CHAGANTI SATYANARAYAN & ORS.versusSTATE OF ANDHRA PRADESH

    1128

A                     CHAGANTI SATYANARAYAN & ORS.
                                   v.
                        STATE OF ANDHRA PRADESH

                              MAY 8, 1986

                    [A.P. SEN ANDS. NATARAJAN, JJ.]
B
          Criminal Procedure Code, 1973, S. 167(2)(a) - Scope of -
    Period of 90 days - Computation of - Whether from date oft'
    remand or date of arrest of accused.

          The appellants were arrested in the forenoon of July 19,     >--
C   1985 in connection with a riot which resulted in a toll of
    human lives and huge destruction of property. They werer
    produced before the Munsiff Magistrate on July 20, 1985 and..
    were remanded to judicl.al custody till October 18, 1985.

          The police· ft led a charge-sheet against the appellants
D   on October 17, 1985 that being the 90th day of remand. Even
    so, the appellants filed a petition before the Magistrate and
    sought enlargement on bail in terms of proviso (a) to s.
    167(2) of the Code of Criminal Procedure. The learned
    Magistrate, overruling the objection of the State, granted
    bail to the appellants on the ground that the period of 90_.
E   days stipulated in the proviso had to be reckoned from the
    date of arrest and not from the date of remand and so
    computed, the charge-sheet had not been filed on the 90th day    ...._
    but on 9lst day and hence the accused/appellants were entitled
    to bail. The respondent-State challenged the order of bail
    before the High Court by means of a petition under s. 439(2)~
F   of the Code. A Single Judge of the High Court allowed the
    petition holding that the period of 90 days envisaged by thi:_,-
    proviso to s. 167(2) has to be computed only from the date o!f
    remand and therefore cancelled the bail and directed the
    magistrate to issue warrants of arrest for the appellants.

G          Dismissing the appeal of the appellants-accused.

          HELD: 1. The High Court was right in allowing the •
    petition filed by the State for cancellation of the bail~
    granted to the appellants. As the Munsiff Magistrate has
    granted bail to the appellants before the expiry of 90 days of
H   remand period allowed under law, the order of the Magistrate
                        C, SATYANARAYAN v. STATE                 ll29

                                                                         A

r'   will not tantamount to one passed under the provisions of
     Chapter XXXIII of the Code and hence there is no scope for
     contending that re-arrest of the appellants can be ordered
     only in terms of sub-s.(5) of s.437. After the appellants
     surrender themselves to custody or are taken into custody by
     re-arrest, they will not stand precluded from seeking               B
     enlargement on bail by filing applications under sub-s.(i) of
     s.437 of the Code and satisfying the court that they deserve
    ~to be enlarged on bail. [1148 G-H; 1149 A-Bl

            2. (i) ,On a reading of the sub-ss. (1) a11d (2) it may be
      seen that sub-s.(1) is a mandatory provision governing what a
     police officer should do when a person i.s arrested and             c
    y detained in custody and it appears that the investigation
      cannot be completed within the period of 24 hours fixed by s.
   ~ 57. Sub-s. (2) on the other hand pertains to the powers of
      remand available to a Magistrate and the manner in which such
      powers should be exercised. The terms of sub-s. (1) of s. 167
      have to be read in conjunction with s. 57. Section 57              D
      interdicts a police officer from keeping in ·~ustody a person
      without warrant for a longer period than 24 hours without
      production before a Magistrate, subject to the exception that
      the time taken for performing journey from the place of
   • arrest to the Magistrate's court can be excluded from the
      prescribed period of 24 hours. Since sub-s. (1) provides that      E
      if the investigation cannot be completed within the period of
      24 hours fixed by s. 57 the accused has to be forwarded to the
      Magistrate alongwith the entries in the Diary, it follows that
      a police officer is entitled to keep an arrested person in
 .._. custody for a maximm period of 24 hours for purposes of
      investigation. The resultant position is that the initial          F
      period of custody of an arrested person till he is produced
    ~before a Magistrate is neither referable to nor in pursuance
      of an order of remand passed by a Magistrate. In fact the
      powers of remand given to a Magistrate become exercisable only
      after an accused is produced before him in terms of sub-s. (1)
      of s. 167, [1138 B-C]                                              G

•             2,(ii) Sub-s. (2) of s. 167 empowers the Magistrate
    ... before whom an accused is produced for purpose of remand,
        whether he has jurisdiction or not to try the case, to order
        the detention of the accus~d, P.ither in policy custody or in
        judicial custody, for a term not exceeding 15 days in the        fl
    1130                 SUPREME COURT REPORTS     (1986] 2 s.c.R.

A
    whole. In the first place, if the initial order of remand is ·
    to be made with reference to the date of arrest then the order ~
    will have retrospective coverage for the period of custody ,
    prior to the production of the accused before the Magistrate,
    i.e. the period of 24 hours' custody which a police officer is
    entitled to have under s. 57 besides the. time taken for the
B   journey. Such a construction will not only be in discord with
    the terms of s. 57 but will also be at variance with the terms
    of sub-s. (2) itself, The operative words in sub-s. (2) viz. r
    "authorise the detention of the accused... for a term not
    exceeding 15 days in the whole" will have .to be read
    differently in so far as the first order of remand is
c   concerned so as to read as "for a term not exceeding 15 days
    in the whole from the date of arrest". This would necessitatey
    the adding of m>re words to the section than what the I
    legislature has provided. Another anomaly that would occur is~
    that while sub-s. (2) empowers the Magistrate to order the
    detention of an accused "in such custody as such Magistrate
D   thinks fit, for a term not exceeding 15 days in the whole" the
    Magistrate will be disentitled to placing an accused in police
    custody for a full period of 15 days if the period of custody
    is to be reckoned from the date of arrest because the period
    of custody prior to the production of the accused will have to
    be excluded from the total period of 15 days. [1138 G-H;
E   1139 A-F]                                                      ~

