http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 1 of 15  

PETITIONER: CHAGANTI SATYANARAYAN & ORS.

       Vs.

RESPONDENT: STATE OF ANDHRA PRADESH

DATE OF JUDGMENT08/05/1986

BENCH: NATRAJAN, S. (J) BENCH: NATRAJAN, S. (J) SEN, A.P. (J)

CITATION:  1986 AIR 2130            1986 SCR  (2)1128  1986 SCC  (3) 141        1986 SCALE  (1)1037  CITATOR INFO :  RF         1992 SC1768  (9)

ACT:      Criminal Procedure  Code, 1973, S. 167(2)(a) - Scope of Period of  90 days  - Computation  of - Whether from date of remand or date of arrest of accused.

HEADNOTE:      The appellants  were arrested  in the  forenoon of July 19, 1985  in connection with a riot which resulted in a toll of human  lives and  huge destruction of property. They were produced before  the Munsiff Magistrate on July 20, 1985 and were remanded to judicial custody till October 18, 1985.      The police  filed a charge-sheet against the appellants on October  17, 1985 that being the 90th day of remand. Even so, the  appellants filed  a petition  before the Magistrate and sought enlargement on bail in terms of proviso (a) to s. 167(2) of  the  Code  of  Criminal  Procedure.  The  learned Magistrate, overruling  the objection  of the State, granted bail to  the appellants  on the ground that the period of 90 days stipulated  in the  proviso had to be reckoned from the date of  arrest and  not from  the date  of  remand  and  so computed, the  charge-sheet had  not been  filed on the 90th day but  on 91st  day and  hence the accused/appellants were entitled to  bail. The respondent-State challenged the order of bail  before the  High Court by means of a petition under s. 439(2)  of the  Code. A  Single Judge  of the  High Court allowed the  petition holding  that the  period of  90  days envisaged by  the proviso  to s.  167(2) has  to be computed only from  the date  of remand  and therefore  cancelled the bail and directed the magistrate to issue warrants of arrest for the appellants.      Dismissing the appeal of the appellants-accused. ^      HELD: 1.  The High  Court was  right  in  allowing  the petition filed  by the  State for  cancellation of  the bail granted to  the appellants.  As the  Munsiff Magistrate  has granted bail  to the appellants before the expiry of 90 days of remand  period  allowed  under  law,  the  order  of  the Magistrate 1129 will not  tantamount to  one passed  under the provisions of

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 2 of 15  

Chapter XXXIII  of the  Code and hence there is no scope for contending that  re-arrest of  the appellants can be ordered only in  terms of  sub-s.(5) of  s.437. After the appellants surrender themselves to custody or are taken into custody by re-arrest,  they  will  not  stand  precluded  from  seeking enlargement on  bail by  filing applications under sub-s.(i) of s.  437 of  the Code  and satisfying  the court that they deserve to be enlarged on bail. [1148 G-H; 1149 A-B]      2.(i) On  a reading of the sub-ss.(1) and (2) it may be seen that  sub-s.(1) is a mandatory provision governing what a police  officer should  do when  a person  is arrested and detained in  custody and  it appears  that the investigation cannot be  completed within  the period of 24 hours fixed by s.57. Sub-s.(2)  on the other hand pertains to the powers of remand available  to a  Magistrate and  the manner  in which such powers  should be exercised. The terms of sub-s. (1) of s. 167 have to be read in conjunction with s. 57. Section 57 interdicts a police officer from keeping in custody a person without warrant  for a  longer period  than 24 hours without production before  a Magistrate,  subject to  the  exception that the time taken for performing journey from the place of arrest to  the Magistrate’s  court can  be excluded from the prescribed period  of 24  hours. Since  sub-s. (1)  provides that if  the investigation  cannot be  completed within  the period of  24 hours  fixed by  s. 57  the accused  has to be forwarded to  the Magistrate  alongwith the  entries in  the Diary, it  follows that a police officer is entitled to keep an arrested  person in  custody for  a maximum  period of 24 hours for  purposes of investigation. The resultant position is that  the initial period of custody of an arrested person till he is produced before a Magistrate is neither referable to nor  in pursuance  of an  order of  remand  passed  by  a Magistrate.  In  fact  the  powers  of  remand  given  to  a Magistrate become  exercisable  only  after  an  accused  is produced before  him in terms of sub-s. (1) of s. 167. [1138 B-G]      2.(ii) Sub-s.  (2) of  s. 167  empowers the  Magistrate before whom  an accused  is produced  for purpose of remand, whether he has jurisdiction or not to try the case, to order the detention of the accused, either in policy custody or in judicial custody, for a term not exceeding 15 days in the 1130 whole. In the first place, if the initial order of remand is to be  made with  reference to  the date  of arrest then the order will  have retrospective  coverage for  the period  of custody prior  to the  production of  the accused before the Magistrate, i.e.  the period  of 24  hours’ custody  which a police officer  is entitled  to have under s. 57 besides the time taken  for the  journey. Such  a construction  will not only be  in discord with the terms of s. 57 but will also be at variance  with  the  terms  of  sub-s.  (2)  itself.  The operative words  in sub-s. (2) viz. "authorise the detention of the  accused... for  a term  not exceeding 15 days in the whole" will  have to  be read  differently in  so far as the first order  of remand  is concerned so as to read as "for a term not  exceeding 15  days in  the whole  from the date of arrest". This  would necessitate the adding of more words to the section  than what the legislature has provided. Another anomaly that  would occur  is that while sub-s. (2) empowers the Magistrate to order the detention of an accused "in such custody as  such Magistrate  thinks  fit,  for  a  term  not exceeding 15  days in  the whole"  the  Magistrate  will  be disentitled to  placing an  accused in  police custody for a full period  of 15  days if  the period  of custody is to be reckoned from  the date  of arrest  because  the  period  of

