Andhra HC (Pre-Telangana)
The Public Prosecutor, High Court Of ... vs J.C. Narayana Reddy And Anr. on 19 October, 1995
Equivalent citations: 1996(1)ALD677, 1996(1)ALD(CRI)566, 1995(2)ALT(CRI)697, 1996CRILJ462, 1996(1)LS516
Author: V. Rajagopala Reddy
Bench: V. Rajagopala Reddy
ORDER
1. The State filed Crl.M.P. No. 518 of 1995 in Crime No. 24 of 1995 of Yadiki Police Station, to handover the respondents to the police custody for a period of ten days, for the purpose of interrogation. The learned Magistrate, Tadipatri, dismissed the petition by order dated 21-4-1995, which is now challenged by the State.
2. The averments stated by the petitioner are as follows :
Crime No. 24 of 1995 has been registered in Yadiki Police Station with regard to 'land maid blast mine' on 26-3-1995 in which nine persons were killed while travelling in a jeep. There were long standing bitter factions between the members of S. Narapa Reddy, one of the deceased persons and another group. Some members of either group have been murdered by the opposite group. Due to the above murderous feuds in the village, it is alleged that the attack was perpetrated by using high powered explosive. The respondents who are some of the accused in the case have directly surrendered before the Court, giving the police no opportunity to interrogate them. The application has been filed in the above circumstances. The petition was seriously contested by the respondents by filing a counter affidavit stating that suspecting danger to their lives they surrendered before the Court and if they were hand over back to the police, the police would torture them and beat them to death. The offence being not property offence where the question of seizure of property and recovery of the same at the instance of the accused might arise, their custody to police is not necessary. Considering the rival contentions and following the decision reported in C.B.I., Spl. Investigation Cell-I, New Delhi v. Anupam J. Kulakarni, 1992 SCC (Cri) 554 : (1992 Cri LJ 2768), and the decision of a single Judge of this Court in Yelamanchili Mahesh Babu v. State of A.P., 1994 Cri LJ 77 (AP), the learned Magistrate dismissed the petition holding that for the purpose of mere interrogation to extract the information from the respondents to the source of explosives used in the land mine blast, it was not necessary to handover them to the police custody. It could be done even before the Superintendent of Sub-Jail where they were detained, when there was no whisper in the petition with regard to the recovery of any material objects from the respondents. It also held that in view of the expiry of the first fifteen days of judicial remand, police custody could not be permitted in view of the decision in C.B.I., Spl. Investigation Cell-I, New Delhi v. Anupam J. Kulakarni, 1992 SCC (Cri) 554 : (1992 Cri LJ 2768). However, the learned Magistrate accorded permission to the petitioner for interrogation of the accused in the presence of the Superintendent of the Sub-Jail.
3. It is contended by the learned Public Prosecutor that the police is entitled to for the custody of the accused in the case at least for a period of fifteen days under Section 167 of Code of Criminal Procedure (for short, 'the Code') and their custody is necessary for interrogation to unearth the conspiracy behind the attack and also to trace the source from which the respondents have obtained the high powered explosives used in a landmine blast, the use of such high powered explosives being uncommon in those parts and to know the hide-outs of the absconding accused and also for recovery of weapons used in the crime. The counsel for the respondents reiterated his contentions raised before the lower Court that anticipating torture and danger to their lives they had surrendered before the Court and that there was no necessity for police custody in the light of the averments made in the petition.
4. The Supreme Court in C.B.I. Spl. Investigating Cell-I, New Delhi v. Anupam J. Kulakarni, 1992 SCC (Cri) 554 : (1992 Crl LJ 2768), has considered the question in all its legal aspects whether a person arrested and produced before the Magistrate as required under Section 167(1) of the Code, can still be remanded to the police custody after the expiry of initial period of fifteen days. It may be useful to refer to the facts in the said case. The accused was arrested on 4-10-1991 and was produced before the Magistrate on 5-10-1991. On the request of the police he was remanded to the Judicial custody till 11-10-1991. On 10-10-1991 identification parade was arranged, but, since the accused refused to co-operate, the police moved an application on 11-10-1991 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 29-10-1991. Thereafter, he was remanded to the Judicial custody by the Magistrate and sent to 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 are no other judgments of the Supreme Court on this point, observed as follows :
"Having regard to the words "in such custody as such 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 not availed earlier or for the remaining days during the rest of the periods of niney days or sixty days covered by the proviso. The decisions mentioning above do not deal with this question precisely except the judgment 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 Crl 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.
5. In the present case, the respondents surrendered before the Court on 3-4-1995. The police applied for their custody on the same day by filing impugned application. For some reason or the other, no orders could be passed within fifteen days from the date of the surrender and the impugned order was passed on 21-4-1995. It is thus, clear that the first fifteen days have been expired by the date of the order, i.e. 21-4-95. The Magistrate, therefore, rightly held that the police custody could not be granted after expiry of the first fifteen days of the surrendered of the respondents.
6. The Public Prosecutor relied upon the decisions of a single Judge of this Court in Yelamanchili Mahesh Babu v. State of Andhra Pradesh, 1994 Cri LJ 77. The accused in the case surrendered before the Magistrate on 23-4-93 and were remanded to judicial custody. Police sought their custody for interrogation for the purpose of recovery of the weapons used in the crime and the Court allowed the petition. The accused questioned that order in this Court. Learned Judge following the observations made in C.B.I. Spl. Investigation Cell-I, New Delhi v. Anupam J. Kulakarni, 1992 SCC (Cri) 554 : (1992 Cri LJ 2768), held that the Magistrate can authorise the detention of the accused either police or judicial from time to time, but the total period of such detention cannot be exceeded fifteen days, in the whole. It was also held that the Magistrate, when the accused surrendered before him without being available to the police for interrogation, is competent to grant police custody for fifteen days in all. The order of the Magistrate giving police custody for two days, was upheld. From the facts stated by the learned Judge it is not clear whether the police custody was ordered within the first fifteen days or after the expiry of the first fifteen days. In any view, this decision cannot help the petitioner in view of the authoritative pronouncement of the Supreme Court on this specific point.
7. It is next contended that the Supreme Court decision did not deal with the situation where the accused directly surrendered before the Magistrate without being available to the police for interrogation even for 24 hour. Were they arrested by the police, the police could keep them in custody for 24 hours under Section 57 of the Code. This contention has no force. Whether the accused were arrested by the police or surrendered before the Magistrate, directly, the rule laid down by the Supreme Court that the Magistrate can give custody to the police "only within the initial period of fifteen days" holds goods. The law declared is comprehensive enough to cover all situations. No distinction is permissible. The learned Magistrate has already directed that the respondent could be interrogated in the presence of the Superintendent of the Sub-Jail, where they were under detention. Hence, no further directions are warranted by this (sic) at the admission stage.
8. Order accordingly.