Gujarat High Court
Kantibhai Devsibhai Patel vs State Of Gujarat & on 22 June, 2015
Author: J.B.Pardiwala
Bench: J.B.Pardiwala
R/SCR.A/1853/2015 CAV JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL CRIMINAL APPLICATION (QUASHING) NO. 1853 of 2015
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE J.B.PARDIWALA
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1 Whether Reporters of Local Papers may be allowed YES
to see the judgment ?
2 To be referred to the Reporter or not ? YES
3 Whether their Lordships wish to see the fair copy of NO
the judgment ?
4 Whether this case involves a substantial question of NO
law as to the interpretation of the Constitution of
India or any order made thereunder ?
Circulate the Judgment to the Subordinate Courts.
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KANTIBHAI DEVSIBHAI PATEL....Applicant(s)
Versus
STATE OF GUJARAT & 1....Respondent(s)
================================================================
Appearance:
MR PM THAKKAR, SR.ADVOCATE with MR CB GUPTA, ADVOCATE for the
Applicant(s) No. 1
MR MITESH AMIN, PUBLIC PROSECUTOR with MR NJ SHAH, AGP for the
Respondent(s) No. 1
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CORAM: HONOURABLE MR.JUSTICE J.B.PARDIWALA
Date : 22/06/2015
CAV JUDGMENT
By this application under Article 227 of the Constitution of Page 1 of 47 R/SCR.A/1853/2015 CAV JUDGMENT India, the petitioner, an accused, calls in question the legality and validity of the order dated 25th March 2015 passed by the learned Special Judge, Surat, granting remand of the petitioner in connection with the Special Case No.11 of 2014 arising from CR-I No.37 of 2013 registered with the DCB Police Station, Surat city, for the offence punishable under Sections 213, 214, 217, 120B of the Indian Penal Code and Sections 7, 8, 9, 12, 13(1)(g) of the Prevention of Corruption Act, 1988.
The facts giving rise to this application may be summarised as under :
The petitioner was arrested in connection with an FIR being CR-I No.37 of 2013 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.
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.
It appears that the application filed by the Investigating Page 2 of 47 R/SCR.A/1853/2015 CAV JUDGMENT 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.
Being dissatisfied with the order passed by the learned 3rd Additional Sessions Judge, Surat, the petitioner has come up before this Court challenging the same with this application.
Mr.P.M.Thakkar, the learned senior advocate assisted by Mr.C.B.Gupta, the learned advocate for the petitioner-accused, vehemently submitted that the Court below committed a serious error in passing the order of police remand after a period of 6 months and 9 days from the date the accused was remanded to the judicial custody.
Mr.Thakkar submitted that although the application seeking police remand was filed by the Investigating Officer on 16th September 2014 i.e. the day on which he was produced for the first time before the learned Special Judge, yet for the reasons explained by the Investigating Officer in his affidavit- in-reply, the same could not be taken up immediately for hearing and, therefore, ultimately, the application was heard on 10th March 2015 and the impugned order came to be passed on 25th March 2015. According to Mr.Thakkar, the petitioner could have been remanded to the police custody only during the first fifteen days after the date of arrest.
Mr.Thakkar submitted that the issue involved in this application is squarely covered by a decision of the Supreme Page 3 of 47 R/SCR.A/1853/2015 CAV JUDGMENT Court in the case of Central Bureau of Investigation, Special Investigation Cell-I, New Delhi v. Anupam J.Kulkarni, AIR 1992 SC 1768. Mr.Thakkar, relying on the said decision, submitted that the custody after the expiry of the first fifteen days can only be judicial custody. During the rest of the period of 90 days or 60 days, as the case may be, the police custody, if found necessary, can be ordered only during the first fifteen days.
Mr.Thakkar pointed out that charge-sheet was also filed way back on 4th November 2014, and once the Court takes cognizance on filing of the charge-sheet, the stage of Section 167 of the Code would come to an end and, thereafter, the custody would be governed under the provisions of Section 309 of the Code.
Mr.Thakkar pointed out that in the entire impugned order, there is no reference to the decision of the Supreme Court in the case of Anupam J.Kulkarni (supra), more particularly, when it governs the issue in hand. Mr.Thakkar submitted that absolutely irrelevant considerations weighed with the learned Judge, resulting in a serious miscarriage of justice.
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.
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 Page 4 of 47 R/SCR.A/1853/2015 CAV JUDGMENT 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 other, did not permit the Court to pass the necessary orders on such remand application. According to Mr.Amin, in such circumstances, if at a later stage the remand application is heard and the order is passed, that would be well within the four corners of law.
Mr.Amin submitted that the words 'in the whole' following the words 'fifteen days' are very important. According to him, 'in the whole' means 'total' and not 'maximum' and, therefore, the fifteen days could comprise broken period spread over a large space of time. According to him, the Code empowers the Court to pass an order of police remand in all for a total period of fifteen days and such a period of fifteen days need not be the very first period after arrest.