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 3 of 15  

custody prior  to the production of the accused will have to be excluded  from the  total period  of 15  days. [1138 G-H; 1139 A-F]      Apart from these anomalous features, if an accused were to contend that he was taken into custody more than 24 hours before his  production before  the Magistrate and the police officer refutes  the statement,  the Magistrate will have to indulge in  a fact finding inquiry to determine when exactly the accused  was arrested  and from  what point  of time the remand period of 15 days is to be reckoned. Such an exercise by a  Magistrate ordering  remand  is  not  contemplated  or provided for  in the Code. It would, therefore, be proper to give the  plain meaning of the words occurring in sub-s. (2) and holding  that a Magistrate is empowered to authorise the detention of  an accused  produced before  him  for  a  full period of  15 days  from  the  date  of  production  of  the accused. [1139 F-H; 1140 A]      3. Reference  may also  be made to another provision in the Code, viz. the first proviso to sub-s. (2) of s. 309 for construing the  period of 15 days referred to in sub-s. 2 of s. 167.  As sub-s.  (2) of  s. 167 as well as proviso (1) of sub-s. 1131 (2)  of  s.  309  relate  to  the  powers  of  remand  of  a Magistrate,  though  under  different  situations,  the  two provisions call  for a  harmonious reading  in so far as the periods of remand are concerned. It would, therefore, follow that the words "15 days in the whole" occurring in sub-s.(2) of s.  167 would  be tantamount to a period of "15 days at a time" but subject to the condition that if the accused is to be remanded  to police custody the remand should be for such period as  is commensurate  with the  requirements of a case with  provisions   for  further  extensions  for  restricted periods, if  need be,  but in no case should be total period of remand to police custody exceed 15 days. Where an accused is placed  in police  custody for  the maximum  period of 15 days allowed  under law either pursuant to a single order of remand or  to more  than  one  order,  when  the  remand  is restricted on  each occassion  to a  lesser number  of days, further detention  of the  accused, if  warranted, has to be necessarily to  judicial  custody  and  not  otherwise.  The Legislature having  provided for  an  accused  being  placed under police  custody under  orders of  remand for effective investigation of  cases has  at the  same time taken care to see that the interests of the accused are not jeopardised by his being  placed under police custody beyond a total period of 15  days, under  any circumstances,  irrespective of  the gravity of  the offence  or the  serious nature of the case. Thus, there  is no  merit or  force in the contention of the appellants’ counsel that the words "for a term not exceeding 15 days  in the  whole" occurring  in sub-s.(2)  of  s.  167 should be construed as to include also the period of custody of the  accused from  the time  of arrest  till the  time of production  before   the  Magistrate.   A  Magistrate   can, therefore, authorise  the detention  of the  accused  for  a maximum period  of 15 days from the date of remand and place the accused  either in police custody or in judicial custody during the period of 15 days’ remand. [1140 B-H; 1141 A-C]      4.(i) Construing proviso (a) either in conjunction with sub-s.(2) of  s. 167  or as  an independent  paragraph,  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.      4.(ii) The words used in proviso (a) are "no Magistrate

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 4 of 15  

shall authorise the detention of the accused person in 1132 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  a police officer in exercise of his powers under s.  57   cannot  constitute   detention   pursuant   to   an authorisation  issued  by  the  Magistrate.  It,  therefore, stands to reason that the total period of 90 days or 60 days can begin  to run  only from  the date  of order  of remand. Moreover, as  per sub-s.  (2A) of  s. 167  a  Magistrate  is obliged to  take  into  consideration  only  the  period  of detention actually  undergone by the accused pursuant to the orders of  remand passed  by the  Executive Magistrate.  The earlier period of custody till the production of the accused before the  Executive Magistrate is not directed to be taken into consideration  by sub-s.  (2A). Such  being  the  case, there cannot be different modes of computation of the period of remand depending upon whether accused person is forwarded to a  Judicial Magistrate  or an  Executive  Magistrate  for purposes of remand. [1141 G-H; 1142 A-G]      4.(iii) The  change of wording in the proviso has to be given its due significance because the Legislature would not have effected  the change  without any purpose or objective. Significant changes  have been  made in s. 167 as well as to the proviso  by Act 45 of 1978 such as increasing the period for investigation  in  grave  cases  from  60  to  90  days, conferring of  powers of  remand on Executive Magistrates in certain situations  etc. Therefore,  it can  be legitimately contended that  the words occurring in proviso (a) should be construed within  the  frame  work  of  the  proviso  itself without any  reference to  s. 167(2). If such a construction is made,  it may  be  seen  that  the  proviso  forbids  the extension of  remands only  beyond a total period of 90 days under clause  (i) and beyond a total period of 60 days under clause (ii).  Thus if  proviso (a)  is treated as a separate paragraph it  necessarily follows that the period of 90 days or 60  days as  the case  may be, will commence running only from the  date of  remand and  not from any anterior date in spite of  the fact that the accused may have been taken into custody earlier  by a  police officer  and deprived  of  his liberty. [1143 F-H; 1144 A-B]      5.  The  intention  of  the  Legislature  can  also  be gathered by comparing proviso (a) with sub-s. (5) of s. 167. The 1133 Legislature has  consciously referred  to the date of arrest in s. 167(5) but has made no such reference in s. 167 (2) or poviso  (a)   thereto.  If  it  was  the  intention  of  the Legislature that  the period  of remand  of 15  days in  the whole envisaged  in sub-s.  (2) or  the total  period of  90 days/60 days  prescribed in  proviso(a) should be calculated from the  date of  arrest then  the Legislature  would  have expressly said so as it had done under s. 167(5). [1143 C-D]      Fakira Naik  v. State of Orissa, [1983] Crl. L.J. 1336; Mohd. Shafi  & Anr.  v. The  State, [1975]  Crl. L.J.  1309; State of Rajasthan v. Bhanwaru Khan & Ors., [1975] Crl. L.J. 1981; Khinvdan  v. The State of Rajasthan, [1975] Crl. L.J., 1984; Prem  Raj &  Anr. v.  State of  Rajasthan, [1976] Crl. L.J., 455;  Gyanu Madhu  Jamkhandi &  Ors. v.  The State  of Karnataka, [1977]  Crl. L.J.  632; State of Haryana v. Mehal Singh &  Anr., (FB)  [1978] Crl. L.J. 1810 and Fakira Naik & Ors. v. State of Orissa, [1983] Crl. L.J. 1336, disapproved.      Hussainara Khatoon  & Ors.  v. Home Secretary, State of

