R/SCR.

A/5243/2014

JUDGMENT

IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

SPECIAL CRIMINAL APPLICATION (DEFAULT BAIL) NO. 5243 of 2014

FOR APPROVAL AND SIGNATURE:

HONOURABLE MR.JUSTICE J.B.PARDIWALA

================================================================
1

Whether Reporters of Local Papers may be allowed to see the judgment ?

Yes

To be referred to the Reporter or not ?

Yes

Whether their Lordships wish to see the fair copy of the judgment ?

No

Whether this case involves a substantial question of law as to the interpretation of the
Constitution of India, 1950 or any order made thereunder ?

No

Whether it is to be circulated to the civil judge ?

Yes

Yes Circulate urgently to all Judicial Magistrates &

Sessions Judges
================================================================

ALAMKHAN UMARKHAN JATMALEK JENJARI TAL,DASHADA DIST,

SURENDRANAGAR, & 1....Applicant(s)
Versus
STATE OF GUJARAT....Respondent(s)
================================================================
Appearance:
MR. I.H. SYED, ADVOCATE with RIMA P PATEL, ADVOCATE for the Applicant(s) No. 1 - 2
MR. K.L.PANDYA, ADDL.PUBLIC PROSECUTOR for the Respondent(s) No. 1

================================================================

CORAM: HONOURABLE MR.JUSTICE J.B.PARDIWALA

Date : 08/01/2015
ORAL JUDGMENT

By this application, the applicants- original accused

persons call in question the legality and validity of the order
dated 27.11.2014 passed by the learned Additional Sessions

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JUDGMENT

Judge, Dhangandhra in Criminal Misc. Application No.214 of

2014, by which, the learned Additional Sessions Judge rejected
the application filed by the applicants herein, praying for
default bail under Section 167(2) of the Code of Criminal
Procedure, 1973.
2.

It

appears

that

the

applicants

were

arrested

in

connection with C.R. No.I-86 of 2014 registered at the Patdi

Police Station, Surendranagar of the offence punishable under
Sections-302, 147, 148, 149 of the IPC and Section 135 of the
Bombay Police Act.
3.

The applicants were arrested on 11.08.2014 and were

produced on the next day i.e. on 12.08.2014 before the Court

of the learned Magistrate, Patdi, District- Surendranagar. The
learned J.M.F.C. thereafter remanded the applicants to judicial
custody.
4.

It appears that the period of 90 days expired on

09.11.2014.

However, till 09.11.2014, no chargesheet was

filed in the Court of the learned Magistrate. The charge-sheet

came to be filed on 10.11.2014 i.e. on the 91st day at 04:00
p.m.
5.

The applicants herein filed an application for default bail

under Section 167(2) at 10.35 in the morning, in the Court of

the learned Judicial Magistrate First Class, Patdi. There is an
endorsement made by the Registrar of the Principal Civil Court,
Patdi, below the application that the same was filed on
10.11.2014 at 10.35 A.M. There is also an endorsement made
by the Superintendent, JMFC, Patdi that upto 10.35 A.M of 10th

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JUDGMENT

November, 2014, the charge-sheet was not filed in the Court.

The learned JMFC issued notice to the Investigating Officer and
the Additional Public Prosecutor, and fixed the hearing of the
bail application on the next day i.e. on 11.11.2014.

6.

It is also not in dispute that the charge-sheet was filed by

the Investigating Officer on 10th November, 2014 at 4.00 P.M

in the evening.
7.

It appears that the bail application was considered by the

learned JMFC, Patdi and vide order dated 14.11.2014, rejected

the same. On a plain reading of the order, it appears that the
learned Magistrate took the view that there was no delay on
the part of the Investigating Officer in filing the charge-sheet
and the same was actually filed on the 90th day. According to
the learned Magistrate, the accused-applicants were remanded
to the judicial custody on 12th August, 2014, and therefore,
the period of 90 days could be said to have expired on
9.11.2014.

Such calculation of the learned Magistrate is

suggestive of the fact that 12th August, 2014 i.e. the date on
which the applicants were produced before the learned
Magistrate and remanded to judicial custody was not counted
for the purpose of computing the period of 90 days by taking
recourse to the Section 9 of the General Clauses Act, 1897.
The learned Magistrate also relied upon an over-ruled decision
of the Supreme Court in the case of State of M.P. Vs. Rustom
and ors., reported in 1995 Supp. (3) SCC 221.
8.

Being

dis-satisfied,

the

applicants

thereafter

filed

application before the Sessions Court and the Sessions Court

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JUDGMENT

also computed the period of ninety days excluding the day on

which the applicants were produced before the learned
Magistrate and remanded to the judicial custody. It appears
from a plain reading of paragraph 6 of the order passed by the
learned Additional Sessions Judge that so far as the month of
August was concerned, only 19 days were calculated, thereby
suggesting that the first day of remand i.e. 12th August, 2014
was excluded.
9.