Mr.Amin, in support of his submissions, has placed reliance on two decisions of this Court rendered by the learned Single Judges : (i) Gopalbhai Chaturbhai Amin v. State of Page 5 of 47 R/SCR.A/1853/2015 CAV JUDGMENT Gujarat, (2005)4 GLR 3103, and (ii) Jayrajsinh Temubha Jadeja and others v. State of Gujarat, (2005)1 GLR 181.
Mr.Amin also placed reliance on an affidavit-in-reply filed by one Shri Jayantilal Ambalal Patel, Assistant Commissioner of Police, D-Division, Surat city. The following averments have been made in the affidavit-in-reply :
"I respectfully say and submit that earlier also summons was issued to the present accused at his resident but he was not available. Earlier attempt was made to call the present applicant, under Section 160 of Criminal Procedure Code, but the same could not be materialized as the present applicant was not available. Present applicant at that time through advocate has raised objection regarding place of calling the present applicant. Accordingly, once again Section 160 of Criminal Procedure Code proceeding was initiated and the present applicant was asked to remain present at Chandkheda Police Station, Ahmedabad. Pursuant to that on 15.09.2014 the present applicant had remained present at Chandkheda Police Station, Ahmedabad. The present applicant was not cooperating, so formal arrest was effected by Investigating Officer. The present applicant was taken at Surat on the same day and on 16.09.2014 the present applicant was produced before the Special Judge, Surat, along with production report. Remand application 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 Page 6 of 47 R/SCR.A/1853/2015 CAV JUDGMENT 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 Criminal Misc. Application No.l5627 of 2014 in Special Criminal Application No.3898 of 2014. By this order, liberty was granted to the applicant for seeking adjournment before the Trail Court. The Trial Court had given next date being 10.11.2014, pursuant to the aforesaid order of the Hon'ble High Court. As in the High Court the matter was kept on 19.11.2014, an application was given for adjournment in the Trial Court. Accordingly the Trial Court has fixed the matter on 25.11.2014. As in the matter before the Hon'ble High Court on 19.11.2014, the matter was adjourned to 26.11.2014; a request was made by the present applicant in the Trial Court to adjourn the matter. On 25.11.2014, probably, once the matter was adjourned at the Trail Court, on 26.11.2014 the Hon'ble High Court on heard the applicants preferred by both sides as well as the applicants and the judgment was reserved and the same was pronounced on 22.01.2015. After 25.11.2014 in the matter before the Trail Court it seems that the matter was adjourned for one or other reason which is reflected as per Rojkam.
.
I respectfully say and submit that on 26.11.2014 the Hon'ble High Court had completed the hearing of the matter being Special Criminal Application No.3898 of 2014 was kept for judgment, which was declared on 22.01.2015. On 06/07.02.2015 application was moved by the present applicant for hearing of his case along with case of Narayansai in Trial Court, (in which he was not accused). On 27.02.2015 this application was rejected by the Trial Court. Thus, clubbing of both the cases as prayed by the present applicant was rejected. Meanwhile, the present applicant had filed Speaking to Minutes Application in the High Court which came to be rejected on 09.03.2015. On 10.03.2015 remand application was heard by the Trial Court and arguments were concluded and the matter was kept on 24.03.2015 for orders, somehow on that day, the order was not Page 7 of 47 R/SCR.A/1853/2015 CAV JUDGMENT pronounced but was pronounced on the next date i.e. on 25.03.2015. After pronouncement of order allowing the remand application, present application was moved on 25.03.2015 by the present applicant and the same came to be rejected on 25.03.2015. The Hon'ble High Court level as well as the applications proceedings preferred by the present applicant, the matter 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.l853 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."
In view of the above, Mr.Amin prays that there being no merit in this application, the same be rejected.
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 :
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 15 days' period from the date of the arrest of the accused if Page 8 of 47 R/SCR.A/1853/2015 CAV JUDGMENT the application for remand is filed by the Investigating Officer within the first 15 days ? To put it in different words, whether the filing of the application seeking police remand within the first period of 15 days would save the situation if the said application, for any reason, is not heard during that period and the order for police custody is passed beyond the period of first 15 days."
Section 167 of the Code, 1898, read 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 61, 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 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 authorize the detention of the accused in such custody as such Magistrate thinks fit, for a term not exceeding fifteen days in the whole. 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 no Magistrate of the third class, and no Magistrate of the second class not specially empowered in this behalf by the State Government shall authorize detention in the custody of the police.
(3) A Magistrate authorizing under this section detention in the custody of the police shall record his reasons for so doing.Page 9 of 47 R/SCR.A/1853/2015 CAV JUDGMENT
(4) If such order is given by a Magistrate other than the District Magistrate or sub-divisional Magistrate, he shall forward a copy of his order, with his reasons for making it, to the Magistrate to whom he is immediately subordinate."
