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Reportable

IN THE SUPREME COURT OF INDIA

CRIMILAL APPELLATE JURISDICTION

CRIMINAL     APPEAL NO.325 OF 2015   

Ravi Prakash Singh @ Arvind Singh … Appellant

Versus

State of Bihar …Respondent

J U D G M E N T

Prafulla C. Pant, J.

This appeal is directed against the judgment and order  

dated 24.12.2013 passed by the High Court of Judicature at  

Patna in Criminal Miscellaneous No. 48019 of 2013 whereby  

said Court has dismissed the petition under Section 482 of  

the Criminal  Procedure Code,  1973 (for  short  “the Code”)  

and declined to interfere with the order dated 22.10.2013,  

passed by Sessions Judge, In-charge, Kaimur at Bhabua in

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Bail  Petition  No.  542  of  2013,  and  upheld  the  refusal  to  

release the appellant  on bail  under  Section 167(2)  of  the  

Code.

2. Brief facts of the case are that appellant Ravi Prakash  

Singh  @  Arvind  Singh  surrendered  before  Chief  Judicial  

Magistrate, Kaimur on 5.7.2013 in connection with Crime No.  

89 of 2013, registered at Police Station, Chainpur, relating to  

offences punishable under Section 302 read with Section 34  

and  Section  120B  of  the  Indian  Penal  Code  and  under  

Section  27  of  Arms  Act.   He  was  remanded  to  judicial  

custody  till  19.7.2013.   His  remand  was  extended  under  

Section  167 of  the  Code from time to  time,  and the  last  

remand under said provision was granted till 3.10.2013. On  

3.10.2013, the appellant moved an application under Section  

167(2) of the Code for his release on the ground that the  

charge sheet  has  not  been filed.   On the  same day,  i.e.,  

3.10.2013, it was endorsed in the order sheet by the Chief  

Judicial  Magistrate  that  as  per  report  of  the  clerk  of  the  

Court, charge sheet has already been received, as such, the

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bail application moved under Section 167(2) of the Code was  

rejected  by  the  Magistrate  on  the  very  day  and  further  

remand order was passed under Section 209 of the Code.  

Endorsement  “seen” was also made by the Magistrate on  

3.10.2013 on the charge-sheet.

3. On 22.10.2013, the case was committed to the Court of  

Sessions Judge.   The applicant moved bail  application No.  

542 of 2013 before the Sessions Judge, Kaimur at Bhabua  

seeking  bail  on  the  ground  that  he  was  entitled  to  be  

released  on  bail  under  Section  167(2)  of  the  Code.   He  

further pleaded that the Chief Judicial Magistrate has erred in  

law  in  rejecting  his  bail  application  on  said  ground.  

However, the In-charge Sessions Judge, who disposed of the  

above  bail  application,  also  opined  that  since  the  charge  

sheet had already been submitted,  as such,  the appellant  

was not entitled to bail on the ground that charge-sheet was  

not received within time.  

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4. On this, appellant Ravi Prakash Singh @ Arvind Singh  

appears to have moved a petition under Section 482 of the  

Code before the High Court of Judicature at Patna, praying  

that order passed by the Sessions Judge, as above, and the  

one passed by the Magistrate  be quashed.   But  the High  

Court also took the view that since the charge sheet had  

already been filed within the period of ninety days, as such,  

it did not find any error in the orders passed by the courts  

below.

5. We  have  heard  learned  counsel  for  the  parties  and  

perused the original record of the case.

6. Sub-section  (2)  of  Section  167 of  the  Code reads  as  

under: -

“167(2)  The  Magistrate  to  whom  an  accused  person  is  forwarded  under  this  section  may,  whether he has or 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

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to  be  forwarded  to  a  Magistrate  having  such  jurisdiction:  Provided that- (a) The Magistrate may authorize 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 authorize detention of the  accused in custody by the police under this  section  unless  the  accused  is  produced  before him in person for  the first  time and  subsequently  every  time  till  the  accused  remains in the custody of the police, but the  Magistrate  may extend further  detention  in  judicial custody on production of the accused

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either  in  person  or  through the  medium of  electronic video linkage;

(c) No  Magistrate  of  the  second  class,  not  specially  empowered  in  this  behalf  by  the  high Court,  shall  authorize  detention  in  the  custody of the police. Explanation I. – For the avoidance of doubts,  

it  is  hereby  declared  that,  notwithstanding  the  expiry of the period specified in paragraph (a), the  accused shall be detained in Custody so long as he  does not furnish bail.

Explanation  II. –  If  any  question  arises  whether an accused person was produced before  the Magistrate as required under clause (b),  the  production of the accused person may be proved  by his signature on the order authorizing detention  or by the order certified by the Magistrate as to  production  of  the  accused  person  through  the  medium of  electronic  video linkage,  as the case  may be.