At this stage, it needs to be stated, as pointed out by the

learned

Additional

Public

Prosecutor

Mr.

Pandya

that

irrespective of the reasonings assigned by the Courts below in

rejecting the bail applications filed by the applicants under
Section 167(2) of the Code, the Courts below missed one
important aspect that the 8th and 9th November, 2014 were
holidays. The 8th November, 2014 was a second Saturday and
therefore, was a non-working day for the Court, whereas the
9th November, 2014 was a Sunday. According to Mr. Pandya,
in such circumstances, the Investigating Officer was left with
no other option, but to file the charge-sheet on 10.11.2014,
although it was the 91st day from the date of remanding the
applicants to the judicial custody for the first time. According
to Mr. Pandya, the learned APP, Section 10 of the General
Clauses Act could be brought in aid in cases in which chargesheet is not filed within 90 days on account of an intervening
holiday.
10.

Having heard the learned counsel appearing for the

parties and having gone through the materials on record, I am

of the view that the following three questions fall for my
consideration.

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1.

JUDGMENT

Whether the accused-applicants had the indefeasible

right of being released on bail on expiry of the period
of 90 days in the absence of any charge-sheet filed
even on the 90th day.

2.

Whether the period of 90 days/60 days envisaged by

proviso (a) begins to run from the date of the order of
remand or the first day of the production of the
accused is to be excluded while computing the period
of 90 days/60 days.

3.

Whether Section 10 of the General Clauses Act can be

brought in aid in cases in which the charge-sheet is
not filed within 90 days and 60 days, as envisaged by
Section 167(2) of the Criminal Procedure Code.
First question:-

11.

So far as the first question is concerned, the law is well

settled that the accused gets an indefeasible right of being

released on bail if the charge-sheet is not filed within the
period of limitation. I may quote with profit the decision of the
Supreme Court in the case of Uday Mohanlal Acharya Vs. State
of Maharashtra, reported in AIR 2001 SC 1910
"......Intheaforesaidpremises,weareoftheconsideredopinionthatanaccused
mustbeheldtohaveavailedofhisrightflowingfromthelegislativemandate
engraftedintheprovisotosubsection(2)ofS.167oftheCodeifhehasfiledan
applicationaftertheexpiryofthestipulatedperiodallegingthatnochallanhas
beenfiledandheispreparedtoofferthebail,thatisordered,anditisfoundasa
factthatnochallanhasbeenfiledwithintheperiodprescribedfromthedateof
the arrest oftheaccused. Inour view, suchinterpretation would subserve the
purposeandtheobjectforwhichtheprovisioninquestionwasbroughtontothe
StatuteBook.Insuchacase,therefore,eveniftheapplicationforconsideration

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JUDGMENT

ofanorderofbeingreleasedonbailispostedbeforetheCourtaftersomelength
oftime, or even ifthe Magistrate refuses the application erroneously and the
accusedmovesthehigherforumforgettingformalorderofbeingreleasedonbail
inenforcementofhisindefeasibleright,thenfilingofchallanatthatstagewill
nottakeawaytherightoftheaccused.Personallibertyisoneofthecherished
object of the Indian Constitution and deprivation of the same can be only in
accordancewithlawandinconformitywiththeprovisionsthereof,asstipulated
under Art.21oftheConstitution. When thelawprovides thattheMagistrate
couldauthorisethedetentionoftheaccusedincustodyuptoamaximumperiod
asindicatedintheprovisotosubsection(2)ofS.167,anyfurtherdetention
beyondtheperiodwithoutfilingofchallanbytheInvestigatingAgencywouldbe
asubterfugeandwouldnotbeinaccordancewithlawandinconformitywiththe
provisionsoftheCriminalProcedureCode,andassuch,couldbeviolativeofArt.
21ofthe Constitution. There isnoprovision inthe Criminal Procedure Code
authorising detention of an accused in custody after the expiry of the period
indicatedintheprovisotosubsection(2)ofS.167exceptingthecontingency
indicatedinExplanationI,namely,iftheaccuseddoesnotfurnishthebail.Itis
inthissenseitcanbestatedthatifafterexpiryoftheperiod,anapplicationfor
beingreleased onbailisfiled, andtheaccused offers tofurnish the bail,and
thereby avail ofhis indefeasible right and then an order ofbail is passed on
certaintermsandconditionsbuttheaccusedfailstofurnishthebail,andatthat
pointoftimeachallanisfiledthenpossiblyitcanbesaidthattherightofthe
accusedstoodextinguished.Butsolongastheaccusedfilesanapplicationand
indicatesintheapplicationtoofferbailonbeingreleasedbyappropriateorders
oftheCourtthentherightoftheaccusedonbeingreleasedonbailcannotbe
frustratedontheoftchanceofMagistratenotbeingavailableandthematternot
beingmoved,orthattheMagistrateerroneouslyrefusestopassanorderandthe
matterismovedtothehigherforumandachallanisfiledininterregnum.Thisis
theonlywayhowabalancecanbestruckbetweenthesocalledindefeasibleright
oftheaccusedonfailureonthepartoftheprosecutiontofilechallanwithinthe
specifiedperiodandtheinterestofthesociety,atlarge,inlawfullypreventingan
accused for being released on bail on account of inaction on the part of the
prosecutingagency.Ontheaforesaidpremises,wewouldrecordourconclusions
asfollows:
1. Under subsection (2) of S. 167, a Magistrate before whom an accused is
producedwhilethepoliceisinvestigatingintotheoffencecanauthorisedetention
of the accused in such custody as the Magistrate thinks fit for a term not
exceeding15daysinthewhole.
2.Undertheprovisotoaforesaidsubsection(2)ofS.167,theMagistratemay
authorisedetentionoftheaccusedotherwisethanthecustodyofpoliceforatotal
periodnotexceeding90dayswheretheinvestigationrelatestooffencepunishable
withdeath,imprisonmentforlifeorimprisonmentforatermofnotlessthan10
years,and60dayswheretheinvestigationrelatestoanyotheroffence.
3.Ontheexpiryofthesaidperiodof90daysor60days,asthecasemaybe,an
indefeasiblerightaccruesinfavouroftheaccusedforbeingreleasedonbailon
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 toand furnish the bail, as directed bythe
Magistrate.