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 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 Page 10 of 47 R/SCR.A/1853/2015 CAV JUDGMENT 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 provisions of Chapter XXXIII for the purposes of that Chapter;
(b) no Magistrate shall authorise detention in any custody under this section unless the accused is produced before him;
(c) no Magistrate of the second class, not specially empowered in this behalf by the High Court, shall authorise detention in the custody of the police.
Explanation I.- For the avoidance of doubts, it is hereby declared that, notwithstanding the expiry of the period specified in paragraph (a), the accused shall be detained in custody so long as he does not furnish bail;
Explanation II.- If any question arises whether an accused person was produced before the Magistrate as required under paragraph (b), the production of the accused person may be proved by his signature on the order authorising detention.
(2A) Notwithstanding anything contained in sub- section (1) or sub- section (2), the officer in charge of the police station or the police officer making the investigation, if he is not below the rank of a sub- inspector, may, where a Judicial Magistrate is not available, transmit to the nearest Executive Magistrate, on whom the powers of a Judicial Magistrate or Metropolitan Magistrate have been conferred, a copy of the entry in the diary hereinafter prescribed relating to the case, and shall, at the same time, forward the accused 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 Page 11 of 47 R/SCR.A/1853/2015 CAV JUDGMENT 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 sub- section, shall be taken into account in computing the period specified in para- graph (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, to the Chief Judicial Magistrate.
(5) If in any case triable by a Magistrate as a summons-
case, the investigation is not concluded within a period of six months from the date on which the accused was arrested, the Magistrate shall make an order stopping further investigation into the offence unless the officer making the investigation satisfies the Magistrate that for special reasons and in the interests of justice the continuation of the investigation beyond the period of six months is necessary.
(6) Where any order stopping further investigation into an offence has been made under sub- section (5), the Sessions Judge may, if he is satisfied, on an application made to him or otherwise, that further investigation into the offence ought to be made, vacate the order made under sub- section (5) and direct further investigation to be made into the offence subject to such directions with regard to bail and other matters as he may specify."
Page 12 of 47 R/SCR.A/1853/2015 CAV JUDGMENTSection 344 of the old Code (now Section 309) read as under :
"Section 344 : 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.
(1A) If, from the absence of a witness, or any other reasonable cause, it becomes necessary or advisable to postpone the commencement of, or adjourn any inquiry or trial, the Court may, if it thinks fit, by order in writing, staling the reasons therefor, from time to time, 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 : Remand-
Provided that no Magistrate shall remand an accused person to custody under this section for a term exceeding fifteen days at a time :
[Provided further that when witnesses are in attendance, 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."
Page 13 of 47 R/SCR.A/1853/2015 CAV JUDGMENTSection 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 section for a term exceeding fifteen days at a time:
Provided further that when witnesses are in attendance, no adjournment or postponement shall be granted, without examining them, except for special reasons to be recorded in writing: 1 Provided also that no adjournment shall be granted for the purpose only of enabling the accused person to show cause against the sentence proposed to be imposed on him.] 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.
Explanation 2.- The terms on which an adjournment or postponement may be granted include, in appropriate cases, the payment of costs by the prosecution or the accused."
The personal liberty of a person is of paramount Page 14 of 47 R/SCR.A/1853/2015 CAV JUDGMENT importance in all civilized societies. Our constitution regards personal liberty of a person so sacrosanct that it is enshrined in Articles 21 and 22 in Part III of the Constitution which deals with fundamental rights. Article 21 reads as under :
"21. Protection of life and personal liberty :-
No person shall be deprived of his life or personal liberty except according to procedure established by law.
It protects the life and personal liberty of an individual irrespective of whether he is a citizen or not and mandates that no person shall be deprived of his life or personal liberty, except according to procedure established by law.
Article 22 of the Constitution grants protection against arrest and detention in certain cases. Clauses (1) and (2) are relevant for our purpose and may be reproduced here :
"22. Protection against arrest and detention in certain cases :-
(1) No person who is arrested shall be detained in custody without being informed, as soon as may be, of the grounds for such arrest nor shall he be denied the right to consult and to be defended by, a legal practitioner of his 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."
Clause (2) of Article 22 enjoins that every person who is Page 15 of 47 R/SCR.A/1853/2015 CAV JUDGMENT 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.
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 the journey from the place of journey to the Magistrate's Court. The aforesaid section is a pointer to the intendment to uphold liberty and to restrict to the minimum the curtailment of liberty.
Chapter-VI deals with process to compel appearance. Section 73, which appears in the said Chapter, deals with issue of warrants against persons. Sub-section (1) of Section 73 provides that the Chief Judicial Magistrate or a Magistrate of the First Class may direct a warrant to any person within his Page 16 of 47 R/SCR.A/1853/2015 CAV JUDGMENT local jurisdiction for the arrest of any escaped convict, proclaimed offender or of any person who is accused of a non- bailable offence and is evading arrest. Sub-section (3) of Section 73 provides that, when the person against whom such warrant is issued is arrested, he shall be made over with the warrant to the nearest police officer, who shall cause him to be taken before a Magistrate having jurisdiction in the case, unless security is taken under Section 71. Sub-section (3) of Section 73 provides that when a person against whom a warrant is issued by a Magistrate is arrested, he is required, without loss of time, to be taken to the nearest police station and the police officer is required to produce him before a Magistrate. These provisions indicate that the police have been given the least powers to detain an accused person without a proper authority in that behalf.
