State of West Bengal v. Dinesh Dalmia

Default bail looks arithmetical — sixty days or ninety days, and if the report is not filed the accused goes out — and examiners test it by making the arithmetic hard to start. The difficult question is not how long the period is but from when it runs, and the hardest version of that question is the accused who is already in custody somewhere else, in another case, in another city.

Dinesh Dalmia answers it, and it is the case to cite whenever a problem question puts the accused in custody in more than one matter.

Two First Information Reports were lodged against the accused, one at Calcutta and one at Chennai. He was arrested and was in the custody of the investigating agency in the case pending before the court at Chennai. On learning that he was also required in the Calcutta case, he voluntarily surrendered before the Magistrate at Chennai in the matter relating to the Calcutta report. The question was whether that notional surrender could be counted as custody in the Calcutta case, so as to start the ninety-day clock running there.

The Court held that such a notional surrender cannot be treated as police custody for the purpose of counting ninety days in the case pending at Calcutta. Police custody means custody in the particular case for investigation, and not judicial custody in another case.

The Court restated the design of the section: the accused should not be detained for more than twenty-four hours, subject to fifteen days of police remand, which may be extended up to ninety or sixty days as the case may be.

The reason given is practical and is worth reproducing as the reasoning rather than as a slogan. A notorious offender may have a number of cases pending against him at various police stations, in the city and outside it. If a notional surrender in one pending matter counted towards the sixty or ninety days in another, the investigating agency in that other case would never get an opportunity for custodial investigation at all: the clock would run out on a case in which the accused had never been in its custody for a day.

The method a student takes away is to keep two questions separate. In which case is the accused in custody, and when did the Magistrate authorise detention in the case in which default bail is claimed? The statutory period is computed from the date on which the Magistrate authorises the detention of the accused person, and custody in another matter does not start it.

Use it in any default bail problem involving more than one FIR or more than one agency, and in any question on the computation of the sixty or ninety day period under BNSS s. 187 (CrPC s. 167).

It pairs with two propositions the course states alongside it: that the court cannot refuse release on the ground that no written application was made by the accused; and that once the report on completion of investigation has been filed, the Magistrate is no longer competent to grant bail under this proviso, so the right is one that must be claimed while it exists.

It does not decide anything about bail on the merits, and it does not decide that the accused may be kept in police custody in the second case for longer than the section allows — the fifteen-day limit on police custody applies there as everywhere.

The decision was given on the 1973 Code. Give the current provision as BNSS s. 187 and note the change it makes: the fifteen days of police custody may now be taken in parts, within the first forty or sixty days of the total detention period.