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 5 of 15  

Bihar, Patna, [1979] Crl. L.J. 1052; Rajoo Alias Raj Kishore Singh &  Anr. v.  State of  Bihar &  Anr., 55  [1976] I.L.R. Patna 1021;  Raj Kumar  v. The  State of Punjab, A.I.R. 1979 Punjab & Haryana 80; Batna Ram v. State of Himachal Pradesh, [1980] Crl.  L.J. 748;  Jagdish &  Ors. v.  State of  Madhya Pradesh, [1984]  Crl. L.J.  79; N.  Sureya Reddy  & Anr.  v. State of  Orissa, [1985]  Crl. L.J.  939; Bashir  & Ors.  v. State of  Haryana, [1978]  1 S.C.R. 585 and State of U.P. v. Laxmi Brahamn & Anr., [1983] 2 S.C.R. 537, referred to.

JUDGMENT:      CRIMINAL APPELLATE  JURISDICTION :  Criminal Appeal No. 278 of 1986.      From the  Judgment and  Order dated 31st December, 1985 of the  Andhra Pradesh High Court in Crl. Misc. Petition No. 4049 of 1985.      S. Madhusudan Rao and A. Subba Rao for the Appellants.      P. Ram  Reddy, T.V.S.N. Chari and Ms. Vrinda Grover for the Respondent.      The Judgment of the Court was delivered by 1134      NATARAJAN, J.  This appeal  by special leave against an order of  a learned  Single Judge of the Andhra Pradesh High Court in  a petition  filed under Section 439(2) of the Code of  Criminal  Procedure  (hereinafter  referred  to  as  the ’Code’) calls  for a  critical examination  of the scope and effect of proviso (a) to Section 167(2) of the Code. Several High Courts  have rendered  decisions construing differently the terms  of the  proviso but a need for the examination of the terms  of the  proviso by this Court had not arisen till now.      The circumstances  which form  the prefactory  for this appeal can be summarised as under.      The hamlet  of  Madigawada  in  Village  Karamchedu  in Andhra Pradesh  was the  scene of  a horrendous  riot on the morning of  July 17,  1985. The riot culminated in a toll of human lives  and huge  destruction of property. Five persons were left  dead, twenty  others were  victims of injuries of varying degrees,  properties were  looted and  hutments were damaged or destroyed.      In  connection  with  the  macabre  events  the  police authorities arrested  94 persons  including  the  appellants herein and had them remanded to custody. The appellants were arrested in  the forenoon of July 19, 1985 and were produced before the  IIIrd Additional  Munsif Magistrate,  Chirala on the next  day, i.e.  July  20,  1985.  They  were  initially remanded to  judicial custody  for a  period of  15 days and thereafter the  remand was  extended from  time to time till October 18, 1985.      The investigating  officer filed  a charge-sheet in the case at  10.30 A.M. on October 17, 1985, that being the 90th day of  remand. Even  so, the  appellants filed  a  petition before the  Magistrate and  sought enlargement  on  bail  in terms  of   proviso  (a)  to  Section  167(2).  The  learned Magistrate, overruling  the objection  of the State, granted bail to  the appellants  on the ground that the period of 90 days stipulated  in the  proviso had to be reckoned from the date of  arrest and  not from  the date  of  remand  and  so computed the charge-sheet had not been filed on the 90th day but on  the 91st  day and hence the accused were entitled to bail. The State challenged the order of bail before the High Court by  means of  a petition  under Section  439(2) of the Code. A  learned Single  Judge of the High Court allowed the