The next section, which is relevant to the issue at hand, is Section 167, which appears in Chapter-XII, which deals with information to the Police and their powers to investigate. Section 167 provides as under :
"167(1) Whenever any person is arrested and detained in custody, and it appears that the investigation cannot be completed within the period of twnety-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 Page 17 of 47 R/SCR.A/1853/2015 CAV JUDGMENT 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 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 provisions of Chapter XXXIII for the purposes of that Chapter.
(b) no Magistrate shall authorise detention in any custody under this section unless the accused is produced before him;
(c) no Magistrate of the second class, not specially empowered in this behalf by the High Court shall authorise detention in the custody of the police ......"
Section 167, thus, provides for cases where investigation Page 18 of 47 R/SCR.A/1853/2015 CAV JUDGMENT cannot be completed within 24 hours fixed by Section 57 and the police require more time to investigate. In such a case, the police officer is required to produce the accused before a Magistrate and the Magistrate is given liberty and/or discretion to detain the accused either in police custody or judicial custody. The period during which a Magistrate can remand an accused to custody has been limited for a term not exceeding fifteen days in the whole. The proviso to Section 167 provides for detention of an accused in judicial custody beyond the period of fifteen days, if a Magistrate is satisfied that adequate reasons exists for doing so. However, such a remand is limited to 90 days where the offence is punishable with death, imprisonment for life or for a term not less than ten years and the period is limited to 60 days where the investigation relates to any other offence. The proviso further provides for a right of the accused to be enlarged on bail after the aforestated period of 90 days or 60 days. The proviso further gives a mandate that no accused shall be kept in custody unless the accused is produced before a Magistrate and the power of ordering detention in custody is restricted to a Magistrate of the First Class. Such a power has not been granted to a Magistrate of a Second Class who is not specially empowered in this behalf by the High Court to authorise detention in custody of the police.
Sub-section (2) of Section 167, therefore, makes it clear that a Magistrate can grant such custody as he thinks fit which means he can grant either police custody or judicial custody.
The next section, on which some arguments, in relation to the issue at hand, were advanced, is Section 309. Section Page 19 of 47 R/SCR.A/1853/2015 CAV JUDGMENT 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 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 ......."
Sub-section (1) of Section 309 provides for expeditious conduct of trials. Sub-section (2) of Section 309 provides for the postponement of the commencement of a trial or the adjournment of any enquiry or trial, which can be done for reasons to be recorded. While doing so, Court is empowered to remand the accused in custody. The wordings appearing in Page 20 of 47 R/SCR.A/1853/2015 CAV JUDGMENT sub-section (2) of Section 309 namely "may by warrant remand the accused if in custody" are in contra-distinction with the words appearing in Section 167(2) namely "authorise the detention of the accused in such custody as such Magistrate thinks fit". Whereas, Section 167(2) confers discretion either to grant police custody or judicial custody, no such discretion is conferred by Section 309(2). The only course, which is left open, is to remand the accused in custody. Section 309 appears in Chapter-XXIV which deals with enquiries and trials, whereas Section 167 appears in Chapter-XII which deals with information to the police and their powers to investigate. I have found that Section 167 deals with the custody of an accused during investigation. I have also seen the limitations of the period during which an accused can be kept in custody. Hence, after cognizance of an offence is taken general provisions of enquiries and trials which are contained in Chapter-XXIV come into pay and Section 309, which deals with the custody of an accused, during inquiries or trial, leaves no discretion but to grant judicial custody. Whereas Section 167(2) confers discretion to grant either police custody or judicial custody, no such discretion is conferred by Section 309(2), the only option given is to remand him to custody, which custody, according to us, can only be judicial custody.
The distinction between the power of remand in terms of sub-section (2) of Section 167 and sub-section (2) of Section 309 of the Code is apparent. I may take notice of few precedents in this behalf.
In Raghubir Singh v. State of Bihar, (1986)4 SCC 481, the Page 21 of 47 R/SCR.A/1853/2015 CAV JUDGMENT 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 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."
Yet again, in CBI v. Anupam J.Kulkarni (supra), the Bench held as under :
"We may, however, like to make it explicit that such re- arrest or second arrest and seeking police custody after the expiry of the period of first fifteen days should be with regard to the investigation of a different case other than the specific one in respect of which the accused is Page 22 of 47 R/SCR.A/1853/2015 CAV JUDGMENT already in custody. A literal construction of Section 167(2) to the effect that a fresh remand for police custody of a person already in judicial custody during investigation of a specific case cannot under any circumstances be issued, would seriously hamper the very investigation of the other case the importance of which needs no special emphasis. The procedural law is meant to further the ends of justice and not to frustrate the same. It is an accepted rule that an interpretation which furthers the ends of justice should be preferred. It is true that the police custody is not the be-all and end-all of the whole investigation but yet it is one of its primary requisites particularly in the investigation of serious and heinous crimes. The legislature also noticed this and permitted limited police custody. The period of first fifteen days should naturally apply in respect of the investigation of that specific case for which the accused is held in custody. But such custody cannot further held to be a bar for invoking a fresh remand to such custody like police custody in respect of an altogether different case involving the same accused."
