Holding

On expiry of the period prescribed under Section 167(2) of the CrPC, an indefeasible right to bail accrues in favour of the accused if the investigation is not completed, and no provision permits extending that period.

Summary

The appellants were arrested in connection with a multi‑offence FIR and remanded to police/magisterial custody on 8 April 2018. The High Court, on 3 July 2018, ordered that the investigation be conducted by a gazetted officer of at least the rank of Additional Superintendent of Police and that a report be filed within two months. The charge‑sheet filed on 5 July 2018 was returned by the magistrate for non‑compliance with that order, and no report was on record when the 90‑day period prescribed under Section 167(2) of the CrPC expired on 7 July 2018. The magistrate rejected the appellants' bail application, treating the High Court order as an extension of the investigation period. The Supreme Court held that Section 167(2) creates an indefeasible right to bail on expiry of the statutory period if the investigation is not completed, and that no provision in the CrPC permits extending this period; the High Court order could not be construed as such an extension. Consequently, the Court allowed the appeal and directed that the appellants be granted bail under Section 167(2).

Issues considered

The investigation was not completed within the 90‑day period prescribed under Section 167(2) of the CrPC; does the accused acquire a right to bail on expiry of that period?
Can a High Court order directing a longer investigation period be treated as an extension of the statutory period under Section 167(2)?
Does any provision of the CrPC or other statutes empower a court to extend the period for completing an investigation?

Legislation cited

Code of Criminal Procedure, 1973s. 167(1), s. 167(2), s. 173, s. 344, s. 57
Maharashtra Control of Organised Crime Act, 1999
Terrorist and Disruptive Activities (Prevention) Act, 1985

Subjects

Section 167(2) CrPCdefault bailinvestigation periodhigh court orderextension of statutory periodbail jurisdictionmagistrate's power

Judgment

[2018] 12 S.C.R. 327 327

ACHPAL @ RAMSWAROOP & ANOTHER A
v.
STATE OF RAJASTHAN
(Criminal Appeal No. 1218 of 2018)
SEPTEMBER 24, 2018 B
[ABHAY MANOHAR SAPRE AND UDAY UMESH LALIT,
JJ.]
Code of Criminal Procedure, 1973 – s.167(2) – Investigation
not complete within the period prescribed under – Right of an
C
accused in custody, to be released on bail – FIR registered against
appellants-accused– Appellants arrested and remanded to police/
magisterial custody – Petition filed by the complainant praying for
fair and impartial investigation– High Court passed order dtd.
03.07.18 inter alia directing that investigation be conducted by a
gazetted police officer, not below the rank of Additional D
Superintendent of Police (ASP)– On 05.07.18 charge-sheet filed
by the police officer lower in rank than ASP– Magistrate returned
the charge-sheet to the police for due compliance– Immediately after
the expiry of 90 days, the appellants filed application for bail u/
s.167(2) – Rejected– Held: In terms of s.167(2), the stage of
E
investigation ought to be confined to 90 or 60 days, as the case
may be– 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 completion of
the investigation within the period stipulated – Since, the appellants
were in custody from 08.04.18, in terms of s.167(2) the investigation F
had to be completed by 07.07.18 – However, in the present case, on
completion of 90 days of prescribed period, there were no papers
of investigation before the concerned Magistrate– Appellants were
thus denied protection established by law– Appellants entitled to
bail in terms of s.167(2).
G
Code of Criminal Procedure, 1973 – s.167(2) – Period under,
for investigation – If can be extended by the High Court – Held:
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.
H
327
328 SUPREME COURT REPORTS [2018] 12 S.C.R.

A Allowing the appeal, the Court
HELD: 1.1 On the expiry of the period stipulated under
Section 167(2), Code of Criminal Procedure, 1973 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
B 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. [Para 11] [334-E-F]
1.2 The letter of and spirit behind enactment of Section
167 of the Code mandates that the investigation ought to be
C 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
D 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
E 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]

F 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
G 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
H
ACHPAL @ RAMSWAROOP & ANOTHER v. STATE OF 329
RAJASTHAN

offence or for that matter, to facilitate pending investigation. In A
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
B
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 C
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]
D
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 E
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 F
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 G
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
H
330 SUPREME COURT REPORTS [2018] 12 S.C.R.

