ANTONY Vs. STATE OF KERALA

JUDGEMENT

(1.) THIS application under S. 437 and 439 read with S. 482 of the Code of Criminal Procedure was filed by accused 1, 3 and 4 in Crime No. 201 of 1985 of the Quilon East Police Station for being enlarged on bail. The case was registered against them along with the 2nd accused for having committed offences punishable under S. 302 and 201 read with S. 34 of the Indian penal Code alleging murder of Francis alias Vinu, a boy aged 18, said to be the son of the third accused as well as for having caused disappearance of evidence. Third accused is the sister of accused 1 and 2 and 4th accused is their mother.

(2.) PETITIONERS were arrested on 14-6-1985 at 9. 15 p. m. and produced before the Judicial First Class Magistrate. Quilon on 15-6-1985 at 8. 30 p m. Second accused surrendered before the Magistrate on 8-7-1985. Their bail applications were rejected by the Magistrate, the Sessions Judge and this court on earlier occasions. The petitioners moved the Magistrate for their release on bail as provided under S. 167 (2) (a) of the Code of Criminal procedure. By order dated 17-9-1985, the Magistrate dismissed the application on the ground that he was informed by the Assistant Public Prosecutor that this court gave some directions while rejecting their previous bail applications and therefore without producing that order it may not be safe to release them on bail. Hence they came up before this Court.

(3.) I do not think that there is much merit in the arguments advanced by the Public Prosecutor. There was no dispute on the question that the period of ninety days or sixty days, as the case may be, under S. 167 (2) (a) has to commence not from the date or time of arrest but from the date on which detention was authorised by the Magistrate on production of the accused before biro after arrest. Sub-section (2) of S. 167 provides that the Magistrate before whom the accused is forwarded has to "authorise" the detention in such custody as he thinks fit. What proviso (a) also says is the Magistrate may authorise detention beyond the period of fifteen days, for a total period not exceeding 90 days or 60 days as the case may be. In calculating the period of authorised detention of 15 days, 90 days or 60 days, as the case may be, the period of detention by the police under S. 57 of the Code has to be excluded. After arresting a person the police in exercise of the power under S. 57 of the Code, can keep him in custody for a limited period of 24 hours excluding the time taken for the journey. Under s. 167 (1), only if it appears that investigation cannot be over within 24 hours and there are grounds for believing that the accusation or information is well-founded, the police officer need forward the accused to the Magistrate. It is evident that the period of permitted detention by the police officer before the accused is forwarded to the Magistrate and the detention authorised by the magistrate cannot be included in calculating the period of sixty days or ninety days as the case may be. This position was not disputed. Further, authorities for the position could be had from the decisions in Jai Singh v. State of haryana (1980 Crl. L J. 1229), Raj Kumar v. The State (AIR. 1979 Punj. & har. 80), Bashir v. State of Haryana (AIR. 1978 SC. 55), and Babubhai parshottamdas v. State of Gujarat (1982 Crl. L. J. 284 ). Therefore it could be taken as an undisputed fact that the period of permissible detention of ninety days could be calculated only from 15-6-1985, on which day the Magistrate authorised the detention.