VAKHATSINH SOMSINH Vs. STATE OF GUJARAT

JUDGEMENT

(1.) Applicant Vakhatsinh Somsinh under trial prisoner No. 447 in the District Jail at Junagadh has filed this application under sec. 167 of the Code of Criminal Procedure 1973 (hereinafter referred to as the Code) for releasing him on bail. The allegation against him is that he committed murder and thereby committed an offence under sec. 302 of the Indian Penal Code. During the investigation of the offence he was arrested by the police. He was then produced before the learned Judicial Magistrate First Class Junagadh. He was remanded to the judicial custody under sec. 167 of the Code. He made an application under sec. 437 of the Code for releasing him on bail. The learned Judicial Magistrate by his order dated 21-9-75 rejected his said application. Thereafter he filed Criminal Miscellaneous Application No. 53 of 1974 in the Court of the learned Sessions Judge Junagadh for releasing him on bail. By the order dated 9.10.74 his said application was rejected. In the said application before the learned Sessions Judge it was also contended by him that he was entitled to be released on bail under sec. 167 of the Code. The learned Sessions Judge found that the provisions of sec. 167 of the Code were applicable only in a case where the accused concerned was forwarded to the learned Judicial Magistrate under sub-sec. (1) of sec. 167 of the Code He found that in the present case the accused was not forwarded to the Judicial Magistrate under sec. 167 (1) of the Code. He was arrested under sec. 56 of the Code. The learned Sessions Judge found that reading secs. 57 and 167 of the Code together it was obvious that sec. 167 of the Code applied when there was detention of an accused for more than 24 hours in the custody of the police and when he was produced before the learned Judicial Magistrate only for the purpose of taking him on remand He found that the provisions of sec. 167 of the Code did not come into play and therefore he rejected the request of the accused for being released on bail under sec. 167 of the Code.

(2.) Before me it has been argued by Mr. Shah for the State that sec. 167 of the Code should be read with sec. 437 of the Code which provides for bail in case of non-bailable offence. According to him as the accused is said to have committed an offence punishable under sec. 302 of the Indian Penal Code he is not entitled to be released on bail under sec. 437 of the Code and therefore he is not entitled to be released on bail even under sec. 167 of the Code. He wants the two sections of the Code to be construed harmoniously so that the provisions of sec. 167 of the Code may not conflict with the provisions of sec. 437 of the Code. It is incorrect to say and therefore it is not argued before me that accused having been forwarded to the Magistrate under secs. 56-57 Cr. P. Code provisions of sec. 167 Cr. P. Code do not apply.