A 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
B
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.
C 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
D 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]
E 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.
Case Law Reference
[2001] 2 SCR 878 relied on Para 10
F
[1994] 1 Suppl. SCR 360 referred to Para 10
[1994] 3 Suppl. SCR 263 referred to Para 10
[1996] 1 SCR 193 referred to Para 10
[2007] 5 SCR 561 referred to Para 11
G
[2010] 1 SCR 555 referred to Para 11
[2014] 6 SCR 148 referred to Para 11
(2018) 4 SCC 405 referred to Para 11
(2017) 15 SCC 67 relied on Para 14
H
ACHPAL @ RAMSWAROOP & ANOTHER v. STATE OF 331
RAJASTHAN

CRIMINAL APPELLATE JURISDICTION: Criminal Appeal A
No. 1218 of 2018
From the Judgment and Order dated 23.07.2018 of the High Court
of Judicature for Rajasthan Bench at Jaipur in S.B. Criminal
Miscellaneous Bail No. 9035 of 2018.
Siddhartha Dave, Rishi Matoliya, Ms. Sumati Sharma, Mahaveer B
Jat, H. D. Thanvi, Purushottam Lal Goyal, Milind Kumar, M. C. Dhingra,
Gaurav Dhingra, Piyush Kant Roy, Vikrant Yadav, Advs. for the
appearing parties.
The Judgment of the Court was delivered by
C
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 D
Station Baharwanda Kalan, Distt. Sawai Madhopur for offences
punishable under Sections 143, 341, 323, 452, 336, 302 read with Section
149 of the Indian 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
E
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:
F
“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 G
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.
H
332 SUPREME COURT REPORTS [2018] 12 S.C.R.

A 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 officer lower in rank than an ASP and was thus contrary to the
B
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
C 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
D 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
E the High Court was extension of period within which the investigation
could be completed.
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:
F “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
G 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,
H
ACHPAL @ RAMSWAROOP & ANOTHER v. STATE OF 333
RAJASTHAN [UDAY UMESH LALIT, J.]

learned Advocate for the complainant. It was submitted by Mr. Dave, A
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
B
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 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 C
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 D
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 E
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:-
“…………………………………… F

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

1
(2001) 5 SCC 453
2
(1994) 4 SCC 602
3
(1994) 5 SCC 410
4
(1996) 1 SCC 718 H
334 SUPREME COURT REPORTS [2018] 12 S.C.R.

A 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
B
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
C 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.
D Dinesh Dalmia 5; Sanjay Kumar Kedia v. Intelligence Officer,
Narcotics Control Bureau and Another6; Union of India v. Nirala
Yadav7 and in Ranbeer 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
E 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.

F 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
G 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
5
(2007) 5 SCC 773
6
(2009) 17 SCC 631
7
(2014) 9 SCC 457
8
H (2018) 4 SCC 405
ACHPAL @ RAMSWAROOP & ANOTHER v. STATE OF 335
RAJASTHAN [UDAY UMESH LALIT, J.]

papers were returned by the Magistrate. All this happened before the A
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 order passed by the High Court
could be construed as one under which the period for completing the
B
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 C
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 D
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 E
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 F
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 G
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
H
336 SUPREME COURT REPORTS [2018] 12 S.C.R.

A 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
B
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
C 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
D 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
E 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 earlier Reports) and proposed to
F 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
G prevent that.”
(emphasis supplied)
The view expressed by the Law Commission of India and its
proposal is as follows:
9
(2017) 15 SCC 67
H
ACHPAL @ RAMSWAROOP & ANOTHER v. STATE OF 337
RAJASTHAN [UDAY UMESH LALIT, J.]

“14.19. Section 167.—Section 167 provides for remands. A
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,
B
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 C
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
D
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. E
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 days is too short, it would be
better to fix a longer period rather than countenance a practice
F
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 G
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:
H
338 SUPREME COURT REPORTS [2018] 12 S.C.R.

A ‘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
B
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
C 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.
* * *
D
(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
E
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:
“3. The recommendations of the Commission were examined
carefully by the Government, keeping in view among others, the
F
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
G 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.
H
ACHPAL @ RAMSWAROOP & ANOTHER v. STATE OF 339
RAJASTHAN [UDAY UMESH LALIT, J.]

The occasion has been availed of to consider and adopt where A
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 B
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
C
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.
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 D
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 E
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 F
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 G
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
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340 SUPREME COURT REPORTS [2018] 12 S.C.R.

A 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.
B
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
C 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
D 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 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
E 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
F 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
G 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
H
ACHPAL @ RAMSWAROOP & ANOTHER v. STATE OF 341
RAJASTHAN [UDAY UMESH LALIT, J.]

or indirectly extend such period. In any event of the matter all that the A
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
B
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. C

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 D
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 E
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.”
In his concurring judgment, Deepak Gupta, J. agreed10 with
conclusions drawn and directions given by Madan B. Lokur, J. in F
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 G
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
10
Para 86 of the Judgment of Hon’ble Deepak Gupta
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342 SUPREME COURT REPORTS [2018] 12 S.C.R.

A 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
B
for grant of regular bail.
21. The appeal thus stands allowed.

Divya Pandey Appeal allowed.
C

D

E

F

G

H