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JUDGMENT

4.When anapplication for bail isfiledbyanaccused for enforcement ofhis

indefeasiblerightallegedtohavebeenaccruedinhisfavouronaccountofdefault
onthepartoftheinvestigatingagencyincompletionoftheinvestigationwithin
thespecifiedperiod,theMagistrate/Courtmustdisposeitofforthwith,onbeing
satisfiedthatinfacttheaccusedhasbeenincustodyfortheperiodof90daysor
60 days, as specified and no chargesheet has been filed by the Investigating
Agency.SuchpromptactiononthepartoftheMagistrate/Courtwillnotenable
theprosecutiontofrustratetheobjectoftheActandthelegislativemandateofan
accused being released on bail on account of the default on the part of the
InvestigatingAgencyincompletingtheinvestigationwithintheperiodstipulated.
5.Iftheaccusedisunabletofurnishbail,asdirectedbytheMagistrate,thenthe
conjointreadingofExplanationIandprovisotosubsection(2)ofS.167,the
continuedcustodyoftheaccusedevenbeyondthespecifiedperiodinparagraph
(a) will not be unauthorised, and therefore, if during that period the
investigationiscompleteandchargesheetisfiledthenthesocalledindefeasible
rightoftheaccusedwouldstandextinguished.
6.Theexpression'ifnotalreadyavailedof'usedbythisCourtinSanjayDutt's
case(1994AIRSCW3857:1995CriLJ477)(supra)mustbeunderstoodto
meanwhentheaccusedfilesanapplicationandispreparedtoofferbailonbeing
directed. Inotherwords,onexpiryoftheperiodspecifiedinparagraph(a)of
provisotosubsection(2)ofS.167iftheaccusedfilesanapplicationforbailand
offersalsotofurnishthebail,onbeingdirected,thenithastobeheldthatthe
accused has availed of his indefeasible right even though the Court has not
consideredthesaidapplicationandhasnotindicatedthetermsandconditionsof
bail,andtheaccusedhasnotfurnishedthesame.
Withtheaforesaidinterpretationoftheexpression'availedof'ifchargesheetis
filedsubsequenttotheavailingoftheindefeasiblerightbytheaccusedthenthat
right would not stand frustrated or extinguished, necessarily therefore, if an
accusedentitledtobereleasedonbailbyapplicationoftheprovisotosubsection
(2)ofS.167,makestheapplicationbeforetheMagistrate,buttheMagistrate
erroneouslyrefusesthesameandrejectstheapplicationandthenaccusedmoves
thehigherforumandwhilethematterremainspendingbeforethehigherforum
for consideration achargesheet isfiled, the socalled indefeasible right ofthe
accused would not stand extinguished thereby, and on the other hand, the
accusedhastobereleasedonbail.Suchanaccused,whothusisentitledtobe
releasedonbailinenforcementofhisindefeasiblerightwill,however,havetobe
producedbeforetheMagistrateonachargesheetbeingfiledinaccordancewith
S. 209 and the Magistrate must deal with him in the matter of remand to
custodysubjecttotheprovisionsoftheCoderelatingtobailandsubjecttothe
provisionsofcancellationofbail,alreadygrantedinaccordance withlawlaid
downbythisCourtinthecaseofMohd.Iqbalv.StateofMaharashtra(1996(1)
SCC722)(supra).

12.

I may also quote with profit the recent judgment of the

Supreme Court in the case of 'Union of India through C.B.I.

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JUDGMENT

Vs. Nirala Yadav @ Raja Ram Yadav @ Deepak Yadav'

reported in 2014 (2) GLH 557. The Supreme Court after review
of all its earlier decisions,

including one of Uday Mohanlal

Acharya (supra) has taken the view that if the chargesheet is

not filed within the period of limitation, then on the 91 st day,
the accused gets an indefeasible right of being released on
bail.