In State v. Dawood Ibrahim Kaskar, (2000)10 SCC 438, a three-Judge Bench of the Supreme Court held as under :
"The manner in which a person arrested during investigation has to be dealt with by the Investigating Agency, and by the Magistrate on his production before him, is provided in Section 167 of the Code. The said section contemplates that when the investigation cannot be completed within 24 hours fixed by Section 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."Page 23 of 47 R/SCR.A/1853/2015 CAV JUDGMENT
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."
In Rama Chaudhari v. State of Bihar, (2009)6 SCC 346, the Supreme Court held as under :
"...The above said provision also makes it clear that further investigation is permissible, however, reinvestigation is prohibited.
The law does not mandate taking of prior permission from the Magistrate for further investigation. Carrying out a further investigation even after filing of the charge- sheet is a statutory right of the police. Reinvestigation without prior permission is prohibited. On the other hand, further investigation is permissible.
From a plain reading of Sub-section (2) and Sub-section (8) of Section 173, it is evident that even after submission of police report under Sub- section (2) on Page 24 of 47 R/SCR.A/1853/2015 CAV JUDGMENT completion of investigation, the police has a right to "further" investigation under Sub-section (8) of Section 173 but not "fresh investigation" or "reinvestigation". The meaning of "Further" is additional; more; or supplemental. "Further" investigation, therefore, is the continuation of the earlier investigation and not a fresh investigation or reinvestigation to be started ab initio wiping out the earlier investigation altogether.
Sub-section (8) of Section 173 clearly envisages that on completion of further investigation, the investigating agency has to forward to the Magistrate a "further" report and not fresh report regarding the "further" evidence obtained during such investigation."
Thus, what is discernible from the aforenoted decisions of the Supreme Court is that the remand of an accused is contemplated at two stages : (i) pre-cognizance, and (ii) post- cognizance. Whereas, Section 167(2) is attracted were cognizance has not been taken and Section 309(2) is attracted only after the cognizance has been taken.
In the present case, we are not much concerned with Section 309(2) of the Code because Section 167 of the Code itself makes 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.
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 Page 25 of 47 R/SCR.A/1853/2015 CAV JUDGMENT of fifteen days. It may be useful to refer to the facts in the said case.
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 co- operate 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 LJ 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 he was produced". The order of the High Court was challenged before the Supreme Court. Answering the above question, Jayachandra Reddy, J., speaking for the Court, after considering various decisions, in view of the fact that there were no other judgements of the Supreme Court on this point, observed as follows :
"Having regard to the words in such custody as such Page 26 of 47 R/SCR.A/1853/2015 CAV JUDGMENT Magistrate thinks fit for a term not exceeding fifteen days in the whole" occurring in sub-Section (2) of Section 167 now the question is whether it can be construed that the police custody, if any, should be within this period of first fifteen days and not later or alternatively, in a case if such remand had not been obtained or the number of days of police custody in the first fifteen days are less, whether the police can ask subsequently for police custody for full period of fifteen days, no availed earlier or for the remaining days during the rest of the periods of ninety days or sixty days covered by the proviso. The decisions mentioning above do not deal with this question precisely except the judgement of the Delhi High Court in Dharam Pal case, 1981 Cri LJ 1103 (sic). Taking the plain language into consideration, particularly the words "otherwise than in the custody of the police beyond the period of fifteen days" in the proviso, it has to be held that the custody after the expiry of the first fifteen days can only be judicial custody during the rest of the periods of ninety days or sixty days and that police custody if found necessary can be ordered only during the first period of fifteen days. To this extent the view taken in Dharam Pal's case. 1981 Cri LJ 1103 (sic), is correct."
The view taken by the Delhi High Court in Dharam Pal's case, 1981 Cri LJ 1103 (sic), is that "the nature 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."
This view, as seen above, was affirmed by the Supreme Court.
In the present case, the accused was arrested on 15 th Page 27 of 47 R/SCR.A/1853/2015 CAV JUDGMENT 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.
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 light at a later stage. The Bench, however, clarified that the bar did not apply if the same arrested accused was involved in some other or different case arising out of a different transaction, in which event the period of remand needs to be considered in respect to each of such cases. The impugned order of the High Court, under the circumstances, cannot be sustained."
