Madras High Court
Tmt.Affiya vs The State Rep.By The Superintendent on 14 July, 2017
Author: Nooty.Ramamohana Rao
Bench: Nooty.Ramamohana Rao
In the High Court of Judicature at Madras Dated : 14.7.2017 Coram : The Honourable Mr.Justice NOOTY.RAMAMOHANA RAO and The Honourable Mr.Justice ABDUL QUDDHOSE H.C.P.No.801 of 2017 Tmt.Affiya ...Petitioner Vs 1.The State rep.by the Superintendent of Central Prison, Vellore, Vellore District. 2.The Deputy Superintendent of Police, Counterfeit Currency Wing, Egmore, Chennai-8. ...Respondents PETITION under Article 226 of The Constitution of India praying for the issuance of a Writ of Habeas Corpus directing the respondents to produce the detenu Babu (a) Shahul Hameed, S/O Raja Moideen before this Court, now confined at Central Prison, Vellore and set him at liberty. For Petitioner : Mr.R.Sankarasubbu For Respondents : Mr.Rajarathinam, Public Prosecutor assisted by Mr.R.Ravichandran, GA (Crl.Side) ORDER
(Order of the Court was made by NOOTY.RAMAMOHANA RAO,J) This Habeas Corpus Petition is filed seeking for production of the detenu, by name, Babu @ Shahul Hameed, S/O Kaja Moideen and to set him at liberty.
2. It is the case of the petitioner that her husband, by name, Babu @ Shahul Hameed, has been taken into custody by the second respondent/ Deputy Superintendent of Police, Counterfeit Currency Wing, Egmore, Chennai, on 03.6.2014 at 22.30 hours, in connection with a criminal case booked against him. It is her specific case that the said criminal case in Criminal Case No.49 of 2014 is still pending on the file of the Special Court for Unlawful Activities Act,1967-cum-V Additional Sessions Judge, Chennai. It is also her case that no progress in the case is made, that so far, only one witness, namely, P.W.1 has been examined and that since nearly 40 witnesses have been cited, there is no possibility of the trial getting completed in quick time. Therefore, the prolonged custody of the detenu should be considered and treated as illegal and breach of the fundamental right guaranteed to the detenu under Article 21 of The Constitution.
3. It is more specifically urged that the detenu was not produced before the Special Court on 09.5.2017 and hence, the custody of the detenu beyond 09.5.2017 is illegal, unjust and violative of Article 21 of The Constitution. It is the case of the writ petitioner that she drew an appropriate representation on 15.5.2017 and submitted the same to the State Government, but there is no response thereto.
4. Sri R.Sankarasubbu, learned counsel for the petitioner would submit that the detenu has been remanded as long back as 03.6.2014 and the offences, which have been booked against him, are all bailable offences, but yet, no consideration whatsoever has been shown for enlarging him on bail. According to him, no efforts are also made by the State to prosecute the detenu promptly and expeditiously and hence, as the Fundamental Right guaranteed for speedy trial being a facet of Article 21 of The Constitution, the detention of the individual has become bad and unsustainable. It is also further contended by the learned counsel that the detenu has not been physically produced before the Court on 09.5.2017 and, as such, the detention of the detenu on and from 09.5.2017 has become unjust and illegal. Also, he would contend that in spite of protest, the subsequent remand orders are passed and such remand orders passed subsequently will not render the detention legally valid and tenable.
5. According to the learned counsel, the Unlawful Activities (Prevention) Act requires the link to be established between the accused persons and those, who answer the description of the word 'terrorist' and in the absence of any such link, the detention becomes invalid. It is also submitted by the learned counsel that on 08.11.2016, a decision was announced treating the hitherto existing Rs.500/- and Rs.1000/- currency notes as no longer legal tender and that once this decision is given effect to, the entire allegations made against the detenu have lost the sting behind them.
6. Apart from the above, the learned counsel has also pressed for urgent consideration of the bail application of the detenu on the ground that if the substantial period of the possible sentence that can be handed down is treated as already undergone, the detenu deserves to be enlarged on bail automatically.
7. Learned counsel for the petitioner has placed strong reliance upon a judgment rendered by the Supreme Court in Ram Narayan Singh Vs. State of Delhi and Others [reported in AIR 1953 SC 277]. He has also placed reliance upon another judgment rendered by a Division Bench of the Andhra Pradesh High Court in the case of M.A.Dharman Vs. State of Andhra Pradesh [reported in 1991 (1) ALT 315].