          Apart from these anomalous features, if an accused were
    to contend that he was taken into custody m>re than 24 hours
    before his production before the Magistrate and the police
    officer refutes the statement, the Magistrate will have to~.
F   indulge in a fact finding inquiry to determine when exactly
    the accused was arrested and from what point of time the
    remand period of 15 days is to be reckoned. Such an exercisef
    by a Magistrate ordering remand is not contemplated or
    provided for in the Code. It would, therefore, be proper to
    give the plain meaning of the words occurring in sub-s. (2)
G   and holding that a Magistrate is empowered to authorise the
    detention of an accused produced before him for a full period
    of 15 days from the date of production of the accused. [1139 ,
    F-H; 1140 A]

          3. Reference may also be made to another provision in
H   the Code, viz. the first proviso to sub-s. (2) of s. 309 for
    construing the period of 15 days referred to in sub-s. 2 of s.
    167. As sub"'B. (2) of s. 167 as well as proviso (1) of sub-s.
                    -       C. SATYANARAYAN v. STATE               1131

                                                                          A
           (2) of s. 309 relate to the powers of remand of a Magistrate,
           though under different situations, the two provisions call for
           a harmonious reading in so far as the periods of remand are
           concerned. It would, therefore, follow that the words "15 days
           in the whole" occurring in sub--s. (2) of s. 167 would be
           tantruoount to a period of "15 days at a time" but subject to B
           the condition that if the accused is to be remanded to police
           custody the remand should be for such period as is
       --+ conmensurate with the requirements of a case with provisions
           for further extensions for restricted periods, if need be, but
           in no case should be total period of remand to police custody
           exc,eed 15 days. Where an accused is placed in police custody
           for the maxilllllll period of 15 days allowed under law either c
      y    pursuant to a single order of remand or to more than one
           ord,er, when the remand is restricted on each occassion to a
        ~ lesser number of days, further detention of the accused, if
           warranted, has to be necessarily to judicial custody and not
           otherwise. The Legislature having provided for an accused
           being placed under police custody under orders of remand for D
           effective investigation of cases has at the same time taken
           care to see tha.t the interests of the accused are not
           jeopardised by his being placed under police custody beyond a
           total period of 15 days, under any circumstances, irrespective
       'I  of the gravity of the offence or the serious nature of the
           case. Thus, there i's no merit or force in the contention of E
           the appellants' counsel that the words "for a term not
...        exceeding 15 days in the whole" occurring in sub--s. (2) of s •
            167 should be construed as to include also the period of
           custody of the accused frOlll the time of arrest till the time
      ·~ of     production before the Magistrate. A Magistrate can,
           therefore, authorise the detention of the accused for a F
           maxillUll period of 15 days from the date of remand and place
        \ the accused either in police custody or in judicial custody
            during the period of 15 days' remand. [1140 B-H; 1141 A-<:]

                 4.(i) Construing proviso (a) either in conjunction with
          sub--s.(2) of s. 167 or aa an independent paragraph, the total G
          period of 90 days under clause (i) and the total period of 60
          days under clause (ii) has to be calculated only from the date
          of remand and not from the date of arrest.

                4. (ii) The words used in proviso (a) are "no Magistrate
          shall authorise the detention . of the accused person in I'
    1132                 SUPREME COURT REPORTS     [1986) 2 s.c.R.

A
    custody", "under this paragraph", "for a total period
    exceeding i.e. 90 days/60 days". Detention can be authorised
    by the Magistrate only from the time the order of remand is
    passed. The earlier period when the accused is in the custody
    of a police officer in exercise of his powers under s. 57
    cannot constitute detention pursuant to an authorisation
B   issued by the Magistrate. It, therefore, stands to reason that
    the total period of 90 days or 60 days can begin to run only
    from the date of order of remand. Moreover, as per sub-s. (2A) ?>
    of s. 167 a Magistrate is obliged to take into consideration
    only the period of detention actually undergone by the accused    '
    pursuant to the orders of remand passed by the Executive
c   Magistrate. The earlier period of custody till the production
    of the accused before the Executive Magistrate is not directed y
    to be taken into consideration by sub-s. (2A). Such being the I
    case, there cannot be different modes of computation of the      +
    period of remand depending upon whether accused person is
    forwarded to a Judicial Magistrate or an Executive Magistrate
D   for purposes of remand. [1141 G-H; 1142 A-G)

           4. (iii) The change of wording in the proviso has to be
    given its due significance because the Legislature would not.
    have effected the change without any purpose or objective.
    Significant changes have been made in s. 167 as well as to the
E   proviso by Act 45 of 1978 such as increasing the period for
    investigation in grave cases from 60 to 90 days, conferring of
    powers of remand on Executive Magistrates in certain
    situations etc. Therefore, it can be legitimately contended
    that the words occurring in proviso (a) should be construed
    within the frame work of the proviso itself Without any          t-·
F   reference to s. 167(2). If such a construction is made, it may
    be seen that the proviso forbids the extension of remands only   j
    beyond a total period of 90 days under clause (i) and beyond a
    total period of 60 days under clause (ii). Thus if proviso (a)
    is treated as a separate paragraph it necessarily follows that
    the period of 90 days or 60 days as the case may be, will
G   commence running only from the date of·remand and not from any
    anterior date in spite of the fact that the accused may have
    been taken into custody earlier by a police officer and
    deprived of his liberty. [1143 F-H; 1144 A-Bl

         5. The intention of the Legislature can also be gathered
H   by comparing proviso (a) with sub-s. (5) of s. 167. The
                          C. SATYANARAYAN v. STATE                1133

                                                                          A
       Legislature has consciously referred to the date of arrest in
       s. 167(5) but has made no such reference l.n s. 167 (2) or
       povlso (a) thereto. If it was the intention of the Legislature
       that the period of remand of 15 days in the whole envisaged in
       sub-s. (2) or the total period of 90 days/60 days prescribed
       in proviso(a) should be calculated from the date of arrest         B
       then the Legislature would have expressly said so as it had
       done under s. 167(5). [1143 C-0]

