TaxTMI 
TaxTMI 
2015 (6) TMI 1268
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....013 registered with the DCB Police Station, Surat city, 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....
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....ting in a serious miscarriage of justice. 11. In view of the above, 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 a....
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....plication was also given along with production report. As both sides have made submission 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 Cou....
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....tter could not be heard and ultimately on 25.03.2015 remand application was allowed. On 26.03.2015 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 quest....
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....mmediately subordinate." 20. Section 167 of the Code of Criminal Procedure, 1973, reads as under : "Section 167 : Procedure when investigation cannot be completed 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 con....
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....cused to such Executive Magistrate, and thereupon such Executive Magistrate, may, for reasons to be recorded in writing, authorise the detention of the accused person in such custody as he may think fit for a term not exceeding seven days in the 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 Magistra....
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....nce, no adjournment or postponement shall be granted, without examining them, except for special reasons to be recorded in writing.] (2) Every order made under this section by a Court other than a High Court shall be in writing signed by the Presiding Judge or Magistrate. Explanation.-Reasonable cause for 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 co....
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.... choice. (2) 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 of the Court of the Magistrate and no such person shall be detained in custody beyond the said period without the authority of a Magistrate." 26. Clause (2) of Article 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....
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....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 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 punisha....
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....custody as he thinks fit which means he can grant either police custody or judicial custody. 32. The next section, on which some arguments, in relation to the issue at hand, were advanced, is Section 309. Section 309 appears under Chapter-XXIV which deals with general powers as to enquiries and trials. Chapter-XXIV deals with general provisions as to enquiries and trials. Section 309 in so far as is relevant is as under:-- "309. (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 rem....
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....ents in this behalf. 35. In Raghubir Singh v. State of Bihar, (1986)4 SCC 481, the Supreme Court held as under : "The result of our discussion and the case-law is this: An order for release on bail made under the proviso to s.167(2) is not defeated by lapse of time, the filing of the chargesheet or by remand to custody under s. 309(2). The order for release on bail may however be cancelled under s. 437(5) or s. 439(2). Generally the grounds for cancellation of bail, broadly, are, interference or attempt 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 def....
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....ection 57 and there are grounds to believe that the charge levelled against the person arrested is well founded it is obligatory on the part of the Investigation Officer to produce the accused before the nearest Magistrate. On such production the Magistrate may authorise the detention of the accused initially for a term not exceeding 15 days either in police custody, or in judicial custody. On expiry of the said period of 15 days the Magistrate may also authorise his further detention otherwise than in police custody if he is satisfied that 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 pe....
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....akes the picture very clear. It is very distressing to note that the most important decision of the Supreme Court on the subject was overlooked by the Court below. There is not even a reference to the same. 42. The Supreme Court, in Anumpam J.Kulkarni (supra) has considered the question in all its legal aspects, whether a person arrested and produced before the Magistrate as required under Section 167(1) of the Code, can still be remanded to the police custody after the expiry of initial period of fifteen days. It may be useful to refer to the facts in the said case. 43. The accused 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 ....
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....of the custody can be altered from judicial custody to police custody vice-versa during the 1st period of fifteen days mentioned in Section 167(2) of the Code, and that after fifteen days, the accused should only be kept in judicial custody or in any other custody as ordered by the Magistrate, but not in the custody of the police." 45. This view, as seen above, was affirmed by the Supreme Court. 46. In the present case, the accused was arrested on 15th September 2014 and was produced before the learned Special Judge on 16th September 2014. The police applied for his custody on the same day by 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 ....
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.... period of fifteen days of first remand expires, as per the rulings of the Apex Court, the Magistrate is not empowered to pass an order granting police custody. 50. In C.B.I v. Anupam J.Kulkarni (supra), it has been held that Section 167 of the Code is supplementary to Section 57, Cr.P.C. As per the Code, the investigation should be completed in the first instance within 24 hours; if not the arrested person should be brought by the police before a Magistrate as provided under Section 167 of the Code. While doing so, the police should also transmit a copy of the entries made in the diary relating to the case which is meant 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 judic....