8. Let us examine the relevant legal principles.
9. Chapter V of the Code of Criminal Procedure, 1973 contains the detailed procedure for arrest of persons. Section 41(1) authorizes any Police Officer, without an order from a Magistrate and without a warrant, to arrest any person, who commits, in the presence of a Police Officer, a cognizable offence or against whom, a reasonable complaint has been made or credible information has been received or upon a reasonable suspicion existing that he has committed a cognizable offence punishable with imprisonment for a term, which may be less than seven years or, which may extend to seven years, if the conditions specified there are satisfied.
10. The conditions being (i) that the Police Officer has reason to believe that such a person has committed the offence; (ii) that the Police Officer is satisfied that such arrest is necessary to prevent such person from committing any further offence or for proper investigation of the offence or (iii) to prevent such person from causing the evidence of the offence to disappear or tamper with such evidence in any manner or (iv) to prevent such person from making any inducement, threat or promise to any person acquainted with the facts of the case so as to dissuade him from disclosing certain facts to the court or the Police Officer or (v) unless such person is arrested, his presence in the court, whenever required, cannot be ensured.
11. The safety feature surrounding this exercise is the requirement to record reasons in writing for making such arrest. Similarly, a person can be arrested without an order from the Magistrate or without a warrant, if against such person credible information has been received that he has committed a cognizable offence punishable with imprisonment for a term, which may extend to more than seven years or with a death sentence and the Police Officer has reason to believe on the basis of the information received that such person has committed such offence.
12. A person, who has been proclaimed as an offender under the Code of Criminal Procedure or by an order of the State Government or in whose possession anything is found, which may reasonably be suspected to be a stolen property and he may reasonably be suspected of having committed an offence with reference to such a thing or who obstructs a Police Officer in execution of his duty or who has escaped or attempted to escape from lawful custody or who has reasonably suspected of being a deserter from any of the Armed Forces of the Union or a person, who is suspected to have committed an act at any place out of India, which, if committed in India, would have been punishable as an offence and for which he is, under any law relating to extradition or otherwise, likely to be apprehended or detained in custody in India or a person, who being a released convict, commits breach of any rule made under Sub-Section (5) of Section 356 or a person, for whose arrest, a requisition has been received from another Police Officer provided the requisition specifies the person to be arrested and the offence or other cause, for which, the arrest would be made and from that information, the person might lawfully be arrested without a warrant by the officer, who issued the requisition. Sub-Section (2) of Section 41 makes it very clear that no person concerned in a non cognizable offence shall be arrested except under a warrant or order of a Magistrate.
13. Section 41-A, which was inserted by the Code of Criminal Procedure (Amendment) Act, 2008 and which was brought into force with effect from 01.11.2010, makes it further clear that the Police Officer shall, in all cases where the arrest of person is not required under the provisions of Sub-Section (1) of Section 41, issue a notice directing the person, against whom and who is suspected to have committed a cognizable offence, to appear before him and where such a notice is issued to any person, it shall be the duty of that person to comply with the terms of that notice and where such person complies and continues to comply with the notice, he shall not be arrested in respect of the offence referred to in the notice, unless, for reasons to be recorded, the Police Officer is of the opinion that he ought to be arrested.
14. Section 41-B prescribes the procedure of arrest and duties of the officer making arrest. The important duty thrust upon the Officer making the arrest is to prepare a memorandum of arrest, which shall be attested by at least one witness, who is a member of the family of the person arrested or a respectable member of the locality where the arrest is made and countersigned by the person arrested and further inform the person arrested that he has a right to have a relative or a friend named by him to be informed of his arrest, unless the memorandum is attested by a member of his family.
15. Section 50(2) requires the Police Officer arresting a person accused of a non bailable offence that he is entitled to be released on bail and that he may arrange for sureties on his behalf. Section 50A thrust an obligation on the person making arrest to inform about the arrest to a person nominated by the arrested person. An entry of the fact of passing of information shall be made in a book kept in the police station in such form as may be prescribed in this behalf by the State Government. Further, under Sub-Section (4), a duty is also cast on the Magistrate, before whom, such arrested person is produced to satisfy himself that the requirements of Sub-Section (2) and Sub-Section (3) of the said Section namely information of the rights of the arrested person have, in fact, been made known and also entry in the register about the information passed on to the relative or person nominated by the arrested person of factum of the arrest, have been complied with, in respect of such arrested person.