              Paltira Naik v. State of Orissa, [1983] Crl. L.J. 1336;
      !bbd. Shafi & Anr. v. The State, [1975] Crl. L.J. 1309; State
      of lajasthan v. BbaJllfaru Khan & Ors., [1975] Crl. L.J. 1981;
      Khf.nvdan v. The State of lajastban, [1975] Crl. L.J., 1984;        c
    f Prell laj & Anr. v. State of lajasthan, [1976] Crl. L.J., 455;
      C,anu Madhu J8*handi & Ors. v. The State of Karnatalta, [1977]
    ~ Cr1. L.J. 632; State of Baryana v. Mehal Singh & Anr., (FB)
       [1!178] Crl. L.J. 1810 and Paltira Nai1t & Ors. v. State of
      Orissa, (1983] Crl. L.J. 1336, disapproved.
                                                                          D
               IUssainara Xhatoon & Ors. v. Home Secretary, State of
         Bihar, Patna, [1979] Crl. L.J. 1052; lajoo Alias laj Ki.shore
         Singh & Anr. v. State of Bihar & Anr., 55 [1976] l.L.R. Patna
         1021; laj ltullar v. The State of Punjab, A.l.R. 1979 Punjab &
    _.., Haryana 80; Batna llaa v. State of B:l.mchal Pradesh, [ 1980]
         Crl. L.J. 748; Jagdiah & Ors. v. State of Madhya Pradesh,
         (1984] Crl. L.J. 79; H. Sureya Reddy & Anr. v. State of
         Oriasa, [1985] Crl. L.J. 939; Bashir & Ora. v. State of
•        Baryana, (1978] l S.C.R. 585 and State of U.P. v. Lalllll.
         Brahamn &Anr., (1983] 2 S.C.R. 537, referred to.

            CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No.         F
    ~ 278 of 1986.

             From the Judgment and Order da~ed 31st December, 1985 of
       the Andhra Pradesh High Court in Crl. Misc. Petition No. 4049
       of 1985.
                                                                          G
             S. Madhusudan Rao and A. Subba Rao for the Appellants.

             P. Ram Reddy, T.V.S.N. Chari and Ms. Vrinda Grover for
       the Respondent.

             The Judgment of the Court was delivered by                   H
    1134                 SUPREME COURT REPORTS     [1986] 2 S.C.R.
A
          NATARA.JAN, J. This appeal by special leave against an
    order of a learned Single Judge of the Andhra Pradesh High       ~
    Court in a petition filed under Section 439(2) of the Code of
    Criminal Procedure (hereinafter referred to as the 'Code')
    calls for a critical examination of the scope and effect of
    proviso (a) to Section 167(2) of the Code. Several High Courts
B
    have rendered decisions construing differently the terms of
    the proviso but a need for the examination of the terms of the
    proviso by this Court had not arisen till now.

          The circumstances which form the prefactory for this
    appeal can be summarised as under.
c
          The hamlet of Madigawada in Village Karamchedu in Andhra   y
    Pradesh was the scene of a horrendous riot on the morning of     I
    July 17, 1985. The riot culminated in a toll of human lives      +
    and huge destruction of property. Five persons were left dead,
    twenty others were victims of injuries of varying degrees,
D
    properties were looted and hutments were damaged or destroyed.

          In connection with the macabre events the police
    authorities arrested 94 persons including the appellants
    herein and had them remanded to custody, The appellants were
    arrested in the forenoon of July 19, 1985 and were produced
E
    before the IIIrd Additional Munsif Magistrate, Chirala on the
    next day, i.e. July 20, 1985. They were initially remanded to
    judicial custody for a period of 15 days and thereafter the
    remand was extended from time to time till October 18, 1985.

           The investigating officer filed a charge-she~t in the     ~
F
    case at 10. 30 A.M. on October 17, 1985, that being the 90th
    day of remand. Even so, the appellants filed a petition before   j
    the Magistrate and sought enlargement on bail in term<r of
    proviso (a) to Section 167(2). The learned Magistrate,
    overruling the objection of the State, granted bail to the
    appellants on the ground that the period of 90 days stipulated
G
    in the proviso had to be reckoned from the date of arrest and
    not from the date of remand and so co~uted the charge-sheet
    had not been filed on the 90th day but on the 91st day and
    hence the accused were entitled to bsil. The State challenged    >-
    the order of bail before the High Court by means of a petition
    under Section 439(2) of the Code. A learned Single Judge of
H
    the High Court allowed the petition holding that the period of
                 -C. Sl\TYANARAYAN v. STATE   [NATARAJAN, J.]      1135

                                                                           A
        90 days en~isaged by the proviso to Section 167(2) has to be
        computed only from the date of remand and, therefore,
        cancelled the bail and directed the Magistrate to issue
        warrants of arrest for the appellants. It is the correctness
        of the order of the learned Judge which is challenged in this
        appeal.                                                            B

                Mr. Madhus·1dan Rao, learned counsel for the appellants,
         strenuously contended that the liberty of the citizen is the
    ~ paramount factor for consideration while construing the terms
         of proviso (a) of Section 167(2) and as such the period of 90
(
         days, in the case of grave offences, and the period of 60
         days, in the case of other offences set out as outer limits       c
         for detention of accused persons should be computed from the
    1    very day the accused ·•as arrested and taken into custody by a
     t police officer and not from the day he was produced before the
         Magistrate and remanded to custody. In fact Mr. Rao went so
         far as to say, placing reliance on a decision rendered in
         Faltlra Naik v. State of Orlssa, [1983] Crl. L,J, 1336 that       D
         even the detention during the fraction of a day should also be
         counted as detention for a day since a calendar day as a unit
         of time is the interval between one midnight and another. In
         support of his contention Mr. Rao placed reliance on some
         decisions where the time limits set out in the proviso have
    -1'- been held to run from the date of arrest itself.                  E

                Mr. Ram Reddy, learned counsel for the State of Andhra
          Pradesh, advanced arguments to the contrary and submitted that
          the period of detention contemplated under the proviso is
     --f exclusively referable to the detentions ordered by a
          Magistrate and there is no scope for tagging on to this period   F
          any anterior period of custody by a police officer, who is
      +permitted under Section 57 of the Code to detain in custody a
        \ person arrested without warrant for a maximum period of 24
          hours. Alternately, it was contended that a significant change
          in the terms of the proviso has been made by the Legislature
          under Amendment Act 45 of 1978 and by reason of that change      G
          the periods of 90 days/60 days prescribed under the proviso
    , are to be computed solely within the framework of the proviso
          and not with reference to any other provision in the Code.
     ""' Besides these submissions the learned counsel also placed
          reliance on another set of decisions wherein the calculation
                                                                           H
    1136                  SUPREME COURT REPORTS       [1986] 2 S.C.R.

