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REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO.    1218       OF 2018   @ SPECIAL LEAVE PETITION (CRIMINAL) NO.6453  OF 2018

Achpal @ Ramswaroop & Another …… Appellants

Versus

State of Rajasthan ..…. Respondent

JUDGMENT

Uday Umesh Lalit, J.

1. Leave granted.   

2. This  appeal  challenges  the  correctness  of  the  judgment  and  order

dated  23.07.2018  passed  by  the  High  Court  of  Judicature  for  Rajasthan

Bench at Jaipur in SBCRMB No.9035 of 2018.

3. FIR No.16 of 2018 was registered on 24.03.2018 with Police Station

Baharwanda Kalan, Distt.  Sawai Madhopur for offences punishable under

Sections 143, 341, 323, 452, 336, 302 read with Section 149 of the Indian

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Penal  Code against  18 persons.   The appellants  were named as Accused

Nos.1 and 2 in said crime and came to be arrested on 08.04.2018.  They

were  subsequently  remanded  to  police/magisterial  custody  from  time  to

time.

4. Later,  Criminal  Misc.  Petition  No.3517  of  2018  was  filed  by  the

complainant  praying for  fair  and impartial  investigation  in  the  matter,  in

which an order came to be passed by the High Court on 03.07.2018.  Said

order recorded the submission of the Public Prosecutor as under:

“The  learned  Public  Prosecutor  for  the  State,  to  allay  the apprehension of the petitioner, at the outset, has submitted that not  only  fair  investigation  shall  be  conducted  by  a  gazetted police officer, not below the rank of Additional Superintendent of  Police  but  the  report  of  the  investigation  along  with  the opinion of the Investigating Officer shall be submitted in the concerned Court within a period of two months from the date of receipt  of  certified  copy  of  this  order  by  the  Investigating Officer.”

The petition was disposed of in terms of the submissions so recorded.

5. Since  the  appellants  had  been  in  custody  from  08.04.2018,  the

investigation, in terms of Section 167 of the Code of Criminal Procedure

(the Code for Short) had to be completed by 07.07.2018.  On 05.07.2018 a

report  under Section 173 of  the Code was filed by the police before the

concerned  Judicial  Magistrate.   Since  said  report  was  filed  by  a  police

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officer lower in rank than an ASP and was thus contrary to the order passed

by  the  High  Court  on  03.07.2018,  an  application  was  filed  by  the

complainant  placing certified copy of the aforesaid order dated 03.07.2018.

The Magistrate having noted the contents of said order, returned the charge-

sheet with certified copy of the order dated 03.07.2018 to the police for due

compliance.  Thus as on the expiry of 90th day i.e. on 07.07.2018 no report

under Section 173 of the Code was on record with the Magistrate.

6. Immediately  after  the  expiry  of  90  days  the  appellants  filed  an

application for bail under the provisions of Section 167(2) of the Code.

7. The Judicial Magistrate, Khandar, Distt. Sawai Madhopur by his order

dated 09.07.2018 rejected the prayer for benefit under Section 167(2) of the

Code.  It was observed that since the charge-sheet filed on 05.07.2018 was

not in compliance of the order passed by the High Court, the charge-sheet

was returned due to technical fault.  It was further observed that the effect of

the  order  dated  03.07.2018  passed  by  the  High  Court  was  extension  of

period within which the investigation could be completed.

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8. The rejection as aforesaid came to be challenged by filing SB Crl.

Misc. Bail No.9035 of 2018 and the High Court while rejecting said petition

on 23.07.2018 stated as under:

“No case for grant of bail under Section 167(2) Cr.P.C. is made out, as the time was extended by the High Court in Criminal Miscellaneous  (Petition)  No.3517  of  2018  and  Investigating Officer was afforded two months time to file charge-sheet.  It is also  important  to  note  that  the  Investigating  Officer  had produced the charge-sheet before the concerned Court prior to 90 days but the same was returned in view of the order of the High Court.”