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 6 of 15  

petition holding that the period of 1135 90 days envisaged by the proviso to Section 167(2) has to be computed only  from  the  date  of  remand  and,  therefore, cancelled the  bail and  directed the  Magistrate  to  issue warrants of arrest for the appellants. It is the correctness of the  order of  the learned  Judge which  is challenged in this appeal.      Mr. Madhusudan Rao, learned counsel for the appellants, strenuously contended that the liberty of the citizen is the paramount factor  for  consideration  while  construing  the terms of  proviso (a)  of Section  167(2) and  as  such  the period of  90 days,  in the  case of grave offences, and the period of  60 days, in the case of other offences set out as outer limits  for detention  of accused  persons  should  be computed from  the very  day the  accused was  arrested  and taken into  custody by a police officer and not from the day he was  produced  before  the  Magistrate  and  remanded  to custody. In  fact Mr.  Rao went  so far  as to  say, placing reliance on  a decision  rendered in Fakira Naik v. State of Orissa, [1983] Crl. L.J. 1336 that even the detention during the fraction  of a  day should  also be counted as detention for a  day since  a calendar  day as  a unit  of time is the interval between one midnight and another. In support of his contention Mr.  Rao placed  reliance on some decisions where the time limits set out in the proviso have been held to run from the date of arrest itself.      Mr. Ram  Reddy, learned counsel for the State of Andhra Pradesh, advanced  arguments to  the contrary  and submitted that the  period of detention contemplated under the proviso is exclusively  referable to  the detentions  ordered  by  a Magistrate and  there is  no scope  for tagging  on to  this period any  anterior period  of custody by a police officer, who is  permitted under  Section 57 of the Code to detain in custody a  person arrested  without warrant  for  a  maximum period of  24 hours.  Alternately, it  was contended  that a significant change in the terms of the proviso has been made by the  Legislature under  Amendment Act  45 of  1978 and by reason of  that  change  the  periods  of  90  days/60  days prescribed under  the proviso  are  to  be  computed  solely within the  framework of  the proviso and not with reference to  any   other  provision   in  the   Code.  Besides  these submissions the  learned counsel  also  placed  reliance  on another set of decisions wherein the calculation 1136 of the total number of days of custody under remand has been made with reference to the date of remand.      Before making a scrutiny of the terms of the proviso in question it  will be  of  use  to  have  a  glimpse  of  the historical  background   of  this   legislative   provision. Originally, the  Code provided  only a period of 15 days for remand. As  the period  was too  short for  investigation in cases of  serious nature the police were forced to resort to filing before  the Magistrates  a preliminary  or incomplete report and seek extension of remand under Section 344 of the Old Code.  This device  was resorted  to  as  an  inevitable necessity, even  though Section 344 of the Old Code could be invoked only  after a  Magistrate had taken cognizance of an offence which  in turn  could be  only after  a report under Section  173   had  been   received  and   not   while   the investigation was  in  progress.  The  course  followed  for obtaining orders  of remand beyond 15 days very often led to lethargy in  the investigation  of cases resulting in scores of accused  persons languishing in custody for long periods. To remedy the situation the Legislature deemed it fit to put

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 7 of 15  

a time  limit on  the powers  of the police to obtain remand while the investigation was in progress after taking care to provide a longer period of remand so that investigations are not affected.  Consequently, a  time limit of 60 days with a provision for  its extension under certain circumstances was fixed by  adding proviso  (a) to  sub-section (2) of Section 167 of  the Code of 1973. In the working of the provision it came to  be realised  that a  ceiling limit  of 60  days for completion of  investigation in  all cases including serious cases involving  sentence of  death, imprisonment  for  life etc. was  hampering  full  and  effective  investigation  in serious cases  and affected  the  interests  of  the  State. Consequently,  certain   amendments  were  effected  to  the proviso to  section 167(2)  by means  of Act  45 of 1978. By reason of  the amendment the ceiling limit for remand period for cases,  where the  investigation relates  to an  offence punishable with death, imprisonment for life or imprisonment for a  term of  not lessthan 10 years was raised to 90 days, while in  other cases  the earlier  limit  of  60  days  was retained. Apart  from this,  another significant change made was that instead of the words "under this section" occurring in the  old proviso,  the words "under this paragraph", were substituted. A  third change was the addition of Explanation 1 to the proviso to highlight the 1137 position that  the statutory  right of bail under clause (a) of the  proviso will  stand restricted only to those accused persons who  are in  a position  to  furnish  bail.  Another important change  made by the Amendment Act is the provision of Section  (2A) whereby  Executive Magistrates, on whom the powers of  a Judicial  Magistrate have  been conferred, have also been empowered to order remand for a term not exceeding 7 days  in the  aggregate, wherever Judicial Magistrates are not available.      Our reference  to  the  historical  background  of  the proviso  is  for  two  reasons.  The  first  reason  is  for presenting a  perspective  of  the  proviso  in  its  entire conspectus; the  second reason  is to focus attention on the fact that the proviso has been enacted to not only safeguard the liberty  of the  citizens  but  also  to  safeguard  the interests of the State or in other words the public. We feel it necessary  to advert  to this feature because some of the decisions cited  before us  have proceeded on the basis that the only  factor underlying the legislative provision is the anxiety of  the Legislature  to safeguard the liberty of the citizen by  providing for  the restoration of his liberty at the earliest  possible moment  after the  maximum period  of custody is over.      Besides a reference to the historical background of the proviso and  the objective  underlying it we must also refer to another  notable feature  falling  within  the  field  of relevance. The  right of bail granted to remand prisoners at the end  of 90  days or  60 days as the case may be does not have the  effect  of  rendering  the  subsequent  period  of detention ipso  facto illegal  or unlawful.  This is evident from the  fact that  the right  to bail  conferred under the proviso is  subject to  the condition  that the  accused  in custody should  furnish bail. For clearance of doubts in the matter, Explanation  1 has  been expressly  provided and the Explanation obligates  the accused being detained in custody in spite  of the  expiry of the prescribed period of 90 days or 60 days as the case may be so long as he does not furnish bail.  It  will  thus  be  seen  that  the  anxiety  of  the Legislature to  secure to the remand prisoners their release from custody  is  circumscribed  by  its  concern  in  equal