A
    of the total number of days of custody under remand has been
    made with reference to the date of remand.

           Before making a scrutiny of the ternlB of the proviso in
     question it will be of use to have a glimpse of the historical
     background of this legislative provision. Originally, the Code
B    provided only a period of 15 days for remand. As the period
    was too short for investigation in cases of serious nature the
     police were forc<!d to resort to filing before the Magistrates
     a preliminary or incomplete report and seek extension of +-
     remand under Section 344 of the Old Code. This device was
     resorted to as an inevitable necessity, even though Section
c    344 of the Old Code could be invoked only after a Magistrate
    had taken cognizance of an offence which in turn could be
    only after a report under Section 173 had been received and
    not while the investigation was in progress. The course )
                                                                        r
     followed for obtaining orders of remand beyond 15 days very -t
    often led to lethargy in the investigation of cases resulting
D    in scores of accused persons languishing in custody for long
    periods. To remedy the situation the Legislature deemed it fit
    to put a time limit on the powers of the police to obtain
    remand while the investigation was in progress after taking
    care to provide a longer period of remand so that investiga-
     tions are not affected. Consequently, a time limit of 60 days
E   with a provision for its extension under certain circumstances ,.._
    was fixed by addl.ng proviso (a) to sub-section (2) of Section
    167 of the Code of 1973. In the working of the provision it
    came to be realised that a celling limit of 60 days for
    completion of investigation in all cases including serious
    cases involving sentence of death, imprisonment for life etc. ~­
F   was hampering full and effective investigation in serious
    cases and affected the interests of the State. Consequently,
    certain amendments were effected to the proviso to section~·
    167(2) by means of Act 45 of 1978. By reason of the amendment I
    the ceiling limit: for remand period for cases, where the in-
    vestigation relates to an offence punishable with death, im-
G   prisonment for life or imprisonment for a term of not less
    than 10 years was raised to 90 days, while in other cases the
    earlier limit of 60 days was retained. Apart from this,             ,
    another significant change made was that instead of the words
    "under this section" occurring in the old proviso, the words        >-
    "under this paragraph", were substituted. A third change was
H   the addition of Explanation 1 to the proviso to highlight the
                   -C. SATYANARAYAN v. STATE   [NATARAJAN, J.]     1137




-
I
  .      position that the statutory right of bail under clause (a) of
         the proviso will stand restricted only to those accused
         persons who are in a position to furnish ball. Another
         important change made by the Amendment Act is the provision of
         Section (2A) whereby Executive Magistrates, on whom the powers
                                                                          A




         of a Judicial Magistrate have been conferred, have also been     B
         empowered to order remand for a term not exceeding 7 days in
         the aggregate, wherever Judicial Magistrates are not
         avaJ.lable.

            Our reference to the historical background of the
      proviso is for two reasons. The first reason is for presenting
      a perspective of the proviso in its entire conspectus; the          c
      second reason is to focus attention on the fact that the
    ¥proviso has been enacted to not only safeguard the liberty of
    I the citizens but also to safeguard the interests of the State
    tor in other words the public. We feel it necessary to advert
      to this feature because some of the decisions cited before us
      have proceeded on the basis that the only factor underlying         D
      the legislative provision is the anxiety of the Legislature to
      safeguard the liberty of the citizen by providing for the
      restoration of his liberty at the earliest possible moment
      after the maximum period of custody is over.

    -.        Besides a reference to the historical background of the     E
        proviso and the objective underlying it we uust also refer to
        another notable feature falling within the field of relevance.
        The right o·f bail granted to remand prisoners at the end of 90
        days or 60 days as the case may be does not have the effect of
        rendering the subsequent period of detention ipso facto
     ~illegal or unlawful. This is evident from the fact that the         F
        right to bail conferred under the proviso is subject to the
      ~condition that the accused in custody should furnish bail. For
       \Clearance of doubts in the matter, Explanat:ion I has been
        expressly provided and the Explanation obligates the accused
        being detained in custody in spite of the expiry of the
        prescribed peri~d of 90 days or 60 days as the case may be so     G
        long as he does not furnish bail. It wi 11 thus be seen that
        the anxiety of the Legislature to secure to the remand
    ' prisoners their release from custody is circumscribed by its
     ~concern in equal measure ·to safeguard the interests of the
        State as well.
                                                                          H
        1138                  SUPREME COURT REPORTS      [1986] 2 S.C.R.

A
              It is in the light of the contours set out above we have.
        to examine Section 167 and proviso (a) to sub-section (2). The
        marginal note for Section 167 is as under

                   "Procedure when investigation cannot be completed
                   in twenty-four hours".
B
             On a reading of the sub-sections (1) and (2) it may be
        seen that sub-section ( l) is a mandatory provision governing
        what a police officer should do when a person is arrested and~
        detained in custody and it appears that the investigation
        cannot be compl,~ted within the period of 24 hours fixed by     \
c       Section 57. Sub-section (2) on the other hand pertains to the     :>-.ii
                                                                               '
        powers of remand available to a Magistrate and the manner in
        which such powers should be exercised. The terms of
        sub-section (1) of Section 167 have to be read ln conjunction 1
                                                                           1
        with Section 57. Section 57 interdicts a police officer from-t
        keeping in custody a person without warrant for a longer
        period than 24 hours without production before a Magistrate,
        subject to the exception that the ti.me taken for performing
        the journey from the place of arrest to the Magistrate's Court
        can be excluded from the prescribed period of 24 hours. Since
        sub-section (1) provides that if that investigation cannot be
        completed within the period of 24 hours fixed by Section 57
    E   the accused has to be forwarded to the Magistrate along with~
        the entries in the Diary, it follows that a police officer ts




F
        entitled to keep an arrested person in custody for a maximum
        period of 24 hours for purposes of investigation. The
        resultant position is that the initial period of custody of an
        arrested person till he is produced before a Magistrate is!-
        neither referable to nor in pursuance of an order of remand
                                                                               -
        passed by a Magistrate. In fact the powers of remand given to
        a Magistrate become e'xecisable only after an accused lst
        produced before him in terms of sub-section (1) of Section
        167.