(3.) The point involved is very simple. Sec. 167 of the Code provides for procedure to be followed when investigation cannot be completed in twenty four hours. Sub-sec. (1) of sec. 167 of the Code provides for detention of the person arrested in police custody for a period of twenty-four hours fixed by section 57 and further for forwarding him to the nearest Judicial Magistrate when there are grounds for believing that the accusation or information is well founded. Sub-sec. (2) of sec. 167 of the Code provides for detention of the accused person in custody for a term not exceeding 15 days in the whole. It also provides that if the Magistrate concerned 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. However there is a proviso added to sub-sec. (2) which lays down-(a) the Magistrate may authorise detention of the accused person otherwise than in custody of the police beyond the period of fifteen days if he is satisfied that adequate grounds exist for doing so but no Magistrate shall authorise the detention of the accused person in custody under this section for a total period exceeding sixty days and on the expiry of the said period of sixty days the accused person shall be released on ball if he is prepared to and does furnish bail and every person released on bail under this section shall be deemed to be so released under the provisions of Chapter XXXIII for the purposes of that Chapter. Sub-sec. (2) of sec. 167 relates to the detention of the accused person in custody after he has been forwarded to the Magistrate under sub-sec. (1) of section 167. The section is contained in Chapter XII which relates to the information to the police and their powers to investigate and as the marginal note to sec 167 suggests the provision relates to the detention of an accused person pending investigation of the offence by the police. The period for which the accused can be kept in detention at different stages by different authorities has been prescribed in the section. Sub-sec. (1) of sec. 167 refers to period of twenty-four hours fixed under section 57 in the police custody. Thereafter unless the accused is remanded to police custody by the Judicial Magistrate on his being produced before the Judicial Magistrate provision is made for detaining him in the Magisterial custody. Sub-sec. (2) sec. 167 provides for detention in Magisterial custody for a term not exceeding 15 days in the whole. For further detention after the expiry of 15 days the proviso to sub-sec. (2) provides that if the Magistrate is satisfied that adequate grounds exist for detaining the accused for a period beyond 15 days he can detain him for a further period of 15 days. However a restriction has been laid on the power of the Magistrate that such detention of the accused person in custody under this provision shall not be for a total period exceeding sixty days. The proviso further provides that where such detention exceeds the prescribed total period of sixty days accused person shall be released on bail if he is prepared to and does furnish bail. The section is clearly enacted to restrict the power of detention of an under-trial person pending the investigation to a maximum period of 60 days thereby requiring the investigating authority to complete the investigation within a period of 60 days and submit the charge-sheet in the Court. Failure to do so will result in entitling the accused person to be released on bail if he is prepared to and does furnish bail. Sec. 167 of the Code does not distinguish between persons accused of offenses punishable with death or imprisonment for life and offenses punishable otherwise than that. Irrespective of the offence which appears to have been committed by the accused he is entitled to be released on bail on the expiry of the prescribed period of 60 days. Sec. 437 is contained in Chapter XXXIII which contains provisions as to bail and bonds and provides When any person accused of or suspected of the commission of any non-bailable offence is arrested or detained without warrant by an officer in charge of a police station or appears or is brought before a court other than the High Court or Court of Sessions he may be released on bail but he shall not be so released if there appear reasonable grounds for believing that he has been guilty of an offence punishable with death or imprisonment for life. This section provides for the release of the accused on bail from the stage of his arrest or detention without a warrant by an officer in charge of a police station. This right continues even at the stage of the trial. The restriction which is placed on the powers of the Court to release a person on bail under this section is that he shall not be released on bail if there appear reasonable grounds for believing that he has been guilty of an offence punishable with death or imprisonment for life. Mr. Shah wants me to read this restriction in sec. 167 of the Code also. His submission is that the restriction which has been placed in sec. 437 of the Code should equally apply to the provision of sec. 167 of the Code. because the intention of the Legislature is to restrict the right of a person to be released on bail in a case where there appear reasonable grounds for believing that he has been guilty of an offence punishable with death or imprisonment for life. I am unable to accept his contention because of the language employed in sec. 167 of the Code. The two provisions are different meant for meeting with different contingencies. Provision of sec. 437 of the Code is a general provision regarding the bail while sec. 167 is a provision relating to the detention of an accused person in custody pending investigation. The proviso to sub-sec (2) of sec. 167 of the Code amply clarifies the position. It provides that every person released on bail under this section shall be deemed to be so released under the provisions of Chapter XXXIII for the purposes of that Chapter. It does not provide that the right of a person to be released on bail under the proviso to sub-sec. (2) of sec. 167 is subject to the provision of sec. 437 (1) of the Code. The deeming provision does not restrict the right of a person to be released on bail just as it has been restricted in sec. 437 of the Code. Sec. 167 of the Code is meant to compel the investigating authority to expedite the completion of the investigation so that a person detained during the period of investigation may not remain in detention unnecessarily. It does not make any distinction as regards the nature of the offence which appears to have been committed by the person detained In custody pending investigation. The right provided in sec. 167 of the Code extends to all accused persons detained pending investigation irrespective of the nature of the accusation made against him. The language used in sec. 167(2) clearly confers a right of being released on bail without the same being governed by the provision contained in sec. 437. The order of release on bail is to be passed under sec. 167(2) and not under sec. 437. The deeming provision in sec. 167(2) comes into play not at the time of releasing him on bail but on his being released on bail. On his being released on bail he should be deemed to be so released under the provisions of Chapter XXXIII for the purposes of that Chapter. This deeming provision is enacted with a view that other incidental provisions as to bail and bonds contained in Chapter XXXIII may apply to the order of bail and the bonds etc. By no stretch of imagination it can be construed that the provision for releasing on bail contained in sec. 167(2) is subject to the provision of sec. 437. If that was the intention in enacting sec. 167(2) it would not have been necessary to introduce this new provision In sec. 167 because under sec. 437 the power is already vested in the Magistrate to release an accused person on bail pending investigation subject to the limitation contained therein. In that case provision of 167(2) becomes redundant. Sec. 167(2) is clearly an independent provision without any restriction on the power of the Magistrate.