I may quote with profit the observation made by the

Supreme Court in Para-41, as under:41. Comingtothefactsoftheinstantcase,wefindthatpriortothe

date ofexpiryof90dayswhichistheinitialperiodforfiling the
chargesheet,theprosecutionneitherhadfiledthe chargesheet nor
had it filed anapplicationforextension. Hadanapplication for
extension been filed, then the matter would have been totally
different. After the accused respondent filed theapplication, the
prosecutionsubmitted an applicationseekingextensionoftimefor
filingofthe chargesheet. Mr. P.K. Dey,learnedcounselforthe
appellantwouldsubmitthatthesameis permissibleinviewofthe
decisioninBipinShantilalPanchal(supra)butonastudiedscrutiny
ofthesamewefindthe said decision only dealt with whether
extensioncouldbesoughtfromtimetotimetillthe completion of
periodasprovidedintheStatutei.e.,180days.Itdidnotaddress
the issue whatcouldbetheeffectofnotfilinganapplication for
extensionpriortoexpiryoftheperiodbecauseinthefactualmatrixit
wasnotnecessarytodoso.Intheinstantcase,thedaytheaccused
filedtheapplicationforbenefitofthedefaultprovisionasengrafted
under proviso to subSection(2)ofSection167Cr.PCtheCourt
requiredthe accusedtofilearejoinderaffidavitbythetime the
initial period provided under thestatutehadexpired. Therewas
noquestionofanycontestasiftheapplicationforextensionhad
been filed prior to the expiry of time. The adjournment by the
learnedMagistratewasmisconceived.Hewasobligedonthatdayto
dealwiththeapplication filed bythe accusedasrequiredunder
Section167(2)Cr.PC.Wehavenohesitationinsayingthatsuch
procrastinationfrustratesthelegislativemandate.ACourtcannotact
toextinguishtherightofanaccusedifthelawsoconferson him.
Lawhastoprevail.Theprosecutioncannotavailsuchsubterfugesto
frustrate ordestroythelegalrightoftheaccused. Suchan act is
notpermissible.Ifwepermitourselvestosayso,theprosecution
exhibitedsheernegligenceinnotfilingtheapplicationwithinthe
time which it was entitled to do so in law but made all adroit
attemptstoredeemthecausebyitsconduct.

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13.

JUDGMENT

It is very unfortunate to note that the learned J.M.F.C.

while dealing with the application under Section 167 of the

Code relied on the decision of the Supreme Court in the case of
'State of Madhya Pradesh Vs. Rustam and Others'
reported in 1995 Suppl. (3) SCC 221, whereas this decision is
no longer a good Law as the same was overruled by the Larger
Bench of the Supreme Court. It is, thus, the ratio of the
judgment

of

'Uday

Mohanlal

Acharya

Vs.

State

of

Maharashtra' reported in (2001) 5 SCC 453, which

governs the field and confirmed by the Supreme Court in the
recent decision of 'Union of India through C.B.I. Vs. Nirala
Yadav @ Raja Ram Yadav @ Deepak Yadav' (Supra).

14.

As the period of limitation of 90 days expired on

09.11.2014, on the very next date i.e. on 10.11.2014 at 10:35

a.m. in the morning, the applicants filed an application.
However, no orders were passed on the same immediately by
the concerned Court and ultimately, at 4:00 O'clock in the
evening, the charge-sheet came to be filed.

In my view,

although no orders were passed on the said application, yet,

the accused persons did exercise their right of being released
on bail by filing the application early in the morning at 10:35
a.m., as even at that point of time, their detention could be
said to be unlawful. In my view, the subsequent filing of the
charge-sheet at 4:00 O'clock in the evening would not save the
situation.

I may reiterate the observations made by the

Supreme Court in the case of 'Union of India through C.B.I. Vs.

Nirala Yadav @ Raja Ram Yadav @ Deepak Yadav' (Supra) that
the procrastination frustrates the legislative mandate. A Court
cannot act to extinguish the right of an accused if the law so

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confers on him.

JUDGMENT

The law has to prevail.

In Uday Mohanlal

(supra), the word used by the Supreme Court is "forthwith".

The plain dictionary meaning of the word "forthwith" means
immediately. If that be so, then the Court concerned owed a
duty

to

pass

particularly

the

when

necessary
the

bail

order

immediately,

application

contained

more
an

endorsement put by the Superintendent that upto 10:35 in the

morning the charge-sheet was not filed.

The Court should

have immediately called upon the Public Prosecutor, however,

instead of doing so, it erroneously issued notice and fixed the
hearing on the next day i.e. on 11.11.2014.
Second Question:
15.

The above takes me to deal with the second question as

regards computation of the period of 90 days/60 days.

This

issue is no longer res-integra.

16.

