Gujarat High Court
Urveshbhai Baldevbhai Patel vs State Of Gujarat & 2 on 1 December, 2014
Author: J.B.Pardiwala
Bench: J.B.Pardiwala
R/SCR.A/4608/2014 CAV JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL CRIMINAL APPLICATION (QUASHING) NO. 4608 of 2014
With
SPECIAL CRIMINAL APPLICATION NO. 4609 of 2014
With
SPECIAL CRIMINAL APPLICATION NO. 3642 of 2013
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE J.B.PARDIWALA
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1 Whether Reporters of Local Papers may be allowed to see the judgment ? Yes
2 To be referred to the Reporter or not ? Yes
3 Whether their Lordships wish to see the fair copy of the judgment ? No
4 Whether this case involves a substantial question of law as to the interpretation of the No
Constitution of India, 1950 or any order made thereunder ?
5 Whether it is to be circulated to the civil judge ? - All JMFC's & Sessions Judge Yes
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URVESHBHAI BALDEVBHAI PATEL....Applicant(s)
Versus
STATE OF GUJARAT & 2....Respondent(s)
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Appearance:
MS. MANISHA LUVKUMAR SHAH, LD ADVOCATE with MR. HARDIK J JANI, ADVOCATE for the Applicant(s) No. 1
MR FB BRAHMBHATT, ADVOCATE for the Respondent(s) No. 3
MR L.R. PUJARI, ADDL.PUBLIC PROSECUTOR for the Respondent(s) No. 1
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CORAM: HONOURABLE MR.JUSTICE J.B.PARDIWALA
Date :01/12/2014
CAV JUDGMENT
1. Since the issues raised in the captioned applications are interconnected, those were heard analogously and are being disposed of by this common judgment and order.
Page 1 of 50 R/SCR.A/4608/2014 CAV JUDGMENT2. I may first consider Special Criminal Application Nos.4608 of 2014 and 4609/2014.
These applications under Article 227 of the Constitution of India are at the instance of the original first informant calling in question the legality and validity of the order dated 17 th October, 2014 passed by the learned Sessions Judge, Gandhinagar on an application filed by the respondent no.3 (original accused), for surrender before the Sessions Court.
3. The facts giving rise to these applications may be summarized as under:-
3.1 The petitioner herein lodged a private complaint in the Court of the learned Judicial Magistrate, First Class, Gandhinagar against the accused persons named therein under the offence punishable under Sections 406, 420, 465, 471, 467, 120-B r/w 34 of the Indian Penal Code. The learned JMFC thought fit to order police investigation under Sec. 156(3 of the Code of Criminal Procedure, 1973. In view of the order passed by the learned JMFC, Gandhinagar under Sec. 156(3 of the Code, the Adalaj Police Station, Gandhinagar registered the First Information Report as M. Case No.1/2013 under the offence punishable under the sections of the Indian Penal Code afore noted.
3.2 It appears that the respondent no.3, original accused persons, apprehending arrest at the hands of the police, applied for the anticipatory bail in the Court of the Sessions Judge, Gandhinagar. The learned Sessions Judge, Gandhinagar allowed the anticipatory bail applications filed by the accused Page 2 of 50 R/SCR.A/4608/2014 CAV JUDGMENT persons and ordered release on bail in the event of their arrest by the police subject to certain terms and conditions.
3.3 It appears that one of the terms and conditions imposed in the order of the anticipatory bail was that the accused persons shall present themselves before the Investigating Officer.
3.4 It appears from the materials on record that the terms and conditions on which the anticipatory bail was granted by the Sessions Court were not complied with and the accused persons absconded.
3.5 Since the accused persons failed to cooperate with the investigation and did not comply with the terms and conditions of the anticipatory bail order the petitioner herein in his capacity as the first informant filed petitions in this Court praying for the cancellation of the anticipatory bail order.
3.6 The learned Single Judge of this Court adjudicated the applications filed by the petitioner herein for cancellation of the anticipatory bail order adjudicated the same and vide order dated 17th September, 2014 allowed the applications cancelling the anticipatory bail granted by the Sessions Court in favour of the accused persons i.e. respondent no.3 in the two applications herein.
3.7 Since the subject matter of debate is with regard to the correct interpretation of the order passed by the learned Single Judge, I deem it necessary to quote the two relevant paragraphs of the said order.Page 3 of 50 R/SCR.A/4608/2014 CAV JUDGMENT
"64. In view of above facts and circumstances, Special Criminal Application nos.984 of 2014 and 2756 of 2014 and Criminal Misc. Application no.5027 of 2014 are allowed. Thereby, bail granted in favour of private respondent/s in such application/s are hereby quashed and set aside. Thereby these respondents are required to be surrendered before the Police within four weeks', without fail and to comply with the respective order of bail in their favour, without fail, within seven days. Whereas, Criminal Misc. Application no.3992 of 2014 is dismissed only on the ground that private respondents therein are ladies. However, with specific direction that they must comply with the respective bail order within their favour, within seven days, without fail, Respondent/s in all above matters are at liberty to apply afresh for their bail immediately on their surrender and the trial Court has to decide such application within five working days, without fail.
65. However, considering the fact that private respondents in all above matters are on bail for couple of months, it would be appropriate to provide sufficient time before surrender. Therefore, they have to surrender before the Sessions Court within four weeks' from the date of such judgment."
3.8 Thus, it appears that in para-64 His Lordship observed that the respondents shall surrender before the police within four weeks for the purpose of complying with the conditions of the bail order earlier granted whereas in para-65 His Lordship observed that the accused shall surrender before the Sessions Court within four weeks from the date of the judgment.
3.9 It appears that the accused persons got confused with the two paras referred to above and therefore, thought fit to file an application for clarification/modification being Misc. Criminal Application Nos.15677/2014 and 16609/2014. I may Page 4 of 50 R/SCR.A/4608/2014 CAV JUDGMENT quote the exact relief which was prayed for by the accused persons in the applications filed for clarifications/modifications.
"18. ....
(A) This Honourable Court be pleased to admit and allow this application.
(B) This Honourable Court be pleased to modify the order dated 17.9.2014 passed in Special Criminal Application No.984 of 2014 and thereby be pleased to extend the time to surrender of the applicant instead of 04 weeks it may be extended to 08 weeks and further the applicant be permitted to surrender before the trial Court and not before the police authority with further direction to Hon'ble Sessions Court to decide the bail application of the applicant within 02 days by treating the applicant in judicial custody and that too without being influenced by the order passed by this Honourable Court of cancelling anticipatory bail with direction to decide the same on merit.
Alternatively The applicant is ready and willing to surrender before this Honourable Court and treat him in judicial custody. The applicant may be enlarged on regular bail on any stringent terms and conditions.
(C) Pending admission hearing and final disposal of this application time to surrender may be extended and applicant be permitted to surrender before the Sessions Court within 08 weeks in the interest of justice.
(D) This Honourable Court be pleased to pass such other and further orders as this Honourable Court may deem fit and proper in the facts and circumstances mentioned above."
Thus, a plain reading of the clarification, which was sought by the accused persons Prima-facie would indicate Page 5 of 50 R/SCR.A/4608/2014 CAV JUDGMENT that even they had understood that they had to surrender before the Police and not before the Sessions Court. This is evident from prayer clause itself, wherein it was prayed that time to surrender be extended by eight weeks and they be permitted to surrender before the trial Court and not before the Police. If the accused were very sure of they being directed to surrender before the Sessions Judge, then they would not have prayed to modify the order.
3.10 His Lordship vide order dated 16 th October, 2014 rejected the applications observing as under :-
"1. Heard learned advocate Mr.JU.V.Vaghela and Mr.F.B.Brahmbhatt for the petitioners and perused the records.
2. Though both the petitioners are praying to extend the time to surrender before the appropriate authority against the judgment and order dated 17.9.2014, if we peruse the main application, it becomes clear and certain that these applications are not only for extension of time, but its mainly for modification of order dated 17.9.2014. The prayer 18(B) in Criminal Misc. Application No.15677 of 2014 and prayer 9(B) in Criminal Misc. Application No.16609 of 2014 specifically request to modify the judgment and order dated 17.9.2014 in respective Criminal Application numbers since the order dated 17.9.2014 is cognate order in all four applications for cancellation of bail.
3. Learned advocate Mr. Brahmbhatt is relying upon following judgments:
(1) Jatan Das v. State of West, reported in 2008 Cr.L.J. 2017 (2) Dal Chand v. State of U.P., reported in 2000 Cr.L.J. 4579 Page 6 of 50 R/SCR.A/4608/2014 CAV JUDGMENT (3) Babu Singh v. State of U.P., reported in AIR 1978 SC 527 (4) State of Punjab v. Davinder Pal Singh, reported in AIR 2012 SC 364.
4. However, all such judgments are mainly for subsequent bail application and, therefore, considering the provision of Section 362 of Code of Criminal Procedure, it is not applicable at this stage. Whereas, pursuant to provision of Section 362 of the Code of Criminal Procedure and decision of the Hon'ble Supreme Court in the case of State of Punjab v. Davinder Pal Singh, reported in AIR 2012 SC 364, this Court has no jurisdiction to enter or modify the judgment in any manner whatsoever. It is made clear in all such judgments by the Hon'ble Supreme Court that once a judgment is delivered in Criminal Matter, the Court becomes functous officio, the moment order for disposing of a case is signed and, therefore, such order cannot be altered except to the extent of correcting a clerical or arithmetical error, since there is no provision for modification of judgment. Even, the High Court to exercise its inherent power under Section 482 of Code of Criminal Procedure has no authority to alter or review the same.
5. In view of above, the present applications are dismissed."
3.11 It appears that thereafter the accused persons went straight to the Sessions Court and filed an application stating that in view of the order passed by the High Court they be permitted to surrender and their bail applications be considered appropriately.
3.12 It appears that on the very same day i.e. on 17/10/2014, the learned Sessions Judge passed a one line Page 7 of 50 R/SCR.A/4608/2014 CAV JUDGMENT order which reads thus :
"To be taken in custody and sent to prison".
3.13 It also appears that at the time of surrender both the accused simultaneously filed their respective bail applications. The bail applications were heard and rejected vide order dated 22.10.2014.
