TaxTMI 
TaxTMI 
2015 (6) TMI 1268
X X X X Extracts X X X X
X X X X Extracts X X X X
....ty, for the offence enumerated above, on 15th September 2014. On 16th September 2014, he was produced before the learned Special Judge along with the production report, and on the very same day, an application seeking police remand was also filed." 3. The petitioner raised objections as regards the legality and validity of his production before the learned Special Judge. The objections raised by the petitioner herein as regards his production were considered by the learned Special Judge and the same came to be overruled. On the very same day i.e. on 16th September 2014, he was remanded to the judicial custody. The matter was carried further before this Court. The challenge of the petitioner so far as his production before the learned Special Judge was concerned, failed even before this Court. 4. It appears that the application filed by the Investigating Officer seeking police remand on 16th September 2014 was taken up for hearing on 10th March 2015, and vide order dated 25th March 2015, the petitioner was ordered to be handed over from judicial custody to police custody for a period of 4 days i.e. between 26th March 2015 and 30th March 2015. 5. Being dissatisfied with the order ....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... Mr. Thakkar prays that there being merit in this application and the law being abundantly clear, the impugned order be quashed. 12. On the other hand, this application has been vehemently opposed by Mr. Mitesh Amin, the learned Public Prosecutor, assisted by Mr. N.J. Shah, the learned APP appearing for the State. Mr. Amin submitted that no error, not to speak of any error of law, could be said to have been committed by the Court below in passing the impugned order. He submitted that what is relevant so far as the issue in hand is concerned, is the date of the remand application. According to Mr. Amin, if the remand application is filed within the first fifteen days from the date of the arrest, then irrespective of the fact whether the order of remand is passed within the first period of fifteen days or not, the accused can be remanded to the police custody. He submitted that in the present case the accused was arrested on 15th September 2014 and was produced before the learned Special Judge on the next day i.e. on 16th September 2014. On the very day of the production i.e. on 16th September 2014, the remand application was filed, but it was the accused who, on one pretext or the ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....sion at length, the case was conducted even beyond the normal working hours of the Court and at the end of submission of both the sides; order was passed rejecting the objection to production report. (Thus, remand application was not taken up for hearing and next date was given on 23.09.2014). Stay of this order was requested and the same was also rejected. Against this order of rejection of stay as well as acceptance of production report, the applicant preferred Special Criminal Application No. 3898 of 2014 on 22.09.2014 in the High Court of Gujarat. The matter was listed on 23.09.2014 before the Hon'ble High Court. On 23.09.2014 the Hon'ble Court has issued notice and asked Investigation Officer himself to file affidavit and the matter was kept on 07.11.2014. On the same date i.e. on 23.09.2014, the matter was kept for hearing at the Court of Special Judge and the present applicant had given application for adjournment as applicant herein had already preferred the application being Special Criminal Application 3898 of 2014. The matter was sought for being kept on 07.10.2014 in Special Court. Meanwhile, the Hon'ble High Court had passed the order on 01.10.2014 in Crimi....
X X X X Extracts X X X X
X X X X Extracts X X X X
....3.2015 the present application being Special Criminal Application No. 1853 of 2015 was preferred and order was passed by Hon'ble Court. By this order the present applicant was asked to be sent to the Judicial Custody, the same has been followed. On that very day i.e. on 26.03.2015 itself, at about 22:45 hours, the present applicant was sent to Lajpor Jail, Surat. I respectfully say and submit that this affidavit is filed for the limited purpose of bringing the facts on record, which has not been, for some reason, brought on record by the present applicant and may be as filing of the present petition is emergency filing." 16. In view of the above, Mr. Amin prays that there being no merit in this application, the same be rejected. 17. Having heard the learned counsel appearing for the parties and having gone through the materials on record, the only question that falls for my consideration is, whether the Court below committed any error in passing the impugned order. ANALYSIS : 18. This application gives rise to an interesting question of law. I may formulate the question as under : "Is it within the powers of the Court to grant police remand after the expiry of the first....
X X X X Extracts X X X X
X X X X Extracts X X X X
....mpleted in twenty four hours. (1) Whenever any person is arrested and detained in custody and it appears that the investigation cannot be completed within the period of twenty- four hours fixed by section 57, and there are grounds for believing that the accusation or information is well- founded, the officer in charge of the police station or the police officer making the investigation, if he is not below the rank of sub-inspector, shall forthwith transmit to the nearest Judicial Magistrate a copy of the entries in the diary hereinafter prescribed relating to the case, and shall at the same time forward the accused to such Magistrate. (2) The Magistrate to whom an accused person is forwarded under this section may, whether he has or has not jurisdiction to try the case, from time to time, authorise the detention of the accused in such custody as such Magistrate thinks fit, for a term not exceeding fifteen days in the whole; and if he has no jurisdiction to try the case or commit it for trial, and considers further detention unnecessary, he may order the accused to be forwarded to a Magistrate having such jurisdiction: Provided that- (a) the Magistrate may authorise the dete....