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 8 of 15  

measure to safeguard the interests of the State as well. 1138      It is  in the  light of  the contours  set out above we have to  examine Section  167 and proviso (a) to sub-section (2). The marginal note for Section 167 is as under :           "Procedure when  investigation cannot be completed in twenty-four hours".      On a  reading of the sub-sections (1) and (2) it may be seen that sub-section (1) is a mandatory provision governing what a  police officer  should do  when a person is arrested and  detained   in  custody   and  it   appears   that   the investigation cannot  be completed  within the  period of 24 hours fixed by Section 57. Sub-section (2) on the other hand pertains to  the powers  of remand available to a Magistrate and the manner in which such powers should be exercised. The terms of  sub-section (1)  of Section 167 have to be read in conjunction with  Section 57. Section 57 interdicts a police officer from keeping in custody a person without warrant for a longer  period than  24 hours  without production before a Magistrate, subject to the exception that the time taken for performing the  journey from  the place  of  arrest  to  the Magistrate’s Court  can  be  excluded  from  the  prescribed period of  24 hours.  Since sub-section (1) provides that if that investigation  cannot be completed within the period of 24 hours fixed by Section 57 the accused has to be forwarded to the  Magistrate along  with the  entries in the Diary, it follows that  a  police  officer  is  entitled  to  keep  an arrested person  in custody for a maximum period of 24 hours for purposes  of investigation.  The resultant  position  is that the  initial period  of custody  of an  arrested person till he is produced before a Magistrate is neither referable to nor  in pursuance  of an  order of  remand  passed  by  a Magistrate.  In  fact  the  powers  of  remand  given  to  a Magistrate  become  execisable  only  after  an  accused  is produced before  him in  terms of sub-section (1) of Section 167.      Keeping proviso  (a) out  of mind  for some time let us look at  the wording of sub-section (2) of Section 167. This sub-section empowers  the Magistrate  before whom an accused is  produced   for  purpose   of  remand,   whether  he  has jurisdiction or  not to try the case, to order the detention of the  accused, either  in police  custody or  in  judicial custody, for  a term  not exceeding 15 days in the whole. It was argued by Mr. Rao 1139 that the  words "in the whole" would govern the words "for a term  not  exceeding  15  days’  and,  therefore,  the  only interpretation that can be made is that the detention period would commence  from the  date of arrest itself and not from the date of production of the accused before the Magistrate. Attractive as  the contention may be, we find that it cannot stand the  test of  scrutiny. In  the first  place,  if  the initial order  of remand is to be made with reference to the date of  arrest  then  the  order  will  have  retrospective coverage for  the period  of custody prior to the production of the  accused before the Magistrate, i.e. the period of 24 hours’ custody  which a  police officer  is entitled to have under section  57 besides  the time  taken for  the journey. Such a  construction will  not only  be in  discord with the terms of  Section 57  but will  also be at variance with the terms of sub-section (2) itself. The operative words in sub- section (2)  viz. "authorise  the detention  of the  accused .... for  a term  not exceeding  15 days  in the whole" will have to  be read differently in so far as the first order of remand is  concerned so  as to  read  as  "for  a  term  not

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 9 of 15  

exceeding 15  days in  the whole  from the  date of arrest". This would  necessitate the  adding of  more  words  to  the section than  what the  Legislature  has  provided.  Another anomaly that  would occur  is  that  while  sub-section  (2) empowers the Magistrate to order the detention of an accused "in such  custody as  such Magistrate thinks fit, for a term not exceeding  15 days  in the whole" the Magistrate will be disentitled to  placing an  accused in  police custody for a full period  of 15  days or  in judicial  custody for a full period of 15 days if the period of custody is to be reckoned from the  date of arrest because the period of custody prior to the  production of  the accused  will have to be excluded from the total period of 15 days.      Apart from these anomalous features, if an accused were to contend that he was taken into custody more than 24 hours before his  production before  the Magistrate and the police officer refutes  the statement,  the Magistrate will have to indulge in  a fact finding inquiry to determine when exactly the accused  was arrested  and from  what point  of time the remand period of 15 days is to be reckoned. Such an exercise by a  Magistrate ordering  remand  is  not  contemplated  or provided for  in the Code. It would, therefore, be proper to give the plain meaning of the words occurring in sub-section 1140 (2) and  holding that a Magistrate is empowered to authorise the detention  of an  accused produced before him for a full period of  15 days  from  the  date  of  production  of  the accused.      We may  also refer  to another  provision in  the Code, viz.the first  proviso to sub-section (2) of section 309 for construing the  period of 15 days referred to in sub-section (2)  of   Section  167.   Section  309,   while  prescribing expeditious conduct  of enquiries  and trials  also provides for  adjournments   of  cases  for  valid  reasons  and  for remanding the accused if he is in custody. The first proviso restricts the  period of  remand to 15 days and is worded as under :-           "Provided  that  no  Magistrate  shall  remand  an           accused person to custody under this section for a           term exceeding 15 days at a time".      As sub-section  (2) of  Section 167  as well as proviso (1) of  sub-section (2)  of Section 309 relate to the powers of  remand   of  a   Magistrate,  though   under   different situations, the two provisions call for a harmonious reading in so  far as the periods of remand are concerned. It would, therefore, follow  that the  words "15  days in  the  whole" occurring  in  sub-section  (2)  of  Section  167  would  be tantamount to a period of "15 days at a time" but subject to the condition  that if  the accused  is to  be  remanded  to police custody  the remand  should be  for such period as is commensurate with  the requirements of a case with provision for further  extensions for  restricted periods, if need be, but in  no case  should the total period of remand to police custody exceed 15 days. Where an accused is placed in police custody for  the maximum period of 15 days allowed under law either pursuant  to a single order of remand or to more than one order, when the remand is restricted on each occasion to a lesser  number of  days, further detention of the accused, if warranted,  has to be necessarily to judicial custody and not  otherwise.  The  Legislature  having  provided  for  an accused being  placed under  police custody  under orders of remand for  effective investigation of cases has at the same time taken care to see that the interests of the accused are not jeopardised  by his  being placed  under police  custody beyond a  total period  of 15 days, under any circumstances,

