police, therefore, arrested the petitioner on 30th May, 1995 and the Magistrate remanded him to police custody. On 26th August, 1995 challan was filed in Court, however, in the morning on the same day, an application was filed by the petitioner in the Court for release on bail on the ground that the police had not filed the challan within the period of 90 days from the date of his surrender before the Magistrate and as such he was entitled to be released on bail as a matter of right. The Metropolitan Magistrate considered this plea of the petitioner and by order dated August 29, 1995 rejected the bail application holding that the accused was arrested on May 30, 1995 and challan had been filed in Court on 26th August, 1995 and, therefore, he was not entitled to the benefit of Section 167(2) of the Code.

(4) It is contended by learned counsel for the petitioner that the period of 90 days starts from the date of surrender by the accused before the Magistrate and consequently immediately on the expiry of the said period of 90 days, the petitioner is entitled to the grant of a bail as a matter of right under Section 167(2) of the Code. He has referred to a judgment of the Supreme Court in The Central Bureau of Investigation, Special Investigation Cell-1 Vs. Anupam J. Kulkarni, 1992 (2) Crimes 310, in support of his contention that the period of 90 days will begin from the date the accused surrendered before the magistrate and was sent in judicial custody.

(5) The question which the Supreme Court was considering in Kulkarni's case was whether a person arrested and produced before the nearest Magistrate, as required under Section 167(1) of the Code, can still be remanded to police custody after the expiry of the initial period of 15 days. It was in the context of deciding the said point that the Supreme Court observed that the period of 90 days or 60 days mentioned in Section 167(2) of the Code, has to be computed from the date of detention as per the orders of the Magistrate and not from the date of arrest by the police. It is this observation of the Supreme Court that is being relied upon by learned counsel for the petitioner to emphasise his point that period of 90 days should be computed from the date of surrender before the Magistrate and not from the date of arrest as is the contention of the State.

(6) MR.JOLLY is, however, relying upon the judgment reported as C.Satyanarayana and others Vs. State of Andhra Pradesh, , in support of his contention that the period of 90 days has to be computed not from the date of surrender but from the date of arrest by the police. The contention of Mr.Jolly is that on 27th May, 1995 when the accused surrendered before the Magistrate, the State was not aware about the accused having been sent to judicial custody and it was only on receipt of a notice from the Court that the police became aware of the accused having surrendered and it was consequently on 30th May, 1995 that the accused was arrested by the police and sent to police custody. His contention is that the police must be given a clear period of 90 days to investigate the matter and unless the said period of 90 days is given, the accused cannot be held entitled to the grant of bail as a matter of right.

(7) Under Section 57 of the Code, every person who is arrested and detained in police custody, must be produced before the nearest Magistrate within a period of 24 hours of such arrest excluding the time necessary for the journey from the place of arrest to the Court of the Magistrate and no such person shall be detained in the custody beyond the said period without the authority of the Magistrate. It is at the time when the person detained in police custody is produced before the Magistrate that the provisions of Section 167 come into play. When the arrested accused is produced before the Magistrate, the Magistrate may authorise his further detention in police custody for a maximum period of 15 days in the whole. There cannot be any detention in the police custody after the expiry of first 15 days. The question that had, therefore, arisen before the Supreme Court in Kulkarni's case was whether the period of 15 days mentioned in Section 57 has to be reckoned from the date of arrest by the police or from the date when he is remanded to police custody by the Magistrate when he is so produced before him in accordance with the provisions of Section 57 and it was in that context that the Supreme Court has held that the period of 90 days or 60 days, as mentioned in Section 167 of the Code, has to be computed from the date of detention as per orders of the Magistrate and not from the date of arrest by the police. It was further held that consequently the first period of 15 days mentioned in Section 167(2) has to be computed from the date of such detention and after the expiry of the period of first 15 days, it should be only judicial custody.

(8) The period of 24 hours during which the accused was in police detention before he was produced before the Magistrate is the period over and above the maximum period of 15 days for which the Magistrate can direct the accused to be in police custody.

(9) The Supreme Court in Kulkarni's case had also considered the question that when the accused was already in judicial custody, he may be required to be arrested for his involvement in a different case arising out of different transaction other than the one in which he was sent to judicial custody and even if he was in judicial custody in connection with the investigation in the earlier case, he could formally be arrested regarding his involvement in the different case and the Magistrate can act as provided under Section 167(2) and remand him to such custody as mentioned therein during the period of first 15 days and thereafter in accordance with the proviso, as discussed above. In case, the accused had surrendered before the Magistrate without the knowledge of the police and was sent to custody and the police arrests only after a notice is received about his surrender from the Magistrate and he is remanded to police custody on said notice being given to the police, the only interpretation, in my opinion, of Section 167 can be that the period of 90 days will be reckoned from the date when he is remanded to such custody by the Magistrate under Section 167 of the Code. The police also must get a clear period of 90 days from the date of such custody as provided under the Code and it cannot, therefore, be said that the period of 90 days will be reckoned from the date of surrender and not from the date when he is remanded to police custody. In case, the period of first 15 days was to begin from the date when the accused was remanded to police custody on 30th May, 1995, in my opinion, the period of 90 days must also begin from the said date. It is not even the case of the petitioner that period of 15 days for which the accused could be remanded in police custody was to begin from 27th May, 1995 when he had surrendered. If that is not the case of the petitioner, it is beyond comprehension as to how the period of 90 days as mentioned in Section 167 of the Code will begin from the date the accused surrendered and not from the date when he was remanded to police custody by the Magistrate.

(10) In C.Satyanarayana and others Vs. State of Andhra Pradesh, , it was held by the Supreme Court that the words used in the proviso (a) to Section 167(2) of the Code are "No Magistrate shall authorise the detention of the accused person in custody", "under this paragraph", "for a total period exceeding i.e. 90 days/60 days". Detention can be authorised by the Magistrate only from the time the order of remand is passed. The earlier period when the accused is in the custody of the police officer in exercise of his power under Section 57 cannot constitute detention pursuant to an authorisation issued by the Magistrate. It, therefore, stands to reason that the period of 90 days or 60 days can begin to run only from the date of remand."

(11) In Kamaljeet Vs. State, -1986 Chandigarh Criminal Cases 385, Jagdish Chandra,J. of this Court while considering similar question has no doubt held that the ' period of 90 days should start from the date of surrender before the Magistrate and not from the date of arrest by the police, however, in view of the clear observations of the Supreme Court in C.Satyanarayana Vs. State of Andhra Pradesh (Supra), with due deference to Hon'ble Judge, I am unable to agree that the period of 90 days will start from the date of surrender and not from the date when the accused was remanded to police custody.

(12) In view of my findings that period of 90 days will start from 30th May, 1995, when the accused was remanded to police custody by the Magistrate, I need not dwell upon the second question as to whether the petitioner is entitled to grant of bail as a matter of right, even if the challan has been filed in the Court on the day when the accused had made an application for grant of bail on the ground that the challan was not filed within the statutory period of 90 days.

(13) No arguments on the merits of the case have been advanced by learned counsel for the petitioner. In any case, even on merits, I am not inclined to admit the petitioner on bail.

(14) Petition is, accordingly, dismissed.