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....ot authorised by the main part of the sub-section at all, but openly by proviso (a). The proviso, however, expressly prohibits custody to the police 'beyond the period of fifteen days'. The definite article 'the' in this phrase leads one back to the fifteen days mentioned earlier. Those, fifteen days, as I have tried to show, have to mean 'the first fifteen days' after arrest. It thus emerges from a conjoint reading of the main part of the sub-section with proviso (a) that police custody cannot be granted after the lapse of the 'first fifteen days'. 53. Since the entire blame is sought to be thrown on the 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 petitio....
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....used, praying that the remand application be adjourned beyond 7th November 2014 as the High Court was ceased of the issue regarding the legality and validity of the arrest and the production. The learned Judge adjourn the hearing again to 10th November 2014. 57. It was the duty of the Court below to have immediately hear the remand application and pass necessary orders upon the same in view of the clear mandate of the provisions of Section 167(2) of the Code, which has been very exhaustively explained by the Supreme Court in the case of Anupam J.Kulkarni (supra). The Court ought to have outright rejected the application of the accused for postponing the hearing of the remand application. The Court 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 t....
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.... that if for any reason the police custody cannot be obtained during the period of first fifteen days yet a remand to the police custody even later is not precluded and what all that is required is that such police custody in the whole should not exceed fifteen days. According to him there could be cases where a remand to police custody would become absolutely necessary at a later stage even though such an accused is under Judicial custody as per the orders of the magistrate passed under the proviso. The learned Additional Solicitor General gave some instances like holding an identification parade or interrogation on the basis of the new material discovered during the investigation. He also submitted that some of 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....
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....sterial custody it is open to the, learned Magistrate under S. 167(2) to take the accused out of jail or judicial custody and hand him over to the police for the maximum period of 15 days provided in that section. All that he is required to do is to satisfy himself that a good case is made out for detaining the accused in police custody in connection with investigation of the case. It may be that the offences for which the accused is now wanted by the police relate to the same case but these are altogether different offences and in a way therefore it is quite legitimate to say that it is a different case in which the complicity of the accused has been discovered and police in order to complete their investigation of that 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 refer....
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.... fifteen days and during the period of ninety days or sixty days in respect of the investigation of the cases mentioned in provisos (a)(i) and (ii) respectively. It may be noted firstly that the Mehar Chand's case was decided in respect of a case arising under the old Code. If we examine the background in enacting the new Section 167(2) and the proviso (a) as well as Section 309 of the new Code it becomes clear that the legislature recognised that such custody namely police, judicial or any other custody like detaining the arrested person in Nari Sadans etc. should be in the whole for fifteen days and the further custody under the proviso to Section 167 or under Section 309 should only be judicial. In Chaganti Satyanarayana v. State 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 cus....
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....judicial custody." 61. It was also argued by the Additional Solicitor General of India before the Supreme Court that in cases of grave crimes it would be impossible for the police to gather all the materials within the first fifteen days, and if some valuable information was disclosed at a later stage and if the police custody is denied, the investigation would be hampered and would result in failure of justice. Such submission also did not find favour with the Supreme Court and negativing the same, made the following observations : "There may be some force in this submission but the purpose of police custody and the approach of the legislature in placing limitations on this are obvious. The proviso to 9 Section 167 is explicit on this aspect. The 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 a....
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....ed for on the very same day. The Judicial Magistrate rejected the remand application. The State preferred a Criminal Revision Application on 5th November 2014 before the Sessions Court. The Court took the view that the remand application as well as the Revision Application were filed by the State within a period of fifteen days from the date of the production of the accused and the order passed by the learned Sessions Judge on 3rd December 2014 granting remand was in accordance with law. 63. In Jayrajsinh Temubha Jadeja (supra), the accused were produced before the Chief Judicial Magistrate on 29th March 2004. A remand application seeking 14 days of remand was prayed for on the very same day. The learned Magistrate passed an order of grant of 2 days remand to 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....
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....police custody. The Supreme Court, while dismissing the writ-petition, restored the order of the Designated Court directing that the accused be handed over from the judicial custody to the police custody for a period of three days. I may quote the exact observations of the Supreme Court as under: "2. In this petition under Article 32 of the Constitution of India, the legality of the order dated 3-6-1992 made by the Designated Court directing the accused person, a certain Ashok Reddy against whom a case under the Terrorists and Disruptive Activities (Prevention) Act, 1987 is registered and is under investigation, be handed over from judicial custody to police custody for a period of three days for purposes of investigation of the case is assailed. The learned Magistrate 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 Dis....