P. C. JAIN, J. - (1.) IN this bail application under Sec. 439 of the Code of Criminal Procedure 1973, the accused - petitioner has prayed that the benefit of Sec. 167, Cr. P. C. be extended to him for enlarging him on bail and he be released on bail. The offence under which he has been arrested is under Sec. 302, IPC, relating to FIR No. 36/85 lodged at the Police Station, Rawanja Doongar District Sawai Madhopur.
(2.) THE main question involved in this case is, whether the benefit of Section 167 (2) (a ). Cr. P. C. can be given to the accused-petitioner in case the maximum period of 90 days is completed. Briefly stated, the facts of the case are that an FIR was lodged at the Police Station, Rawanja Doongar, on 17th July, 1985, alleging that the accused-petitioner has committed an offence punishable under Sections 302, 323 and 447, IPC. The allegations in the FIR are that the accused gave serious lathi blows on the head of Hanuman Singh who later on died on 17th July, 1985. The accused-petitioner surrendered himself before the Munsiff & Judicial Magistrate, Sawai Madhopur by moving an application to the Court that as the police wants to arrest him, he be taken into custody and be sent to the judicial custody. The learned Munsiff - Magistrate on the same day sent the accused -petitioner to judicial custody. From the judicial custody the police has taken the accused - petitioner to any other custody on 22nd July, 1985 at 3. 30 p. m. After the arrest, the police started investigation and, later on, he was sent to the judicial custody on 3rd August, 1985 by the learned Munsiff-Magistrate. Thus, he was sent to judicial custody after 15 days of the remand were over. The police completed the investigation and submitted challan, under Sec. 174, Cr. P. C. before the Court on 18th October, 1985. It may be mentioned here that on that date the Munsiff-Magistrate, Shri Suresh Chandra Goyal was on leave and the court work was being looked after by Shri Sundar Lal, Munsiff & Judicial Magistrate, Sawai Madhopur, who did not find any defect in the challan and directed the authorities to produce the accused on 24th October, 1985 before the Court. The learned counsel for the accused-petitioner submits that in the facts and circumstances of the case it should be taken that the accused-petitioner was detained on 20th July, 1985 and the charge-sheet, though filed on 18th October, 1985 but in fact, cognizance was taken by the Court on 24th October, 1985. If the date of detention is counted from 20th, July, 1985 to 24th October, 1985, the period of detention comes to 98 days. Thus, the period of detention is more than what is prescribed under Sec. 167 (2) (a) of the Code of Criminal Procedure, 1973 and the detention become illegal and the accused-petitioner is entitled to be released on bail automatically. The submission of Shri S. R. Surana, learned counsel for the accused-petitioner, is that in view of the circumstances narrated above, the petitioner is entitled to the benefit of Sec. 167 (2) (a) and, since the petitioner is ready and willing to furnish bail-bonds to the satisfaction of the Court, therefore, he be released on bail. Shri R. P. Garg, who assisted the learned Public Prosecutor and opposed the bail application, urged numerous grounds which may be summarised as follows : (a) That the challan was submitted within a period of 90 days. Therefore, the question of illegal detention does not arise in this case. (b) That even if the detention be held to be illegal the petitioner is not entitled to be enlarged on bail in the facts and circumstances of the case, as the legal remedy lies elsewhere and the petitioner is not entitled to the benefit of Sec. 167 (2) (a), Cr. P. C. (c) That this case has been committed to the Court of Sessions and, as such, even if there was any illegality, that no more survives. There is controversy about the fact that before the challan was filed the accused-petitioner remained in the custody for a period exceeding 90 days. The learned counsel for the accused-petitioner submits that the petitioner remained in custody for a period of 98 days, while the learned Public Prosecutor assisted by Shri R. P. Garg submits that the period of detention is 89 days. In such circumstances, it would be better to-resolve the factual controversy. There is no doubt that the accused-petitioner surrendered himself on 20th July, 1985 before the Munsiff & Judicial Magistrate and that he was in fact taken into police custody on 22nd July, 1985. Further, the question would arise whether the date of arrest should be counted within the period of 90 days or is to be excluded. The submission of the learned counsel for the accused-petitioner is that the relevant date for consideration of filing of the challan under S 173. Cr. P. C. is the date on which cognizance is taken by the Court and, thus, the period from 20th July, 1985 to 24th October, 1985 comes to 98 days. His further submission is that even if the date of cognizance is ignored and the period is computed from 20th July, 1985 - the date when the accused - petitioner surrendered to the date when the challan was filed on 18th October, 1985, the period would be 91 days and, as such the petitioner would be entitled to the benefit of Sec. 167 (2) (a ). Shri Garg submitted that the date of arrest by police under S. 57 of the Code of Criminal Procedure, 1973 has to be excluded while computing the period of 90 days under Sec. 167 (2) (a ). To substantiate his contention, he placed reliance on The State of Maharashtra Vs. Sharan B. Sarda (1), wherein a similar question arose and the Bombay High Court held that the date of arrest is to be excluded.
(3.) ANOTHER limb of argument of the learned counsel is that for the purpose of Sec. 167, taking of cognizance by the Court is not necessary and, reliance has been placed on Daula Ram vs. State of Rajasthan (2 ). The relevant portion of the judgment is as follows :- "it is on the basis of proviso to sub-sec. (2), that the petitioner's claim to be released on bail. It would be useful to point out that the proviso makes it clear that no Magistrate shall authorise the detention of the accused person in custody under this paragraph for a total period exceeding ninety days where the investigations relate to the offence punishable with death, imprisonment for life or imprisonment for a term of not less than ten years. A bare reading of this sec. 167 would make it clear that it relates to the authorisation of the detention of an accused period during investigation. Therefore, if the investigations are not over within the prescribed period, the proviso to Section 167 (2) in respect of grant of bail would not apply. Therefore, the question for consideration in this case is whether in the present case, the investigations would be deemed to be over or not by the time the challan against the petitioners was filed on 30/4/83. " The judgment of this Court in Daula Ram's case (supra) is based on the observations made by the Supreme Court in the case of State of U. P. vs. Lakshmi Brahman (3) in which their Lordships of the Supreme Court held as under :- "sec. 167 envisage a stage when a suspect is arrested and the investigation is not completed within the prescribed period. The investigation would come to an end the moment charge-sheet is submitted as required under Sec. 170 unless the Magistrate directs further investigation. " In Daula Ram's case, this Court also observed that Sec. 167 relates to the completion of the investigation and not to the taking of the cognizance. It was further observed in that case that after the charge-sheet was filed on 30th April, 1983, the Magistrate did not order for further, investigation and therefore, it must be deemed that the investigation had been completed by 30th April, 1983, which was the date on which the challan was filed, well within 90 days of the arrest of the accused. ;