- (1.) PROVISO (a) of Sub-section (2) of Section 167 of the Code of Criminal Procedure of 1973 as amended by Act 45 of 1978 lays down that no Magistrate shall authorise the detention of an accused in custody for a total period exceeding ninety days, where the investigation relates to offence punishable with death, imprisonment for life or for a term not less then ten years and on the expiry of the said period of ninety days the accused shall be released on bail if he is prepared to furnish the bail bond. It may also be mentioned that the proviso now prescribes a total period of sixty days where the investigation relates to any other offence. The question for determination is, whether the period of detention of ninety or sixty days, as the case may be, is to be computed from the date of the arrest of the accused or not?
(2.) IN Raj Kumar v. The State MANU/ph/0115/1979,, AIR1979 Pandh 80 , I considered this aspect of the proviso. Having regard to the terms of the proviso I expressed the view that the period of ninety or sixty days, as the case may be, has to commence from the date the Magistrate authorised the detention of an accused-person. My view was based,on the plain reading of the terms of the proviso. Now learned Counsel for the State has, in support of my view, cited Bashir v. The State of Haryana MANU/sc/0077/1977 , AIR1978 SC 55 , 1978 Crilj173 , (1977 )4 SCC410 , [1978 ]1 SCR585 , 1977 (9 )UJ663 (SC ) wherein at page 57 their lordships have observed: Sub-s. (2) of Section 167 and proviso (a) thereto make it clear that no Magistrate shall authorise the detention of the accused person in custody under this section for a total period exceeding sixty days. On the expiry of sixty days the accused person shall be released on bail if he is prepared to and does furnish bail. Thus, it would be seen that the emphasis is on the period of detention as authorised by the Magistrate.
(3.) LEARNED Counsel for the State then invited my attention to Tarsem Kumar v. The State 1975 Cri LJ 1303, (Delhi) decided by V. D. Misra, J. (now Hon'ble Chief Justice of Himachal Pradesh High Court) laying down that' in computing total period of sixty days referred to in' Proviso (a) to Sub-section (2) of Section 167 of the Code of Criminal Procedure, the period of detention by the Police under Section 57 of the Code of Criminal Procedure has to be excluded. The learned Judge again expressed the same view in L. R. Chawla v. Murari 1976 Cri LJ 212 (Delhi ). I may mention here that while deciding Raj Kumar's case (supra), the effect of the provision of Section 57 of the Code of Criminal Procedure was not raised before me but now upon a consideration of this matter I find myself in respectful agreement with V. D. Misra, J. , that after arresting a person, the police in the exercise of their power under Section 57 of the Code of Criminal Procedure can keep him in custody for a limited period of 24 hours excluding the time taken in journey. that custody is obviously not under the authority of the Magistrate but under the powers conferred by the statute on the Police. If the police is unable to complete the investigation within the prescribed limit of 24 hours, it is then that they are required to produce the accused before a Magistrate for remand under Section 167 of the Code of Criminal Procedure. It is thus clear that detention under the authority of the Magistrate, with respect to the period whereof proviso (a) to Section 167 (2) makes specific reference, commences from the date the Magistrate passes the order of remand.;