G            Keeping proviso (a) out of mind for some time let us look
        at the wording of sub-section (2) of Section 167. This
        sub-section empowers the Magistrate before whom an accused is
        produced for purpose of remand, whether he has jurisdiction or '
                                                                               •
        not to try the case, to order the detention of the accused,;....
        either in poli.ce custody or in judicial custody, for a term
H       not exceeding 15 days in the whole. It was argued by Mr. Rao
                  C. SATYANARAYAN v. STATE   [NATARAJAN, J.]     1139

                                                                         A
        that the words "in the whole" would govern the words "for a
    -j term not     exceeding 15 days' and, therefore, the only
,       interpretation that can be made is that the detention period
•       would coomence from the date of arrest itself and not from the
        date of production of the accused before the Magistrate.
        Attractive as the contention may be, we find that it cannot      B
        stand the test of scrutiny. In the fir§t place, if the initial
        order of remand is to be made with reference to the date of
        arrest then the order will have retrospective coverage for the
    't period of custody prior to the production of the accused
        before the Magistrate, i.e. the period of 24 hours' custody
        which a police officer is entitled to have under section 57
        besides the time taken for the journey. Such a construction      C
        will not only be in discord 'with the terms of ~ection 57 but
     't will also be at variance with the terms of sub-section (2)
      \_itself. The operative words in sub-section (2) viz. "authorise
     ~the detention of the accused •••• for a term not exceeding 15
        days in the whole" will have to be read differently in so far
        as the first order of remand is concerned so as to read as       D
        "for a term not exceeding 15 days in the whole from the date
        of arrest". This would necessitate the adding of more words to
        the section than what the Legislature has provided. Another
        anomaly that would occur is that while sub-section (2)
        empowers the Magistrate to order the detention of an accused
    -+ "in such custody as such Magistrate thinks fit, for a term not    E
        exceeding 15 days in the whole" the Magistrate wi 11 be dis-
        eiltitled to placing an accused in police custody for a full
        period of 15 days or in judicial custody for a full period of
         15 days if the period of custody is to be reckoned from the
    ~ date of arrest because the period of     custody prior to the
         production of the accused will have to be excluded from the     F
         total period of 15 days.
     +'         Apart from these anomalous features, if an accused were
           to contend that he was taken into custody more than 24 hours
           before his production before the Magistrate and the police
           officer reiutes the statement, the Magistrate will have to G
           indulge in a fact finding inquiry to determine when exactly
    ,      the accused was arrested and from what point of time the
           remand period of 15 days is to be reckoned. Such an exercise
      '""" by a Magistrate ordering remand is not contemplated or
           provided for in the Code. It would, therefore, be proper to
           give the plain meaning of the words occurring in sub-section H
     1140                  SUPREME COURT REPORTS     [I986J 2 s.c.R.


     (2) and holding that a Magistrate is empowered to authorise
     the detention of an accused produced before him for a full ~
     period of IS days from the date of production of the accused. ~

          We may also refer to another provision in the Code, viz.
     the first proviso to sub-section (2) of section 309 for
B
     construing the period' of IS days referred to in sub-section
     (2) of Section I67. Section 309, while prescribing expeditious
     conduct of enquiries and trials also provides for adjournments
     of cases for valid reasons and for remanding the accused if het--
     is in custody. The first proviso restricts the period of
     remand.to IS days and is worded as under :-                         )
c
                "Provided that no Magistrate shall remand an1
                accused person to custody under this section for a
                term exceeding I 5 days at a time".

.,        As sub-section (2) of Section I67 as well as proviso (I)
c
     of sub-section (2) of Section 309 relate to the powers of
     remand of a Magistrate, though under different situations, the
     two provisions call for a harmonious reading in so far as the     ~
     periods of remand are concerned. It would, therefore, follow
     that the words "IS days in the whole" occurring in sub-section
     (2) of Section I67 would be tantamount to a period of "IS days
E
     at a time" but subject to the condition that if the accused is~
     to be remanded to police custody the remand should be for such
     period as is commensurate with the requirements of a case with
     provision for further extensions for restricted periods, if       11

     need be, but in no case should the total period of remand to
     police custody exceed IS days. Where an accused is placed in._...
F    police custody for the maximum period of IS days allowed under
     law either pursuant to a single order of remand or to more
     than one order, when the remand is restricted on each occasion'f
     to a lesser number of days, further detention of the accused,,
     if warranted, has to be necessarily to judicial custody and
     not otherwise. The Legislature having provided for an accused
G    being placed under police custody under orders of remand for
     effective investigation of cases has at the same time taken
     care to see that the interests of the accused are not ,
     jeopardised by his being placed under police custody beyond a
     total period of IS days, under any circumstances, irrespective,._
     of the gravity of the offence or the serious Mture of the
     case.
                   C. SATYANARAYAN v. STATE     [NATARAJAN, J,]         1141

                                                                                A
               Thus in the light of our discussion and conclusions

    •   reached we do not find merit or force in the contention of the
        appellants' counsel that the words 'for a term not exceeding



'       15 days in the whole" occurring in sub-section (2) of Section
        167 should be so construed as to include also the period of
        custody of the accused from the time of arrest till the time
        of production before the Magistrate. A Magistrate can,
        therefore, authorise the detention of the accused for a
        maxillllllll period of 15 days from the date of remand and place
                                                                                B




    ,.. the accused either in police custody or in judicial custody
        during the period of 15 days' remand. It has, however, to be
        borne in mind that if an accused is remanded to police custody
        the maxillllllll period during which he can be placed in police         c
        custody is only 15 days. Beyond that period no Magistrate can
    r   authorise the detention of the accused in police custody •

    .+        Further remands, to fecilitate the investigation, can
         only be for the detention of the accused in judicial custody.
         The restriction of the Magistrate's powers in this behalf is           D
         to be found in the words "otherwise than in the custody of the
         police beyond the period of 15 days" in proviso (a).