16. Section 57 mandates that no Police Officer shall detain in custody of 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 24 hours exclusive of the time necessary for the journey from the place of arrest to the Magistrate's Court. Thus, Section 57 of the Criminal Procedure Code makes it clear that the duration of detention in custody of a person, who has been arrested by a Police Officer without warrant to the extent possible be confined to 24 hours.
17. Section 167 deals with procedure when investigations cannot be completed in 24 hours. Since it has certain bearing upon the controversy, it is extracted herein below :
"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 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 of the accused in custody of the police under this Section unless the accused is produced before him in person for the first time and subsequently every time till the accused remains in the custody of the police, but the Magistrate may extend further detention in judicial custody on production of the accused either in person or through the medium of electronic video linkage;]
(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 Clause (b), the production of the accused person may be proved by his signature on the order authorising detention or by the order certified by the Magistrate as to production of the accused person through the medium of electronic video linkage, as the case may be.] [Provided further that in case of a woman under eighteen years of age, the detention shall be authorised to be in the custody of a remand home or recognised social institution.] [(2-A) 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 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 no 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 paragraph (a) of the proviso to Sub-Section (2):
Provided that before the expiry of the period aforesaid, the Executive Magistrate shall transmit to the nearest Judicial Magistrate the records of the case together with a copy of the entries in the diary relating to the case which was transmitted to him by the officer in charge of the police station or the police officer making the investigation, as the case may be.] (3) A Magistrate authorising under this Section detention in the custody of the police shall record his reasons for so doing.
(4) Any Magistrate other than the Chief Judicial Magistrate making such order shall forward a copy of his order, with his reasons for making it, 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."
18. To Section 167, there is a local amendment by the State of Tamil Nadu and it reads as under :
"In its application to the State of Tamil Nadu, in Section 167, in Sub-Section (2), -
(1) in the proviso, for Clause (b), substitute the following clause, namely -
'(b) no Magistrate shall authorize the detention of an accused person under this Section,-
(i) if the accused is in the custody of police, unless the accused is physically produced before him; and
(ii) if the accused is detained otherwise than in the custody of the police, unless the accused is produced before him either in person or through the media of electronic video linkage'.
(2) In the Explanation II, after the expression 'an accused person was produced', insert the expression 'in person or, as the case may be, through the media of electronic video linkage'."
19. Sub-Section (1) of Section 167 requires the Police Officer to forward to the Magistrate, the person arrested together with copies of the entries in the diary relating to the investigation of the case and Sub-Section (2) allows the Magistrate to authorize the detention of the accused in such custody as the Magistrate thinks fit for a term not exceeding 15 days in the whole. The custody, mentioned here, is the initial period of custody that can be ordered by the Magistrate and that can be police custody or judicial custody. However, specifically, the maximum period of custody of the accused that can be entrusted to the Police Officer is authorised to only 15 days. Such entrustment of custody can be at one or more than one occasion, but however, the total spell of such 'police custody' can be for a period longer than 15 days altogether.
20. It is apt to notice the principles spelt out in the case of C.B.I., Special Investigation Cell-1, New Delhi Vs. Anupam J.Kulkarni [reported in AIR 1992 SC 1768 at page 1773] as under :
"The Magistrate under this Section can authorise the detention of the accused in such custody as he thinks fit but it should not exceed fifteen days in the whole. Therefore the custody initially should not exceed fifteen days in the whole. The custody can be police custody or judicial custody as the Magistrate thinks fit. The words "such custody" and "for a term not exceeding fifteen days in the whole" are very significant. It is also well-settled now that the period of fifteen days starts running as soon as the accused is produced before the Magistrate."
21. Under the Proviso to Sub-Section (2) of Section 167, a Magistrate may authorise the detention of the accused person otherwise than in the custody of the Police Officer beyond the period of 15 days, if he is satisfied that adequate grounds exist for doing so. Even in such cases, the period of detention shall not exceed 90 days where the investigation relates to an offence punishable with death or imprisonment for life or imprisonment for a term of not less than 10 years. The period of detention shall not exceed 60 days where the investigation relates to any other offence and on the expiry of such 90 days or 60 days, the accused person shall be released on bail, if he is prepared to and does furnish bail. Clause (b) under the Proviso to Sub-Section (2) of Section 167 makes it clear that no Magistrate shall authorise the detention of the accused in custody of the police unless the accused is produced before him in person for the first time and subsequently every time till the accused remains in the custody of the Police Officer whereas the extension of the custody may be granted, if the accused is in judicial custody, on production of the accused in person or through the medium of electronic video linkage.