3.14 Since the Sessions Court permitted the accused persons to surrender themselves and also directed that they be sent to jail, the first informant being dissatisfied with such procedure adopted, thought fit to file these applications.
4. Submissions on behalf of the petitioner :
4.1 Ms Manisha Luvkumar Shah, the learned counsel appearing on behalf of the petitioner vehemently submitted that the accused persons thoroughly mislead the learned Sessions Judge by only quoting para-65 of the order passed by this Court while cancelling the anticipatory bail. Ms. Shah submits that it was the duty of the accused to even point-out the observations made by this Court in para-64 coupled with the fact that the accused had filed an application for clarification and the same was ordered to be rejected.
4.2 Ms. Shah submits that if the attention of the learned Sessions Judge would have been drawn to the contents of para-64 then probably the learned Sessions Judge would not have permitted the accused to surrender and forward him to Page 8 of 50 R/SCR.A/4608/2014 CAV JUDGMENT jail. Ms. Shah submits that thereby the accused frustrated the right of the police to seek remand for the purpose of custodial interrogation having regard to the serious nature of the offence.
4.3 Ms. Shah submits that even while accepting the request for surrender the learned Sessions Judge ought to have given notice to the Public Prosecutor so that the Public Prosecutor in turn could have informed the concerned I.O. Ms. Shah submits that deliberately the bail application was also not taken-up for hearing with the idea that if the first 15 days are completed in the jail then thereafter the police would not be able to seek police remand.
4.4 Ms. Shah submits that the entire procedure adopted by the learned Sessions Judge was not in accordance with law and that has caused serious prejudice so far as the investigation of the crime is concerned.
In such circumstances Ms. Shah prays that the order passed by the learned Sessions Judge accepting the surrender of the accused and forwarding them to the jail deserves to be quashed. Ms. Shah submits that either an appropriate order be passed forwarding the accused persons to the competent Court of the learned Magistrate who can thereafter pass appropriate orders under Sec. 167 of the Code or the police be permitted to seek appropriate police custody for the purpose of the custodial interrogation.
5. Submissions on behalf of the accused :-
Page 9 of 50 R/SCR.A/4608/2014 CAV JUDGMENT5.1 Mr. Falgun Brahmbhatt, the learned advocate appearing on behalf of one of the accused and Mr. A.M.Parekh, the learned advocate appearing for the other co-accused have vehemently opposed these applications. It is submitted that no error not to speak of any error of law could be said to have been committed by the learned Sessions Judge in permitting the accused persons to surrender and thereafter forwarding them to the jail. It is submitted that while cancelling the anticipatory bail order this Court very clearly observed in para- 65 that the accused persons shall surrender before the Sessions Court.
5.2 The learned counsel appearing for the accused further submitted that even otherwise the accused could have on his own voluntarily surrendered before the Sessions Judge and upon his surrender, the learned Sessions Judge could have considered his bail application on merits. To fortify such submission the learned counsel appearing for the accused persons have placed strong reliance on a very recent pronouncement of the Supreme Court in the case of Sundeep Kumar Bafna vs. State of Maharashtra - AIR 2014 SC -1745.
5.3 The learned counsel further submits that the question of legality and illegality of the surrender pales into insignificance because the learned Sessions Judge has rejected the bail application and against such order the accused have filed application for bail before this Court which is pending for consideration.
5.4 They submit that the police had also filed an application dated 3.11.2014 seeking remand before the Court of the Page 10 of 50 R/SCR.A/4608/2014 CAV JUDGMENT competent jurisdiction and the learned JMFC, rejected the prayer of the Investigating Officer to seek Police custody of the accused persons.
In such circumstances, the learned counsel appearing for the accused persons pray that there being no merit in these applications, the same be rejected.
6. Submissions on behalf of the State :
6.1 Mr. L.R. Pujari, the learned A.P.P. appearing on behalf of the State submitted that the concerned Investigating Officer made attempts to secure the custody of the accused persons for the purpose of custodial interrogation having regard to the nature of the offence. The learned APP, however, submits that he has nothing more to add so far as the aspect of the legality and validity of the surrender part is concerned. The learned APP submits that as on today the bail applications are pending before this Court and the Investigating Officer would initiate appropriate proceedings for the purpose of seeking police remand if permissible in law at this stage.
ANALYSIS:
7. Having heard the learned counsel appearing for the parties and having gone through the materials on record a very complex question falls for my consideration. The question that falls for my consideration is whether the procedure adopted by the learned Sessions Judge could be said to be in accordance with law.
8. At the outset I would like to make it clear that I do not Page 11 of 50 R/SCR.A/4608/2014 CAV JUDGMENT propose to undertake the exercise of interpreting paragraphs- 64 and 65 of the order passed by a co-ordinate Bench of this Court. I proceed on the footing that it was permissible for the accused persons to surrender themselves before the Sessions Court. However, the moot question is what procedure should have been adopted by the learned Sessions Judge after the accused persons surrendered.
9. In the case of Sundeep Kumar Bafna (Supra.) the Supreme Court explained the distinction between the provisions of Sections 437 and 439 of the Code. It appears that in that case, the appellant prayed for anticipatory bail. He failed right up to the Supreme Court. It appears that the Supreme Court had granted some time for applying for regular bail so that the appellant may not be arrested. The appellant filed an application under Sec. 439 of the Code before the High Court of Bombay stating that he was ready and willing to surrender himself and was submitting himself before the Court tobe construed as being in custody. The High Court rejected such a plea on the ground that such voluntary surrender cannot be construed as the accused being in actual custody and therefore, his application under Sec. 439 was not maintainable.
10. In the aforesaid background, the Supreme Court considered the question whether the High Court was right in refusing to permit the accused to surrender and thereafter consider his bail application under sec.439 of the Code.
11. The Supreme Court drew a fine distinction between Sec. 437 of the Code and Sec. 439 of the Code. While drawing such Page 12 of 50 R/SCR.A/4608/2014 CAV JUDGMENT distinction the Apex Court made the following observations in para-8:
"8 Some poignant particulars of Section 437 CrPC may be pinpointed. First, whilst Section 497(1) of the old Code alluded to an accused being "brought before a Court", the present provision postulates the accused being "brought before a Court other than the High Court or a Court of Session" in respect of the commission of any non-bailable offence. As observed in Gurcharan Singh V/s. State (1978) 1 SCC 118, there is no provision in the CrPC dealing with the production of an accused before the Court of Session or the High Court. But it must also be immediately noted that no provision categorically prohibits the production of an accused before either of these Courts. The Legislature could have easily enunciated, by use of exclusionary or exclusive terminology, that the superior Courts of Sessions and High Court are bereft of this jurisdiction or if they were so empowered under the Old Code now stood denuded thereof. Our understanding is in conformity with Gurcharan Singh, as perforce it must. The scheme of the CrPC plainly provides that bail will not be extended to a person accused of the commission of a non-bailable offence punishable with death or imprisonment for life, unless it is apparent to such a Court that it is incredible or beyond the realm of reasonable doubt that the accused is guilty. The enquiry of the Magistrate placed in this position would be akin to what is envisaged in State of Haryana V/s. Bhajan Lal, 1992 (Supp)1 SCC 335, that is, the alleged complicity of the accused should, on the factual matrix then presented or prevailing, lead to the overwhelming, incontrovertible and clear conclusion of his innocence. The Cr.PC severely curtails the powers of the Magistrate while leaving that of the Court of Session and the High Court untouched and unfettered. It appears to us that this is the only logical conclusion that can be arrived at on a conjoint consideration of Sections 437 and 439 of the CrPC. Obviously, in order to complete the picture so far as concerns the powers and limitations thereto of the Court of Session and the High Court, Section 439 would have to be carefully considered. And when this is done, it will at once be evident that the Cr.PC has placed an embargo against granting relief to an accused, (couched by us in the negative), if he is not Page 13 of 50 R/SCR.A/4608/2014 CAV JUDGMENT in custody. It seems to us that any persisting ambivalence or doubt stands dispelled by the proviso to this Section, which mandates only that the Public Prosecutor should be put on notice. We have not found any provision in the Cr.PC or elsewhere, nor have any been brought to our ken, curtailing the power of either of the superior Courts to entertain and decide pleas for bail. Furthermore, it is incongruent that in the face of the Magistrate being virtually disempowered to grant bail in the event of detention or arrest without warrant of any person accused of or suspected of the commission of any non-bailable offence punishable by death or imprisonment for life, no Court is enabled to extend him succour. Like the science of physics, law also abhors the existence of a vacuum, as is adequately adumbrated by the common law maxim, viz. where there is a right there is a remedy . The universal right of personal liberty emblazened by Article 21 of our Constitution, being fundamental to the very existence of not only to a citizen of India but to every person, cannot be trifled with merely on a presumptive plane. We should also keep in perspective the fact that Parliament has carried out amendments to this pandect comprising Sections 437 to 439, and, therefore, predicates on the well established principles of interpretation of statutes that what is not plainly evident from their reading, was never intended to be incorporated into law. Some salient features of these provisions are that whilst Section 437 contemplates that a person has to be accused or suspect of a non-bailable offence and consequently arrested or detained without warrant, Section 439 empowers the Session Court or High Court to grant bail if such a person is in custody. The difference of language manifests the sublime differentiation in the two provisions, and, therefore, there is no justification in giving the word custody the same or closely similar meaning and content as arrest or detention. Furthermore, while Section 437 severally curtails the power of the Magistrate to grant bail in context of the commission of non-bailable offences punishable with death or imprisonment for life, the two higher Courts have only the procedural requirement of giving notice of the Bail application to the Public Prosecutor, which requirement is also ignorable if circumstances so demand. The regimes regulating the powers of the Magistrate on the one hand and the two superior Courts are decidedly and intentionally not Page 14 of 50 R/SCR.A/4608/2014 CAV JUDGMENT identical, but vitally and drastically dissimilar. Indeed, the only complicity that can be contemplated is the conundrum of Committal of cases to the Court of Session because of a possible hiatus created by the Cr. PC. "
12. It appears that the Apex Court took the view that the wordings in Sec. 437 were quite different from the wordings contained in the section 439. Section 437 of the Code speaks of any person accused of, or suspected of, the commission of any non-bailable offence or is arrested or detained without warrant by an Officer In-charge of the police station, whereas on the other hand the Sec. 439 speaks of any person accused of an offence and in custody.