              Now coming to proviso (a) itself, the proviso authorises
           a Magistrate to order further detention of an accused person,
       _. otherwise than in police custody which as already stated means        E
           that the maxillllllll period under which a Magistrate can place an
           accused in po lice custody is only 15 days. A limitation to the
,...       powers of further remand is, however, placed by interdicting
           the Magistrate from authorising the detention of an accused
           person in custody beyond a total period of 90 days where the
     ..._. offence is punishable with death, imprisonment for life or for       F
           a term of not less than 10 years and beyond a total period of
    t·     60 days in other cases. The interdiction will, however,
           operate only in those cases where the accused persons are in a
           position to furnish bail.

              The words used in proviso (a) are "no Magistrate shall            G
         authorise the detention of the accused person in custody",
         "under this paragraph", "for a total period exceeding i.e. 90
         days/60 days". Detention can be authorised by the Magistrate
         only from the time the order of remand is passed. The earlier
         period when the accused is in the custody of a police officer
         in exercise of his powers under Section 57 cannot constitute           H
    1142                 SUPREME COURT REPORTS    [19861 2 s.c.R.

A
    detention pursuant to an authorisation issued by the
    Magistrate. It, therefore, stands to reason that the total
    period of 90 days or 60 days can begin to run only from the
    date of order of remand.

         Approaching the matter from another angle also we find it
B   necessary to construe the proviso in the manner set out above.
    We have earlier referred to sub-section (2A) newly introduced
     by Act 45 of 1978 to Section 167. This sub-section has been
    introduced for pragmatic reasons. In order that the production ~
    of an accused, arrested under Section 57, before a Magistrate
    is not delayed on account of the non-availability of a
c   Judicial Magistrate, the Legislature has deemed it necessary
     to confer powers of remand on such of those Executive f
    Magistrates on whom the powers of a Judicial Magistrate have \
    been conferred. The sub-section states that if an arrested      J
    person is produced before an Executive Magistrate for remand
    the said Magistrate may authorise the detention of the accused
D   "for a term not exceeding 7 days ln the aggregate", It is
    further provided that the period of remand ordered by an
    Executive Magistrate should also be taken into account for
    computing the period specified in paragraph (a) of the proviso
    to sub-section (2). Let us assume a case where a person
    arrested under Section 57 on the previous day is produced
E   before an Executive Magistrate on the next day, but within the



                                                                         -
    expiry of 24 hours and the remand order is obtained for a
    period of 7 days. How is the Judicial Magistrate, whs> is
    competent to make further orders of detention to calculate the
    period of detention so as to conform to the requirements of
    proviso (a)? As per sub-section (2A) he is obliged to take· ~
F   into consideration only the period of detention actually
    undergone by the accused pursuant to the orders of remand
    passed by the Executive Magistrrate. The earlier period of      ·f
    custody till the producton of the accused before the Executive
    Magistrate is not directed to be taken into consideration by
    sub-section (2A). Such being the case, there cannot be
G   different JDJdes of computation of the period of lemand
    depending upon whether the accused person is forwarded to a
    Judicial Magistrate or an Executive Magistrate for purposes of
    remand.

         The intention of the Legislature can also be gathered by
H   coqiaring proviso (a) of sub-section (5) of Section 167.
    Sub-section (5) of Section 167 is in the following terms :

                                                                         l
               C. SATYANARAYAN V• STATE   [NATARAJAN, J,]       1143

                                                                        A
               "If in any case triable by a Magistr"te as a
               sunmons case, the investigatiop is not concluded
               within a period of sh: llDllths '\frcm the ,date on .
               which the accused was arrest~, the Magistrate
               shall make an order stopping further investigation
               into the offence unless the officer making the        B
               investigation beyond the period of six months is      ,/
               necessary".                                           •

                                                 (Exphasis supplied)

~          The Legislature has consciously referred to the date of
     arrest in Section 167 (5) but has made no $UCh reference in        C
     Section 167(2) or proviso (a) thereto. If it was the intention
    1
    .of the Legislature that the period of remand of 15 days in the
    .~ole envisaged in sub-section (2) or the total period of 90
     ilays/60 days prescribed in proviso (a) should be calculated
     from the date of arrest then the Legislature would have
     expressly said so as it had done under Section 167(5).             0

            Turning now to the alternate argument of Mr. Ram Reddy,
       the contention is that even if there is scope for contending
       that the total period of detention should be reckoned from the
       pate of arrest there is no room at all for any such contention
      "being raised after the amendment of the proviso by Act 45 of     E
       1978. We have already referred to the fact that the amending
       Act has substituted the words "under this paragraph" for the
.,... words "under this section" in proviso (a). We have also
       adverted to Explanation 1 .and sub-section (2A) which also
      4efer to "the period specified in paragraph (a)", The change
       of wording in the proviso has to be given its due significance   F
       ~cause the Legislature would not have effected the change
       ~thout any purpose or objective. We wst bear in mind that
       significant changes have been made in Section 167 as well as
       to the proviso by Act 45 of 1978 such as increasing the period
       for investigation in grave cases from 60 to 90 days,
       conferring of powers of remand on Executive Magistrates in       G
       certain situations etc. Therefore, it can be      legitimately
     > contended that the words occurring in proviso (a) should be
      ~onstrued within the frame work of the proviso itself without
       any reference to Section 167(2). If "Su-:h a construction is
       made, it may be seen that the proviso forbids the extension of
       remands only beyond a total period of 90 days under clause (i)   H
    1144                 SUPREME COURT REPORTS     [1986] 2 s.c.R.