X X X X Extracts X X X X
X X X X Extracts X X X X
....e aggregate; and, on the expiry of the period of detention so authorised, the accused person shall be released on bail except where an order for further detention of the accused person has been made by a Magistrate competent to make such order; and, where an order for such further detention is made, the period during which the accused person was detained in custody under the orders made by an Executive Magistrate under this subsection, shall be taken into account in computing the period specified in paragraph (a) of the proviso to Sub-section (2): Provided that before the expiry of the period aforesaid, the Executive Magistrate shall transmit to the nearest Judicial Magistrate the records of the case together with a copy of the entries in the diary relating to the case which was transmitted to him by the officer in charge of the police station or the police officer making the investigation, as the case may be. (3) A Magistrate authorising under this section detention in the custody of the police shall record his reasons for so doing. (4) Any Magistrate other than the Chief Judicial Magistrate making such order shall forward a copy of his order, with his reasons for making it,....
X X X X Extracts X X X X
X X X X Extracts X X X X
....r remand.-If sufficient evidence has been obtained to raise a suspicion that the accused may have committed an offence, and it appears likely that further evidence may be obtained by a remand, this is a reasonable cause for a remand." 22. Section 309 of the new Code reads as under : "309. Power to postpone or adjourn proceedings. (1) In every inquiry or trial, the proceedings shall be held as expeditiously as possible, and in particular, when the examination of witnesses has once begun, the same shall be continued from day to day until all the witnesses in attendance have been examined, unless the Court finds the adjournment of the same beyond the following day to be necessary for reasons to be recorded. (2) If the Court, after taking cognizance of an offence, or commencement of trial, finds it necessary or advisable to postpone the commencement of, or adjourn, any inquiry or trial, it may, from time to time, for reasons to be recorded, postpone or adjourn the same on such terms as it thinks fit, for such time as it considers reasonable, and may by a warrant remand the accused if in custody: Provided that no Magistrate shall remand an accused person to custody under this sec....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ticle 22 enjoins that every person who is arrested and detained in custody shall be produced before the nearest Magistrate within a period of twenty-four hours of such arrest excluding the time necessary for the journey from the place of arrest to the Court of the Magistrate and further mandates that no person shall be detained in custody beyond the period of 24 hours of such arrest without the authority of the Magistrate. This is the constitutional obligation on the State, which must be complied with by all those who have to make arrests in discharging their legal duties. 27. Certain provisions of the Criminal Procedure Code relevant to the controversy may be noted. Chapter-V of the Code deals with arrest of persons. Section 57, which appears in the said Chapter, provides for the limitations of the power to arrest and detain beyond the stipulated period. It provided that no police officer shall detain in custody a person arrested without warrant for a longer period than under all the circumstances of the case is reasonable and such period shall not, in the absence of a special order of a Magistrate under Section 167, exceed twenty-four hours exclusive of the time necessary for th....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ion of the accused in such custody as such Magistrate thinks fit, for a term not exceeding fifteen days in the whole; and if he has no jurisdiction to try the case or commit it for trial, and considers further detention unnecessary, he may order the accused to be forwarded to a Magistrate having such jurisdiction. Provided that - (a) the Magistrate may authorise the detention of the accused person otherwise than in the custody of the police beyond the period of fifteen days, if he is satisfied that adequate grounds exist for doing so, but no Magistrate shall authorise the detention of the accused person in custody under this paragraph for a total period exceeding; (i) ninety days, where the investigation relates to an offence punishable with death, imprisonment for life or imprisonment for a term of not less than ten years; (ii) sixty days, where the investigation relates to any other offence : and, on the expiry of the said period of ninety days, or sixty days as the case may be, the accused person shall be released on bail if he is prepared to and does furnish bail, and every person released on bail under this sub-section shall be deemed to be so released under the provis....
