1994 (1) TMI 315 - HC - Indian Laws

Court limits police custody post-cognizance, clarifies powers under TADA Act.

Mohamad Ahmed Yasin Mansuri Versus  State of Maharashtra

The High Court held that under Section 309 Cr.P.C., the court does not have the discretion to remand an accused to police custody post-cognizance, ... - Issues Involved:1. Discretion of the Court under Section 309 of the Criminal Procedure Code (Cr.P.C.) to remand an accused to police custody.2. Powers of the High Court under Articles 226 and 227 of the Constitution of India in the context of Section 19 of the Terrorist and Disruptive Activities (Prevention) Act, 1987 (TADA Act).Issue-wise Detailed Analysis:1. Discretion of the Court under Section 309 of the Criminal Procedure Code (Cr.P.C.) to Remand an Accused to Police Custody:The primary legal question was whether the Court has the power and discretion under Section 309 Cr.P.C. to remand an accused to police custody after taking cognizance of an offense or whether it can only remand the accused to judicial or jail custody. The petitioner argued that Section 309 leaves no discretion and mandates only judicial custody post-cognizance. The prosecution contended that extraordinary circumstances, such as the need for further investigation, justify police custody even post-cognizance.The Court analyzed several provisions of the Cr.P.C., including Sections 57, 73, 167, 204, and 309. Section 167 allows for police custody during the investigation phase but limits this to 15 days. Section 309, which comes into play post-cognizance, only mentions remand to custody without specifying police custody, unlike Section 167, which explicitly provides for either police or judicial custody.The Court referred to the judgment of the Andhra Pradesh High Court in 'State v. Gali Chalpathi Rao,' which distinguished between Sections 167 and 309, noting that Section 309 does not confer discretion to remand to police custody. The Court emphasized the legislative intent to restrict police custody post-cognizance to prevent unfair investigation methods and uphold the accused's right to a fair defense. The Court concluded that Section 309 does not provide for police custody post-cognizance, and the Designated Court's order granting police custody was without jurisdiction.2. Powers of the High Court under Articles 226 and 227 of the Constitution of India in the Context of Section 19 of the TADA Act:The petitioner challenged the Designated Court's order not on merits but on the ground of lack of jurisdiction. The prosecution argued that under Section 19 of the TADA Act, appeals from Designated Court orders lie with the Supreme Court, and that the High Court's jurisdiction under Articles 226 and 227 is ousted.The Court examined Section 19 of the TADA Act, noting that it bars appeals or revisions to any Court from Designated Court orders, including interlocutory orders, except to the Supreme Court. However, the Court held that this does not abridge the High Court's constitutional powers under Articles 226 and 227. Constitutional powers can only be curtailed by a constitutional amendment, not by ordinary legislation.The Court referred to the Supreme Court's decision in 'Usmanbhai Dawoodbhai Memon v. State of Gujarat,' which clarified that orders granting or refusing bail are interlocutory and thus not appealable under Section 19(1) of the TADA Act. The Court also cited 'Dr. Smt. Kuntesh Gupta v. Management of Hindu Kanya Mahavidyalaya, Sitapur (U.P.)' to support the view that the High Court can exercise its jurisdiction under Articles 226 and 227 when an order is without jurisdiction, even if an alternative remedy exists.The Court concluded that the Designated Court's order was without jurisdiction as it lacked the power to remand the petitioner to police custody under Section 309 Cr.P.C. Therefore, the High Court exercised its powers under Articles 226 and 227 to quash the order.Conclusion:The High Court ruled that the Designated Court's order remanding the petitioner to police custody was without jurisdiction as Section 309 Cr.P.C. only allows for judicial custody post-cognizance. The High Court also held that its constitutional powers under Articles 226 and 227 are not ousted by Section 19 of the TADA Act, allowing it to quash the Designated Court's order. The petition was allowed, and the rule was made absolute in terms of the petitioner's prayer clauses (a) and (b).