JUDGMENT
S.S. Sandhawalia, C.J.
1. Whether the day of the arrest of an accused or of his surrender in court, is to be excluded for the purposes of the precise computation of 90 days under the proviso to Sub-section (2) of Section 167 of the Code of Criminal Procedure, 1973, is somewhat ticklish and significant question necessitating this reference to the Division Bench.
2. The relevant facts are not in dispute. The petitioner Md. Feroz Khan alias Feroz is accused of offences under Sections 302, 120B and 34 of the Indian Penal Code. Admittedly he surrendered in court on the 15th of December, 1983 and was thereafter formally arrested by the police. It would appear that the investigation of his case was closed on the 13th of March, 1984 which is the date borne out by the police report under Section 170 of the Code of Criminal Procedure, 1973 (hereinafter referred to as the ‘Code’). However, it is common ground that the said charge sheet was submitted in court on the following day. i. e., 14th of March, 1984. On the same day the petitioner moved the learned Chief Judicial Magistrate under Section 167 (2) of the Code primarily on the ground that the charge sheet had been submitted in court beyond the prescribed period of 90 days. The learned Chief Judicial Magistrate, however, rejected the bail petition, and aggrieved thereby the petitioner moved the court of Session at Muzaffarpur. The learned Sessions Judge, while again rejecting the prayer for bail, chose to rely on the judgment of Madhya Pradesh High Court in Jagdish and Ors. v. State of Madhya Pradesh (1984) Cri. L. J. 79., in preference to the observations of the Orissa High Court in Fakir a Naik and Ors. v. State of Orissa (1983) Cri.L.J. 1336. Consequently he took the view that the day of the surrender of the accused in court was to be excluded for the purposes of the computation of the period of 90 days.
3. This petition originally came up for hearing before Choudhary Sia Saran Sinha, J. Noticing the significance of the issue and some conflict of judicial precedent the matter was referred to the Division Bench and that is how it is before us now.
4. We may perhaps be failing in our duty if we were not to notice the great erudition and research of the learned Counsel for the petitioner in buttressing his stand that the day of the surrender of the petitioner in court must necessarily be included in computing the prescribed period of 90 days. learned Counsel attempted to take us to the metaphysical and astronomical aspects of the concept of ‘day’. Our attention was drawn to the Chambers’s Encyclopaedia with regard to the scientific concept that the day originally meant the period of time during which it is light in opposition to the period of darkness or night and it now more usually denotes a complete alternation of light and darkness, which is caused by the rotation of the earth around its axis and the consequence of one half of the earth being lighted up by the sun at one time whilst the other is in darkness of the night. Indeed, we were invited to construe the astronomical aspect of the day in the terms following:
The day may be defined in the most general way as the period of rotation of the earth relative to any selected heavenly body; it is therefore the interval between the successive transits over the same meridian of the heavenly body.
5. Having noticed the argument aforesaid perhaps it suffices to mention that I would not wish to be drawn into the thicket of the scientific concept or the astronomical aspect of the word ‘day’. The narrow issue which we were called upon to adjudicate is whether the first day of arrest of the accused or his surrender in court is to be excluded or included for the purposes of the computation of the period prescribed under Sub-section (2) of Section 167. To my mind, it would be wasteful to launch on any abstruse dissertation on the metaphysfcal, scientific or astronomical concept of the “day”, and it is sufficient to understand the same as in ordinary common parlance.
6. Inevitably the basic reliance of the learned Counsel for the petitioner was on the last observations in paragraph 6 of the report in 1983 Criminal Law Journal 1336. There is no gainsaying the fact that these undoubtedly aid the stand of the petitioner. But with profound respect, I am unable to subscribe to the said view for the detailed reasons that follow. At this stage, it may be noticed that the primary question before the Bench was whether the period was to be computed from the date of the arrest by the police and not from the date of the production before the Magistrate. Virtually the whole discussion was directed to this aspect and after reference to precedents the Bench took the view that the period commences from the date of arrest and not from the production of the accused before the Magistrate. However, in the following and the concluding brief paragraph it was observed that the said day of arrest must also be counted for one day and fraction of the day for which the accused was under detention is also a day for the purposes of the statute. This observation has been made as a dictum without any detailed discussion of either principle or precedent and it would appear that the reference to L. R. Chawla v. Murari (1976) Cri L. J. 212 Delhi., for the support of this proposition is not well founded on a closer perusal of the said judgment. With respect, on this aspect, I feel compelled to take a contrary view and dissent from this judgment.
