Achpal @ Ramswaroop & Another vs State of Rajasthan

167 of the Code 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.[Para 16] [339-D-G]

1.3 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 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. 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. 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. 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. The submission advanced by the appellant therefore has to be accepted. [Paras 17, 18] [339-G-H; 340-B-C, E-F]

1.4 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 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. Thus, the submissions in that behalf advanced by the State and the complainant are rejected. 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. 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. However, 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. [Para 18-20] [340-F-H; 341-A-C, F-H; 342-A]

Uday Mohanlal Acharya v. State of Maharashtra (2001)

5 SCC 453: [2001] 2 SCR 878; Rakesh Kumar Paul v. State of Assam (2017) 15 SCC 67 – relied on.

Hitendra Vishnu Thakur and Others v. State of Maharashtra and others (1994) 4 SCC 602 : [1994]

1 Suppl. SCR 360; Sanjay Dutt v. State through C.B.I., Bombay (II) (1994) 5 SCC 410 : [1994] 3 Suppl. SCR 263; Bipin Shantilal Panchal v. State of Gujarat (1996)

1 SCC 718 : [1996] 1 SCR 193; State of W.B. v. Dinesh Dalmia (2007) 5 SCC 773 : [2007] 5 SCR 561; Sanjay Kumar Kedia v. Intelligence Officer, Narcotics Control Bureau and Another (2009) 17 SCC 631 : [2010]

1 SCR 555; Union of India v. Nirala Yadav (2014) 9 SCC 457 : [2014] 6 SCR 148; Ranbeer Shokeen v. State (NCT of Delhi) (2018) 4 SCC 405 – referred to.