In Devender Kumar v. State of Haryana, (2010) 3 SCC (Cri) 223, it has been held as follows :
Page 28 of 47 R/SCR.A/1853/2015 CAV JUDGMENT"15. With regard to the second point which was argued by Mr. Luthra, the same was considered in depth and was settled in Anupam J.Kulkarni, (1992 Cri LJ 2768 : AIR 1992 SC 1768) case referred to hereinabove. What is clear is the fact that police remand can only be made during the first period of remand after arrest and production before the Magistrate, but not after the expiry of the said period.
16. Of course, we do not agree with the submissions made by Mr. Luthra that the second application for police remand is not maintainable even if made during the first 15 days' period after arrest. The said point has also been considered and decided in the above case. Within the first 15 days of arrest the Magistrate may remand the accused either to judicial custody or police custody for a given number of days, but once the period of 15 days expires, the Magistrate cannot pass orders for police remand."
It has been made clear by the Apex Court that the application seeking police custody is not maintainable after the expiry of fifteen days from the date of arrest and first remand of the accused. As contemplated under Section 167 of the Code, the Magistrate may remand the accused either to judicial custody or grant police custody for limited days if he is satisfied, but once the 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.
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 Page 29 of 47 R/SCR.A/1853/2015 CAV JUDGMENT 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 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.
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 application for police remand was not maintainable after the dismissal of the first, reference was made to a decision of this Court in CBI v. Anupam J. Kulkarni (1992) 3 SCC 141 : (AIR 1992 SC 1768) wherein the provisions of Section 167, Cr. P.C. were gone into in some detail and the very question which is now before us was also considered and it was held that within the first 15 days' period of remand, the Magistrate could direct police custody other than judicial custody, but if the investigation was not completed within the first 15 days' period of remand, no further police remand could be Page 30 of 47 R/SCR.A/1853/2015 CAV JUDGMENT made. It was emphasised that police remand would only be made during the first 15 days after arrest and production before the Magistrate and not otherwise, although, judicial remand could extend to 60 days from the date of arrest and in special cases, to within 90 days."
Counsel for the State laid great emphasis on the words 'in the whole' following the words 'fifteen days'. He said 'in the whole' meant 'total' and not 'maximum' and therefore, the fifteen days could comprise broken period spread over a larger space of time. This is an impossible construction of the sub- section because there are no words to indicate that the fifteen days may be broken and need not be continuous. Now, obviously, the fifteen days have to be counted from some starting point. The only possible starting point is the one as explained by the Supreme Court in the case of Anupam J.Kulkarni (supra) As days have to be counted consecutively without a gap, it follows that after the lapse of the next succeeding fifteen days the whole period of detention allowed by sub-section (2) is over. Detention after that period is not 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'.
Since the entire blame is sought to be thrown on the Page 31 of 47 R/SCR.A/1853/2015 CAV JUDGMENT 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.
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 of the detailed submissions made by Ld.Advocates for the parties. Ld.Advocate sought to adjourn the matter and hearing of Remand application on the ground of orders of arrest and production has been challenged before the Hon'ble High Court of Gujarat vide Special Criminal Application 3898/2014.
However the interim relief has not been granted but considering the issue pending before the Hon'ble High Court only request to adjournment stands granted.
It is required to be made clear that by next date if the Page 32 of 47 R/SCR.A/1853/2015 CAV JUDGMENT applicant would not be in position to obtain interim relief this court would proceed further in accordance with law.
Sd/-
Dt.23/9/2014 Additional Dist. & Sessions Judge, Surat."
Again on 1st October 2014, the matter was taken up for hearing and the following order was passed :
"Main matter i.e. Special Criminal Application No.3898 of 2014 is pending before this Court wherein on 23/09/2014, this Court has passed following order:
"Notice, returnable on 07th November, 2014. Mr.Alkesh N. Shah, learned Additional Public Prosecutor waives service of the respondent-State. The Investigating officer shall file his own affidavit before the returnable date.
Direct service is permitted."
In view of the aforesaid, it would be open for the applicant to seek adjournment before the trial court and the trial court shall accordingly adjourn the same beyond 07/11/2014.
Learned APP has no objection if that course is adopted.
In view of the aforesaid, present application is not entertained. Present application stands disposed of accordingly. Direct service is permitted."
Once again on 7th October 2014, an application was filed on behalf of the accused, 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 Page 33 of 47 R/SCR.A/1853/2015 CAV JUDGMENT the arrest and the production. The learned Judge adjourn the hearing again to 10th November 2014.
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 the application seeking remand would not save the situation for the prosecuting agency.
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.
Page 34 of 47 R/SCR.A/1853/2015 CAV JUDGMENTIt was argued before me very vociferously that the accused should not be permitted to take advantage of his own wrong. I find no substance worth the name in such submission. The case of Anupam J.Kulkarni (supra) was also one of taking advantage of one's own wrong. In that case also, Shri Kulkarni was successful in evading the order of remand which was passed by the Metropolitan Magistrate. After the application seeking police custody of Shri Kulkarni was allowed, and while he was being taken on the way, he pretended to be indisposed and was taken to the hospital the same evening where he remained confined on the ground of illness for a long period of time. In view of the fact that the Investigating Officer was not able to take him into the police custody all those dates he, once again, applied to the court but, that was after the expiry of the first fifteen days and such application was rejected.