7. In order to fully appreciate the prescription of time in the proviso to Sub-section (2) of Section 167 of the Code it seems somewhat necessary to delve into the legislative history of the insertion of these provisions in the present Code. It is common ground that in the old Code there was no such technical prescription of time. The matter came to be first considered by the Law Commission in its 14th Report and later more pointedly with regard to the revision of the old Code in its 41st Report. Therein, after noticing and disapproving of certain practices of doubtful legal validity pertaining to the remand of the accused under the said Section, it was observed as follows:
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 leisurly manner. 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 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 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:
In the light of the aforesaid recommendation, the matter was considered by the Joint Select Committee and amended Section 167 (2) was brought on the statute book. However, later a further amendment became necessary for prescribing the period of 90 days for offences punishable with death or imprisonment for life or imprisonment for a term not less than 10 years and a period of 60 days where the investigation related to any other offence. This was done by Act 45 of 1978 which substituted the relevant part of the proviso to Sub-section (2) of Section 167.
8. It would follow from the aforesaid legislative history that both the spirit and the letter of the amendment were directed towards a relatively speedier conclusion of the investigation in criminal cases and to cut at the abuse of the prolonged remand of the accused persons consequent upon the tardy pace of such investigation. It is plain that even now the legislature has not fixed in absolute terms the limit for the completion of the investigation. However, a sanction to whip up the investigation agency into a sense of urgency is provided by conferring a right on the accused to be released on bail if the investigating agency is unable to keep within the parameters of 60 or 90 days, as the case may be, for completing the investigation. Thus, apart from the merits of the case for the grant of the bail, a technical right or privilege is conferred on the accused to be released on bail as a necessary concomitant to any delay or default of the investigating agency in expeditiously completing the investigation within the period prescribed. As 1 said earlier the grant of bail under the proviso to Sub-section (2) of Section 167 is not on the merits of the case as such but is primarily a statutory and technical right accruing in the event of delays in the completion of the investigation by the police. In my view, such right need not be over-extended in the context of heinous crimes by further technicalities in the calculation thereof and the computation of the prescribed period of 60 and 90 days respectively.
9. Now, apart from the legislative history, the language of the statute, and the larger principle, it appears to me that learned Counsel for the parties were somewhat remiss in not bringing to the notice of the Beach when the matter came up originally before the learned single Judge the earlier Division Bench judgment of this Court in Rajoo alias Raj Kishore Singh and Anr. v. The State of Bihar and Anr. ILR 515 (1976) Patna 1021. Therein the identical issue was inter alia, raised, discussed and concluded as under:
In our opinion, after due calculation, we are unable to accept his contention. It may be noticed that Section 167 (2)(a) mentions a total period exceeding 60 days. It does not mention ‘within 60 days’. Therefore, for ‘investigation’, the Legislature meant clear 60 days. In that view of the matter, we are of the view that 6th of May, 1976 when he had surrendered in court has got to be excluded from counting of the period. If that date is excluded, then we find that on the 60th day, the charge-sheet was submitted against him by the police officer. In that view of the matter, he could not have been ordered to be released on that account.
It is plain from the above that the aforequoted observations of the Division Bench would cover the present case on all fours. That being so, the solitary issue that can possibly arise within this jurisdiction is whether the said judgment now deserves any reconsideration. learned Counsel for the petitioner had made a feeble attempt to assail the correctness of the said judgment. It was sought to be argued that a passing observation in State of U. P. v. Lakshmi Brahman and Anr. ., had rendered the same as no longer a good law.
