TaxTMI 
TaxTMI 
2024 (9) TMI 1762
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....Thallapally Sai Rohith and Palavalasa Siva Saran. This writ petition has been filed substantially on two questions of law, which are:- a) Whether the period of apprehension by the police authorities before the official arrest being shown is also to be considered for the purpose of fulfilling the requirement of producing the so-called apprehended person before the Judicial Magistrate within 24 hours? b) Whether an accused under the Telangana Protection of Depositors of Financial Establishments Act, 1996 (for short 'TSPDFE Act') can be produced for the first remand before the nearest Judicial Magistrate or he needs to be presented only before the concerned notified Special Court? 3. The aforesaid four detenus are said to be accused and arrested for the offences punishable under Section 406, 420 read with 120B of the Indian Penal Code, 1860 (for short 'IPC') and Section 5 of the TSPDFE Act. The petitioner on an earlier occasion had filed another writ petition seeking for issuance of a Writ in the nature of Habeas Corpus i.e. Writ Petition No. 21034 of 2024. When the said writ petition was filed, the grounds raised in the present writ petition were not availab....
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.... 02.08.2024 24 hours 3. Thallapally Sai Sharath Time: 10:00 A.M. Date: 31.07.2024 Time: 15:40 hours Date: 01.08.2024 Time: 00:30 A.M. Date: 02.08.2024 38 hours 4. Thallapally Srinivas Goud Time: 10:00 A.M. Date: 31.07.2024 Time: 15:40 hours Date: 01.08.2024 Time: 00:30 A.M. Date: 02.08.2024 38 hours 6. Palavalasa Siva Saran Time: 00:30 A.M. Date: 01.08.2024 Time: 15:40 hours Date: 01.08.2024 Time: 00:30 A.M. Date: 02.08.2024 24 hours 5. It was the contention of the learned counsel for the petitioner that once when the alleged detenu / detenues are apprehended or taken into custody, it is mandatorily required that the so-called detenu is produced before the concerned Judicial Magistrate within 24 hours from the date of apprehension. It was also the contention that the period of 24 hours required to be produced before the Judicial Magistrate would start from the initial time of apprehension, which in the instant case for accused Nos. 3 and 4 it starts from 10:00 A.M. on 01.08.2024. Therefore the respondent-authorities ought to have produced the so-called detenues within a period of 24 hours from the time they were first....
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.... has been deprived of his personal liberty to go where he pleases. [Section 37(1) of the N.O.P.S. Act.] It stands to reason, therefore, that what label the Investigating Officer affixes to his act of restraint is irrelevant. For the same reason, the record of the time of arrest is not an index to the actual time of arrest, The arrest commences with the restraint placed on the liberty of the accused and not with the time of "arrest" recorded by the Arresting Officers." 11. The argument that the applicants were not arrested at the mid night of 19th July 1989 but were detained for interrogation is untenable. Since the offences under the N.D.P.S. Act are cognizable [ R.V. Lemsatef (1977) 2 All E.R. 835. "If the idea is getting around amongst either customs and excise officers or police officers that they can arrest or detain people, as the case may be, for this particular purpose, the sooner they disabuse themselves of that idea the better".], the Investigating Officers possess the authority to arrest without warrant. They arrest a suspect or do not arrest at all. The "detention in custody for interrogation" is unknown to law. Interrogation is known. A person may be lawfully i....
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....the case of State v. Ram Autar Chaudhry (6) AIR 1955 Allahabad 138, a Division Bench of the Allahabad High Court has held that Sec. 61 of the Code of Criminal Procedure, 1898, equivalent to Sec. 57 of the Code of Criminal Procedure, 1973, does not empower a police officer to keep an arrested person in custody a minute longer than is necessary for the purpose of investigation and it does not give him an absolute right to keep a person in custody till twenty-four hours. It has further held that a police officer is not justified in detaining a person for one single hour except upon some reasonable ground justified by the circumstances of the case and under no circumstances can the period of such detention exceed twenty-four hours, without, a special order of a Magistrate. In this case, the inability of admission in jail was not found a justifying reason for delay. This case has been referred to in the case of Nabachandra v. Manipur Administration (7) AIR 1964 Manipur 39. A learned Single Judge of the Manipur High Court has observed that: "The Criminal Procedure Code does not authorise detention by the police for 24 hours after the arrest. Secs. 60 and 61, Cr. P.C., makes this....