22. This provision is relied upon heavily by the learned counsel for the petitioner to contend that the detention in custody beyond 09.5.2017 is illegal for the failure of the production of the accused person before the Magistrate on that day.
23. Before considering the effect of non production of the accused person at the time of seeking extension of custody, it is only appropriate that in the first instance, we should examine as to whether or not the Magistrate shall insist for production of the accused person before ordering for his custody.
24. Sub-Section (2) of Section 167 is the first stage, at which, the custody of the accused is required to be ordered or not, is to be considered. That was because the Police Officer, making the investigation into the alleged offence, believes that the accusation or information relating to involvement into the offence by the person arrested requires longer period of time for investigation than the initial 24 hours time, which was available to him at the time of his effecting the arrest of the accused.
25. Therefore, while forwarding the entries of the investigation diary, which may require the Magistrate to allow the custody of the person in the police custody, there are two essential precautions that are loaded in Sub-Section (2) of Section 167.
26. The first is that before authorizing the further detention of the accused in the police custody, other than the initial 24 hours time frame, the Magistrate shall not order for any such custody for a term exceeding 15 days on the whole, though such authorization of police custody can be in one or more than one span. Further, any such authorization of the custody of the accused to the police requires satisfaction to be recorded. For which purpose, it is only appropriate that the Magistrate should record reason as to why he is authorising such custody. At the stage of authorization of the custody of the accused to the police, the information laid before the Magistrate could be entirely a one sided one in as much as it is the Police Officer, who files before the Magistrate his report, what is called as the remand report together with the entries made by the Investigating Officer in the case diary. At that the Magistrate is required to indicate his mind as to why entrustment of custody of the accused to the police is considered desirable. Reasons are the only any such indication can flow.
27. The entries in the case diary at that stage may not reflect anything more than the initial steps taken for verifying the contents of the complaint or accusation made against the person, who is sought to be detained further in the police custody. But even then, it would only be appropriate that if a reason is assigned, one can reasonably be satisfied that the Magistrate authorizing the police custody has truly applied his mind to the facts and circumstances of the case and he has not mechanically ordered for the authorization of the custody. Mechanical way of authorisation of custody cannot be appreciated at all.
28. The second limb of Sub-Section (2) deals with the judicial custody. The time limit of 90 days and 60 days, as is relevant, has been spelt out thereunder. But however, like in the instant case, on every such occasion when the extension of the custody of the accused is to be ordered, whether the production of the accused is necessary or not, is required to be examined.
29. It is no doubt true that the local amendment carried out by the State Legislature of Tamil Nadu brings out very clearly a categorical distinction in between the two limbs contained in Clause (b) of Sub-Section (2) of Section 167. While in the first limb, dealing with a situation of authorization/extension of police custody, the expressions used read as under :
"unless the accused is physically produced before ".
Whereas in case of detention otherwise namely judicial custody, the expressions used are :
"unless the accused is produced before him either in person or through the medium of electronic video linkage.".
30. In other words, while authorizing or extending the police custody, the physical presence of the accused is insisted upon and there is no other mode of ensuring the presence of the accused is recognised whereas while dealing with authorization or extension of custody otherwise than the police custody namely judicial custody, the Statute has recognised, to the extent feasible, the production of the accused person before the Magistrate to be secured. If, for any reason, the production of the accused person is not feasible, an alternative mode of production through video linkage is recognised. Thus, the physical production of the accused person is not insisted upon.
31. Providing for the alternative method itself in the second limb of Clause (b) of Sub-Section (2) is a recognition, in principle, that physical production of the accused securing for grant of extension of the judicial custody is not an indispensable feature. In other words, the Magistrate is required to satisfy that the conditions required grant of extension or authorization of the detention of the accused to custody otherwise than the police custody. Once he is satisfied that such conditions do exist, then he can authorize such grant of extension of custody. But however, the production of the accused should be ensured as far as it is feasible.
32. Take for instance, extraordinary circumstances prevailing, which can cause a fair and reasonable apprehension or hardship for production of the accused before the Magistrate. Some times, the situation of physical production of the accused can turn very volatile suddenly. Consequently, physical production of the accused, in certain types of cases, may not be considered as feasible or desirable or safe. When such volatile circumstances are prevailing in the society at large, it is not difficult to imagine where the conduct of a particular accused can create a backlash reaction in the society and consequently, to avoid public fury, it may be considered unsafe to produce such an accused person for seeking extension of his custody or for authorizing his judicial custody before the learned Magistrate.