10. On closely perusing the judgment in State of U. P. v. Lakshmi Bharman and Anr. (supra), it becomes manifest that the specific point before us was not even remotely raised in the said case, far from being adjudicated upon. The basic and, indeed, the solitary question, which arose and was decided, was whether from the time the accused appears before the Magistrate with a police report under Section 170 and the Magistrate proceeds to inquire whether Section 207 has been complied with and then proceeds to commit the accused to the Court of Session, the proceeding before the Magistrate would be an inquiry as contemplated by Section 2(g) of the Code, Holding so, it was held that if the Magistrate is holding the inquiry obviously under Section 309 would enable the Magistrate to remand the accused to custody till the inquiry to be made is complete. If is thus plain that this Supreme Court case is in no way relevant to the issue. It is well settled ever since in Quinn v. Leathem 1901 Appeal Cases 495., that a decision is only an authority for what it actually decides and not everything that might remotely seem to follow therefrom. Expressly approving the rule in Queen v. Lethem the Final Court in State of Orissa v. Sudhanau Sekhar Misra and Ors. ., has further observed that what is relevant in a judgment is its ratio and not every observation therein and that it is idle to pick upon a line or sentence in a judgment and to build thereon. I am, therefore, unable to hold that State of U.P. v. Lakshmi Brahman and Anr. (supra) in any way whatsoever obliterates the ratio of the earlier Division Bench in Rajoo alias Raj Kishore Singh’s case (supra),
11. Learned Counsel for the petitioner had then contended that no exhaustive or adequate reasons were given by the Bench in Rajoo alias Raj Kishore Singh’s ease for arriving at the conclusion which, according to counsel, is more or less in the shape of a dictum. This is not wholly true. A reading of the judgment makes it plain that there was sizeable discussion of the matter and, in any case, it is undisputed that the issue was directly under consideration. I have already held that the ratio of this judgment cannot be blown away as if by a side-wind from any passing observation in State of U.P. v. Lakshmi Brahman and Anr. (supra). Its line of reasoning is now well buttressed by subsequent judgments taking the same view. In the Said judgments reliance has been placed on Section 9 of the General Clauses Act which gives statutory recognition to the well established principle that in computing time the rule observed is to exclude the first and to include the last day. Similarly Section 12 of the Limitation Act provides that in calculating the period of limitation for any suit, appeal or application the day from which such period is to be reckoned shall be excluded. In Tarsem Kumar v. The State 1975 Cri. L.J. 1303., it was held that while computing the total period of 60 days referred to in proviso (a) to Sub-section (2) of Section 167 the period of detention under Section 57 of the Code has to be excluded. In Jagdish and Ors. v. State of Madhya Pradesh (supra), the learned single Judge had concluded as follows:
The view expressed in the “aforesaid cases appears to be correct because the period of 90 days can only exceed by excluding the date of arrest because on that day, the day starts and it is completed after 24 hours.
In holding as above, the learned single Judge had placed reliance on In re v. S. Metha . Raj Kumar v. State of Punjab ., State (Delhi Admn.) v. Ravinder Kumar Bhatnagar 1982 Cri L.J. 2366. and Umashankar v. State of Madhya Pradesh 1982 Cri. L.J. 1186. It is thus manifest that the weight of precedent is entirely tilted on this side.
12. In fairness to the learned Counsel for the petitioner, I must notice an attempted reliance on Criminal Miscellaneous No. 10237 of 1984 Sunil Kumar Singh alias Sunil Singh v. The State of Bihar Decided on 7th January, 1985. On a close perusal of the said judgment, it is plain that the only point for consideration in the case was whether time will run from the date of arrest or from the date of the order of remand for the purposes of Section 167(2) of the Code of Criminal Procedure. It was held that time would run from the date of actual arrest by the police and not from the date when the order of remand is made by the Magistrate. There is no question with this proposition but it is equally plain that the same has no direct bearing on the question before us with regard to the exclusion of the first day of arrest or surrender for the purposes of the computation of time under Section 167 (2). The ratio of this case is thus not even remotely attracted herein.
13. To finally conclude, the answer to the question posed at the outset is rendered in the affirmative and it is held that the day of arrest of an accused or his surrender in court is to be excluded for the purposes of the precise computation of 90 days under the proviso to Sub-section (2) of Section 167 of the Code. Further, I see no reason whatsoever to take a view contrary to the law settled within this jurisdiction by the Division Bench in Rajoo alias Raj Kishore Singh’s case.
14. Once it is held as above, even the learned Counsel for the petitioner was fair enough to state that no other issue arises in this case. Applying the aforesaid principle, it would be common ground that the charge sheet herein was, therefore, filed within time prescribed by the statute. The criminal miscellaneous petition is without merit and is hereby dismissed