BATNA RAM Vs. STATE OF HIMACHAL PRADESH

JUDGEMENT

(1.) "whether the period of detention of an accused person in police custody under Sub-section (21) of Section 167 of the Code of Criminal Procedure, is to be included while calculating the period of 90 days or 60 days under clauses (i) and (ii) respectively of paragraph (a) of the proviso to Sub-section (2) of Section 167 of the amended Code?"

(2.) THE amending Act of 1978 did not make any change in Sub-sections (1) and (2) but amended the proviso to Sub-section (2 ). The proviso now reads thus: (a) the Magistrate may authorise the detention of the accused person, otherwise then in the 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 paragraph for a total period exceeding- (i) ninety days, where the investigation relates to an offence punishable with death, imprisonment for life or imprisonment for a term of not less then ten years, (ii) sixty days, where the investigation relates to any other offence, and, on the expiry of the said period of ninety days, or sixty days, as the case may be the accused person shall be released on bail if he is prepared to and does furnish bail, and every person released on bail under this sub-section shall be deemed to be so released under the provisions of Chapter XXXIII for the purposes of that Chapter;

(3.) NOW, a police officer has been authorised by Section 56 to arrest a person without warrant. He is, however, duty bound, if he does not release the person on bail, to send the arrested person before a Magistrate without unnecessary delay. The maximum period for which the police officer can detain in custody such a person, without a special order of a Magistrate under Section 167, cannot exceed 24 hours exclusive of the time necessary for the journey from the place of arrest to the Magistrate's Court: (Section 57 ). Needless to add that situations may arise where the time taken for the journey may amount to a number of days. In that event the custody of the police officer for all those days shall be lawful without special orders of a Magistrate under Section 167.