2016 (4) TMI 1462 - HC - Indian Laws

Police remand wrongfully denied due to judicial error remitted for fresh consideration under Section 167

The HC set aside a Magistrate's erroneous order rejecting police remand and remitted the matter for fresh consideration. The court held that the ... Seeking grant of bail - right to seek police remand - Challenge to rejection of prayer for police remand - HELD THAT:- The denial of police custody to the investigating agency in the instant case was not due to any fault on the part of such agency or due to operation of any supervening circumstance beyond the control of the parties, namely, state of health of the accused person etc. On the other hand, the denial of such right was due to an erroneous order passed by the Court below. Hence, merely setting aside the impugned order dated 18.3.2016 rejecting police remand would not cure the prejudice caused to the entitlement of the investigating agency to seek police remand which was scuttled by the said illegal order of the Magistrate. Investigating agency had rightly availed of its valuable right to seek police remand within the first 15 days of detention of the accused but was denied the same due to a wrong order passed by the Court. Applying the maxim 'actus curiae neminem gravabit' to the facts of the case, it is held that such erroneous order cannot defeat the right to seek police remand and the matter is accordingly remitted to the Magistrate for consideration of the prayer for further police remand as if such consideration is being made as on 18.3.2016. In CENTRAL BUREAU OF INVESTIGATION SPECIAL INVESTIGATION CELL-I VERSUS ANUPAM J. KULKARNI [1992 (5) TMI 191 - SUPREME COURT], the prayer for police remand, in fact, was granted by the Magistrate but could not be availed of due to the health condition of the accused. Under such circumstances, the Apex Court held that further prayer for police remand could not have been entertained and granted after lapse of 15 days of detention. In the instant case further prayer for police remand was within the stipulated period but was illegally denied by the Court. Hence, the ratio of the aforesaid report is of no assistance to the petitioner. Bail cannot be granted to accused - the learned Magistrate is directed to consider the prayer for further police remand of the accused forthwith positively by Friday i.e. 08.04.2016 and pass appropriate order thereon in accordance with law in the light of the observations made in this order. Application disposed off. Issues:1. Bail application by the accused2. Challenge to the order rejecting police remandAnalysis:1. The case involved two applications - one by the accused seeking bail and the other challenging the order rejecting police remand. The accused was alleged to have committed theft of Rs. 25 lakhs and was initially arrested, released on bail, and then surrendered before the Magistrate. The Magistrate refused the prayer for further police remand, citing the completion of 14 days from the accused's production. The accused's counsel argued against the delay in filing the FIR and the absurdity of the theft allegation. They relied on legal precedents to support the bail application.2. The de facto complainant challenged the Magistrate's order, contending that it was contrary to the court's previous direction. They argued that the denial of police custody was improper as it hindered the investigation. The investigating agency supported the complainant's stance, emphasizing the need for further police remand to recover the stolen money. The court examined whether the Magistrate's refusal of police remand was justified. It was found that the Magistrate misinterpreted the timeline of the accused's detention, leading to an erroneous decision. The court held that the investigating agency's right to seek police remand within the initial 15 days of detention was unfairly obstructed by the Magistrate's incorrect order.3. The court emphasized the importance of custodial interrogation in investigations involving stolen items. It noted that the investigating agency's request for police remand was initially made promptly after the accused's arrest but was wrongly denied. The court invoked the principle that no one should be prejudiced by the court's actions. It concluded that the denial of police custody was not due to any fault of the investigating agency but stemmed from the Magistrate's erroneous order. The court directed the Magistrate to reconsider the prayer for police remand, ensuring the investigating agency's right to utilize custodial interrogation for the investigation.4. The court distinguished the legal precedents cited by the accused's counsel, highlighting that those cases were factually different from the present situation. It clarified that the denial of police remand in this case was a result of the Magistrate's error rather than a legal restriction on granting remand after 15 days. The court directed the Magistrate to promptly review the request for further police remand in line with the court's observations, thereby disposing of both applications.5. The judgment concluded by instructing the Magistrate to consider the prayer for police remand promptly and in accordance with the law. The court's decision aimed to rectify the prejudice caused by the Magistrate's erroneous order and ensure the investigating agency's right to seek police remand within the appropriate timeframe. The parties were provided with a copy of the order for reference.