A
    and beyond a total period of 60 days under clause (ii). Thus
    if  proviso (a) is treated as a separate paragraph it ·1;
    necessarily follows that the period of 90 days or 60 days as
    the case may be, will coanence running only from the date of
                                                                       4
    remand and not from any anterior date in spite of the fact
    that the accused may have been taken into custody earlier by a
B   police officer and deprived of his liberty.

          Thus in any view of the matter i.e. construing proviso
    (a) either in conjunction with sub-section (2) of Section 167~
    or as an independent paragraph, we find that the total period
    of 90 days under clause (i) and the total period of 60 days
c   under clause (ii) ha~ to be calculated only from the date of
    remand and not from the date of arrest.

          We may now consider the decisions cited before us by thef
    learned counsel for the appellants and the respondent.        J.
n         The judgments relied upon by Mr. Rao in support of his
    contentions are the following :

               liJhd. Shafi & Anr. v. 1be State, [1975] Crt. L.J.
               1309, State of Rajast:han v. mi-aru Khan & Ors.,
                [1975] Crl. L.J. 1981, Kbinvclan v. 1be State of
E              Rajastban, [1975] Crl. L.J. 1984, Prea ltaj & Anro.+-
               v. State of Rajastban, [1976] Crl. L.J. 455, <ly8Dl
               lfadbu Ja1*hanc!i & Ors. v. 1be State of Karnataka,
                [1977] Crl. L.J. 632, State of Haryana v. Mehal ..-
               Singh & Anr., (FB) [1978] Crl. L.J. 1810, Paltira
               Naik & Ors. v. State of Orlssa, [ 1983] Crl. L.J.1
F              1336.                                              ,._,

         Though in all these decisions there are expressions ti).
    the effect that for computing the total period of detentiop
    prescribed in proviso (a) to Section 167(2) the period will
    start running from the date o.f arrest itself, we find that
G   excepting in Faltira Nailt's case (supra) the question as to how
    the total period of detention should be computed had not
    directly arisen for consideration. In fact except in the last
    mentioned case there is no discu>sion about this question. The '
    controversies in all those cases pertained to other matters;..-
    In Shaif's case (No.2) the matter for consideration was
H   whether when an application for bail was made under proviso
                     C. SATYANARAYAN v. STATE   [NATARAJAN, J,]    1145

                                                                            A
        (a) to Section 167(2) the Court can reject the application on


~
  -1 the ground it was not a fit case for grant of bail under
        Section 439 of the Code. In Bhanwaru Khan's Case (No. 3) the
,       matter for decision was whether proviso (a) to Section 167(2)
        contained a mandatory provision or not. In Kbinvdan 's case
        (No.4) the issue for consideration was whether an accused           B
        person entitled to bail under proviso (a) can be validly kept
        in detention by an order of remand made under Section 309(2)
        of the Code. In Gyanu's Case (No.6) what fell for considera-
      . tion was whether after charge-sheet had been filed on 6. 9. 76
        the accused can be kept in custody pursuant to an earlier
        order of remand which expired on 10.9. 76. In Mehal Singh's
        case (No.7) the Full Bench was called upon to decide whether a      C
     tJ>Olice report in terms of Section 173(2) of the Code will
    J constitute a valid report only if it is accompanied by such
    \documents and statements as are referred to in Section 173(5).
         It was only in Fakira Naik's case (No.8) a debate similar to
         the one before us was raised for consideration. A Division
        Bench of the Orissa High Court has taken the view that the          D
         intention of the Legislature in enacting the proviso was to
        prevent accused pE!rsons suffering the depri11ation of liberty
         on account of dilatory investigation and hence the period of
         detention would start running from the date of arrest itself,
         In reaching such a conclusion the Court has taken the view
    -+ that the decision of this Court in !Ussainara Khatoon & Ors.         E
         v. &.! Secretary, State of Bf.bar, [1979] Crl. L,J, 1052,
         Patna contains an obiter that on the expiry of 90 days or 60
         days as the case may be from the date of arrest the accused is
         entitled to be released on bail under proviso (a) of Section
    ~ 167(2). We will be presently showing that this Court has not
         made such a pronouncement by way of an obiter .• Apart from that   F
         we find that there has been no critical analysis in the
      ~judgment of the several relevant provisions which have been
        'examined by us in this case. We, therefore, find that the
         decisions relied on by Mr. Rao cannot advance the case of the
         appellants in any manner. In view of the findings rendered by
         us the dedslons of the various High Courts will stand dis-         G
         approved •
    •       We will now deal with the other set of cases cited by Mr.
    -<litRam Reddy to fortify his arguments. These decisions are to be
        found in :
                                                                            H
    1146                   SUPREME COURT REPORTS     [1986] 2 S.C.R.
A

                "llajoo alias Baj If.shore Singh & Anr. v. State of
                B1bar & Anr., [1976] 55 I.L.R. Patna 1021, Raj 1---
                Kamir v. ?he State of Punjab, A.I.R. [1979] Punjab 1
                & Haryana 80, Batna Raa v. State of Hf11AChal       1
                Pradesh, [1980] Crl. L.J. 748, Jagdish & Ors. v.
B               State of Madhya Pradesh, [1984] Crl. L.J. 79, N.
                Sureya Reddy &Anr. v. State of Orissa, [1985] Crl.
                L,J, 939.

           In these decisions, even though a contrary view has been.
    taken we find the conclusions are not based on the reasoning
C   taken by us. In llajoo alias Baj If.shore Singh's case (No. 10)
    it has been held that the words used in the proviso are "a
    total period not exceeding 60 days' and not "within 60 days'n'
    and hence the Legislature has intended to provide a clear 6
    days for purposes of investigation. In Raj ~r's case
    (No.II) it has been held that the day of arrest is not to be
D   included for calculating the total period but there is no
    discussion. In Batna Raa's case (No.12) it has been laid down
    that Section 57 should be given full effect to and as such a
    Magistrate is entitled to grant police custody for a total •
    period of 15 days without taking into consideration the period
    of custody from the time of arrest till the time of production
E   before a Magistrate. In Jagdish's case (No. 13) it has been
    held that the date of arrest is to be excluded in computing+
    the total period of detention by application of Section 9 of
    the General Clauses Act and by bearing in mind Section 12 of
    the limitation Act. In Sureya Reddy's case (No 14) the view
    taken is that Section 10 of the General Clauses Act would be
F   attracted for interpreting the proviso if the last day happens~
    to be a Sunday or holiday and even otherwise the principle
    enunciated therein should be invoked on considerations of
    justice and expediency. In that case the 90th day from tht
    date of arrest happened to be a Sunday and hence the Court wa
    of the view that Section 10 of the General Clauses Act would
G   be attracted.