X X X X Extracts X X X X
X X X X Extracts X X X X
....edings shall be held as expeditiously as possible, and in particular, when the examination of witnesses has once begun, the same shall be continued from day to day until all the witnesses in attendance have been examined, unless the Court finds the adjournment of the same beyond the following day to be necessary for reasons to be recorded. (2) If the Court, after taking cognizance of an offence, or commencement of trial, finds it necessary or advisable to postpone the commencement of, or adjourn, any inquiry or trial, it may, from time to time, for reasons to be recorded, postpone or adjourn the same on such terms as it thinks fit, for such time as it considers reasonable, and may by a warrant remand the accused if in custody; Provided that No Magistrate shall remand an accused person to custody under this section for a term exceeding fifteen days at a time : (Second and Third proviso omitted) Explanation 1. - If sufficient evidence has been obtained to raise a suspicion that the accused may have committed an offence, and it appears likely that further evidence may be obtained by a remand, this is a reasonable cause for a remand....... " 33. Sub-section (1) of Section 309 pr....
X X X X Extracts X X X X
X X X X Extracts X X X X
....mpt to interfere with the due course of administration of justice, or evasion or attempt to evade the course of justice, or abuse of the liberty granted to him. The due administration of justice may be interfered with by intimidating or suborning witnesses, by interfering with investigation, by creating or causing disappearance of evidence etc. The course of justice may be evaded or attempted to be evaded by leaving the country or going underground or otherwise placing himself beyond the reach of the sureties. He may abuse the liberty granted to him by indulging in similar or other unlawful acts. Where bail has been granted under the proviso to s. 167(2) for the default of the prosecution in not completing the investigation in sixty days, after the defect is cured by the filing of a charge sheet, the prosecution may seek to have the bail cancelled on the ground that there are reasonable grounds to believe that the accused has committed a non-bailable offence and that it is necessary to arrest him and commit him to custody. In the last mentioned case, one would expect very strong grounds indeed." 36. Yet again, in CBI v. Anupam J.Kulkarni (supra), the Bench held as under : "We ma....
X X X X Extracts X X X X
X X X X Extracts X X X X
....at adequate grounds exist for such detention." 38. In Dinesh Dalmia v. Central Bureau of Investigation, (2007)8 SC 770, the Supreme Court opined as under : "It is a well-settled principle of interpretation of statute that it is to be read in its entirety. Construction of a statute should be made in a manner so as to give effect to all the provisions thereof. Remand of an accused is contemplated by Parliament at two stages; pre-cognizance and post- cognizance. Even in the same case, depending upon the nature of charge-sheet filed by the investigating officer in terms of Section 173 of the Code, a cognizance may be taken as against the person against whom an offence is said to have been made out and against whom no such offence has been made out even when investigation is pending. So long a charge-sheet is not filed within the meaning of sub-section (2) of Section 173 of the Code, investigation remains pending. It, however, does not preclude an investigating officer, as noticed hereinbefore, to carry on further investigation despite filing of a police report, in terms of sub-section (8) of Section 173 of the Code." 39. In Rama Chaudhari v. State of Bihar, (2009)6 SCC 346, the Sup....
X X X X Extracts X X X X
X X X X Extracts X X X X
....used was arrested on 4th October 1991 and was produced before the Magistrate on 5th October 1991. On the request of the police, he was remanded to the judicial custody till 11th October 1991. On 10th October 1991, identification parade was arranged, but, since the accused refused to cooperate the police, moved an application on 11th October 1991 seeking police custody, which was allowed. While he was being taken, on the way, the accused pretended illness. He was, therefore, taken to the hospital, where he remained confined up to 29th October 1991. Thereafter, he was remanded to the judicial custody by the Magistrate and sent to the jail. In view of the fact that the police could not take him into custody all those days, the police again applied to the Court for police custody for interrogation. The Magistrate, relying upon Dharampal's case, 1981 Cri.L.J. 1103 (sic), refused police custody. Questioning the same, a revision was filed before the Delhi High Court, which granted him bail. The High Court did not decide the question, "whether or not after the expiry of the initial period of fifteen days a person can still be remanded to the police custody by the Magistrate before whom....
X X X X Extracts X X X X
X X X X Extracts X X X X
....y filing a remand application. For some reason or the other, although the fault is sought to be found with the accused, no orders could be passed within fifteen days from the date of the production and the impugned order was passed on 25th March 2015. It is thus clear that the first fifteen days expired by the date of the order i.e. 25th March 2015. The Court below, therefore, committed a serious error in holding that police custody could be granted after the expiry of fifteen days of the production of the accused. 47. In Budh Singh v. State of Punjab, (2000)9 SCC 266, it has been held as follows : "5...The impugned order of the High Court violates the statutory provisions contained in Section 167, Cr. P.C., since it authorises police remand for a period of seven days after the expiry of the first fifteen days' period. In CBI v. Anupam J.Kulkarni, (1992 Cri LJ 2768 : AIR 1992 SC 1768) this Court considered the ambit and scope of Section 167, Cr. P.C. and held that there cannot be any detention in police custody after the expiry of the first 15 days even in a case where some more offences, either serious or otherwise committed by an accused in the same transaction come to lig....