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 10 of 15  

irrespective of  the gravity  of the  offence or the serious nature of the case. 1141      Thus in  the light  of our  discussion and  conclusions reached we  do not  find merit or force in the contention of the appellants’  counsel that  the words  ’for  a  term  not exceeding 15 days in the whole" occurring in sub-section (2) of Section 167 should be so construed as to include also the period of  custody of  the accused  from the  time of arrest till  the  time  of  production  before  the  Magistrate.  A Magistrate can,  therefore, authorise  the detention  of the accused for  a maximum  period of  15 days  from the date of remand and  place the accused either in police custody or in judicial custody  during the  period of  15 days’ remand. It has, however,  to be  borne in  mind that  if an  accused is remanded to  police custody  the maximum period during which he can  be placed  in police custody is only 15 days. Beyond that period no Magistrate can authorise the detention of the accused in police custody.      Further remands,  to fecilitate  the investigation, can only be  for  the  detention  of  the  accused  in  judicial custody. The  restriction of the Magistrate’s powers in this behalf is  to be  found in  the words "otherwise than in the custody of  the police  beyond the  period of  15  days"  in proviso (a).      Now  coming   to  proviso   (a)  itself,   the  proviso authorises a  Magistrate to  order further  detention of  an accused person,  otherwise than  in police  custody which as already stated  means that  the maximum period under which a Magistrate can place an accused in police custody is only 15 days. A  limitation to  the powers  of  further  remand  is, however,  placed   by  interdicting   the  Magistrate   from authorising the  detention of  an accused  person in custody beyond a  total period  of 90  days  where  the  offence  is punishable with  death, imprisonment  for life or for a term of not  less than  10 years  and beyond a total period of 60 days in other cases. The interdiction will, however, operate only in  those cases  where the  accused persons  are  in  a position to furnish bail.      The words  used in proviso (a) 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 a police officer  in exercise  of his  powers under Section 57 cannot constitute 1142 detention  pursuant   to  an  authorisation  issued  by  the Magistrate. It,  therefore, stands  to reason that the total period of  90 days or 60 days can begin to run only from the date of order of remand.      Approaching the  matter from another angle also we find it necessary  to construe  the proviso in the manner set out above. We  have earlier  referred to  sub-section (2A) newly introduced by  Act 45  of 1978  to Section  167.  This  sub- section has  been introduced for pragmatic reasons. In order that the  production of  an accused,  arrested under Section 57, before  a Magistrate  is not  delayed on  account of the non-availability of  a Judicial  Magistrate, the Legislature has deemed  it necessary  to confer powers of remand on such of those  Executive Magistrates  on whom  the  powers  of  a Judicial Magistrate  have been  conferred.  The  sub-section states that  if an  arrested person  is produced  before  an Executive Magistrate  for remand  the  said  Magistrate  may

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 11 of 15  

authorise the  detention of  the accused  "for  a  term  not exceeding 7  days in  the aggregate". It is further provided that the period of remand ordered by an Executive Magistrate should also  be taken  into account for computing the period specified in  paragraph (a)  of the  proviso to  sub-section (2). Let  us assume  a case  where a  person arrested  under Section 57  on  the  previous  day  is  produced  before  an Executive Magistrate  on the next day, but within the expiry of 24 hours and the remand order is obtained for a period of 7 days.  How is the Judicial Magistrate, who is competent to make further  orders of detention to calculate the period of detention so  as to  conform to  the requirements of proviso (a)? As  per sub-section  (2A) he  is obliged  to take  into consideration  only   the  period   of  detention   actually undergone by  the accused  pursuant to  the orders of remand passed by  the Executive  Magistrrate. The earlier period of custody  till  the  producton  of  the  accused  before  the Executive Magistrate  is  not  directed  to  be  taken  into consideration by  sub-section (2A).  Such  being  the  case, there cannot be different modes of computation of the period of remand  depending upon  whether  the  accused  person  is forwarded  to   a  Judicial   Magistrate  or   an  Executive Magistrate for purposes of remand.      The intention  of the  Legislature can also be gathered by comparing  proviso (a) of sub-section (5) of Section 167. Sub-section (5) of Section 167 is in the following terms : 1143           "If in  any case  triable by  a  Magistrate  as  a           summons case,  the investigation  is not concluded           within a  period of  six months  from the  date on           which the  accused was  arrested,  the  Magistrate           shall make an order stopping further investigation           into the  offence unless  the officer  making  the           investigation beyond  the period  of six months is           necessary".                                          (Exphasis supplied)      The Legislature has consciously referred to the date of arrest in  Section 167 (5) but has made no such reference in Section 167(2)  or  proviso  (a)  thereto.  If  it  was  the intention of the Legislature that the period of remand of 15 days in  the whole envisaged in sub-section (2) or the total period of  90 days/60  days prescribed in proviso (a) should be calculated  from the  date of arrest then the Legislature would have  expressly said  so as  it had done under Section 167(5).      Turning now to the alternate argument of Mr. Ram Reddy, the contention is that even if there is scope for contending that the  total period  of detention should be reckoned from the date  of arrest  there is  no room  at all  for any such contention being  raised after  the amendment of the proviso by Act 45 of 1978. We have already referred to the fact that the amending  Act has  substituted  the  words  "under  this paragraph" for  the words  "under this  section" in  proviso (a). We  have also adverted to Explanation 1 and sub-section (2A) which  also refer to "the period specified in paragraph (a)". The  change of  wording in the proviso has to be given its due  significance because the Legislature would not have effected the  change without  any purpose  or objective.  We must bear in mind that significant changes have been made in Section 167 as well as to the proviso by Act 45 of 1978 such as increasing  the period  for investigation  in grave cases from 60  to 90  days, conferring  of  powers  of  remand  on Executive Magistrates  in certain situations etc. Therefore, it can be legitimately contended that the words occurring in proviso (a) should be construed within the frame work of the