13. The Supreme Court thereafter proceeded to consider the meaning of "custody". While explaining the meaning of the term custody the Supreme Court made the following observations in paras-9, 10, 11 and 12.
Meaning of Custody:
9 Unfortunately, the terms custody , detention or arrest have not been defined in the CrPC, and we must resort to few dictionaries to appreciate their contours in ordinary and legal parlance. The Oxford Dictionary (online) defines custody as imprisonment, detention, confinement, incarceration, internment, captivity; remand, duress, and durance. The Cambridge Dictionary (online) explains custody as the state of being kept in prison, especially while waiting to go to court for trial. Longman Dictionary (online) defines custody as when someone is kept in prison until they go to court, because the police think they have committed a crime . Chambers Dictionary (online) clarifies that custody is the condition of being held by the police; arrest or imprisonment; to take someone into custody to arrest them . Chambers Thesaurus supplies several synonyms, such as detention, confinement, imprisonment, captivity, arrest, formal Page 15 of 50 R/SCR.A/4608/2014 CAV JUDGMENT incarceration. The Collins Cobuild English Dictionary for Advance Learners states in terms of that someone who is in custody or has been taken into custody or has been arrested and is being kept in prison until they get tried in a court or if someone is being held in a particular type of custody, they are being kept in a place that is similar to a prison. The Shorter Oxford English Dictionary postulates the presence of confinement, imprisonment, durance and this feature is totally absent in the factual matrix before us. The Corpus Juris Secundum under the topic of Escape & Related Offenses; Rescue adumbrates that Custody, within the meaning of statutes defining the crime, consists of the detention or restraint of a person against his or her will, or of the exercise of control over another to confine the other person within certain physical limits or a restriction of ability or freedom of movement. This is how Custody is dealt with in Black s Law Dictionary, (9th ed. 2009):-
"Custody- The care and control of a thing or person. The keeping, guarding, care, watch, inspection, preservation or security of a thing, carrying with it the idea of the thing being within the immediate personal care and control of the person to whose custody it is subjected. Immediate charge and control, and not the final, absolute control of ownership, implying responsibility for the protection and preservation of the thing in custody. Also the detainer of a man s person by virtue of lawful process or authority. The term is very elastic and may mean actual imprisonment or physical detention or mere power, legal or physical, of imprisoning or of taking manual possession. Term "custody" within statute requiring that petitioner be "in custody" to be entitled to federal habeas corpus relief does not necessarily mean actual physical detention in jail or prison but rather is synonymous with restraint of liberty. U. S. ex rel. Wirtz V/s. Sheehan, D.C.Wis, 319 F.Supp. 146, 147. Accordingly, persons on probation or released on own recognizance have been held to be "in custody" for purposes of habeas corpus proceedings."
10 A perusal of the dictionaries thus discloses that the concept that is created is the controlling of a person s Page 16 of 50 R/SCR.A/4608/2014 CAV JUDGMENT liberty in the course of a criminal investigation, or curtailing in a substantial or significant manner a person s freedom of action. Our attention has been drawn, in the course of Rejoinder arguments to the judgment of the Full Bench of the High Court of Madras in Roshan Beevi V/s. Joint Secretary 1984(15) ELT 289 (Mad), as also to the decision of the Court in Directorate of Enforcement V/s. Deepak Mahajan (1994) 3 SCC 440; in view of the composition of both the Benches, reference to the former is otiose. Had we been called upon to peruse Deepak Mahajan earlier, we may not have considered it necessary to undertake a study of several Dictionaries, since it is a convenient and comprehensive compendium on the meaning of arrest, detention and custody.
11 Courts in Australia, Canada, U.K. and U.S. have predicated in great measure, their decisions on paragraph 99 from Vol. II Halsbury s Laws of England (4th Edition) which states that "Arrest consists of the actual seizure or touching of a person s body with a view to his detention. The mere pronouncing of words of arrest is not an arrest, unless the person sought to be arrested submits to the process and goes with the arresting officer". The US Supreme Court has been called upon to explicate the concept of custody on a number of occasions, where, coincidentally, the plea that was proffered was the failure of the police to administer the Miranda caution, i.e. of apprising the detainee of his Constitutional rights. In Miranda V/s. Arizona 384 US 436 (1966), custodial interrogation has been said to mean "questioning initiated by law enforcement officers after a person has been taken into custody or otherwise deprived of his freedom of action in any significant way". In Minnesota V/s. Murphy 465 US 420 (1984), it was opined by the U.S. Supreme Court that since "no formal arrest or restraint on freedom of movement of the degree associated with formal arrest" had transpired, the Miranda doctrine had not become operative. In R. V/s. Whitfield 1969 CareswellOnt 138, the Supreme Court of Canada was called upon to decide whether the police officer, who directed the accused therein to stop the car and while seizing him by the shirt said "you are under arrest:", could be said to have been "custodially arrested"
when the accused managed to sped away. The plurality of the Supreme Court declined to draw any distinction Page 17 of 50 R/SCR.A/4608/2014 CAV JUDGMENT between an arrest amounting to custody and a mere or bare arrest and held that the accused was not arrested and thus could not have been guilty of "escaping from lawful custody". More recently, the Supreme Court of Canada has clarified in R. V/s. Suberu [2009] S.C.J. No.33 that detention transpired only upon the interaction having the consequence of a significant deprivation of liberty. Further, in Berkemer V/s. Mc-Carty 468 U.S. 420 (1984), a roadside questioning of a motorist detained pursuant to a routine traffic stop was not seen as analogous to custodial interrogation requiring adherence to Miranda rules.
12 It appears to us from the above analysis that custody, detention and arrest are sequentially cognate concepts. On the occurrence of a crime, the police is likely to carry out the investigative interrogation of a person, in the course of which the liberty of that individual is not impaired, suspects are then preferred by the police to undergo custodial interrogation during which their liberty is impeded and encroached upon. If grave suspicion against a suspect emerges, he may be detained in which event his liberty is seriously impaired. Where the investigative agency is of the opinion that the detainee or person in custody is guilty of the commission of a crime, he is charged of it and thereupon arrested. In Roshan Beevi, the Full Bench of the High Court of Madras, speaking through S. Ratnavel Pandian J, held that the terms custody and arrest are not synonymous even though in every arrest there is a deprivation of liberty is custody but not vice versa. This thesis is reiterated by Pandian J in Deepak Mahajan by deriving support from Niranjan Singh V/s. Prabhakar Rajaram Kharote (1980) 2 SCC 559. The following passages from Deepak Mahajan are worthy of extraction:-
"48. Thus the Code gives power of arrest not only to a police officer and a Magistrate but also under certain circumstances or given situations to private persons. Further, when an accused person appears before a Magistrate or surrenders voluntarily, the Magistrate is empowered to take that accused person into custody and deal with him according to law. Needless to emphasize that the arrest of a person is a condition precedent for taking him into judicial custody thereof. To put it differently, the Page 18 of 50 R/SCR.A/4608/2014 CAV JUDGMENT taking of the person into judicial custody is followed after the arrest of the person concerned by the Magistrate on appearance or surrender. It will be appropriate, at this stage, to note that in every arrest, there is custody but not vice versa and that both the words custody and arrest are not synonymous terms. Though custody may amount to an arrest in certain circumstances but not under all circumstances. If these two terms are interpreted as synonymous, it is nothing but an ultra legalist interpretation which if under all circumstances accepted and adopted, would lead to a startling anomaly resulting in serious consequences, vide Roshan Beevi.
49. While interpreting the expression in custody within the meaning of Section 439 Cr.PC, Krishna Iyer, J. speaking for the Bench in Niranjan Singh V/s. Prabhakar Rajaram Kharote observed that: (SCC p. 563, para 9) "He can be in custody not merely when the police arrests him, produces him before a Magistrate and gets a remand to judicial or other custody. He can be stated to be in judicial custody when he surrenders before the court and submits to its directions." (emphasis added) If the third sentence of para 48 is discordant to Niranjan Singh, the view of the coordinate Bench of earlier vintage must prevail, and this discipline demands and constrains us also to adhere to Niranjan Singh; ergo, we reiterate that a person is in custody no sooner he surrenders before the police or before the appropriate Court. This enunciation of the law is also available in three decisions in which Arijit Pasayat J spoke for the 2-Judge Benches, namely (a) Nirmal Jeet Kaur V/s. State of M.P. (2004) 7 SCC 558 and (b) Sunita Devi V/s. State of Bihar (2005) 1 SCC 608, and (c) Adri Dharan Das V/s. State of West Bengal, (2005) 4 SCC 303, where the Co-equal Bench has opined that since an accused has to be present in Court on the moving of a bail petition under Section 437, his physical appearance before the Magistrate tantamounts to surrender. The view of Niranjan Singh (see extracted para 49 infra) has been followed in State of Haryana V/s. Dinesh Kumar (2008) 3 SCC 222. We can only fervently Page 19 of 50 R/SCR.A/4608/2014 CAV JUDGMENT hope that member of Bar will desist from citing several cases when all that is required for their purposes is to draw attention to the precedent that holds the field, which in the case in hand, we reiterate is Niranjan Singh. Rule of Precedent & Per Incuriam:
14. The Supreme Court thereafter considered the well celebrated judgment in the case of Niranjan Singh vs. Prabhakar Rajaram Kharote - AIR 1980 SC -785. The following observations made in Para-16, 17, 18, 19 are relevant and are quoted herein below :
16. We must now discuss in detail the decision of a Two-
Judge Bench in Rashmi Rekha Thatoi V/s. State of Orissa, (2012) 5 SCC 690, for the reason that in the impugned Order the Single Judge of the High Court has proclaimed, which word we used intentionally, that Niranjan Singh is per incuriam. The chronology of cases mentioned in Rashmi Rekha elucidates that there is only one judgment anterior to Niranjan Singh, namely, Balchand Jain V/s. State of M.P. (1976) 4 SCC 572, which along with the Constitution Bench decision in Gurbaksh Singh Sibbia, intrinsically concerned itself only with anticipatory bail. It is necessary to give a salutary clarion caution to all Courts, including High Courts, to be extremely careful and circumspect in concluding a judgment of the Supreme Court to be per incuriam. In the present case, in the impugned Order the learned Single Judge appears to have blindly followed the incorrect and certainly misleading editorial note in the Supreme Court Reports without taking the trouble of conscientiously apprising himself of the context in which Rashmi Rekha appears to hold Niranjan Singh per incuriam, and equally importantly, to which previous judgment. An earlier judgment cannot possibly be seen as per incuriam a later judgment as the latter if numerically stronger only then it would overrule the former. Rashmi Rekha dealt with anticipatory bail under Section 438 and only tangentially with Sections 437 and 439 of the CrPC, and while deliberations and observations found in this clutch of cases may not be circumscribed by the term obiter dicta, it must concede to any judgment directly on point. In the Page 20 of 50 R/SCR.A/4608/2014 CAV JUDGMENT factual matrix before us, Niranjan Singh is the precedent of relevance and not Gurbaksh Singh Sibbia or any other decision where the scope and sweep of anticipatory bail was at the fulcrum of the conundrum.