X X X X Extracts X X X X
X X X X Extracts X X X X
....to afford to the Magistrate, in order to furnish the necessary information upon which, he can take the decision whether the accused should be detained in the custody further or not. Even at this stage, the Magistrate can release him on bail, if an application is made and he is satisfied that there are no grounds to remand him to custody but if he is satisfied that further remand is necessary, then he should act as provided under Section 167 of the Code. Thus the Judicial Magistrate can in the first instance authorise the detention of the accused either to judicial custody or police custody, but the total period of detention cannot exceed fifteen days in the whole, after the first remand. Within this period of fifteen days, there can be more than one order changing the nature of such custody either from police to judicial or vice-versa, as decided by the Hon'ble Apex Court in the decision cited. 51. In Devendrakumar v. State of Haryana, (2010)6 SCC 753, Their Lordships have, besides referring to the earlier decision in Anupam J. Kulkarni's case, further explained the legal position as follows:-- "12. As to the second branch of Mr. Luthra's submissions that a second ap....
X X X X Extracts X X X X
X X X X Extracts X X X X
....e shoulders of the accused in preventing the Court from passing the necessary order, let me look into the same although the same is not necessary in view of the settled position of law. I am making a reference of the same only with a view to show that the accused is wrongly blamed, but it was the mistake of the Investigating Officer in not pursuing the application, and to a larger extent, the Court below should be held responsible for the situation it created. Even the Public Prosecutor incharge is responsible for the same. 54. Since the petitioner challenged the legality and validity of his arrest and production before this Court by filing Special Criminal Application No. 3898 of 2014, a learned Single Judge on 23rd September 2014 issued notice, making it returnable on 7th November 2014. It appears that on 23rd September 2014, an application was filed on behalf of the accused to adjourn the hearing of the remand application since the very production of the accused was under challenge and the issue was at large before the High Court. Such application was considered by the Court below and the following order was passed, which, in my view, ought not to have been passed : "In view ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....owes a duty to hear the remand application on the very same day it is filed because the law mandates that the police remand can be only for the initial period of fifteen days and thereafter the custody could only be judicial. The only rider to this is that during the first fifteen days, the accused can be remanded from judicial custody to police custody and vice-versa. However, after the expiry of the first fifteen days, the custody can only be judicial. Therefore, the mere filing of the application seeking remand would not save the situation for the prosecuting agency. 58. It was the duty of the Public Prosecutor appearing for the State to have pointed out the correct position of law to the Court, more particularly, the decisions of the Supreme Court in the case of Anupam J.Kulkarni (supra) and Budh Singh (supra). The Public Prosecutor should have emphatically explained to the Court that adjourning the hearing of the remand application would render the same infructuous. However, it seems that the Public Prosecutor was also oblivious of the settled position of law as explained by the Supreme Court. 59. It was argued before me very vociferously that the accused should not be permi....
X X X X Extracts X X X X
X X X X Extracts X X X X
....the judgments of the High Courts particularly that of the Delhi High Court relied upon by the Chief Metropolitan Magistrate do not lay down the correct position of law in this regard. In Gian Singh v. State (Delhi Administration), 1981 Cri LJ 100 (Delhi) a learned single Judge of the High Court held that once the accused is remanded to judicial custody he cannot be sent back again to police custody in connection with or in continuation of the same investigation even though the first period of fifteen days has not exhausted. Again the same learned Judge Justice M.L. Jain in Trilochan Singh v. The State (Delhi Administration), 1981 Cri LJ 1773 (Delhi), took the same view. In State (Delhi Administration) v. Dharam Pal, 1982 Cri LJ 1103 a Division Bench of the Delhi High Court overruled the learned single Judge's judgments in Gian Singh's case, (1981 Cri LJ 100) and Trilochan Singh's case, (1981 Cri LJ 1773). The Division Bench held that the words "from time to time" occurring in the Section show that several orders can be passed under Section 167(2) and that the nature of the custody can be altered from judicial custody to police custody and vice-versa during the first per....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... case require that the accused should be associated with that Investigation in some way." The Division Bench in Dharam Pal's case referring to these observations of Hardy, J. observed that "We completely agree with Hardy, J. in coming to the conclusion that the Magistrate has to find out whether there is a good case for grant of police custody". A perusal of the later part of the judgment in Dharam Pal's case would show that the Division Bench referred to these observations in support of the view that the nature of the custody can be altered from judicial custody to police custody or vice-versa during the first period of fifteen days mentioned in S. 167(2) of the Code, but however firmly concluded that after fifteen days the accused could only be in judicial custody or any other custody as ordered by the magistrate but not in police custody. Then there is one more decision of the Delhi High Court in State (Delhi Administration v. Ravinder Kumar Bhatnagar, 1982 Cri LJ 2366, where a single Judge after relying on the judgment of the Division Bench in Dharam Pal's case, (1982 Cri LJ 1103), held that the language of Section 167(2) is plain and that words "for a term not ex....
