Is date of remand included for calculation of 60/90 days under Section 167(2) CrPC? Need for clarity

Bail being directly proportional to civil liberty, carries immense value in our criminal justice administration. Bail can broadly be classified into anticipatory, regular or default bail. Out of these, default bail can be sub-classified into bail u/s 437(6) and 167(2) of the Code of Criminal Procedure (CrPC) where due to a default, bail must be granted compulsorily.

On failure of the investigating agency to complete the investigation in non-bailable offences in a timely manner (60 days of 90 days as the case may be), an indefeasible right to obtain bail arises u/s 167(2) CrPC. In this piece, we will discuss a practical issue of including the date of remand in the calculation of 60 days or 90 days.

Legislative history

Section 124 of the Code of Criminal Procedure, 1872 contemplated that an accused could not be detained for more than 24 hours without special authority. For keeping an accused in custody beyond 24 hours, a police officer required a special order by a magistrate. In the event the investigation could not be completed within 24 hours, no special order was passed, and there were grounds to believe that the accusation was well-founded, the officer in charge was required to forward the accused person to the magistrate, who had to authorize detention thereafter.

Notably, this was not a provision under which bail could be obtained, but was only for authorizing detention.

10 years later in 1882, the CrPC was revised thoroughly and Section 124 got reframed as per a new Section 167. This provision added the expression ‘not exceeding 15 days’ i.e the remand u/s 167 could not be ordered for more than 15 days.

The CrPC was again sought to be amended, and the Bill which led to the fresh code of 1898 sought to include an expression ‘in the whole’ for this period of 15 days. In CrPC of 1898, Section 167 laid down the procedure to be followed in the event the investigation of an offence was not completed within 24 hours. Section 167 was premised on the conclusion of investigation within 24 hours or within 15 days on the outside, regardless of the nature of the offence or the punishment.

The Law Commission of India vide its 14^th, 37^th and 41^st Reports recommended certain changes to Section 167. The 41^st Report recommended for increasing the time limit for completion of investigation to 60 days. The new Code of Criminal Procedure, 1973 gave effect to the recommendation of the Law Commission. The new Section 167 provided for a time limit of 60 days regardless of the nature of offence or the punishment. In the year 1978, Section 167 was amended and bifurcated the time limit into 60 days and 90 days, as per the punishment applicable for the concerned offence. It is here where the character of Section 167(2) was largely altered and it also became a provision granting bail.

Section 167(2), as it exists now, reads:

“167.(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, for 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 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 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 so 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”

Therefore, persons who are detained for committing an offence and undergoing investigation are statutorily eligible for bail under Section 167(2) after 90 days where the investigation relates to an offence punishable with death, imprisonment for life or imprisonment for not less than ten years; and 60 days where the investigation is relating to any other offence, if the investigating authorities fail to complete the investigation and file a charge-sheet within this period. This period is stretchable under a few special penal statute books.

The law surrounding grant of default bail u/s 167(2) CrPC is that on the 90^th/60^th day, as the case may be, a person in custody has to be mandatorily released on bail as a matter of right by the concerned court if he moves an application to this effect at an appropriate stage before filing of police report u/s 173(2) CrPC. Any detention beyond the prescribed period is illegal.

Judicial history - calculation of the time period

An interesting question thus arises on the calculation of such period of 90/60 days. When does it start? From the date of arrest or from the date of remand?

In Chaganti Satyanarayana v. State of AP, a two-judge Bench of the Supreme Court laid down,

“Thus in any view of the matter i.e. construing proviso (a) either in conjunction with sub-section (2) of Section 167 or as an independent paragraph, we find that the total period of 90 days under clause (i) and the total period of 60 days under clause (ii) has to be calculated only from the date of remand and not from the date of arrest.”

The said proposition was relied upon and approved by another two-judge bench in CBI v. Anupam J Kulkarni with full rigor.

Three years later, a diametrically opposite view came to be taken by another two-judge bench of Justices MM Punchhi and KJ Reddy in State of MP v. Rustam that date of remand has to be excluded from the counting period for purposes of Section 167(2). It held that while computing the period of 90 days, the day on which the accused was remanded to the judicial custody should be excluded, and the day on which challan is filed in the court should be included. It also set aside the order of grant of bail by the High Court on a conclusion that on the date of the order, the prosecution had already submitted a police report and, therefore, the right stood extinguished.

Two judge benches in State v. Mohd Ashraf Bhat (1996, Justices Punchhi and K Venkataswami); State of Maharashtra v. Bharati Chandmal Varma (2002, Justices KT Thomas and SN Phukan); Pragyna Singh Thakur v. State of Maharashtra (2011, Justices Panchal and Gokhale); and Satyajit Ballubhai Desai v State of Gujarat (2014 Justices GS Singhvi and GS Misra) approved the view taken in Chaganti.

In fact, in Nirala Yadav, another coordinate bench of the Supreme Court led by Justice Dipak Misra along with Justice NV Ramana expressly overruled Rustam for setting out wrong precedent on the extinguishment of the right to bail.

Another two-judge bench of the the Supreme Court in Ravi Prakash Singh alias Arvind Singh v. State of Bihar created a problem by following the ratio in Rustam. It was held that while computing the period of 90 days, the day on which the accused was remanded to judicial custody should be excluded, and the day on which challan is filed in the court should be included.

In many cases, the date of arrest and the date of remand is same. As per the line of decisions following Chaganti, this date has to be included in the computation, while as per Rustam, this date has to be excluded. All these decisions are by two judge benches. In many cases, the date of arrest and date of remand is different!

The Supreme Court has thus laid down two different propositions of law. Confusion has been created for High Courts and courts below on the principle to be followed for computation of 90/60 days.

Let us look at three recent cases to highlight the confusion created in the High Courts. In Shalini Verma and ors v. State of Chhattisgarh (2019), the Chhattisgarh High Court held that if two different propositions of law are laid down by benches of similar strength, the earlier view shall be binding on the courts. and thus the view expressed in Chaganti and affirmed in Kulkarni that the computation of total period of detention of the accused person in custody has to be calculated only from the date of remand and not from the date of arrest, holds the field.

On the other hand, the Rajasthan High Court in the case of Gokulram Vishnoi (2020) decided to follow the line of the decisions in Rustam and Ravi Prakash. The Bombay High Court, however, in the DHFL case, granted bail to the accused holding that date of remand is to be included in calculation the period of 60 days.

Judicial discipline envisages that a coordinate bench follows the decision of an earlier coordinate bench. If a coordinate bench does not agree with the principles of law enunciated by another bench, the matter should be referred only to a larger bench. [See Pradip Chandra Parija v. Pramod Chandra Patnaik, (2002), Union of India Vs. Hansoli Devi (2002) and Devans Modern Breweries ltd (2004)]. In ED v. Kapil Wadhawan, the Supreme Court referred the issue to a larger bench.

In view of the unrest caused countrywide, the matter should be decided a larger bench by the Supreme Court at the earliest.

Namit Saxena is an Advocate-on-Record practicing at the Supreme Court of India.