33. Similarly, there can be disturbed conditions prevailing all due to some other factors, which may be totally unconnected with the accused. Even in such circumstances, production of the accused physically may not be feasible or advisable. Further, one has to take note specifically of the law and order requirements also. There may be special occasions like in the instant case, where the police forces have been deployed in large numbers in Tiruvannamalai because of the necessity to regulate any untoward incident occurring there, when lakhs of pilgrims are likely to throng Tiruvannamalai in connection with an important festival there. With the result, large number of policemen may have to be deployed and so also the police vehicles will be pressed into service for that particular activity and it may not be really feasible to produce the accused for seeking extension of his custody on certain occasions, with very little police escort or without there being a safe transportation facility.
34. With no proper escort, if an accused is made to be produced before the Magistrate, the prospects of his giving a slip to the feeble escort party cannot be completely ruled out. Therefore, it is easy for us to notice that the provision never intended the impossibility to be performed by the party concerned. In the instant case, we, therefore, have no hesitation to hold that for valid and justifiable reasons, the accused could not have been produced on 09.5.2017 before the Magistrate concerned.
35. However, Sri.Sankarasubbu, learned counsel, placing reliance upon the decision rendered by the Supreme Court and the Division Bench of the Andhra Pradesh High Court, cited supra, urged that the further detention of the accused is wholly illegal and unauthorized.
36. It is no doubt true that the Supreme Court, in the case of Ram Narayan Singh Vs. State of Delhi [reported in AIR 1953 SC 271], held that in habeas corpus proceedings, the Court is to have regard to legality or otherwise of the detention at the time of return and not with reference to the institution of the proceedings. In that particular case, it was further observed as under :
"This Court has often reiterated before that those who feel called upon to deprive other persons of their personal liberty in the discharge of what they conceive to be their duty, must strictly and scrupulously observe the forms and rules of the law. That has not been done in this case."
37. However, a Constitution Bench of Seven Judges, in the case of Raj Narain Vs. Superintendent, Central Jail [reported in AIR 1971 SC 178], revisited the principle as to whether the failure to produce the accused at the time of securing extension of his custody would render his further custody illegal or not. Speaking for a majority of Five Judges, Chief Justice M.Hidayatullah had considered the earlier judgment of the Supreme Court rendered in Ram Narayan Singh and explained the legal principle in the following words :
"He complained of nothing except his detention which he described as illegal for the technical reason that he was not produced before the Magistrate. If he wanted bail he could have asked us as he was in our custody. There is nothing in the law which required his personal presence before the Magistrate because that is a rule of caution for Magistrates before granting remands at the instance of the police. However, even if it be desirable for the Magistrates to have the prisoner produced before them, when they recommit him to further custody, a Magistrate can act only as the circumstances permit."
38. It is, therefore, clear that while it is desirable to secure the presence of the accused at the time of granting extension, but nonetheless, his detention does not become illegal only due to his failure to be produced before the Magistrate.
39. Once again, in the case of M.Sambasiva Rao Vs. Union of India [reported in AIR 1973 SC 850], the Supreme Court reiterated the said principle as under :
"The petitioner's complaint is that he and the other accused have not been produced before a Magistrate for remand, as required by the Criminal Procedure Code, but have been kept in jails, and the remand orders have been passed in their absence, which according to the petitioner, is illegal. This contention, however, is not sustainable having regard to a Full Bench decision of Seven Judges of this Court reported in Raj Narain Vs. Superintendent, Central Jail [1971 (2) SCR 147 : AIR 1971 SC 178], which, by majority of five to two has held that the remand cannot be considered to be invalid merely because an accused has not been produced before the Magistrate."
40. In this view of the matter, the contention canvassed by Sri.R.Sankarasubbu, learned counsel that the detention of the accused becomes illegal beyond 09.5.2017 cannot be accepted.