17 Recently, in Dinesh Kumar, this conundrum came to be considered again. This Court adhered to the Niranjan Singh dicta (as it was bound to do), viz. that a person can be stated to be in judicial custody when he surrendered before the Court and submits to its directions. We further regretfully observe that the impugned Judgment is repugnant to the analysis carried out by two coordinate Benches of the High Court of Bombay itself, which were duly cited on behalf of the Appellant. The first one is reported as Balkrishna Dhondu Rani V/s. Manik Motiram Jagtap 2005 (Supp.) Bom C.R.(Cri) 270 which applied Niranjan Singh; the second is by a different Single Bench, which correctly applied the first. In the common law system, the purpose of precedents is to impart predictability to law, regrettably the judicial indiscipline displayed in the impugned Judgment, defeats it. If the learned Single Judge who had authored the impugned Judgment irrepressibly held divergent opinion and found it unpalatable, all that he could have done was to draft a reference to the Hon ble Chief Justice for the purpose of constituting a larger Bench; whether or not to accede to this request remains within the discretion of the Chief Justice. However, in the case in hand, this avenue could also not have been traversed since Niranjan Singh binds not only Co-equal Benches of the Supreme Court but certainly every Bench of any High Court of India. Far from being per incuriam, Niranjan Singh has metamorphosed into the structure of stare decisis, owing to it having endured over two score years of consideration, leading to the position that even Larger Benches of this Court should hesitate to remodel its ratio.
18 It will also be germane to briefly cogitate on the fasciculous captioned "Section 438 of the Code of Civil Procedure, as amended by the Code of Criminal Procedure (Amendment) Act, 2005 of the 203rd Report of the Law Commission. Although, the Law Commission was principally focused on the parameters of anticipatory bail, it had reflected on Niranjan Singh, and, thereafter, observed in paragraph 6.3.23 that "where a person Page 21 of 50 R/SCR.A/4608/2014 CAV JUDGMENT appears before the Court in compliance with any Court s order and surrenders himself to the Court s directions or control, he may be granted regular bail, since he is already under restraint. The provisions relating to the anticipatory bail may not be attracted in such a case". An amendment was proposed to the provisions vide CrPC (Amendment) Act, 2005 making the presence of the applicant seeking anticipatory bail obligatory at the time of final hearing of the application for enlargement on bail. The said amendment has not been notified yet and kept in abeyance because of two reasons. Firstly, the amendment led to widespread agitation by the lawyers fraternity since it would virtually enable the police to immediately arrest an accused in the event the Court declined to enlarge the accused on bail. Secondly, in the perception of the Law Commission, it would defeat the very purpose of the anticipatory bail. The conclusion of the Law Commission, in almost identical words to those extracted above are that: "when the applicant appears in the Court in compliance of the Court s order and is subjected to the Courts directions, he may be viewed as in Court s custody and this may render the relief of anticipatory bail infructuous". Accordingly, the Law Commission has recommended omission of sub-section (1- B) of Section 438 CrPC.
19 The Appellant had relied on Niranjan Singh V/s. Prabhakar Rajaram Kharote (1980) 2 SCC 559, before the High Court as well as before us. A perusal of the impugned Order discloses that the learned Single Judge was of the mistaken opinion that Niranjan Singh was per incuriam, possibly because of an editorial error in the reporting of the later judgment in Rashmi Rekha Thatoi V/s. State of Orissa (2012) 5 SCC 690. In the latter decision the curial assault was to the refusal to grant of anticipatory bail under Section 438(1) CrPC, yet nevertheless enabling him to surrender before the Sub Divisional Magistrate and thereupon to be released on bail. In the appeal in hand this issue is not in focus; the kernel of the conundrum before us is the meaning to be ascribed to the concept of custody in Section 439 CrPC, and a careful scrutiny of Rashmi Rekha will disclose that it does not even purport to or tangentially intend to declare Niranjan Singh as per incuriam. Any remaining doubt would be dispelled on a perusal of Ranjit Singh V/s. State of M.P., where our esteemed Brother Dipak Misra Page 22 of 50 R/SCR.A/4608/2014 CAV JUDGMENT has clarified that Rashmi Rekha concerned itself only with anticipatory bail. The impugned Order had therefore to remain in complete consonance with Niranjan Singh. It needs to be clarified that paragraph 14 of Sunita Devi V/s. State of Bihar (2005) 1 SCC 608, extracts verbatim paragraph 7 of Niranjan Singh, without mentioning so. The annals of the litigation in Niranjan Singh are that pursuant to a private complaint under Section 202 CrPC, the concerned Magistrate issued non-bailable warrants in respect of the accused, and subsequently while refusing bail to them had neglected to contemporaneously cause them to be taken into custody. In that interregnum or hiatus, the accused moved the Sessions Court which granted them bail albeit on certain terms which the High Court did not interfere therewith. This Court, speaking through Krishna Iyer J elucidated the law in these paragraphs:
"6. Here the respondents were accused of offences but were not in custody, argues the petitioner so no bail, since this basic condition of being in jail is not fulfilled. This submission has been rightly rejected by the courts below. We agree that, in one view, an outlaw cannot ask for the benefit of law and he who flees justice cannot claim justice. But here the position is different. The accused were not absconding but had appeared and surrendered before the Sessions Judge. Judicial jurisdiction arises only when persons are already in custody and seek the process of the court to be enlarged. We agree that no person accused of an offence can move the court for bail under Section 439 CrPC unless he is in custody.
7. When is a person in custody, within the meaning of Section 439 Cr.PC? When he is in duress either because he is held by the investigating agency or other police or allied authority or is under the control of the court having been remanded by judicial order, or having offered himself to the court s jurisdiction and submitted to its orders by physical presence. No lexical dexterity nor precedential profusion is needed to come to the realistic conclusion that he who is under the control of the court or is in the physical hold of an officer with coercive power is in custody for the purpose of Page 23 of 50 R/SCR.A/4608/2014 CAV JUDGMENT Section 439. This word is of elastic semantics but its core meaning is that the law has taken control of the person. The equivocatory quibblings and hide- and-seek niceties sometimes heard in court that the police have taken a man into informal custody but not arrested him, have detained him for interrogation but not taken him into formal custody and other like terminological dubieties are unfair evasions of the straightforwardness of the law. We need not dilate on this shady facet here because we are satisfied that the accused did physically submit before the Sessions Judge and the jurisdiction to grant bail thus arose.
8. Custody, in the context of Section 439, (we are not, be it noted, dealing with anticipatory bail under Section 438) is physical control or at least physical presence of the accused in court coupled with submission to the jurisdiction and orders of the court.
9. He can be in custody not merely when the police arrests him, produces him before a Magistrate and gets a remand to judicial or other custody. He can be stated to be in judicial custody when he surrenders before the court and submits to its directions. In the present case, the police officers applied for bail before a Magistrate who refused bail and still the accused, without surrendering before the Magistrate, obtained an order for stay to move the Sessions Court. This direction of the Magistrate was wholly irregular and maybe, enabled the accused persons to circumvent the principle of Section 439 CrPC. We might have taken a serious view of such a course, indifferent to mandatory provisions, by the subordinate magistracy but for the fact that in the present case the accused made up for it by surrender before the Sessions Court. Thus, the Sessions Court acquired jurisdiction to consider the bail application. It could have refused bail and remanded the accused to custody, but, in the circumstances and for the reasons mentioned by it, exercised its jurisdiction in favour of grant of bail. The High Court added to the conditions subject to which bail was to be granted and mentioned that the accused had submitted to the custody of the Page 24 of 50 R/SCR.A/4608/2014 CAV JUDGMENT court. We, therefore, do not proceed to upset the order on this ground. Had the circumstances been different we would have demolished the order for bail. We may frankly state that had we been left to ourselves we might not have granted bail but, sitting under Article 136, do not feel that we should interfere with a discretion exercised by the two courts below." (Emphasis added by us) It should not need belabouring that High Courts must be most careful and circumspect in concluding that a decision of a superior Court is per incuriam. And here, palpably without taking the trouble of referring to and reading the precedents alluded to, casually accepting to be correct a careless and incorrect editorial note, the Single Judge has done exactly so. All the cases considered in Rashmi Rekha including the decision of the Constitution Bench in Gurbaksh Singh Sibbia V/s. State of Punjab (1980) 2 SCC 565, concentrated on the contours and circumference of anticipatory bail, i.e. Section 438. We may reiterate that the Appellant s prayer for anticipatory bail had already been declined by this Court, which is why he had no alternative but to apply for regular bail. Before we move on we shall reproduce the following part of paragraph 19 of Sibbia as it has topicality:-
"19 ... Besides, if and when the occasion arises, it may be possible for the prosecution to claim the benefit of Section 27 of the Evidence Act in regard to a discovery of facts made in pursuance of information supplied by a person released on bail by invoking the principles stated by this Court in State of U.P. V/s. Deoman Upadhyaya to the effect that when a person not in custody approaches a police officer investigating an offence and offers to give information leading to the discovery of a fact, having a bearing on the charge which may be made against him, he may appropriately be deemed so have surrendered himself to the police. The broad foundation of this rule is stated to be that Section 46 of the Code of Criminal Procedure does not contemplate any formality before a person can be said to be taken in custody: submission to the custody by word or action by a person is sufficient. For similar reasons, we are unable to agree that anticipatory bail should be refused if a legitimate case for the remand of the offender to the police custody under Page 25 of 50 R/SCR.A/4608/2014 CAV JUDGMENT Section 167(2) of the Code is made out by the investigating agency."