     ,   Some of the decisions cited on either side have been
    rendered prior to the amendment of proviso (a) bY Act 45 of ,.
    1978 and some have been rendered after the amendment. Mr. Ralll
    Reddy sought to make a distinction of the earlier decisions b1"-
H
    contending that they ceased to have relevance because of the
    amendment to proviso (a) making it an independent paragraph
                C. SATYANARAYAN v. STATE    [NATARAJAN, J,)       1147

                                                                          A
 --i all by itself. Since we have held that in whichever way
     proviso (a) is construed i.e. with reference to Section 167(2)
r or without reference to it the periods of 90 days and 60 days
     prescribed by the Legislature can be reckoned only from the
     date of remand the distinction sought to be made between the
     decisions rendered prior to Amendment Act 45 of 1978 and             B
     subsequent to it does not have 1111ch of significance.

  ... periodsAs ofthedetention
                      terms of proviso (a) with reference to the total
                               can be interpreted on the plain language
      of the proviso itself we do not think it is necessary to
      invoke the provisions of the General Clauses Act or seek
      guidance from the Limitation Act to construe the terms of the       c
  f   proviso.

  \          We are lastly left with three decisions of this Court
       which were also placed before us for consideration. The first
        case is Bashir & Ors. v. State of Baryana, (1978) 1 S.C.R.
        585. What fell for consi4eration in that case was whether the     D
        grant of bail to an accused under proviso (a) to Section
        167(2) was tantllB)unt to a release on bail under Section
        437(1) of the Code so as to entitle the accused person to
        contend that his re-arrest cannot be ordered except by means
    -+ of an order under Section 437(5) of the Code,, The second case
        is lblsainara lhatoon (supra) where the Court was dealing with    E
        a public interest litigation case pertaining to the detention
        of undertrial prisoners for such long periods which even
        exceeded the Maxi1111m term for which the accused could have
        been sentenced if they had been convicted. In the course of
   •--\ the judgment a passing observation has been made that the
        Court was very doubtful whether on the expiry of 90 days or 60    F
     "'-days, as the case may be, from the date of arrest, the
     \attention of the undertrial prisoners was drawn to the fact
        that they were entitled to be released on bail under proviso
        (a) of sub-section (2) of Section 167. It was not a
        pronouncement of the Court either expressly or by way of
        obiter that the maxi1111m periods of detention set out in the     G
        proviso coamence to run from the very date of arrest. On the
 ,. other hand the following sentence in the judgment will
   -"\ appropriately reflect the view expressed by the Court :

                 ''When an undertrial prisoner is produced before a
                 Magistrate and he has been in detention for 90 days      H
    1148                 SUPREME COURT REPORTS      [1986] '2 S.C.R.

A
               or 60 days, as the case may l?e, the Magistrate
               1111st, before making an order of further remand to         ~
               judicial custody point out to · the undertrial
               prisoner that he is entitled to be released on
               bail".

B   If this Court had intended to lay down, even by way of an
    obiter that the period of detention is to commence from the
    date of arrest, then it would not have said in the very next ~
    breath that an accused is entitled to be told by the
    Magistrate, at the end of the period of detention for 90 days
    or 60 days as the case may be that he has a right to seek
c   enlargement on bail. The last of the cases is State of U.P. v.
    Laxm:I. Brahman & Anr., [1983] 2 s.c.R. 537. That was a case.~
    where the Allahabad High Court held that in a case exclusively \
    triable by a Court of Sessions a Magistrate has no                 t
    jurisdiction or authority to remand an accused to custody
    after the charge--sheet is submitted and before the conmitment
D   order is made, and hence the accused are entitled to be
    released on bail after being in detention as remand prisoners
    for 90 days. The view of the Allahabad High court was upheld
    by this Court a casual observation has been made that the
    admitted position was that the accused did not apply to the
    Magistrate for being released on bail on the expiry of 60 days ,..
E   from the date of arrest. This state!llElnt of fact can never
    constitute a pronouncement as to how the total period of
    detention should be reckoned.

         From what we have stated above it is obvious that this
    Court has not expressed itself in any of the three decisions, ~·
F   either directly or indirectly, upholding the proposition that
    for computing the total periods of detention prescribed in
    clauses (i) and (ii) of proviso (a) to Section 167(2) of the~
    Code, the date of arrest and not the date of production of the
    accused before the Magistrate should be taken as the starting
    point. In the light of our findings we are clearly of the view
G   that the contentions of the appellants cannot be sustained.
    The learned Singh Judge, it !lllSt therefore be held, has acted
    correctly in allowing the petition filed by the State for ·"
    cancellation of the bail granted to the appellants, As the 1--
    Munsif Magistrate has granted bail to the appellants before
    the expiry of 90 days of remand period allowed under law, the
H   order of the Magistrate will not tantamount to one passed
            '
                C. SATYANARAYAN v. STATE [NATARAJAN, J,]      1149
                                                                      A
    under the provisions of Chapter XXXIII of the Code and hence
    there is no scope for contending that re-arrest of the
    appellants can be ordered only in terms of sub-section (5) of
    Section 437. We, however, make it clear that after the
    appellants surrender themselves to custody or are taken into
    custody by re-arrest, they will not stand precluded from          B
    seeking enlargement on bail by filing applications under
    sub-section (1) of Section 437 of the Code and satisfying the
    Court that they deserve to be enlarged on bail.

         In the result, the judgment of the High Court is upheld
    and the appeal is dismissed accordingly.
                                                                      c
t   M,L,A                                         Appeal dismissed.

~