The

Supreme

Court

in

the

case

of

'Chaganti

Satyanarayana and Others Vs. State of A.P.' reported in

AIR 1986 SC 2130 has taken the view that the period of 90
days/60 days envisaged by Proviso (a) begins to run from the
date of order of remand. In the said case, the issue before the
Supreme Court was whether the period of 60 days or 90 days
as the case may be should be computed from the date of
arrest or from the date of the order of remand or production.
The Supreme Court explained that the earlier date when the
accused is arrested, is not to be counted for the purpose of 90
days/60 days. Therefore, atleast the decision of the Supreme
Court makes one thing very clear that the period of 90 days/
60 days would begin to run from the date of order of remand/

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JUDGMENT

production.
17.

I may quote with profit the observations made by the

Supreme Court as contained in paras-18, 19, 20, 21 and 23,

are as under:18. The words used in proviso (a) are "no Magistrate shall
authorisethe detentionof theaccusedpersonincustody","under
this paragraph", "for a total period exceeding i.e. 90 days/60
days".Detention
canbeauthorisedbytheMagistrateonlyfrom

thetimetheorderofremandispassed.Theearlierperiodwhenthe
accusedisinthecustodyofapoliceofficerinexerciseofhispowers
under Section 57 cannot constitute detention pursuant to an
authorisation issued by the Magistrate. It, therefore, stands to
reasonthatthetotalperiodof90daysor60dayscanbegintorun
onlyfromthedateoforderofremand.
19.
Approachingthe matterfromanotheranglealsowefindit
necessarytoconstruetheprovisointhemannersetoutabove.We
haveearlierreferredtosubsection(2A)newlyintroducedbyAct45
of1978toSection167. Thissubsectionhas beenintroducedfor
pragmatic reasons. In order that the production of an accused,
arrestedunderSection57,beforeaMagistrate isnot delayedon
account of the nonavailability of a Judicial Magistrate, the
Legislaturehasdeemeditnecessarytoconferpowersofremandon
such of those Executive Magistrates on whom the powers of a
JudicialMagistratehavebeenconferred.Thesubsectionstatesthat
ifanarrestedpersonisproducedbeforeanExecutiveMagistrate
forremand the said Magistratemayauthorisethe detentionof
theaccused"foratermnotexceeding7daysintheaggregate".It
is further provided that the period of remand ordered by an
Executive Magistrate should also be taken into account for
computingtheperiodspecifiedinparagraph(a)oftheprovisoto
subsection(2). Let usassume acase wherea personarrested
underSection57on the previous day is produced before an
ExecutiveMagistrate onthenextday,butwithintheexpiryof24
hoursandtheremandorderisobtainedforaperiodof7days.How
istheJudicialMagistrate,whoiscompetenttomakefurtherorders
ofdetentiontocalculatetheperiodofdetentionsoastoconformto
the requirements of proviso (a)? As per subsection (2A) he is
obliged to take into consideration only the period of detention
actually undergone by the accused pursuant to the orders of
remandpassedby theExecutive Magistrate.Theearlierperiodof
custodytilltheproductionofthe accused before the Executive
Magistrateisnotdirectedtobetakenintoconsiderationbysub

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JUDGMENT

section(2A).Suchbeingthecase,therecannotbedifferentmodes
ofcomputationoftheperiodofremand dependingupon whether
theaccusedpersonisforwardedtoaJudicialMagistrateoran
ExecutiveMagistrateforpurposesofremand.
20.
The intention of the Legislature can also be gathered by
comparingproviso(a)ofsubsection(5)ofSection167.Subsection
(5)ofSection167isinthefollowingterms:
"IfinanycasetriablebyaMagistrateasasummonscase,the
investigation isnotconcludedwithina periodof sixmonths
from the date on which the accused was arrested, the
Magistrate shall make anorder stopping further investigation
intotheoffenceunlesstheofficer
makingtheinvestigation
beyond theperiodofsixmonthsisnecessary".(Emphasissupplied)
21.
TheLegislaturehasconsciouslyreferredtothedateofarrest
in Section 167 (5) but has made no such reference in Section
167(2) or proviso (a) thereto. If it was the intention of the
Legislature that the period of remand of 15 days in the whole
envisagedinsubsection(2)orthetotalperiodof90days/60days
prescribedinproviso(a)shouldbecalculatedfromthedateofarrest
thentheLegislaturewouldhave expresslysaid soas ithaddone
underSection167(5).
23.
Thusin anyviewofthematteri.e.construingproviso(a)
either inconjunctionwithsubsection(2)ofSection167orasan
independent paragraph, wefind thatthetotalperiod of 90days
underclause(i)andthetotalperiodof60daysunderclause(ii)has
tobecalculatedonlyfromthedateofremandandnotfromthedate
ofarrest.

18.

Thus, the day of the production of the accused before the

learned Magistrate and order of remand will have to be

calculated for computing the period of 90 days/60 days, as the
case may be.