9. The order passed by the High Court is presently under appeal.  We

heard Mr. Siddhartha Dave, learned Advocate for the appellants, Mr. Milind

Kumar,  learned  Advocate  for  the  State  and  Mr.  M.C.  Dhingra,  learned

Advocate  for  the  complainant.   It  was  submitted  by  Mr.  Dave,  learned

Advocate that the report filed under Section 173 of the Code on 05.07.2018

having been returned by the  Magistrate  for  due  compliance  of  the  High

Court order dated 03.07.2018, as on the expiry of 90 days, there was no

charge-sheet for the consideration of the Court.  He further submitted that

the Code does not contemplate any extension of period within which the

investigation could be completed and as such the High Court order dated

03.07.2018  can  never  be  construed  to  have  extended  the  period  for

investigation.   In  his  submission,  the  appellants  having  shown  their

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willingness to be admitted to the benefit of bail and preferred appropriate

application, in view of the law laid down by this Court they were entitled to

be  released  on  bail.   The  learned  Advocates  for  the  State  and  the

complainant  on  the  other  hand  submitted  that  the  investigation  was

completed  and appropriate  charge-sheet  was  filed on 05.07.2018 and the

return of the papers in compliance of the order dated 03.07.2018 ought to be

construed as a step towards further investigation in the matter.   

10. The law on the point as to the rights of an accused who is in custody

pending investigation and where the investigation is not completed within

the period prescribed under Section 167(2) of the Code, is crystallized in the

judgment  of  this  Court  in  Uday  Mohanlal  Acharya  v. State  of

Maharashtra1.   This case took into account the decision of this Court in

Hitendra Vishnu Thakur and Others v. State of Maharashtra and others2,

Sanjay  Dutt  v. State  through C.B.I.,  Bombay  (II)3 and  Bipin Shantilal

Panchal v. State of Gujarat4.  Justice Pattanaik (as the learned Chief Justice

then was) speaking for the majority recorded conclusions in para 13 of his

judgment.  For the present purposes, we may extract conclusions 3 and 4 as

under:-

1 (2001) 5 SCC 453 2 (1994) 4 SCC 602 3 (1994) 5 SCC 410 4 (1996) 1 SCC 718

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“……………………………………  

3. On the expiry of the said period of 90 days or 60 days, as the case may be, an indefeasible right accrues in favour of the accused for being released on bail on account of default by the investigating  agency  in  the  completion  of  the  investigation within the period prescribed and the accused is entitled to be released on bail, if he is prepared to and furnishes the bail as directed by the Magistrate.

4. When an application for bail is filed by an accused for enforcement  of  his  indefeasible  right  alleged  to  have  been accrued in his favour on account of default on the part of the investigating agency in completion of the investigation within the  specified  period,  the  Magistrate/court  must  dispose  of  it forthwith, on being satisfied that in fact the accused has been in custody for the period of 90 days or 60 days, as specified and no  charge-sheet  has  been  filed  by  the  investigating  agency. Such prompt action on the part of the Magistrate/court will not enable the prosecution to frustrate the object of the Act and the legislative  mandate  of  an  accused  being released  on  bail  on account of the default on the part of the investigating agency in completing the investigation within the period stipulated.

……….……………………………........................ ”

11. The principles laid down in  Uday Mohanlal  Acharya  (supra)  have

been consistently followed by this Court namely in State of W.B. v. Dinesh

Dalmia5; Sanjay Kumar Kedia  v. Intelligence Officer, Narcotics Control

Bureau and Another6;  Union of India  v. Nirala Yadav7 and in  Ranbeer

5 (2007) 5 SCC 773 6(2009) 17 SCC 631 7 (2014) 9 SCC 457

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Shokeen  v. State (NCT of Delhi)8.  It must therefore be taken to be well

settled  that  in  terms  of  3rd conclusion  as  recorded  in  Uday  Mohanlal

Acharya (supra), on the expiry of the period stipulated, an indefeasible right

accrues in favour of the accused for being released on bail on account of

default by the investigating agency in the completion of the investigation

within the period stipulated and the accused is entitled to be released on bail,

if he is prepared to and furnishes the bail as directed by the Magistrate.   

12. The  questions  however  arise  in  the  present  matter  are  slightly  of

different dimension.  Here investigation was completed and Challan under

Section 173 was filed on 05.07.2018.  However, just two days before that, an

order had been passed by the High Court recording submission of the public

prosecutor that investigation in the matter would be conducted by a Gazetted

Police Officer.  The investigation which led to the filing of the report on

05.07.2018, was not in conformity with the statement made before the High

Court.  It was for this reason that the papers were returned by the Magistrate.

