FAKIRA NAIK Vs. STATE OF ORISSA

JUDGEMENT

(1.) The short question posted for consideration is whether under proviso (A) to sub-section (2) of section the Code of Criminal Procedure, 11973 the period of 60 days or 90 days, as the case may be, is to be commuted from the data of arrest of the accused or from the data of production before the Magistrate. The Petitioner were arrested on 3-9- 1982, inter alia, an allegations of commission of offence of murder. They were produced before the Magistrate on 4-9-1982. On 2-12-11982 charge sheet was files. The learned Sessions Jude refused to grant bail, so, the petitioners are before us.

(2.) Mr. P.K. Misra, the learned counsel for the petitioners has urged that the provisions discloses an assent on liberty and should be liberally construed. He has submitted that the period under Proviso. (a) should be computed from the date of arrest and not from the date of production before the Magistrate. The period of remand authorized should be such that it, together with the period of detention under section 57, does not exceed the period of 60 days or 90 days, as the case may be. When the legislature introduced the reform, the object was to alleviate the harassment that was being suffered by an accused on account of lethargic and dilatory investigation. He has relied upon Mohd Shoji v. The State, State of Rajasthan v. Bhanwarn Khan, Khinvdan v. The State of Rajasthan, Prem Raj v. The State of Rajasthan, Darshan Singh v. State of Punjab, Smt. Indaro Devi v. Raja Ram, Gurbachan Singh v. State of HP., Gurcharan Singh v. State of Himachal Pradesh, and Hussainara Khatoon v. Home Secretary, State of Bihar, and two decisions of this Court in Mangal Hemrum and others v. State of Orissa, and Ramesh Chandra Sahu v. State. In all these cases, it has been held that the accused is entitled to bail unless charge-sheet was filed within the period of 60 days or 90 days as the case may be, from the date of his arrest. Mr. Misra-bas contended that it is difficult to accept that these Courts while rendering the decisions in the aforesaid cases were oblivious of the meaning of the proviso and made a casual observation that the period commences from the date of arrest. He especially invited out attention to the observation of the Supreme Court in Hussainara Khatoons Case (supra) where Bhagwati, 3. observed: ...we are also 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 under trial 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 Mr. Misra has urged that the Supreme Court was construing proviso (a) to sub-section (2) of section 167 of the Code. In that context, it observed that the period commenced from the date of arrest. Mr. Misra has vehemently urged that it is difficult to contend that the Supreme Court was not aware of the provision contained in section 57 of the Code and that the period of detention contemplated by section 57 was authorized by that section. He has submitted that in the context and the scheme of the provision, having regard to the object sought to be achieved, the Supreme Court and other High Courts laid down that the period would commence from the date of arrest. It is immaterial whether the period of detention prior to production before the Magistrate is one contemplated by section 57. A strict and literal interpretation of proviso (a) to sub section (2) to section 167 of the Code would defeat the object. According to him, the Supreme Court was construing proviso (a) and the rule that the period is to be computed from the date of arrest is the ratio of the case. Even the obiter of the Supreme Court is binding on this Court and so he persuades us to accept his contention. He has also drawn our attention to the case of Gurcharan Singh v. State of Himachal Pradesh, (supra) where it was observed: The scheme which is revealed from the provisions of Section 167, Criminal Procedure Code is that the Magistrate can authorize two types of custodies, namely, (1) the police custody and (2) the judicial custody. In other words, Section 167 contemplates not merely the judicial custody, but also the police custody. So as the police custody is concerned, there is a limitation to the effect that the same cannot exceed more than 15 days, after the expiry of these fifteen days of police custody, the arrested person is required to be taken in judicial custody. Sixty days limitation which is contemplated by the proviso (a) of section 167(2) is with regard to both the types of custodies contemplated by this section. It, therefore, follows that sixty days limitation would start running from the time the person is arrested by the police...

(3.) The learned Government Advocate has submitted that the provision contained in proviso (a) to sub-section (2) of section 167 of the Code was framed against the backdrop of section 57. When the period of detention preceding production before the Magistrate is one authorized by section 57, it would not be sound interpretation to hold that the said period would be a part of the period contemplated by proviso (a) to be one authorized by the Magistrate. He has referred us to the decisions reported in Jai Singh v. State of Haryana Tarsem Kumar v. The State L.R. Chawla v. Murari and Raj Kumar v. The State.