In the present case, the Courts below

erroneously by applying Section 9 of the General Clauses Act,

excluded the day of production and remand and thereby
counted only 19 days so far as the month of August was
concerned. The correct calculation should have been 20 days
of August plus 30 days of September, plus 31 days of October,
plus 10 days of November. The mathematics is simple. 20 +

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JUDGMENT

30 + 31 + 10 = 91. The eighth of November was the 89th day

and the 9th of November was the 90th day.

In my view,

Section 9 of the General Clauses Act has no application in the

present case. Since the learned JMFC has touched this issue of
Section 9 of the General Clauses Act, let me explain what is
the true purport of Section 9 of the Act.
19.

Section 9 of the General Clauses Act, 1897 gives

statutory

recognition

to

the

well-established

principle

applicable to the construction of statutes that ordinarily in

computing the period of time prescribed, the rule observed is
to exclude the first and include the last day.
20.

In Halsbury Laws of England, 37th Edition, Volume 3,

page 92, it is stated as follows :"Days included or excluded - When a period of time
running from a given day or even to another day or event
is prescribed by law or fixed as contract, and the question
arises whether the computation is to be made inclusively
or exclusively of the first-mentioned or of the last
mentioned day, regard must be had to the context and to
the purposes for which the computation has to be made.
Where there is room for doubt, the enactment or
instrument ought to be so construed as to effectuate and
not to defeat the intention of Parliament or of the parties,
as the case may be. Expressions such as "from such a
day" or "until such a day" are equivocal, since they do
not make it clear whether the inclusion or the exclusion
of the day named may be intended. As a general rule,
however, the effect of defining a period in such a manner
is to exclude the first day and to include the last day."
21.

Section 9 says that in any Central Act or Regulation made

after the commencement of the General Clauses Act, 1897, it

shall be sufficient for the purpose of excluding the first in a

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JUDGMENT

series of days or any other period of time, to use the word

"from", and, for the purpose of including the last in a series of
days or any period of time, to use the word "to". The principle
is that when a period is delimited by statute or rule, which has
both a beginning and an end and the word "from" is used
indicating the beginning, the opening days is to be excluded
and if the last day is to be excluded the word "to" is to be
used. In order to exclude the first day of the period, the crucial
thing to be noted is whether the period of limitation is
delimited by a series of days or by any fixed period. This is
intended to obviate the difficulties or inconvenience that may
be caused to some parties.

For instance, if a policy of

insurance has to be good for one day from the 1st January, it
might be valid only for a few hours after its execution and the
party or the beneficiary in the insurance policy would not get
reasonable time to lay claim, unless the 1st January is
excluded from the period of computation [See Tarun Prasad
Chatterjee Vs. Dinanath Sharma - AIR 2001 SC 36(1)]

22.

The application of Section 9 of the General Clauses Act

has to be on the basis of the terminology used in the statutes

or orders of the Court.

In the instant case, no such

terminology has been used. In fact, Section 167 of the Code

does not provide any method for calculating the period of 90
days or 60 days, as the case may be.
23.

After a person is arrested, the Police can keep him in

custody for a limited period under Section 57 of the Code.

Thereafter,

the accused

has

to

be produced

before a

Magistrate for remand under Section 167 of the Code. Where

the Magistrate decides to grant the remand, the custody
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JUDGMENT

thereafter is under orders of the Magistrate.

The custody

under this section cannot be granted for a period 'exceeding

sixty days' or 'ninety days', as the case may be. A calendar
day as a unit of time is the interval from one midnight to
another.

It is not correct to take into consideration the

fractions of two days to make up one day. Thus, the day on

which the custody is granted cannot be excluded.
Third Question:
24.

The above takes me to deal with the Section 10 of the

General Clauses Act. But before I do so, I may notice S.10 of

the General Clauses Act of 1897 which reads as under:"Where, by any Central Act or Regulation made after the
commencement of this Act, any act or proceeding is
directed or allowed to be done or taken in any Court or
office on a certain day or within a prescribed period,
then, if the Court or office is closed on that day or the last
day of the prescribed period, the act or proceeding shall
be considered as done or taken in due time if it is done or
taken on the next day after wards on which the Court or
office is open:
Provided that nothing in this section shall apply to
any act or proceeding to which the Indian Limitation Act,
1877 (XVI of 1877) applies."
25.

In Harinder Singh case (AIR 1957 SC 271) (Supra) the

Supreme Court while interpreting S.10 of the General Clauses

Act ruled that the object of S.10 is to enable a person to do
what he could have done on a holiday, on the next working
day.

Where,

therefore,

period

is

prescribed

for

the

performance of an act in a Court or office, and that period

expires on a holiday, then according to the section, the act
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JUDGMENT

should be considered to have been done within that period, if it

is done on the next day on which the Court or office is open. It
has further ruled that to attract the application of S. 10 of
General Clauses Act all that is requisite is that there should be
a period prescribed, and that period should expire on a
holiday.
26.