It was argued before the Supreme Court by the learned Additional Solicitor General of India appearing for the CBI that a combined reading of Section 167(2) and the proviso therein made it clear that for any reason if the police custody could not be obtained during the period of first fifteen days, yet a remand to the police custody at a later stage was not precluded and what all that was required was that such police custody in the whole should not exceed fifteen days. Some instances were quoted before the Supreme Court to make good such submission. The Supreme Court, negativing such submission, made the following observations, which I may quote herein below :
Page 35 of 47 R/SCR.A/1853/2015 CAV JUDGMENT"6. The learned Additional Solicitor General appearing for the C.B.I. contended that a combined reading of Section 167(2) and the proviso therein would make it clear 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 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 period of fifteen days mentioned in Section 167(2) of the Code and that after fifteen days the accused could only be kept in judicial custody or any other custody as ordered by the magistrate but not in the custody of the police. In arriving at this conclusion the Division Bench sought support on an earlier decision in State v. Mehar Chand, (1969) 5 Delhi Law Times 179. In that case the accused had been arrested for an offence of kidnapping and after the expiry of the first period of Page 36 of 47 R/SCR.A/1853/2015 CAV JUDGMENT fifteen days the accused was in judicial custody under Section 344, Cr. P.C. (old Code). At that stage the police found on investigation that an offence of murder also was prima facie made out against the said accused. Then the question arose whether the said accused who was in judicial custody should be sent to the police custody on the basis of the discovery that there was an aggravated offence. The magistrate refused to permit the accused to be put in police custody. The same was questioned before the High Court. Hardy, J. held that an accused who is in magisterial custody in one case can be allowed to be remanded to police custody in other case and on the same rule he can be remanded to police custody at a subsequent stage of investigation in the same case when the information discloses his complicity in more serious offences and that on principle, there is no difference at all between the two types of cases. The learned Judge further stated as under (1982 Cri LJ 1103, para 8):
"I see no insuperable difficulty in the way of the police arresting the accused for the second time for the offence for which he is now wanted by them. The accused being already in magisterial 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 Page 37 of 47 R/SCR.A/1853/2015 CAV JUDGMENT 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 exceeding fifteen days in the whole" would clearly indicate that those fifteen days begin to run immediately after the accused is produced before the magistrate in accordance with sub-section (1) and the police custody cannot be granted after the lapse of the "first fifteen days". In State of Kerala v. Sadanadan, 1984 Ker LT 747: (1984 Cri LJ 1823) a single Judge of the Kerala High Court held that the initial detention of the accused by the magistrate can be only for fifteen days in the whole and it may be either police custody or judicial custody and during the period the magistrate has jurisdiction to convert judicial custody to police custody and vice versa and the maximum period under which the accused can be so detained is only fifteen days and that after the expiry of fifteen days the proviso comes into operation which expressly refers to police custody and enjoins that there shall be no police custody and judicial custody alone is possible when power is exercised under the proviso. The learned single Judge stated that in the case before him the accused has already been in police custody for fifteen days and therefore he could not be remanded to police custody either under Section 167 or Section 309, Cr. P.C.
7. The learned Additional Solicitor General submitted that the observations made by Hardy, J. in Mehar Chand's case, (1969 (5) Delhi LT 179), would indicate that during the investigation of the same case in which the accused is arrested and is already in custody if more offences Page 38 of 47 R/SCR.A/1853/2015 CAV JUDGMENT committed in the same case come to light there should be no bar to turn over the accused to police custody even after the first period of 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 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 words "15 days in the whole occurring in sub-section (2)of Section 167 would be tantamount to a period of "15 days at a time" but subject to the condition that if the accused is to be remanded to police custody the remand should be for such Page 39 of 47 R/SCR.A/1853/2015 CAV JUDGMENT period as is commensurate with the requirements of a case with provision for further extensions for restricted periods, if need be, but in no case should the total period of remand to police custody exceed 15 days. Where an accused is placed in police custody for the maximum period of 15 days allowed under law either pursuant to a single order of remand or to more than one order, when the remand is restricted on each occasion to a lesser number of days, further detention of the accused, if warranted, has to be necessarily to Judicial custody and not otherwise. The legislature having provided for an accused being placed under police custody under orders of remand for effective investigation of cases has at the same time taken care to see that the interests of the accused are not jeopardised by his being placed under police custody beyond a total period of 15 days, under any circumstances, irrespective of the gravity of the offence or the serious nature of the case."
These observations make it clear that if an accused is detained in police custody the maximum period during which he can be kept in such custody is only fifteen days either pursuant to a single order or more than one when such orders are for lesser number of days but on the whole such custody cannot be beyond fifteen days and the further remand to facilitate the investigation can only be by detention of the accused in judicial custody."