X X X X Extracts X X X X
X X X X Extracts X X X X
....te of Andhra Pradesh, (1986) 3 SCC 141 : (AIR 1986 SC 2130), this Court examined the scope of Section 167(2) provisos (a)(i) and (ii) and held that the period of fifteen days, ninety days or sixty days prescribed therein are to be computed from the date of remand of the accused and not from the date of his arrest under Section 57 and that remand to police custody cannot be beyond the period of fifteen days and the further remand must be to judicial custody. Though the point that precisely arose before this Court was whether the period of remand prescribed should be computed from the date of remand or from the date of arrest under Section 57, there are certain observations throwing some light on the scope of the nature of custody after the expiry of the first remand of fifteen days and when the proviso comes into operation. It was observed thus (para 15, at p. 2135 of AIR): "As sub-section (2) of Section 167 as well as proviso (1) 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 insofar as the periods of remand are concerned. It would, therefore, follow that the wor....
X X X X Extracts X X X X
X X X X Extracts X X X X
....he detention in police custody is generally disfavoured by law. The provisions of law lay down that such detention can be allowed only in special circumstances and that can be only by a remand granted by a magistrate for reasons judicially scrutinised and for such limited purposes as the necessities of the case may require. The scheme of Section 167 is obvious and is intended to protect the accused from the methods which may be adopted by some overzealous and unscrupulous police officers. Article 22 (2) of the Constitution of India and Section 57 of Cr. P.C. give a mandate that every person who is arrested and detained in police custody shall be produced before the nearest magistrate within a period of 24 hours of such arrest excluding the time necessary for the journey from the place of the arrest to the Court of the magistrate and no such person shall be detained in the custody beyond the said period without the authority of a magistrate. These two provisions clearly manifest the intention of the law in this regard and therefore it is the magistrate who has to judicially scrutinise circumstances and if satisfied can order the detention of the accused in police custody. Section 16....
X X X X Extracts X X X X
X X X X Extracts X X X X
....o police custody i.e. till 31st March 2014. On 31st March 2014, the accused were once again produced before the Magistrate and further remand of 7 days was prayed for. The Magistrate was pleased to reject such application. Against such order passed by the Magistrate, the State preferred Revision Application before the Sessions Court. The Sessions Court, vide order dated 22nd April 2004, partly allowed the Revision Application. The Court took the view that the State had filed Revision Application on 12th April 2004 i.e. after 11 days from the date of rejection of the first extension or 13 days after the first remand and, therefore, it could not be said that fifteen days period from the date of first day of remand had expired before the State Government could approach the Sessions Court in revision. 64. Both the aforenoted decisions are absolutely contrary to the decision of the Supreme Court in the case of Anupam J.Kulkarni (supra) although the same has been considered and distinguished with the facts of the case. The ratio of both the decisions is that once an application is filed within the period of first fifteen days, then the order can be passed even after the expiry of the sa....
X X X X Extracts X X X X
X X X X Extracts X X X X
....rate before whom the accused person was initially produced for detention pending investigation had ordered the accused to judicial custody. Thereafter an application was made before the Designated Court for police custody for purposes of investigation. It is not disputed that the impugned order dated 3-6-1992 made by the Designated Court was well within the period of 60 days --Section 20 of the Terrorists and Disruptive Activities (Prevention) Act, 1987 enlarges the period of 15 days referred to in Sub-section (2) of Section 167 of the Criminal Procedure Code, into 60 days - had not expired. The circumstances that the operation of the order was subsequently stayed by this Court in these proceedings and that during the period of such stay the sixty days period has run out does not affect the validity and efficacy of the order dated 3-6-1992 if the challenge thereto fails." 67. A close look at the decision of the Supreme Court in the case of Kosanapu Ramreddy (supra) reveals that there is no reference at all to the decision of Anupam (supra) earlier in point of time. What is discernible from Kosanapu Ramreddy (supra) is that if the accused challenges the order of remand, and by the ....