All  this happened before the expiry of  90th day.   Can it  be said that  the

investigation was complete for the purposes of Section 167(2) of the Code

so  as  to  deny  the  benefit  to  the  accused  in  terms  of  said  provision.

Additionally  another  issue  which  arises  for  consideration  is  whether  the

8 (2018) 4 SCC 405

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order passed by the High Court could be construed as one under which the

period for completing the investigation was extended.   

13. We may at this stage extract the relevant provisions namely Section

167 (1) & (2) of the Code: “167 . 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, authorize 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

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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.”  

14. The historical background which led to the enactment of Section 167

of the Code, as it presently stands has been dealt with by Madan B. Lokur, J.

in paragraphs 11 to 15 of his judgment in Rakesh Kumar Paul v. State of

Assam9.  Paragraphs  11 and 12 extract  portions  from the  report  of  Law

Commission of India in its 41st report, the proposed provisions as suggested

by the Law Commission and the Statement of Objects and Reasons dated

07.11.1970 while  introducing the  Code.   Said  Paragraphs  11  and 12 are

quoted here:-

“11. Unfortunately,  all  laws  tend  to  be  misused  whenever opportunity knocks, and Section 167 of the Code of Criminal Procedure, 1898 was no exception. Since there was a practical difficulty in completing investigations within the 15-day time- limit, the prosecution often took recourse to the provisions of Section 344 of the Code of Criminal Procedure, 1898 and filed a  preliminary  or  incomplete  report  before  the  Magistrate  to keep the accused in  custody.  The Law Commission of  India noted this  in its  41st  Report  (after  carefully studying several

9 (2017) 15 SCC 67

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earlier  Reports)  and  proposed  to  increase  the  time-limit  for completion of investigations to 60 days, acknowledging that:

“14.19.  … such an extension may result  in the maximum period becoming the rule in every case as a matter of routine; but we trust that proper supervision by the superior courts will prevent that.”

(emphasis supplied)

The view expressed by the Law Commission of India and its proposal is as follows:

“14.19.  Section  167.—Section  167  provides  for  remands. The total period for which an arrested person may be remanded to custody—police or judicial—is 15 days. The assumption is that the investigation must be completed within 15 days, and the  final  report  under  Section  173  sent  to  court  by  then.  In actual  practice,  however,  this  has  frequently  been  found unworkable. Quite often, a complicated investigation cannot be completed  within  15 days,  and if  the  offence  is  serious,  the police naturally insist  that the accused be kept in custody. A practice of doubtful legal validity has therefore grown up. The police file before a Magistrate a preliminary or “incomplete” report, and the Magistrate, purporting to act under Section 344, adjourns the proceedings and remands the accused to custody. In the Fourteenth Report, the Law Commission doubted if such an order could be made under Section 344, as that section is intended  to  operate  only  after  a  Magistrate  has  taken cognizance  of  an  offence,  which  can  be  properly  done  only after a final report under Section 173 has been received, and not while the investigation is still proceeding. We are of the same view, and to us also it appears proper that the law should be clarified in this respect. The use of Section 344 for a remand beyond the statutory period fixed under Section 167 can lead to serious abuse, as an arrested person can in this manner be kept in custody indefinitely while the investigation can go on in a leisurely manner. It is, therefore, desirable, as was observed in the Fourteenth Report, that some time-limit should be placed on the  power  of  the  police  to  obtain  a  remand,  while  the investigation is still going on; and if the present time-limit of 15

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days is too short, it would be better to fix a longer period rather than countenance a practice which violates the spirit of the legal safeguard. Like the earlier Law Commission, we feel that 15 days is perhaps too short, and we propose therefore to follow the  recommendation  in  the  Fourteenth  Report  that  the maximum period under Section 167 should be fixed at 60 days. We are aware of the danger that such an extension may result in the  maximum  period  becoming  the  rule  in  every  case  as  a matter of routine; but we trust that proper supervision by the superior  courts  will  prevent  that.  We propose  accordingly  to revise sub-sections (2) and (4) of Section 167 as follows: ‘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 at a time and sixty days in the whole. 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)  no Magistrate shall authorise detention in any custody

under this section unless the accused is produced before him; (b)  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.