15. It appears that on behalf of the State, it was vehemently submitted before the Supreme Court that the prosecution should be afforded a free and fair opportunity on subjecting the accused to custody for interrogation as provided under Sec. 167 of the Code. It was also vociferously submitted that if the accused persons were to be permitted to surrender to the High Court, the same would have a disastrous result as the accused with a view to avoid the custodial interrogation would straightway surrender before the Court and the Court would thereafter remand him to the judicial custody.
16. While repelling such a contention canvassed on behalf of the State, the Supreme Court made the following observations as contained in para-23.
"23 On behalf of the State, the submission is that the prosecution should be afforded a free and fair opportunity of subjecting the accused to custody for interrogation as provided under Section 167 Cr.PC. This power rests with the Magistrate and not with the High Court, which is the Court of Revision and Appeal; therefore, the High Court under Section 482 Cr.PC can only correct or rectify an order passed without jurisdiction by a subordinate Court. Learned State counsel submits that the High Court in exercise of powers under Section 482 can convert the nature of custody from police custody to judicial custody and vice versa, but cannot pass an Order of first remanding to custody. Therefore, the only avenue open to the accused is to appear before the Magistrate who is empowered under Section 167 CrPC. Thereupon, the Magistrate can order for police custody or judicial custody or enlarge him on bail. On behalf of the State, it is contended that if accused persons are permitted to surrender to the High Page 26 of 50 R/SCR.A/4608/2014 CAV JUDGMENT Court, it is capable of having, if not a disastrous, certainly a deleterious effect on investigations and shall open up the flood gates for accused persons to make strategies by keeping themselves away from the investigating agencies for months on end. The argument continues that in this manner absconding accused in several sensitive cases, affecting the security of the nation or the economy of the country, would take advantage of such an interpretation of law and get away from the clutches of the investigating officer. We are not impressed by the arguments articulated by learned Senior Counsel for the Complainant or informant because it is axiomatic that any infraction or inroad to the freedom of an individual is possible only by some clear unequivocal and unambiguous procedure known to law.
17. Although the submissions on behalf of the State were rejected, yet the Apex Court did not leave the matter at that stage but clarified it further explaining that even while considering the bail application of the accused on the accused surrendering before the Court, the High Court would not be powerless to pass appropriate orders for judicial or police custody. I quote Para-20 of the judgment.
20. In this analysis, the opinion in the impugned Judgment incorrectly concludes that the High Court is bereft or devoid of power to jurisdiction upon a petition which firstly pleads surrender and, thereafter, prays for bail. The High Court could have perfunctorily taken the Appellant into its custody and then proceeded with the perusal of the prayer for bail; in the event of its coming to the conclusion that sufficient grounds had not been disclosed for enlargement on bail, necessary orders for judicial or police custody could have been ordained. A Judge is expected to perform his onerous calling impervious of any public pressure that may be brought to bear on him.
18. In the final conclusion the Apex Court observed as under
as contained in paras-26 and 27.Page 27 of 50 R/SCR.A/4608/2014 CAV JUDGMENT
26. In conclusion, therefore, we are of the opinion that the learned Single Judge erred in law in holding that he was devoid of jurisdiction so far as the application presented to him by the Appellant before us was concerned. Conceptually, he could have declined to accept the prayer to surrender to the Courts custody, although, we are presently not aware of any reason for this option to be exercised. Once the prayer for surrender is accepted, the Appellant before us would come into the custody of the Court within the contemplation of Section 439 CrPC. The Sessions Court as well as the High Court, both of which exercised concurrent powers under Section 439, would then have to venture to the merits of the matter so as to decide whether the applicant/Appellant had shown sufficient reason or grounds for being enlarged on bail.
27. The impugned Order is, accordingly, set aside. The Learned Single Judge shall consider the Appellant s plea for surrendering to the Court and dependent on that decision, the Learned Single Judge shall, thereafter, consider the Appellant s plea for his being granted bail.
The Appellant shall not be arrested for a period of two weeks or till the final disposal of the said application, whichever is later. We expect that the learned Single Judge shall remain impervious to any pressure that may be brought to bear upon him either from the public or from the media as this is the fundamental and onerous duty cast on every Judge. "
Thus, the Supreme Court has made the position very clear that once the prayer of the accused for surrender is accepted, the accused would come into the custody of the Court within the contemplation of Sec. 439 of the Code and thereafter the Sessions Court as well as the High Court would be well within their powers to consider the merits of the bail application.
19. In the present case what I find is that after the surrender Page 28 of 50 R/SCR.A/4608/2014 CAV JUDGMENT of the accused was accepted by the Sessions Court pursuant to the order passed by this Court, the learned Sessions Judge ought to have been little careful about the procedure which was adopted. It appears that the accused surrendered on 17/10/2014. They were straightway sent to the jail. The bail application was heard and rejected vide order dated 22.10.2014. In the meantime neither the Public Prosecutor nor the concerned Investigating Officer bothered to take any appropriate steps in accordance with law so far as claiming the custody of the accused for the purpose of seeking police remand was concerned. It is only on 3.11.2014 that the Police applied for remand before the JMFC, Gandhinagar, unmindful of the fact that the accused were not arrested and produced before the Magistrate under Section 167 of the Code.
20. In C.B.I. Special Investigation Ce11-I, New Delhi v. Anupam J. Kulkarni, AIR 1992 SC 1768 : (1992 Cri LJ 2768) while considering the provisions of Sec. 167(2) of the Criminal Procedure Code, the Supreme Court observed as follows (at page 2779 of AIR) :-
". . . . . . After the expiry of the first period of fifteen days the further remand during the period of investigation can only be in judicial custody. There cannot be any detention in the police custody after the expiry of first fifteen days even in a case where some more offences either serious or otherwise committed by him in the same transaction come to light at a later stage. But this bar does not apply if the same arrested accused is involved in a different case arising out of a different transaction. Even if he is in judicial custody in connection with the investigation of the either case he can formally be arrested regarding his involvement in the different case and associate him with the investigation of that other case and the Magistrate can act as provided under S. 167(2) and the proviso and can remand him to such Page 29 of 50 R/SCR.A/4608/2014 CAV JUDGMENT custody as mentioned therein during the first period of fifteen days and thereafter in accordance with the proviso as discussed above. If the investigation is not completed within the period of ninety days or sixty days, then the accused has to be released on bail as provided under the proviso to S. 167(2). The period of ninety days or sixty days has to be computed from the date of detention as per the orders of the Magistrate and not from the date of arrest by the police. Consequently the first period of fifteen days mentioned in S. 1 67(2) has to be computed from the date of such detention and after the expiry of the period of first fifteen days it should be only judicial custody."
21. Thus, under sub-sec. (2) of S, 167, Cr. P.C. the Judicial Magistrate can authorise the detention of the accused in such custody, i.e., either police or judicial from time to time but the total period of such detention cannot exceed fifteen days in the whole. In a case where the accused surrendered before the concerned Magistrate even without themselves being available to the police for interrogation, the Magistrate is competent to grant police custody for a period of 15 days in all. The language that is adopted in S. 167(2), Cr. P.C. and the discussion made by the Supreme Court in the above cited case does not come in the way of the Magistrate (sic) to grant police custody for a total period of 15 days with breaks during the period of detention. In the State of Gujarat v. Pramukhlal, 1975 Cri LJ 324, while dealing with a case wherein accused person voluntarily surrendered to the judicial custody, this High Court observed as follows (at page 326) :-
"It is evident that no accused person, who has voluntarily surrendered to the judicial custody can be "forwarded" to the concerned Magistrate by the police. Sections 61 and 167 of the Code should be read together and if so done, it becomes quite evident that S. 167 has no application to the cases wherein the accused person has voluntarily Page 30 of 50 R/SCR.A/4608/2014 CAV JUDGMENT surrendered to the judicial custody and is not "forwarded" by the police to the nearest judicial Magistrate."
22. The surrender of an accused before the Sessions Judge can be in two situations;
i) without the orders of the High Court; and
ii) under the orders of the High Court.
23. In the first situation, where the accused surrenders before the Sessions Judge for an offence under the Indian Penal Code or under any other enactment and files an application for bail under Sec. 439 of the Code and the Judge does not have the record of the case before him and the same cannot be procured on that day and the Public Prosecutor also is not in a position to say anything in the matter, the only proper course to be adopted by the Sessions Judge would be to refuse to accept the surrender and ask the person to surrender himself before the Magistrate having jurisdiction in the matter.
24. On the other hand, if there is sufficient material before the Sessions Judge on which the matter of surrender as also the bail application filed by the accused may be considered, he may take the person in custody and decide the bail application. In the event of the bail application being rejected, the only proper order that can be passed by the Sessions judge is to direct him to be produced before the Judicial Magistrate having jurisdiction in the matter.
25. I may now consider the second situation wherein the accused surrenders himself before the Sessions Judge under Page 31 of 50 R/SCR.A/4608/2014 CAV JUDGMENT the directions of the High Court, like in the present case. When an accused is directed to surrender himself before the Sessions Judge by the High Court, it pre-supposes that the High Court has considered the material and it was satisfied that there was a case pending investigation against that person under the Indian Penal Code or any other Act. In that case, the surrender by the person before the Sessions Court cannot be said to be without any reason. In such a situation, if an accused surrenders himself before the Sessions Judge, the Sessions Judge should not refuse to accept his surrender without recording any reason.
26. If the surrender is made by an accused under the orders of the High Court, but without prior notice to the Public Prosecutor, and the Sessions Judge does not have enough material before him to consider his bail application, the appropriate order that should be passed by the Sessions Judge is to accept his surrender and take the accused in custody and forward him to the Magistrate having jurisdiction in the matter for the purpose of passing appropriate orders as to his proper custody. The Sessions Judge cannot be equated with a Magistrate and, therefore, he cannot consider about his remand to the police custody. It is only the Magistrate who can pass order of remand to the police custody under sec. 167 of the Code.