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 12 of 15  

proviso itself  without any  reference to Section 167(2). If such a construction is made, it may be seen that the proviso forbids the  extension of remands only beyond a total period of 90 days under clause (i) 1144 and beyond a total period of 60 days under clause (ii). Thus if proviso  (a)  is  treated  as  a  separate  paragraph  it necessarily follows that the period of 90 days or 60 days as the case may be, will commence running only from the date of remand and  not from  any anterior date in spite of the fact that the accused may have been taken into custody earlier by a police officer and deprived of his liberty.      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.      We may  now consider  the decisions  cited before us by the learned counsel for the appellants and the respondent.      The judgments  relied upon by Mr. Rao in support of his contentions are the following :           Mohd. Shafi  & Anr. v. The State, [1975] Crl. L.J.           1309, State  of Rajasthan v. Bhanwaru Khan & Ors.,           [1975] Crl.  L.J. 1981,  Khinvdan v.  The State of           Rajasthan, [1975]  Crl. L.J. 1984, Prem Raj & Anr.           v. State of Rajasthan, [1976] Crl. L.J. 455, Gyanu           Madhu Jamkhandi  & Ors. v. The State of Karnataka,           [1977] Crl.  L.J. 632,  State of  Haryana v. Mehal           Singh &  Anr., (FB)  [1978] Crl. L.J. 1810, Fakira           Naik &  Ors. v.  State of Orissa, [1983] Crl. L.J.           1336.      Though in  all these decisions there are expressions to the effect  that for computing the total period of detention prescribed in  proviso (a) to Section 167(2) the period will start running  from the  date of arrest itself, we find that excepting in  Fakira Naik’s  case (supra) the question as to how the total period of detention should be computed had not directly arisen  for consideration.  In fact  except in  the last mentioned  case  there  is  no  discussion  about  this question. The  controversies in all those cases pertained to other  matters.  In  Shaif’s  case  (No.2)  the  matter  for consideration was  whether when  an application for bail was made under proviso 1145 (a) to  Section 167(2)  the Court can reject the application on the  ground it was not a fit case for grant of bail under Section 439  of the Code. In Bhanwaru Khan’s Case (No.3) the matter for  decision was  whether  proviso  (a)  to  Section 167(2) contained a mandatory provision or not. In Khinvdan’s case (No.4)  the issue  for  consideration  was  whether  an accused person  entitled to  bail under  proviso (a)  can be validly kept  in detention  by an order of remand made under Section 309(2) of the Code. In Gyanu’s Case (No.6) what fell for consideration  was whether  after charge-sheet  had been filed on  6.9.76 the accused can be kept in custody pursuant to an  earlier order  of remand which expired on 10.9.76. In Mehal Singh’s  case (No.7) the Full Bench was called upon to decide whether a police report in terms of Section 173(2) of the Code  will constitute  a valid  report  only  if  it  is accompanied by such documents and statements as are referred to in  Section 173(5).  It was  only in  Fakira Naik’s  case (No.8) a  debate similar to the one before us was raised for consideration. A Division Bench of the Orissa High Court has taken the  view that  the intention  of the  Legislature  in

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 13 of 15  

enacting  the   proviso  was   to  prevent  accused  persons suffering the  deprivation of liberty on account of dilatory investigation and  hence the period of detention would start running from  the date  of arrest itself. In reaching such a conclusion the Court has taken the view that the decision of this Court  in Hussainara  Khatoon & Ors. v. Home Secretary, State of  Bihar, [1979]  Crl. L.J.  1052, Patna  contains an obiter that  on the expiry of 90 days or 60 days as the case may be from the date of arrest the accused is entitled to be released on  bail under  proviso (a)  of Section  167(2). We will be  presently showing that this Court has not made such a pronouncement by way of an obiter. Apart from that we find that there  has been no critical analysis in the judgment of the several  relevant provisions which have been examined by us in  this case.  We, therefore,  find that  the  decisions relied on  by  Mr.  Rao  cannot  advance  the  case  of  the appellants in  any manner.  In view of the findings rendered by us  the decisions  of the  various High Courts will stand disapproved.      We will  now deal  with the other set of cases cited by Mr. Ram  Reddy to fortify his arguments. These decisions are to be found in : 1146           "Rajoo alias  Raj Kishore Singh & Anr. v. State of           Bihar &  Anr., [1976]  55 I.L.R.  Patna 1021,  Raj           Kumar v. The State of Punjab, A.I.R. [1979] Punjab           & Haryana  80, Batna  Ram  v.  State  of  Himachal           Pradesh, [1980]  Crl. L.J.  748, Jagdish & Ors. v.           State of  Madhya Pradesh,  [1984] Crl. L.J. 79, N.           Sureya Reddy  & Anr.  v. State  of Orissa,  [1985]           Crl. L.J. 939.      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 Rajoo  alias Raj Kishore Singh’s case (No.  10) it  has been  held that the words used in the proviso are  "a total  period not exceeding 60 days’ and not "within 60  days" and  hence the Legislature has intended to provide a  clear 60  days for  purposes of investigation. In Raj Kumar’s  case (No.11)  it has  been held that the day of arrest is  not to  be included  for  calculating  the  total period but  there is  no discussion.  In  Batna  Ram’s  case (No.12) it  has been  laid down  that Section  57 should  be given full effect to and as such a Magistrate is entitled to grant police  custody for  a total period of 15 days without taking into  consideration the  period of  custody from  the time  of  arrest  till  the  time  of  production  before  a Magistrate. In Jagdish’s case (No. 13) 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  (No 14)  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.      Some of  the decisions  cited on  either side have been rendered prior  to the amendment of proviso (a) by Act 45 of 1978 and  some have  been rendered  after the amendment. Mr. Ram Reddy  sought to  make  a  distinction  of  the  earlier decisions by  contending that  they ceased to have relevance because of  the  amendment  to  proviso  (a)  making  it  an