* * * (4) Any Magistrate other than the Chief Judicial Magistrate

making such order shall forward a copy of his order, with his reasons for making it, to the Chief Judicial Magistrate.’”

12. The  recommendations  of  the  Law Commission  of  India were  carefully  examined  and  then  accepted.  The  basic considerations for acceptance, as mentioned in the Statement of Objects and Reasons dated 7-11-1970 for introducing the (new) Code of Criminal Procedure, 1973 were:

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“3. The  recommendations  of  the  Commission  were examined carefully by the Government, keeping in view among others, the following basic considerations—

(i) an accused person should get a fair trial in accordance with the accepted principles of natural justice;

(ii)  every  effort  should  be  made  to  avoid  delay  in investigation  and  trial  which  is  harmful  not  only  to  the individuals involved but also to society; and

(iii) the procedure should not be complicated and should, to the  utmost  extent  possible,  ensure  fair  deal  to  the  poorer sections of the community. The occasion has been availed of to consider and adopt where appropriate suggestions received from other quarters, based on practical  experience  of  investigation  and  the  working  of criminal courts.”

15. As observed by the Law Commission in paragraph 14.19 of its 41st

Report, a practice of doubtful legal validity had grown up where Police used

to  file  before  a  Magistrate  a  preliminary  or  incomplete  report  and  the

Magistrate,  purporting to act  under Section 344 of  the Code of  Criminal

Procedure, 1898 used to adjourn the proceeding and remand the accused to

custody.  It was observed that such remand beyond the statutory period fixed

under Section 167 would lead to serious abuse and therefore some time limit

was required to be placed on the power of the police to obtain remand and as

such the maximum period for completion of investigation was suggested.

The  objects  and  Reasons  for  introduction  of  new  Code  voiced  similar

concern.  

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16. The letter of and spirit behind enactment of Section 167 of the Code

as  it  stands  thus  mandates  that  the  investigation  ought  to  be  completed

within  the  period  prescribed.   Ideally,  the  investigation,  going  by  the

provisions of the Code, ought to be completed within first 24 hours itself.

Further in terms of sub-section (1) of Section 167, if “it appears that the

investigation cannot be completed within the period of twenty-four hours

fixed by Section 57” the concerned officer ought to transmit the entries in

the diary relating to the case and at the same time forward the accused to

such Magistrate.  Thereafter, it is for the Magistrate to consider whether the

accused be remanded to custody or not.   Sub-Section (2)  then prescribes

certain limitations on the exercise of the power of the Magistrate and the

proviso  stipulates  that  the  Magistrate  cannot  authorize  detention  of  the

accused in custody for total period exceeding 90 or 60 days, as the case may

be.  It is further stipulated that on the expiry of such period of 90 and 60

days, as the case may be, the accused person shall be released on bail, if he

is prepared to and does furnish bail.   

17. The  provision  has  a  definite  purpose  in  that;  on  the  basis  of  the

material relating to investigation, the Magistrate ought to be in a position to

proceed  with  the  matter.   It  is  thus  clearly  indicated  that  the  stage  of

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investigation ought to be confined to 90 or 60 days, as the case may be, and

thereafter the issue relating to the custody of the accused ought to be dealt

with by the Magistrate on the basis of the investigation.  Matters and issues

relating to liberty and whether the person accused of a charge ought to be

confined or not, must be decided by the Magistrate and not by the Police.

The further custody of such person ought not to be guided by mere suspicion

that  he  may  have  committed  an  offence  or  for  that  matter,  to  facilitate

pending investigation.    