27. In case, the Sessions Judge has enough materials before him to consider the bail application of the person surrendered under the orders of the High Court, he is not precluded from deciding bail application of that person after taking the person in custody. However, in the event of rejecting the bail Page 32 of 50 R/SCR.A/4608/2014 CAV JUDGMENT application, the appropriate order, that can be passed, is to forward the person to the Magistrate having jurisdiction, who in his turn shall pass appropriate order as to his custody.
28. I am of the view that the Sessions Judge before whom the accused surrenders, while hearing his bail application, has no power to remand the accused to the police custody in a case when the offence is under the IPC, except in cases where the Sessions Judge is empowered by law under any special Act or enactment. My view is fortified by a decision of the Apex Court in the case of Matabar Perida Vs. State of Orissa -AIR1975 SC
-1465. In Matabar (Supra.) it has been clearly held that there are no inherent powers in a Court to remand an accused to any custody unless the power is conferred by law. The Sessions Judge has not been empowered to pass an order of remand of an accused to the police custody. I may quote with profit the observations made by the Supreme Court in Matabar (Supra.) -
5. A person arrested without warrant could not be detained by a police officer for a period exceeding 24 hours as provided in Section 61 of the Old Code. Section 167 (1) required the police officer to forward the accused to the nearest Magistrate if the investigation could not be completed within the period of 24 hours fixed by Section 61 and if there were grounds for believing that the accusation or information was well-founded. Sub section (2) provided:
"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. If he has not 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:"
The Magistrate to whom the accused was forwarded could remand him to police custody or jail custody for a Page 33 of 50 R/SCR.A/4608/2014 CAV JUDGMENT term not exceeding 15 days in the whole under Section 167 (2). Even the Magistrate who had jurisdiction to try the case could not remand the accused to any custody beyond the period of 15 days under Section 167 (2) of the Old Code. There was no other section which in clear or express language conferred this power of remand on the Magistrate beyond the period of 15 days during the pendency of the investigation and before the taking of cognizance on the submission of Charge-Sheet. Section 344, however, enabled the Magistrate to postpone the commencement of any enquiry or trial for any reasonable cause. The explanation to Section 344 of the Old Code read as follows:
"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."
"Various High Courts had taken the view that a Magistrate having jurisdiction to try a case could remand an accused to jail custody from time to time during the pendency of the investigation in exercise of the power under Section 344; to wit, The Superintendent and Remembrancer of Legal Affairs, Government of West Bengal v. Bidhindra Kumar Roy, AIR 1949 Cal 143 = (50 Cri LJ 231); Chandradip Dubey v. The State, 1955 BLJR 323; Dukhi v. State. AIR 1955 All 521 =(1955 Cri LJ 1305); Shrilal Nandram v. R. R. Agrawal, AIR 1960 Madh Pra 135 - (1960 Cri LJ 608) and State of Kerala v. Madhavan Kuttan, AIR 1964 Ker 232 = (1964-2 Cri LJ
300).A contrary view was taken by the Orissa High Court in the case of Artatran Mahasuara v. State of Orissa (AIR 1956 Orissa 129 = (1956 Cri LJ 909). It may be emphasised here that the Court will have no inherent power of remand of an accused to any custody unless the power is conferred by law. In the order under appeal the High Court without reference to Section 344 of the Old Code, seems to have assumed that such a power existed.
That is not correct.
6. There are two decisions of this Court affirming the view expressed by majority of the High Courts and overruling the one taken by the Orissa High Court in the case refer to above. In A. Lakshmanrao v. Judicial Page 34 of 50 R/SCR.A/4608/2014 CAV JUDGMENT Magistrate, First Class Parivatipuram (1970) 3 SCC 501 = (AIR 1971 SC 186 = 1971 Cri LJ 253) an argument was advanced that Section 344 falling in Chapter 24 of the Old Code which contained general provisions as to enquiries and trials could not apply to a case which was at the stage of investigation and collection of evidence only. Dua, J, delivering the judgment on behalf of this Court repelled the argument thus at p. 506. (of SCC) = (at p.191 of AIR):
"This argument appears to us to be negatived by the express language both of sub-section (1-A) and the explanation. Under sub-section (1-A) the commencement of the inquiry or trial can also be postponed. This clearly seems to refer to the stage prior to the commencement of the inquiry. The explanation makes it clear beyond doubt that reasonable cause as mentioned in sub-section (1-A) includes the likelihood of obtaining further evidence during investigation by securing a remand. The language of Section 344 is unambiguous and clear and the fact that this section occurs in Chapter 24 which contains general provisions as to inquiries and trials does not justify a strained construction."
"In Gouri Shankar Jha v. The State of Bihar, (1972) 1 SCC 564 = (AIR1972 SC 711 = 1972 Cri LJ 505) Shelat, J. delivering the judgment on behalf of the Court has said at p. 569 (of SCC) (at p. 715 of AIR):
"In cases falling under Sec. 167 a magistrate undoubtedly can order custody for a period at the most of fifteen days in the whole and such custody can be either police or jail custody. Section 344, on the other hand, appears in Chapter XXIV which deals with inquiries and trials. Further, the custody which it speaks of is not such custody as the magistrate thinks fit as in Section 167, but only jail custody, the object being that once an inquiry or a trial begins it is not proper to let the accused remain under police influence. Under this section, a magistrate can remand an accused person to custody for a term not exceeding fifteen days at a time provided that sufficient evidence has been collected to raise a suspicion that such an accused person may have committed an offence and it Page 35 of 50 R/SCR.A/4608/2014 CAV JUDGMENT appears likely that further evidence may be obtained by granting a remand."
Further says the learned Judge at p. 570 (of SCC) - (at p. 716 of AIR):
"The fact that Section 344 occurs in the Chapter dealing with inquiries and trials does not mean that it does not apply to cases in which the process of investigation and collection of evidence is still going on."
7. It would thus be seen that under the Old Code the Magistrate was given the power under Sec. 344 to remand an accused to jail custody as the section was also applicable to cases in which process of investigation and collection of evidence was going on. In other words, the power of remand by the Magistrate during the process of investigation and collection of evidence was an integral part of the process. The power was meant to be exercised, whenever necessary, to aid the investigation and collection of further evidence.
8. Let us now examine the position of law under the New Code. No police officer can detain a person in custody arrested without a warrant, for a period longer than 24 hours as mentioned in Section 57 corresponding to Section 61 of the Old Code. Section 167 occurring in chapter XII bearing the heading "Information to the police and their powers to investigate" the same as in chapter XIV of the Old Cod-has made some drastic departure. Similar is the position in regard to Section 309 of the New Code corresponding to Sec. 344 of the Old Code. While retaining the provision of forwarding the accused to the nearest Magistrate (of course, under the New Code to the Judicial Magistrate), and while authorising the Magistrate to remand the accused to either police or judicial custody for a period not exceeding 15 days, proviso (a) has been added in these terms:
"Provided that-
(a) the Magistrate may authorise 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 Page 36 of 50 R/SCR.A/4608/2014 CAV JUDGMENT shall authorise the detention of the accused person in custody under this section for a total period exceeding sixty days and on the expiry of the said period of sixty days, 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 section shall be deemed to be so released under the provisions of Chapter XXXIII for the purposes of that Chapter;"
The expression "the Magistrate" in the proviso would mean the Magistrate having jurisdiction to try the case. Section 309 (2) says:
"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:"
Although the expression 'reasonable cause' occurring in sub-section (1A) of section 344 is nowhere to be found in Section 309 of the New Code, the explanation to Section 344 of the Old Code has been retained as Explanation 1 to Section 309 in the identical language. The law as engrafted in proviso (a) to section 167 (2) and Section 309 of the New Code confers the powers of remand to jail custody during the pendency of the investigation only for the former and not under the latter. Section 309 (2) is attracted only after cognizance of an offence has been taken or commencement of trial has proceeded. In such a situation what is the purpose of Explanation-I in Section 309 is not quite clear. But then the command of the Legislature in proviso (a) is that the accused person has got to be released on bail if he is prepared to and does furnish bail and cannot be kept in detention beyond the period of 60 days even if the investigation may still be proceeding. In serious offences of criminal conspiracy- murders, dacoities, robberies by inter-state gangs or the like, it may not be possible for the police, in the circumstances as they do exist in the various parts of our country, to complete the investigation within the period of 60 days. Yet the intention of the Legislature seems to be to grant no discretion to the court and to make it Page 37 of 50 R/SCR.A/4608/2014 CAV JUDGMENT obligatory for it to release the accused an bail. Of course, it has been provided in proviso (a) that the accused released on bail under Section 167 will be deemed to be so released under the provisions of Chapter XXXIII and for the purposes of that Chapter. That may empower the court releasing him on bail, if it considers necessary so to do, to direct that such person be arrested and committed to custody as provided in sub-section,(5) of S. 437 occurring in Chapter XXXIII. It is also clear that after the taking of the cognizance the power of remand is to be exercised under Section 309 of the New Code. But if it is not possible to complete, the investigation, within a period of 60 days then even in serious and ghastly types of crimes the accused will be entitled to be released on bail. Such a law may be a "paradise for the criminals,"
but surely it would not be so, as sometimes it is supposed to be, because of the courts. It would be so under the command of the Legislature,
9. But the question in this case is whether during the pendency of the investigation which started before coming into force of the New Code the appellants can press into service proviso (a) to Section 167 (2) of that Code and claim to be released on bail as a matter of right when they are prepared to furnish bail. The answer to this question depends on the interpretation of Sections 167 and 484 of the New Code. Unlike the wordings of Section 428 the language of Section 167 (1) which will govern subsection (2) also, is - "whenever any person is arrested", suggesting there by that the section would be attracted when the arrest is made after coming into force of the Act. While the expression used in Section 426 is "where an accused person has, on conviction been sentenced. . ."Interpreting such a phrase it has been held in the case of Mr. Bouchar Pierre Andre v.
Superintendent, Central Jail, Tihar. New Delhi. AIR 1975 SC164=(1975 Cri LJ 182) by Bhagwati J. delivering the judgment of this Court at p. 166 (of AIR) = (at p. 184 of Cri LJ:
"This section, on a plain natural construction of its language, posits for its applicability a fact situation which is described by the clause "Where an accused person has on conviction, been sentenced to imprisonment for a term". There is nothing in this clause which suggests, either expressly or by necessary implication, that the conviction and sentence must be after the coming into Page 38 of 50 R/SCR.A/4608/2014 CAV JUDGMENT force of the New Code of Criminal Procedure."