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 14 of 15  

independent paragraph 1147 all by  itself. Since  we have  held that  in whichever  way proviso (a)  is construed  i.e. with  reference  to  Section 167(2) or without reference to it the periods of 90 days and 60 days  prescribed by  the Legislature can be reckoned only from the  date of  remand the  distinction sought to be made between the  decisions rendered prior to Amendment Act 45 of 1978  and   subsequent  to   it  does   not  have   much  of significance.      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.      We are  lastly left  with three decisions of this Court which were  also placed  before us  for  consideration.  The first case  is Bashir  & Ors.  v. State of Haryana, [1978] 1 S.C.R. 585.  What fell  for consideration  in that  case was whether the grant of bail to an accused under proviso (a) to Section 167(2)  was tantamount  to a  release on  bail under Section 437(1)  of the  Code so  as to  entitle the  accused person to  contend that  his  re-arrest  cannot  be  ordered except by  means of  an order  under Section  437(5) of  the Code. The  second case  is Hussainara  Khatoon (supra) where the Court was dealing with a public interest litigation case pertaining to the detention of undertrial prisoners for such long periods  which even exceeded the Maximum term for which the accused  could have  been sentenced  if  they  had  been convicted.  In   the  course   of  the  judgment  a  passing observation has  been made  that the Court was very doubtful whether on the expiry of 90 days or 60 days, as the case may be, from the date of arrest, the attention of the undertrial prisoners was  drawn to  the fact that they were entitled to be released  on bail under proviso (a) of sub-section (2) of Section 167.  It was not a pronouncement of the Court either expressly or  by way  of obiter  that the maximum periods of detention set  out in  the proviso  commence to run from the very date  of  arrest.  On  the  other  hand  the  following sentence in the judgment will appropriately reflect the view expressed by the Court :           "When an  undertrial prisoner is produced before a           Magistrate and  he has  been in  detention for  90           days 1148           or 60  days, as  the case  may be,  the Magistrate           must, before  making an order of further remand to           judicial  custody  point  out  to  the  undertrial           prisoner that  he is  entitled to  be released  on           bail". If this  Court had  intended to  lay down, even by way of an obiter that  the period of detention is to commence from the date of arrest, then it would not have said in the very next breath that  an accused  is  entitled  to  be  told  by  the Magistrate, at  the end  of the  period of  detention for 90 days or  60 days  as the  case may be that he has a right to seek enlargement  on bail. The last of the cases is State of U.P. v.  Laxmi Brahman & Anr., [1983] 2 S.C.R. 537. That was a case  where the  Allahabad High  Court held that in a case exclusively triable  by a Court of Sessions a Magistrate has no jurisdiction or authority to remand an accused to custody after  the   charge-sheet  is   submitted  and   before  the commitment order is made, and hence the accused are entitled to be  released on  bail after  being in detention as remand

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 15 of 15  

prisoners for  90 days. The view of the Allahabad High court was upheld  by this Court a casual observation has been made that the  admitted position  was that  the accused  did  not apply to  the Magistrate  for being  released on bail on the expiry of 60 days from the date of arrest. This statement of fact can  never constitute  a pronouncement  as to  how  the total period of detention should be reckoned.      From what  we have stated above it is obvious that this Court  has   not  expressed  itself  in  any  of  the  three decisions, either  directly  or  indirectly,  upholding  the proposition  that   for  computing   the  total  periods  of detention prescribed  in clauses (i) and (ii) of proviso (a) to Section  167(2) of  the Code,  the date of arrest and not the date  of production of the accused before the Magistrate should be  taken as  the starting point. In the light of our findings we  are clearly of the view that the contentions of the appellants cannot be sustained. The learned Singh Judge, it must  therefore be  held, has acted correctly in allowing the petition filed by the State for cancellation of the bail granted to  the appellants.  As the  Munsif  Magistrate  has granted bail  to the appellants before the expiry of 90 days of remand  period  allowed  under  law,  the  order  of  the Magistrate will not tantamount to one passed 1149 under the provisions of Chapter XXXIII of the Code and hence there is  no scope  for contending  that  re-arrest  of  the appellants can  be ordered  only in terms of sub-section (5) of Section  437. We,  however, make  it clear that after the appellants surrender themselves to custody or are taken into custody by  re-arrest, they  will not  stand precluded  from seeking enlargement  on bail  by filing  applications  under sub-section (1)  of Section  437 of  the Code and satisfying the Court that they deserve to be enlarged on bail.      In the result, the judgment of the High Court is upheld and the appeal is dismissed accordingly. M.L.A                                      Appeal dismissed. 1