A plain reading of S.10 of General Clauses Act would,

therefore, go to show that there should be a period prescribed

for the performance of an act in a Court or office. It is only in
such cases that if the last date of limitation prescribed expires
on a holiday then S.10 comes into play and makes it
permissible to do that act on the next day when the Court or
office opens. Section 10 of the General Clauses Act, therefore,
clearly pre-supposes that there must be in existence a positive
act to be performed by person and for the performance of
which there is in existence a period prescribed by law. It will
have no application in any other situation.
27.

With this in mind let me now examine the provisions of

sub-s.(2) of S.167, Cr.P.C. which reads as under:"S.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

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JUDGMENT

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."

28.

A bare reading of the aforesaid provision of the Code

would go to show that this provision merely confers power on

the Magistrate to commit to custody an accused person and
there is limitation of 90 days and 60 days, as the case may be.
This provision of the Code falls under Chap. XII of the Code
relating to information to the police and their powers to
investigate. It is thus clear that this is a power which is only
exercisable during the course of investigation of a case. The
power to commit an accused

person to custody after

investigation is over and after the charge-sheet is presented

before the Court, is derived from S.309, Cr.P.C. Any further
remand to judicial custody beyond 90 days and 60 days
without the charge-sheet being presented before the Court will
be without the authority of law.
29.

Sub-sec.(2) of S.167 of the Code nowhere prescribes a

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period within which the police is required to present chargesheet before the court nor does it envisage the performance of
an act by an accused person within a particular period before a
Court or office. In fact, nowhere in the Code a period is
prescribed for investigation to produce the charge-sheet
before a Court of law. Since the Legislature in its wisdom has
not prescribed a period within which the investigation has to
present charge-sheet against an accused person before a
Court, it would be wrong to say that the provision of S.167(2)
of Code had prescribed the limit by implication. If the
Legislature had aimed it to be so, there was nothing to prevent
it from saying so explicitly. By invoking the doctrine of
implication we will be importing something in the provision
which the Legislature has deliberately refrained to do. It will
not only have the effect of distorting the provision but will also
defeat the legislative intent.

30.

Mr. Saiyed, the learned advocate has placed reliance on

the decision of this Court in the case of 'Meghji Jethabhai

Vankar & Others Vs. State of Gujarat' reported in 1987 (1)
GLH 288, wherein, the learned Single Judge of this Court has
taken the view that while computing the limitation under
Section 167(2), method of computation under the General
Clauses Act or under the Limitation Act would not apply. I may
quote with profit the observations made in paragraphs- 3 and
4, as under:3.
Mr.Chinoyhassubmittedthatthemethodofcomputationin
theLimitationActaswellasGeneralClausesActdonotapplyinthis
case. For this submission, he has relied on the decision of the
SupremeCourtreportedin(1986)3CCC141(154),whereinthe
Supremecourthasobservedasunder:

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JUDGMENT

Astheterms ofproviso(a)withreference tothetotalperiods of

detention can beinterpreted on the plain language ofthe proviso
itselfwedonotthinkitisnecessarytoinvoketheprovisionsofthe
General Clauses Act or seek guidance from the Limitation Act to
construethetermsoftheproviso.
ItisquiteclearthattheSupremeCourthasnegativedthesubmission
thatforthepurposeofcomputation oflimitation, theprincipleof
Limitation Act or General Clauses Act could be enacted while
calculating the Limitation under Section 167(2) of the Criminal
Procedure Code. The reason is quite obvious. As far as the
limitationundertheLimitationActandtheGeneralClausesActare
concerned,theypertaintothecausesrelatedtothefilingofclaims
etc.,whereastheprovisionsofSection167oftheCodepertaintothe
personallibertyoftheundertrialprisoners.Theindividuallibertyof
acitizenisguaranteedbytheConstitution.Itisaninvaluableright.
Anyinfringement orabridgmentthereof, however small,hastobe
viewedseriously.InthecaseoflimitationunderSection167(2)of
theCode, the limitation period has tobeconstrued strictly which
meansthatthe90daysor60dayslimitationhastoberegardedas
exactlythe90th dayor60th dayasthecasemaybeandnotaday
beyond. Theprosecutionshouldbevigilanttoseethatthecharge
sheetisfiledasearlyaspossible.Itshouldnottakechanceandwait
tillthelastday. Ifitdoeswaitandthelastdayhappenstobea
closed holiday, the limitation would expire on that day and the
accusedwouldbeentitledtobailasamatterofright. Hence,itis
heldthatincomputingthelimitationunderSection167(2)ofthe
Code,themethodofcomputationundertheGeneralClausesActor
undertheLimitationActcannotbebroughtin.Thecomputationhas
tobestrictlythenumberofdaysassetoutintheaforesaidprovisions
oftheCode.
4.
Intheresult,thepetitionsucceeds.Ruleismadeabsoluteto
theextentthatthoseofthepetitionersinwhosecasethechargesheet
hasbeenfiledbeyond90days,willbereleasedonbailintheSumof
Rs.5,000/eachandasuretyforthelikeamountonconditionthat
theywillreportatBhavnagarCityPoliceStationDivisionAoncea
weekduringthetrial.Orderaccordingly.