We may, however hasten to add that inspite of the phrase "is arrested" occurring in Section 167 (1), since the Old Code has been repealed by subsection (1) of Section 484 of the New Code, the provision would have applied, a fortiori, if the savings provided in sub-section (2) would not have applied to the situation with which we are concerned in this case.In our judgment clause (a) of sub-section (2) of Section 484 does apply. It reads as follows:
"Notwithstanding such repeal, -
(a) If immediately, before the date on which this Code comes into force, there is any appeal, application, trial, inquiry or investigation pending then, such appeal, application, trial inquiry or investigation shall be disposed of, continued, held or made, as the case may be, in accordance with the provisions of the Code of Criminal Procedure 1898 as in force immediately before such commencement, hereinafter referred to as the Old Code), as if this Code had not come into force:"
Immediately before the 1st day of April, 1974 the investigation of this case was pending. Saving clause (a) therefore enjoins that the said investigation shall be continued or made in accordance with the provisions of the Old Code. The police officer, therefore, making the investigation has to continue and complete it in accordance with Chapter XIV of the Old Code. Section 167 of that Code could not enable the Magistrate to remand the appellants to jail custody during the pendency of the investigation. The police could seek the help of the Court for exercise of its power of remand under Sec. 344, bringing it to the notice of the Court that sufficient evidence had been obtained to raise a suspicion that the appellants may have committed an offence and there will be hindrance to the obtaining of further evidence unless an order of remand was made. As we have said above, invoking the power of the Court under S. 344 of the Old Code by the Investigating officer would be a part of the process of investigation which is to continued and made in accordance with the old code. That being so. we hold that the appellants in this case cannot claim to be released under proviso (a) to Section Page 39 of 50 R/SCR.A/4608/2014 CAV JUDGMENT 167 of the New Code."
29. In my view the observations of the Supreme Court in the case of Sundeep Kumar (Supra) as contained in Para-20 quoted above should be understood in the context explained aforesaid.
30. I am of the view that on 22nd October, 2014, when the learned Sessions Judge rejected the bail applications filed by the two accused on merits, then at that point of time, the Court should have forwarded both the accused to the learned Magistrate having jurisdiction, who in turn could have passed proper order as regards their custody. Let me be very clear at the cost of repeatation that a Sessions Judge hearing the bail application of an accused has no power to remand the accused to the Police custody. There are only two types of custody (i) judicial custody and (ii) Police custody, in the scheme of the Code of Criminal Procedure.
31. There is no satisfactory explanation at the end of the State as to why no appropriate steps were taken after the bail applications were rejected. There is no explanation why the Investigating Officer waited for twelve odd days to file an application for remand before the learned JMFC, Gandhinagar. The State should have prayed before the Sessions Judge that since the bail applications have been rejected, the accused be forwarded to the Magistrate having jurisdiction.
32. I have tried to explain the correct procedure, which should have been adopted, but at the same time, the moot question that now falls for my consideration is as regards the Page 40 of 50 R/SCR.A/4608/2014 CAV JUDGMENT relief, which could be granted to the petitioners. The accused are in jail from 17th October, 2014. As on today also they are in jail. They could be said to be in judicial custody. At this stage, to say that the surrender was illegal and therefore, the entire exercise undertaken by the learned Sessions Judge should also be declared as unlawful, will be very unreasonable. It is a settled law that no person should suffer because of the mistake of the Court. The bail applications, as on today, are pending before a co-ordinate Bench of this Court and the same would be considered on its own merit. So far as the claim of the Police to have the accused in their custody for the purpose of custodial interrogation, it will be open for them to initiate appropriate proceedings, if permissible in law.
33. I may say that the Court, be it the Court of the Magistrate or the Court of the Sessions Judge before whom an accused appears in order to circumvent the provision regarding remand to the Police custody, the Courts must be very careful in accepting surrender as a bonafide surrender, and in the first instance, the Court should inform the Police concerned with the investigation regarding the intention of such a person to surrender. If that is done, the difficulty of the Police would certainly be met with. I am saying so keeping in mind the observations of the Supreme Court in the case of Sundeepkumar Bafna (supra), as contained in paragraph 20 of the report.
34. With the above observations, both the petitions are disposed of.
35. Criminal Misc. Application No.17374/14 in Special Page 41 of 50 R/SCR.A/4608/2014 CAV JUDGMENT Criminal Application No.3642/13 :
The Misc. Application is filed by the first informant herein with the following prayers :
(A) Be pleased to allow this application.
(B) YOUR LORDSHIPs be pleased to direct the Inspector General of Police, Gandhinagar Range, to supervise and monitor the investigation arising out of FIR vide M.Case No.1 of 2013 registered with Adalaj Police Station, Gandhinagar and complete the investigation and submit the final report/charge-sheet within a stipulated time.
Alternatively:
(C) YOUR LORDSHIPs be pleased to transfer the investigation arising out of FIR vide M. Case No.1 of 2013 registered with Adalaj Police Station, Gandhinagar to Inspector General of Police, Gandhinagar Range, the opponent no.2 herein, and further be pleased to direct the opponent no.2 herein to complete the investigation and submit the final report/charge-sheet within a stipulated time.
(D) Be pleased to pass such other and further necessary order(s) in favour of the applicant in the interest of justice. "
36. The main petition is filed with the following prayers :
(a) To admit and allow this petition.
(b) YOUR LORDSHIPs be pleased to issue a writ of mandamus and/or any other appropriate writ, order or direction, to transfer the investigation arising out of FIR bearing M. Case No.1 of 2013 registered with Adalaj Police Station, Gandhinagar to an independent investigating agency like State CID Crime and be pleased to direct the agency to submit the investigation report within stipulated time.
Page 42 of 50 R/SCR.A/4608/2014 CAV JUDGMENT(c) Pending admission, hearing or final disposal of the present petition be pleased to issue direction to the respondent No.2 to hand over the investigation to an independent investigating agency like State CID Crime.
(d) Grant such other and further relief as thought fit in the interest of justice.
37. It appears that in the main petition following order was passed dated 3/12/2013 which reads as under :
"RULE returnable in the 3rd week of February, 2014.
Having considered the rival contentions for interim relief, in the light of allegation that initially, no FIR was being registered and the petitioner had to move the learned Magistrate Court for the purpose and in the light of the allegation that without making any inquiry, the Investigating Officer conceded before the Court which granted anticipatory bail that, no custody of the accused, who is alleged to have committed serious offence of forgery of one document after the other in respect of the lands of the petitioner and considering the allegation that a huge land grabbing racket is involved and the prayer of transfer of investigation, it is deemed appropriate to request the learned APP to place the copy of this petition with all annexures before the Inspector General of Police, Gandhinagar Range, who will look into the matter and submit the report specifying whether the investigation needs to be transferred, through learned APP within eight weeks from today. If necessary, the I.G, may summon the complainant for personal hearing.
Direct Service today is permitted. Copy of this order shall be made available to learned APP."
38. It appears that a detailed affidavit has been filed by Shri Rajiv Ranjan Bhagat, Deputy Inspector General of Police, Page 43 of 50 R/SCR.A/4608/2014 CAV JUDGMENT Gandhinagar Range, Gandhinagar explained how the investigation has proceeded so far. I may quote only the relevant paragraphs of the said affidavit:-
"3. I say and submit that after registration of the aforesaid case, the investigation was carried out. It is, however, submitted that since the petitioner was not satisfied with the investigation at the hands of the Police Officer of the Adalaj Police Station, he has filed Special Criminal Application No.3642/2013 before this Hon'ble Court for transfer of the investigation to C.I.D. Crime, in which, this Hon'ble Court, by an order dated 03.12.2013, was pleased to direct the Inspector General of Police, Gandhinagar Range to look into the matter and submit report specifying whether the investigation needs to be transferred before this Hon'ble Court within a period of eight weeks. I say and submit that pursuant to the said order, the investigation was entrusted to Police Inspector, Adalaj Police Station from Police Sub-Inspector, Adalaj Police Station and he was also instructed to seize the original Power of Attorney, arrest the accused and expose the entire modus operandi of the accused persons, for which, fax message was sent on 08.12.2013 from the office of the present deponent. A copy of fax message dated 08.12.2013 is annexed hereto and marked as Annexure-R1 to this affidavit.
4. I say and submit that thereafter, the concerned Investigating Officer has started investigation into the matter and arrested the accused viz., Jayantibhai Shamalbhai Patel, Jashvantbhai Shamalbhai Patel and Jagdishbhai Shamalbhai Patel on 09.11.2013 and, thereafter, obtained remand for a period of seven days. I further say and submit that while carrying out interrogation of the aforesaid persons, thenames of the accused viz., Babubhai Mohanbhai Patel and Dilipbhai Haldevbhai Patel were disclosed. I say and submit that the accused viz., Prakash Ishwarbhai Nayee, Babubhai Mohanbhai Patel and Dilipbhai Baldevbhai Patel have filed anticipatory bail application before the Hon'ble Sessions Court, Gandhinagar, wherein the said Investigating Officer has submitted his detailed affidavit and requested not to entertain the said application, however, the Hon'ble Sessions Court was pleased to Page 44 of 50 R/SCR.A/4608/2014 CAV JUDGMENT grant anticipatory bail application to the said accused. I say and submit that as per the order dated 18.11.2013 passed by the Hon'ble Sessions Court, Gandhinagar in Criminal Misc. Application No.694/2013, the said accused, Prakash Ishwarbhai Nayee was arrested and released on bail. I further say and submit that other accused viz., Kantaben D/o Shamalbhai Patel, Induben D/o Shamalbhai Patel, Jashiben D/o Shamalbhai Patel and Babubhai Mohanbhai Patel have also filed an application for anticipatory bail before the Hon'ble Sessions Court, Gandhinagar, which was granted, however, they did not remain present as per the order passed in an application for anticipatory bail and, hence, the concerned Investigating Officer has submitted report to the Court of the learned Judicial Magistrate, First Class, Gandhinagar on 07.12.2013 in this regard. I further say and submit that the accused viz., Jayantibhai Shamalbhai Patel, Jashvantbhai Shamalbhai Patel and Jagdishbhai Shamalbhai Patel have also filed regular bail application and released on bail. I further say and submit that the accused viz., Kashiben Shamalbhai Patel has been arrested on 16.11.2013. I say and submit that as stated above, since the accused viz., Kantaben D/o Shamalbhai Patel, Induben D/o Shamalbhai Patel, Jashiben D/o Shamalbhai Patel and Babubhai Mohanbhai Patel did not remain present as per the order passed in an application for anticipatory bail, a report came to be submitted before the Court of the learned Magistrate, Gandhinagar on 07.12.2013, the papers were examined and vide communication dated 18.12.2013, the supervision was given to the Deputy Inspector General of Police, Kalol Range, Gandhinagar along with necessary instructions. A copy of the communication dated 18.12.2013 is annexed hereto and marked as Annexure-R2 to this affidavit.