Provided  further  that  in  case  of  a  woman  under eighteen years of age, the detention shall  be authorized to be in custody of a remand home  or recognized social institution.”

Above Proviso (a) to sub-section (2) of Section 167 of the  

Code  provides  that  the  Magistrate  shall  not  authorize  

detention of an accused in custody in which the investigation  

relating to offence punishable with death, imprisonment for  

life or imprisonment for a term not less than ten years and if

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the  investigation  not  completed  within  ninety  days,  the  

accused shall be entitled to be released on bail.  

7. Admittedly,  the  appellant  surrendered  before  the  

Magistrate  on  5.7.2013.   It  is  also  not  disputed  that  on  

3.10.2013 the appellant moved an application for his release  

on bail under proviso (a) to sub-section (2) of Section 167 of  

the Code.  However, the order sheet of the case shows that  

there is  endorsement of  the Magistrate on 3.10.2013 that  

the charge sheet has already been received.

8. The charge sheet against the appellant, in the original  

record,  shows  that  the  Investigating  Officer  signed  it  and  

submitted  the  same  on  30.9.2013.   Though  the  clerk  

concerned  has  not  made  any  endorsement  as  to  when  

actually  the  charge  sheet  was  received,  but  there  is  

endorsement  of  the  Chief  Judicial  Magistrate  which  shows  

that he has mentioned “seen” on 3.10.2013 and signed at  

the top of the first page of the charge sheet.  Order sheet of  

the  court  of  the  Magistrate  also  corroborates  that  on

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3.10.2013  the  clerk  concerned  reported  to  Chief  Judicial  

Magistrate that the charge sheet had already been received.

9. It is argued on behalf of the learned senior counsel for  

the  appellant  that  the  appellant  should  have  been  given  

benefit of Section 167(2) of the Code. According to him, it  

was  91st day  of  detention  on  3.10.2013.   It  is  further  

contended by Mr. Nagendra Rai, learned senior counsel, that  

even Sunday or holiday on ninetieth day cannot deprive the  

benefit of proviso (a) to sub-section (2) of Section 167 of the  

Code.  In support of his arguments he relied upon cases of  

Powell  Nwawa  Ogechi  v.  The  State  (Delhi  

Administration)1 and  State of Maharashtra  v.  Sharan  

B.  Sarda2.   In  Sharan B.  Sarda (supra)  single  Judge of  

Bombay High Court, and in  Powel Nwawa Ogechi (supra)  

the Division Bench of Delhi High Court took the view that  

even if last day for filing charge sheet is holiday, the accused  

cannot be deprived of benefit of Section 167(2) of the Code.

1 1986 (3) Crimes 577 2 1983 (2) Crimes 254 (Short Note)

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10. Contrary to this, in N. Nureya Reddy and another v.  

State of Orissa3, the Division Bench of Orissa High Court,  

interpreting  the  provisions  of  Section  167(2)  of  the  Code  

read with Section 10 of the General Clauses Act, held that if  

ninetieth day is a holiday, filing of charge sheet on the next  

day  should  be  treated  sufficient  compliance  of  filing  of  

charge sheet within a period of ninety days and it cannot be  

said that provision contained in Section 167(2) of the Code is  

infringed.

11. In Chaganti Satyanarayana and others v. State of  

Andhra Pradesh4, it has been held by this Court that period  

of  ninety  days under Section 167(2)  of  the Code shall  be  

computed from the date of remand of the accused and not  

from the date of his arrest under Section 57 of the Code.  

However, in the present case, we have to see the relevant  

date  as  the  date  when  the  accused  surrendered  and  

remanded by the court.

3 1985 CRLJ 939 (Orissa) 4 (1986) 3 SCC 141

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12. In  State of M.P.  v.  Rustam and others5, this Court  

has laid down the law that while computing period of ninety  

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.  That being  

so, in our opinion, in the present case, date 5.7.2013 is to be  

excluded  and,  as  such,  the  charge  sheet  was  filed  on  

ninetieth  day,  i.e.,  3.10.2013.   Therefore,  there  is  no  

infringement of Section 167(2) of the Code.

13. For the reasons, as discussed above, in our opinion, the  

High Court has not erred in law in dismissing the petition  

under Section 482 of the Code, and upholding the refusal of  

bail to appellant prayed by him under Section 167(2) of the  

Code.   

14. Accordingly,  the  appeal  is  dismissed.   Lower  court  

record be sent back forthwith.

………….………..…………J.                             [Dipak Misra]

5 1995 Supp (3) SCC 221

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……….………………………J.                 [Prafulla C. Pant]

New Delhi; February 20, 2015.