31.

Mr. Pandya, the learned APP vehemently submitted that

the accused-applicants are facing charge of murder punishable

under Section 302 of the IPC and they should not be extended
the benefit of default bail on such a technical plea. I am afraid,
I am unable to accept the argument canvassed by the learned

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APP.
32.

The provisions of S.167(2) of the Code cast a duty upon

the Magistrate to offer bail. In this regard, I may make a

reference also to the case of Natabar Parida v. State of Orissa,
AIR 1975 SC 1465: (1975 Cri LJ 1212). While considering the
scope of the provisions of S.167(2) of the Code their Lordships
of the Supreme Court in para 8 of the judgment at page 1469
(of AIR): (at p.1216 of Cri LJ) have made the following
observations:"Inseriousoffencesofcriminalconspiracymurders,dacoities,robberies
byinterStategangsorthelike,itmaynotbepossibleforthepolice,inthe
circumstances as they do exist in the various parts of our country, to
completetheinvestigationwithintheperiodof60days.Yettheintention
oftheLegislatureseemstobetograntnodiscretiontotheCourtandto
makeitobligatoryforittoreleasetheaccusedonbail.Ofcourse,ithas
beenprovidedinproviso(a)thattheaccusedreleasedonbailunderS.167
willbedeemedtobesoreleasedundertheprovisionsofChap.XXXIIIand
forthepurposesofthatChapter.ThatmayempowertheCourtreleasing
himonbail,ifitconsidersnecessarysotodo,todirectthatsuchpersonbe
arrested and committed to custody as provided in subsec.(5) of S.437
occurring in Chap.XXXIII. It is also clear that after the taking of the
cognizancethepowerofremandistobeexercisedunderS.309ofthenew
Code.Butifitisnotpossibletocomplete,theinvestigationwithinaperiod
of60daystheneveninseriousandghastlytypesofcrimestheaccusedwill
beentitledtobereleasedonbail.Suchalawmaybea"paradiseforthe
criminals",butsurelyitwouldnotbeso,assometimesitissupposedtobe
because of the Courts. It would be so under the command of the
Legislature."

33.
1.

In the result, my final conclusions are as under:Under the provision of Section 167(2), an accused
person against whom charge-sheet is not presented
before the Court within the period of 90 days or 60 days,
as the case may be, is entitled to be offered bail as a
matter of right.

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2.

JUDGMENT

The first day of production of the accused before the

Magistrate is to be counted for computing the period of
90 days/60 days, as envisaged by proviso (a) to Section
167(2) of the Code. Section 9 of the General Clauses Act
is not applicable in such a situation.

3.

Section 10 of the General Clauses Act is not applicable in

such a situation and it cannot be invoked to defeat the
accrued right of an accused person to be freed.

The

Magistrate's should monitor the remand proceedings

during the investigation in such a manner so that a full
account of the remand is handy and bail is offered to
such accused person at the end of 90 or 60 days, as the
case may be.
34.

For the foregoing reasons, this application is allowed. The

applicants are ordered to be released on regular bail in

connection
registered

with
with

an
Patdi

offence
Police

being

C.R.No.I-86

Station,

of

2014

Surendranagar,

on

executing a personal bond of Rs.25,000/- (Rupees Twenty Five

Thousand only) with one surety of the like amount for each
applicants, to the satisfaction of the learned Trial Court and
subject to the conditions that they shall;
[a]

not take undue advantage of liberty or misuse

liberty;

[b]

not act in a manner injurious to the interest of the

prosecution;

[c]

surrender passport, if any, to the lower court within

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JUDGMENT

a week;
[d]

not

leave

the

State

of

Gujarat

without

prior

permission of the Sessions Judge concerned;

[e]

mark their presence before the Patdi Police Station

once in a week on Evey Sunday of every English
Calendar Month between 11:00 a.m. and 2:00 p.m.
for six months only;

[f]

furnish the present address of residence to the

Investigating Officer and also to the Court at the
time of execution of the bond and shall not change
the residence without prior permission of this Court;

(g)

shall not enter into the revenue limits of Taluka:

Patdi till the completion of the trial except for
marking presence at the concerned police station.

35.

The Authorities will release the applicants only if he is not

required in connection with any other offence for the time

being. If breach of any of the above conditions is committed,
the Sessions Judge concerned will be free to issue warrant or
take appropriate action in the matter. Bail bond to be executed
before the learned Lower Court having jurisdiction to try the
case. It will be open for the concerned Court to delete, modify
and/or relax any of the above conditions, in accordance with
law.
Rule is made absolute to the aforesaid extent.
service is permitted.

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Direct

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JUDGMENT

(J.B.PARDIWALA, J.)
Mohandas

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