5. I say and submit that as per the order dated 03.12.2013 passed by this Hon'ble Court, the investigation was carried out under the supervision of higher officer and, thereafter, the documents were seized and sent to the handwriting expert for his opinion. I further say and submit that while carrying out investigation in the matter, since the involvement of other accused was found, the office of the present deponent was instructed to arrest the accused involved in the aforesaid case. A copy of communication sent to the office of the present deponent is annexed hereto and Page 45 of 50 R/SCR.A/4608/2014 CAV JUDGMENT marked as ANNEXURE-R3 to this affidavit. I further say and submit that as per the direction given by this Hon'ble Court, after carrying out investigation, report came to be submitted before this Hon'ble Court. A copy of report submitted before this Hon'ble Court as per the order dated 03.12.2013 is annexed hereto and marked as Annexure-R4 to this affidavit. I further say and submit that thereafter once again on 20.03.2014, report was submitted before this Hon'ble Court in connection with the aforesaid case. A copy of report submitted before this Hon'ble Court on 20.03.2014 is annexed hereto and marked as Annexure-R5 to this affidavit.
6. I say and submit that on perusal of the statement of the petitioner in connection with the aforesaid case, it has come to the notice that the accused, Dilipbhai Baldevbhai Patel has executed Power of Attorney in his favour from the accused on 18.06.2013 and on the basis of the said Power of Attorney, the said accused, Dilipbhai Baldevbhai Patel has filed Special Civil Suit No.173/2013 before the Court of the learned Principal Civil Judge on25/06/2013, wherein forged pedigree was produced including the forged affidavit of one Babubhai Mohanbhai Patel. Thus by instituting civil proceeding with the help of forged and fabricated documents, the accused wanted to obtain favourable orders in their favour. Thus, the names of both above accused were disclosed. However, the said suit was withdrawn thereafter.
7. I say and submit that at the relevant time, the accused have not produced the documentary evidence, however, during the course of investigation, the irrevocable Power of Attorney, affidavit-cum-declaration, affidavit and pedigree from the accused, Dilipbhai Baldevbhai Patel and different General Power of Attorney, agreements, MOU etc. from Dharmendrasinh Ramsinhy Zala were seized. I further say and submit that there is possibility of recovery of some valuable documents from the accused, Nishu Amrutbhai Patel and Babubhai Mohanbhai Patel, who were yet to be arrested. I say and submit that the accused, Nishu Amrutbhai Patel filed an application for bail, which was kept on 18.03.2014. I say and submit that the accused Babubhai Mohanbhai Patel, Kantaben D/o Shamalbhai Patel, Induben D/o Shamalbhai Patel and Jashiben D/o Shamalbhai Patel were not remained present before the Page 46 of 50 R/SCR.A/4608/2014 CAV JUDGMENT Police Station inspite of the order passed by Hon'ble Sessions Court in an application for anticipatory bail and, hence, report came to be submitted before the Hon'ble District & Sessions Court, Gandhinagar on 14.03.2014. I further say and submit that other accused viz., Jayantibhai Shamalbhai Patel, Jashvantbhai Shamalbhai Patel and Jagdishbhai Shamalbhai Patel have also released on regular bail, however, they did not remain present and, hence, the concerned Investigating Officer submitted report before the Hon'ble Principal District & Sessions Court, Gandhinagar on 14.03.2014.
10. I, therefore, submit that after entrustment of the investigation, following steps have been taken while carrying out investigation pursuant to the aforesaid case :-
> I say and submit that the aforesaid accused, Kantaben D/o Shamalbhai Patel, Induben D/o Shamalbhai Patel, Jashiben D/o Shamalbhai Patel were remained present as per the order dated 22.11.2013 passed by the Hon'ble Sessions Court, Gandhinagar in Criminal Misc. Application No.717/2013 and, hence, they were arrested on 23.09.2014 and then, released on bail. It is however, submitted that all three lady accused were given notice to remain present before the Hon'ble Court, Gandhinagar on 26.09.2014 for the remand proceeding and, hence on the said date, they were remained present through their advocate and the concerned Investigating Officer sought for seven days remand, however, one day remand was granted. I say and submit that on conclusion of the remand period, they were produced before the Hon'ble Court.
> I say and submit that as per the order passed by this Hon'ble Court cancelling the bail granted to the accused, they were not remained present before the authority and, hence, report came to be submitted before this Hon'ble Court.
> I say and submit that thereafter, the accused, Nirav Dilipbhai Patel filed an application being Criminal Misc. Application No.15677/2014 before this Hon'ble Court, which was adjourned from time to Page 47 of 50 R/SCR.A/4608/2014 CAV JUDGMENT time, wherein this Hon'ble Court passed an order directing all accused to remain present before the Investigating Officer, however, the accused, Nishu Amrutbhai Patel and Nirav Dilipbhai Patel produced themselves before the Hon'ble Sessions Court on 17.10.2014 and the Hon'ble Sessions Court sent them to the Central Jail. Similarly, the accused, Jayantibhai Shamalbhai Patel, Jashvantbhai Shamalbhai Patel and Jagdishbhai Shamalbhai Patel also produced themselves before the Hon'ble Sessions Court on18.10.2014 and the Hon'ble Sessions Court sent them to the Central Jail.
> I say and submit that on 03.11.2014, a report came to be submitted before the Hon'ble District & Sessions Court, Gandhinagar for obtaining police custody of the aforesaid accused, however for one reason or other, the concerned learned Judge did not take up the matter and asked the concerned Investigating Officer to obtain the custody of the accused from the Court of the learned 10th Civil Additional Judge, Gandhinagar, who passed an order to put the said matter before the regular Court and thus, the said matter was adjourned from time to time and lastly the same matter was on board on 17.11.2014.
> I further say and submit that as stated above, the lady accused were presented themselves before the concerned Investigating Officer and other accused have presented themselves before the concerned learned Judge, who sent them in to the Central Jail instead of giving their custody to the Police and inspite of filing report before the concerned court, same is lingering and no decision is yet taken by the concerned court. I further say and submit that the application for the custody of the accused was kept on 10.11.2014, however on the very same day, there was hearing of Criminal Misc. Application No.4608/2014 before this Hon'ble Court filed by the petitioner herein and, hence, the concerned Investigating Officer could not remain present before the concerned Court. I, therefore, say and submit that because of non-custody of the accused, it has led to non-availability of the documents andon account of lack of evidence, Page 48 of 50 R/SCR.A/4608/2014 CAV JUDGMENT chargesheet could not be filed before the competent court.
> I say and submit that as staed above, the accused, Nishu Amrutbhai Patel, Nirav Dilipbhai Patel, Jayantibhai Shamalbhai Patel, Jashvantbhai Shamalbhai Patel and Jagdishbhai Shamalbhai Patel were sent to Central Jail, Sabarmati by the learned Sessions Court and, hence, proceeding for taking over their custody is already initiated and after taking over their custody, remand would be sought for and after detailed investigation, the documents will be collected so that they can be sent to the handwriting expert. I say and submit that progress report of the present case is already sent to the Inspector General of Police, Gandhinagar. A copy of report submitted before the Inspector General of Police, Gandhinagar is annexed hereto and marked as Annexure-R7 to this affidavit.
> At this stage, it is submitted that recently on 15.11.2014, the petitioner along with his advocate came at the office of the present deponent and, thereafter, he was heard personally. I further say and submit that as stated above, the offence is of the year 2013 and the investigation is going on since long and the accused viz., Nishu Amrutbhai Patel, Nirav Dilipbhai Patel, Jayantibhai Shamalbhai Patel, Jagdishbhai Shamalbhai Patel and Jashwantbhai Shamalbhai Patel are yet to be arrested, who presented themselves before the learned Sessions Court and, thereafter, they were sent to Central Jail, Sabarmati and, hence, their police custody is required to be obtained. Further, the documentary evidence is also required to be seized. I, therefore, submitted that only with a view to carry out prompt investigation into the matter, the investigation of the case has been transferred to the Deputy Superintendent of Police, Kalol with immediate effect and the Investigating Officer would be assisted by a team comprising of one Police Sub-Inspector and other four police personnel for the purpose of immediate investigation, arresting the accused and seizure of remaining documentary evidence, for which, an order has been passed and the office of the Superintendent of Page 49 of 50 R/SCR.A/4608/2014 CAV JUDGMENT Police, Gandhinagar has also been communicated in this regard."
39. It appears from the aforesaid, that the investigation is in progress and the same is being carried on under the supervision of the Deputy Inspector General of Police, Gandhinagar. I am sure that as the investigation is being monitored by one of the highest Police Officers of the State, no lacuna or any loopholes would be left so that the accused would gain anything out of the same.
40. The law is well settled. Assuming for the moment without commenting anything in that regard that it might not be permissible for the Police to seek custody now at this stage, still the accused could be interrogated while in judicial custody with the permission of the competent Court. I am sure that appropriate investigation in accordance with law will be carried-out. I do not propose to say anything further in this regard.
41. In view of the above, Special Criminal Application No. 3642 of 2013 is also disposed of.
42. In view of the order passed in the main matter, the connected Criminal Misc. Application No. 17374 of 2014 is also disposed of.
(J.B.PARDIWALA, J.) Mohandas Page 50 of 50