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Rajasthan High Court · body

2010 DIGILAW 1575 (RAJ)

Laxman Singh v. State of Rajasthan

2010-08-30

M.N.BHANDARI

body2010
Hon'ble BHANDARI, J.—Heard learned counsel for the parties and perused the record of the case. 2. This bail application has been filed mainly on the ground that pursuant to the provisions of Section 167(2) Cr.P.C., charge sheet has not been filed within a period of 90 days from the date accused petitioner was arrested thus his detention became illegal making him entitled for bail. Petitioner was arrested in respect of another case and while in custody therein, investigation was made in the present matter on 21.3.2010. Thus arrest of petitioner has to be presumed from 21.3.2010 and the period of 90 days having elapsed and no charge sheet has been filed, petitioner is entitled for grant of bail. 3. Reference of the judgment of this Court in the case of "Jawahar Singh vs. State of Rajasthan" reported as 1990 Cr.L.R. (Raj.) 95 has been made. In the aforesaid case, period of 90 days has been reckoned from the date accused was available to the police for investigation while he was in custody in other case. 4. Learned counsel for petitioner submits that the Court below has failed to appreciate aforesaid proposition of law and wrongly dismissed the bail application. 5. Learned Public Prosecutor has opposed the bail application. He submits that petitioner has not yet been arrested in this matter, rather matter is pending for investigation. Production warrant is sought, thus presumption of arrest cannot be drawn for counting period of ninety days. Hence, bail application may be dismissed. 6. The short controversy involved in the present matter is in regard to application of the provisions of Section 167(2) Cr.P.C. It is a case where petitioner was arrested in another case and allegation of learned counsel for the petitioner is that petitioner was interrogated/investigated by the police on 21.3.2010 hence, he is to be presumed to have been arrested in this case also on the aforesaid date for determination of period of 90 days, as provided under the proviso to Section 167(2) Cr.P.C. For proper appreciation, it would be gainful to quote provisions of section 167(1) and (2) Cr.P.C. "167. Procedure when investigation cannot be completed in twenty-four hours. Procedure when investigation cannot be completed in twenty-four hours. (1) Whenever any person is arrested and detained in custody, and it appears that the investigation cannot be completed within the period of twenty-four hours fixed by section 57, and there are grounds for believing that the accusation or information is well founded, the officer in charge of the police station or the police officer making the investigation, if he is not below the rank of sub-inspector, shall forthwith transmit to the nearest Judicial Magistrate a copy of the entries in the diary hereinafter prescribed relating to the case, and shall at the same time forward the accused to such Magistrate. (2) The Magistrate to whom an accused person is forwarded under this section may, whether he has or has not jurisdiction to try the case, from time to time, authorise the detention of the accused in such custody as such Magistrate thinks fit, a term not exceeding fifteen days in the whole; and if he 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. Provided that- (a) the Magistrate may authorise the detention of the accused person, otherwise than in the custody of the police, beyond the period of fifteen days, if he is satisfied that adequate grounds exists 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 than 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 to released under the provisions of Chapter XXXIII for the purposes of that Chapter; (b) no Magistrate shall authorise detention in any custody under this section unless the accused is produced before him; (c) no Magistrate of the second class, not specially empowered in this behalf by the High Court, shall authorise detention in the custody of the police." 7. Perusal of provisions of Section 167(1) shows that whenever person is arrested and detained in custody and investigation cannot be completed within a period of 24 hours, the accused has to be transmitted to the nearest Judicial Magistrate. As per sub section (2) the Magistrate to whom the accused person is forwarded, may authorise detention of the accused in such custody as the Magistrate considers fit for a term not exceeding 15 days in a whole. Proviso to sub section (2) provides limitation of such custody not exceeding 60 days or 90 days, as the case may be. Keeping in mind aforesaid provision, question of presumption of custody of the accused does not arise. To complete the requirement of provisions of Section 167(1) the detention of the accused person has to be shown with further requirement to transmit the accused to nearest Judicial Magistrate, if investigation is not completed within 24 hours. 8. Facts of this case does not show existence of aforesaid i.e. arrest or detention of the petitioner in the present matter. Sub section (2) amply clarify the situation. 8. Facts of this case does not show existence of aforesaid i.e. arrest or detention of the petitioner in the present matter. Sub section (2) amply clarify the situation. It is under the order of the Magistrate that detention is authorised in such custody as the Magistrate thinks fit. In the present matter, no such order exist. In view of aforesaid, it cannot be said that period of 90 days has to be counted from the date petitioner was called for investigation in this case. Rather, facts shows that production warrant has been demanded to secure custody of petitioner in this case. Therefore, I am not convicted with the argument advanced by learned counsel for petitioner. 9. Reference of the judgment in the case of Jawahar Singh (supra) has been made. The facts therein are different than involved in this case. In any case, statutory provision has to be given its true interpretation. When the provisions of Section 167 Cr.P.C. are very specific thus in absence of an action as envisaged under the aforesaid provisions, it cannot be applied for grant of benefit of section 167(2) Cr.P.C. No remand order exists in this case. 10. It is settled law that statutory provisions cannot be given casual interpretation. When section 167 Cr.P.C. needs certain acts to be done in a particular manner then in absence of such acts, aforesaid provision cannot be invoked. 11. In the light of the aforesaid discussion, I do not find any merit in the argument so raised by learned counsel for petitioner. Accordingly, bail application is dismissed.