41. It is also appropriate, in this context, to notice the views expressed by the Supreme Court, when a similar contention has been urged before it, in the case of Ramesh Kumar Singh Vs. State of Bihar [reported in 1988 SCC (Crl.) 89], the following is the record of the proceedings before the Supreme Court :
"The petitioner makes allegation in this writ petition under Article 32 of the Constitution that judicial remand is being obtained from the court where he is being tried without his being produced in the Court on the dates fixed and that this is non-compliance of the mandatory provision of the Code of Criminal Procedure. It transpired from the records that the petitioner is being prosecuted for eight separate offences, some are pending in the Court of Additional Chief Judicial Magistrate, Barh, and some in the Courts at Patna. In the counter affidavits, assertion has been made that the petitioner is being produced as and when the cases are posted in both the courts and copies of some production warrants have been filed in support of such plea. Having gone through records and after hearing counsel, we are inclined to agree with Mr.Jain that the material produced, does not support that on everyday the petitioner has been produced. We also believe that the High Court proceeded on the footing that production of the petitioner in different courts was not regularly done. We are, however, not prepared to accept Mr.Jain's contention that on account of such non-production and the detention having become illegal, the petitioner has become entitled to be released on bail at this stage."
42. However, every endeavour should be made for production of the accused before the Magistrate every time extension of judicial custody is asked for. That would surely help the Magistrate to find out as to whether the human rights guaranteed to the accused are faithfully observed or not. Further, it would also help in monitoring the progress of the investigation into the case and if the investigation is complete, final report can be filed before the court concerned under Section 173 of the Code in real quick time. That alone will fetch the necessary relief in this kind of matters.
43. The fact that the Government of India has demonetized the currency notes of 500 and 1000 denominations, does not render the act of the petitioner complained of, to have ceased to be an offence. The demonetization merely renders otherwise valid currencies invalid from the notified date. Circulation of counterfeit currency prior thereto does not cease to be an offence with effect from the date of demonetization. Hence, the contention canvassed in this regard also stands rejected.
44. It is also the plea of Sri.R.Sankarasubbu, learned counsel that at least the detenu should have been enlarged on bail. He also presses into service the detailed order passed by the Supreme Court on 03.1.2017 in Criminal Appeal Nos.11 and 12 of 2017, arising out of S.L.P.(Crl.) Nos.7947 and 7949 of 2015, which, in turn, arose of the judgment dated 10.4.2015 in Crl.A.No. 1657 of 2014 passed by the High Court of Bombay, in the case of Sagar Tatyaram Gorkhe and another Vs. State of Maharashtra. The learned Judges have adverted to an earlier order passed by the Supreme Court on 12.7.2016 in the said matter where it was recorded that the trial in that case would be completed within a period of six months.
45. But however, when the matter was taken up again on 03.1.2017, nearly after the expiry of the six months' period from 12.7.2016, the Supreme Court has been informed that only one witness has been examined at the trial and that the prosecution has proposed to examine 147 witnesses in all. It was also recorded by the Supreme Court that the accused have been in custody close to four years.
46. Sri.R.Sankarasubbu, learned counsel would submit that even in the instant case, only one witness has been examined so far and there are still 40 more witnesses to be examined and therefore, the pious hope expressed by the learned Additional Public Prosecutor that the trial would be completed in three months' time may not really materialize. It was also further urged that the detenu was in custody for the past over three years and therefore, nearly 50% of the possible sentence, that can be handed down upon conviction of the accused, has already been undergone. Therefore, the learned counsel for the writ petitioner presses hard for us to follow faithfully the order passed by the Supreme Court on 03.1.2017 in Sagar Tatyaram Gorkhe's case.
47. The Supreme Court, in near identical fact situation, considered that the matter was deserving privilege of bail. Therefore, it directed the Trial Court to take up the bail application and hear the learned Public Prosecutor in the matter and impose appropriate conditions, subject to which, the detenu can be enlarged on bail.
48. We, therefore, follow the same dictum and accordingly direct the Trial Court to immediately consider enlarging the detenu on bail after hearing the objections, if any, of the learned Public Prosecutor and then also impose appropriate and suitable conditions for enlarging the detenu on bail. We also consider it appropriate to direct the Trial Court to complete the trial as expeditiously as possible, at any rate, before 15th of November 2017 and to achieve this objective, unnecessary adjournments of the case be avoided and even if necessary, to adjourn the case, the case may be adjourned by reasonably shorter duration as is considered appropriate by the Trial Court.
49. Subject to the above observations, the above writ petition stands disposed of.
14.7.2017 Speaking Order Index : Yes Internet : Yes To
1.The Superintendent of Central Prison, Vellore, Vellore District.
2.The Deputy Superintendent of Police, Counterfeit Currency Wing, Egmore, Chennai-8.
Dixit/RS NOOTY.RAMAMOHANA RAO,J AND ABDUL QUDDHOSE,J Dixit/RS HCP.No.801 of 2017 14.7.2017