18. In the present case as on the 90th day, there were no papers or the

charge-sheet  in  terms  of  Section  173  of  the  Code  for  the  concerned

Magistrate  to  assess  the  situation  whether  on  merits  the  accused  was

required to  be remanded to further  custody.   Though the charge-sheet  in

terms of Section 173 came to be filed on 05.07.2018, such filing not being in

terms of the order passed by the High Court on 03.07.2018, the papers were

returned to the Investigating Officer.  Perhaps it would have been better if

the Public Prosecutor had informed the High Court on 03.07.2018 itself that

the period for completing the investigation was coming to a close.  He could

also have submitted that the papers relating to investigation be filed within

the  time prescribed and a  call  could thereafter  be  taken by the  Superior

Gazetted Officer whether the matter required further investigation in terms

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of  Section  173(8)  of  the  Code  or  not.   That  would  have  been  an  ideal

situation.  But we have to consider the actual effect of the circumstances that

got unfolded.  The fact of the matter is that as on completion of 90 days of

prescribed period under Section 167 of the Code there were no papers of

investigation before the concerned Magistrate. The accused were thus denied

of  protection  established  by  law.  The  issue  of  their  custody  had  to  be

considered on merits  by the concerned Magistrate and they could not  be

simply remanded to custody dehors such consideration.  In our considered

view the submission advanced by Mr. Dave, learned Advocate therefore has

to be accepted.  We now turn to the subsidiary issue, namely, whether the

High Court could have extended the period.  The provisions of the Code do

not empower anyone to extend the period within which the investigation

must be completed nor does it  admit of any such eventuality.  There are

enactments such as the  Terrorist and Disruptive Activities (Prevention) Act,

1985 and Maharashtra Control of Organised Crime Act, 1999 which clearly

contemplate extension of period and to that extent those enactments have

modified the provisions of the Code including Section 167.  In the absence

of any such similar provision empowering the Court to extend the period, no

Court could either directly or indirectly extend such period.  In any event of

the matter all that the High Court had recorded in its order dated 03.07.2018

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was the submission that the investigation would be completed within two

months by a Gazetted Police Officer.  The order does not indicate that it was

brought to the notice of the High Court that the period for completing the

investigation was coming to an end.  Mere recording of submission of the

Public Prosecutor could not be taken to be an order granting extension.  We

thus reject the submissions in that behalf advanced by the learned Counsel

for the State and the complainant.   In our considered view the accused having shown their willingness to

be  admitted  to  the  benefits  of  bail  and  having  filed  an  appropriate

application, an indefeasible right did accrue in their favour.   

19. We must at this stage note an important feature.  In  Rakesh Kumar

Paul (supra), in his conclusions, Madan B. Lokur, J. observed in para 49 as

under:

“49. The petitioner is held entitled to the grant of “default bail” on the facts and in the circumstances of this case. The trial Judge should release the petitioner on “default  bail” on such terms and conditions as may be reasonable. However, we make it clear that this does not prohibit or otherwise prevent the arrest or re-arrest of the petitioner on cogent grounds in respect of the subject  charge  and  upon  arrest  or  re-arrest,  the  petitioner  is entitled to petition for grant of regular bail which application should be considered on its own merit. We also make it clear that this will not impact on the arrest of the petitioner in any other case.”

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In  his  concurring  judgment,  Deepak  Gupta,  J.  agreed10 with

conclusions drawn and directions given by Madan B. Lokur, J. in paragraphs

49 to 51 of his judgment.  According to the aforesaid conclusions, it would

not prohibit or otherwise prevent the arrest or re-arrest of the accused on

cogent grounds in respect of charge in question and upon arrest or re-arrest

the accused would be entitled to  petition for  grant  of  regular  bail  which

application would then be considered on its own merit.     

20. We,  therefore,  allow this  appeal  and  direct  that  the  appellants  are

entitled to be admitted to bail in terms of Section 167(2) of the Code on such

conditions as the trial Court may deem appropriate.  The matter shall  be

immediately  placed  before  the  trial  court  upon  receipt  of  copy  of  this

Judgment.   We  also  add  that  in  terms  of  conclusions  arrived  at  in  the

majority Judgment of this Court in Rakesh Kumar Paul (supra), there would

be no prohibition for arrest or re-arrest of the appellants on cogent grounds

and in such eventuality, the appellants would be entitled to petition for grant

of regular bail.

10Para 86 of the Judgment of Hon’ble Deepak Gupta

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21. The appeal thus stands allowed.  

…………………..……J. (Abhay Manohar Sapre)

…………………..……J. (Uday Umesh Lalit)

New Delhi, September 24, 2018