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....four hours, particularly, when the police officer has reason to believe that the investigation cannot be completed within twenty-four hours, he must produce the accused forthwith before the magistrate and cannot wait for twenty-four hours." 9. Recently, this High Court in the case of Vishal Manohar Mandrekar Vs. The State of Telangana, represented by its Public Prosecutor [Order dated 29.02.2024 in Criminal Revision Case No. 228 of 2024] dealing with a similar issue had made the following observations, viz., "10. Article 22 (2) of the Constitution of India mandates that every person who is arrested and detained in police custody shall be produced before the nearest magistrate within a period of 24 hours, 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 custody beyond the said period without the authority of a magistrate. 11. Section 57 of Cr.P.C. was incorporated in accordance with the above Article. It mandates 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 was re....
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....lated from the time of the official arrest being shown by the police personnel in the arrest memo, but from the time he was initially apprehended or taken into custody. In view of the same, accused Nos. 3 and 4 have been produced before the Judicial Magistrate only after completion of 24 hours from the time they were apprehended. Accused Nos. 1, 2 and 6 were produced before the Judicial Magistrate before completion of 24 hours. Therefore, there is clear violation of the statutory requirement under Section 57 of Cr.P.C so far as accused Nos. 3 and 4 are concerned, and they are accordingly liable to be given the benefit for the illegal act which the respondent-authorities have committed. 13. We now venture into the second question of law to be considered in the instant case i.e. whether the order of first remand passed by the Judicial Magistrate is proper and legal when in terms of Section 6, 13 and 14 of the TSPDFE Act which mandates the proceedings under the said Act to be exercised only by a special Court duly nominated? 14. In the instant case, the reason for the said dispute is that after the detenues were apprehended, and later arrested, they were produced ....
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....TSPDFE Act to be in sink while being in operation. It cannot be said that the provisions of TSPDFE Act totally ousts the applicability of Cr.P.C right from the inception stage itself. 18. According to the learned Special Government Pleader, the plain reading of Section 13(2) also gives a clear indication that the provisions of Cr.P.C 'shall', 'so far as may be' apply to the proceedings under the TSPDFE Act and the special Courts constituted under the said Act. Referring to Sub-Section (1) of Section 3, the learned Special Government Pleader contended that the special Court can also directly take cognizance of an offence under the TSPDFE Act without the accused being committed to it for trial by any of the jurisdictional Magistrate. This in other words according to the learned Special Government Pleader also means that the powers vested under Sub-Section (2) of Section 167 continues to remain with the Judicial Magistrate. This in other words according to the learned Special Government Pleader also means that the jurisdictional Magistrate after taking cognizance under Section 167 of Cr.P.C also can commit the accused for trial under Section 209 before the notified special Court fo....
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....E Act, it will clearly give an indication that the TSPDFE Act has not completely ousted the applicability of Cr.P.C. Rather it is a case where the procedure to be adopted by the special Court notified under the said Act also follows the procedure laid down under Cr.P.C. We find sufficient force in the contentions of the learned Special Government Pleader that Sub-Section (1) of Section 13 of TSPDFE Act categorically envisages that the special Court may take cognizance of the offence even without the offence being committed to it. This does not mean that after a person is apprehended for an offence under the TSPDFE Act even for obtaining the first remand under Section 167(1), it has to be only before the special Court notified under the said Act and not the nearest Judicial Magistrate as is envisaged under Cr.P.C. Reading Section 167 of Cr.P.C along with Section 13 and 14 of TSPDFE Act would clearly force us to reach to the conclusion that the word 'may' used in Sub-Section (1) of Section 13 is a discretionary power and not a mandatory direction. 22. What is also required to be noted, at this juncture, is that even Article 22(2) of the Constitution of India envisages that every p....
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....bjects of the Act, had considered whether the language in a particular section, clause or sentence is directory or mandatory. The word 'shall', though prima facie gives impression of being of mandatory character, it requires to be considered in the light of the intention of the legislature by carefully attending to the scope of the statute, its nature and design and the consequences that would flow from the construction thereof one way or the other. In that behalf, the court is required to keep in view the impact on the profession, necessity of its compliance; whether the statute, if it is avoided, provides for any contingency for non-compliance; if the word 'shall' is construed as having mandatory character, the mischief that would ensue by such construction; whether the public convenience would be subserved or public inconvenience or the general inconvenience that may ensue if it is held mandatory and all other relevant circumstances are required to be taken into consideration in construing whether the provision would be mandatory or directory. If an object of the enactment is defeated by holding the same directory, it should be construed as mandatory whereas if by holding it man....