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 :
Page 40 of 47 R/SCR.A/1853/2015 CAV JUDGMENT"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 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 167(3) requires that the magistrate should give reasons for authorising the detention in the custody of the police. It can be thus seen that the whole scheme underlying the section is intended to limit the period of police custody. However, taking into account the difficulties which may arise in completion of the investigation of cases of serious nature the legislature added the proviso providing for further detention of the accused for a period of ninety days but in clear terms it is mentioned in the proviso that such detention could only be in the judicial custody. During this period the police are expected to complete the investigation even in serious cases. Likewise within the period of sixty days they are expected to complete the investigation in respect of other offences. The legislature however disfavoured even the prolonged judicial custody during investigation. That is why the proviso lays down that on the expiry of ninety days or sixty days the accused shall be released on bail if he is prepared to and Page 41 of 47 R/SCR.A/1853/2015 CAV JUDGMENT does furnish bail. If as contended by the learned Additional Solicitor General a further interrogation is necessary after the expiry of the period of first fifteen days there is no bar for interrogating the accused who is in judicial custody during the periods of 90 days or 60 days. We are therefore unable to accept this contention."
The two decisions relied upon by Mr.Amin, the learned Public Prosecutor of this Court are of no avail to the State. In the case of Gopalbhai Chaturbhai Amin (supra), the accused was produced before a learned Magistrate on 1st November 2014 and the remand was prayed 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 3 rd December 2014 granting remand was in accordance with law.
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, Page 42 of 47 R/SCR.A/1853/2015 CAV JUDGMENT 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.
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 same. This is quite contrary to what the law is.
There is one decision of the Supreme Court, which I must consider. I am referring to the decision in the case of Kosanapu Ramreddy v. State of A.P. and others, AIR 1994 SC 1447.
The case before the Supreme Court was one under the Terrorists and Disruptive Activities (Prevention) Act, 1987. In that case, the accused was produced before the Magistrate and was ordered to judicial custody. Thereafter, an application was filed before the Designated Court for police custody for the purposes of investigation. The impugned order made by the Designated Court was well within the period of 60 days - Section 20 of the TADA Act, 1987 prescribed the period of 15 days referred to in sub-section (2) of Section 167 of the Code of Criminal Procedure, into 60 days. In short, the period of 60 Page 43 of 47 R/SCR.A/1853/2015 CAV JUDGMENT days had not expired. It appears that the order was challenged by the accused before the Supreme Court and the Supreme Court initially stayed the order of police custody. Obviously, when the Supreme Court took up the matter for hearing, the period of 60 days had expired. It appears, although the contention has not been recorded in the judgment, that it was submitted on behalf of the accused that as the first 60 days' period had expired, there was no question of now remanding the accused to the police custody. The Supreme Court negatived the contention taking the view that the circumstances of the order being subsequently stayed and that during the period of such stay the 60 days' period had ran out, would not affect the validity and efficacy of the order granting 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 Disruptive Activities (Prevention) Act, 1987 enlarges the period of 15 days referred to in Sub-section (2) of Page 44 of 47 R/SCR.A/1853/2015 CAV JUDGMENT 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."
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 time his challenge is considered by the Court if the initial period of fifteen days (in that case it was 60 days because of TADA) expires, then that would not put an end to the matter. If the challenge fails, then the order passed prior to the expiry of 60 days would get revived and could be given effect to. If we strictly apply the principle explained by the Supreme Court in Anupam (supra), then probably what has been observed in Kosanapu Ramreddy (supra) becomes debatable. Be that as it may, such situation had never cropped up in the present case.
In the result, this application succeeds and is hereby allowed. The impugned order dated 25th March 2015 passed by the 3rd Additional Sessions Judge, Surat, is hereby ordered to be quashed and set aside.
I am informed that the trial Court has already framed the charge and the recording of the evidence is to commence in the near future.
Page 45 of 47 R/SCR.A/1853/2015 CAV JUDGMENTHaving regard to the importance of the issue, I deem it necessary to issue the following directions to all the Judicial Magistrates, First Class and Special Courts across the State :
(1) If the Investigating Officer files any application for remand at the time when the accused is produced before the Court, then the Court shall hear and decide such application on the very same day;
(2) In the event, if the remand application is rejected, then the State shall ensure to see, if they intend to challenge such order of the Magistrate before the revisional court, that the revision application is preferably filed on the very next day, and if such application is filed by the State, then the revisional court shall hear and dispose of the same at the earliest keeping in mind the statutory time period of fifteen days, during which, the accused can be taken into police custody;
(3) In the event, if the remand application is allowed and the accused prays for stay of the operation of such order, then the Magistrate shall see to it that the right of the prosecution to pray for such remand within first fifteen days of detention is not defeated or frustrated.
The Court should be circumspect and very slow in staying the operation of the order of remand on mere asking by the accused.
(J.B.PARDIWALA, J.) Page 46 of 47 R/SCR.A/1853/2015 CAV JUDGMENT MOIN Page 47 of 47