Karnataka High Court
Munsiffulla Khan vs State By on 23 September, 2020
Equivalent citations: AIRONLINE 2020 KAR 1959, 2021 (1) AKR 218
Crl.P.No.3301/2020
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 23RD DAY OF SEPTEMBER 2020
BEFORE
THE HON'BLE MRS. JUSTICE K.S.MUDAGAL
CRIMINAL PETITION No.3301/2020
BETWEEN:
MUNSIFFULLA KHAN
S/O. ABDUL SATTAR KHAN
AGED ABOUT 40 YEARS
OCC: DRIVER
R/AT KUTHAGATTA
SOMPURA HOBLI
NELAMANGALA TALUK
BENGALURU RURAL- 562 111 ...PETITIONER
(BY SRI ANEES ALI KHAN, ADVOCATE)
AND:
STATE BY
DOBBASPETE POLICE STATION
DOBBESPET- 562 111
REPRESENTED BY THE
STATE PUBLIC PROSECUTOR
HIGH COURT OF KARNATAKA
HIGH COURT BUILDINGS
BENGALURU- 560 001 ...RESPONDENT
(BY SRI B.J.ROHITH, HCGP A/W
SMT.NAMITHA MAHESH B.G., HCGP)
THIS CRIMINAL PETITION IS FILED UNDER SECTION 482 OF
CR.P.C. PRAYING TO QUASH THE ORDER DATED 04.03.2020
PASSED BY THE PRINCIPAL CIVIL JUDGE & JMFC, NELAMANGALA
IN CRIME NO.206/2019 OF DOBBESPET POLICE STATION.
THIS CRIMINAL PETITION HAVING BEEN HEARD AND
RESERVED FOR ORDERS ON 18TH AUGUST 2020, COMING ON FOR
Crl.P.No.3301/2020
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PRONOUNCEMENT OF ORDERS THIS DAY, THE COURT THROUGH
VIDEO CONFERENCE/PHYSICAL HEARING MADE THE FOLLOWING:
ORDER
"Whether the impugned order of the Principal Civil Judge and JMFC, Nelamangala in Crime No.206/2019 of Dobbaspet Police Station remanding the petitioner to the Police custody amounts to abuse of process of the Court and has lead to failure of ends of justice"? is the question involved in this case.
2. The petitioner is the husband of Heena Kausar @ Hajirabi. They were married 14 years prior to 24.12.2019 and have two sons aged 9 years and 7 years respectively. Heena Kausar @ Hajirabi died on 24.12.2019 at about 2.00 p.m. in the house of the petitioner in Kuthaghatta village of Nelamangala Taluk.
3. Heena Kausar's brother reported to Dobbespet Police/respondent that his sister Heena Kausar is dead and there are some injuries on her dead body. He requested to ascertain the cause of her death by medical examination. On such report Dobbespet Police registered UDR No.42/19 under Section 174 Cr.P.C. as an unnatural death case. Thereafter Crl.P.No.3301/2020 3 inquest mahazar and PM examination were conducted on the dead body of Heena Kausar. The post mortem report stated that death was due to asphyxia as a result of smothering and homicidal one.
4. On receiving the inquest and the post mortem report, Sri Vasanth H.J., the Police Sub Inspector of Dobbespet Police station on suo-motu complaint registered Crime No.206/2019 on 27.12.2019 against the petitioner and his family members for the offences punishable under Section 302 IPC. In the said report it was alleged that having regard to the report of the brother of the deceased, inquest and the post mortem reports, he suspects the role of the petitioner and his family.
5. The petitioner was arrested in the said case on 29.12.2019. On the same day, he was produced before the Magistrate. Learned Magistrate remanded the petitioner to judicial custody. Pending investigation vide order dated 30.12.2019, the Superintendent of Police, Bengaluru Rural District transferred the further investigation of the case to Police Inspector of Nelamangala Traffic Police Station. Crl.P.No.3301/2020 4
6. The Police Inspector of Nelamangala Traffic Police Station on taking over the investigation filed application before the JMFC Nelamangala seeking police custody of the petitioner from 04.03.2020 for the purpose of his interrogation and further investigation. The respondent-State has submitted the transfer order dated 30.12.2019 and the remand application dated 04.03.2020 at document Nos.2 and 4 along with its statement of objections.
7. On such application, learned Magistrate passed the impugned order remanding the petitioner to the custody of the Investigating Officer from 04.03.2020 to 06.03.2020. Learned Magistrate in the order states that he has examined the entire case diary and satisfied with the statement of the Investigating Officer that he requires the custody of the accused for further investigation and to find out his role in the case. While remanding to police custody, learned Magistrate also imposed the condition that the accused shall not be ill-treated, he shall be provided with basic necessities like food and medicine and he shall be permitted to consult his advocate, if necessary.
Crl.P.No.3301/20205
8. According to the prosecution, victim Heena Kausar was suffering from mental health issues and conducting herself in an uncontrollable manner. It is the further case of the prosecution that on the ill-fated day, after a quarrel between the petitioner and Heena Kausar, she became aggressive and ran away to the land of Abdul Sattar, hit her face to a rock and got inflicted injuries on herself. It is the further case of the prosecution that the petitioner and his family members with great difficulty brought her back and being frustrated by her condition and conduct, the petitioner smothered her and committed her murder and other accused facilitated him to commit murder by gripping the victim. It was further alleged that on committing the murder, the petitioner informed her brothers and others that she has died due to some health issues and later his interrogation revealed the offence.
9. Sri Anees Ali Khan, learned counsel for the petitioner assails the impugned order of the Magistrate on the ground that Section 167(2) Cr.P.C. bars the Magistrate from authorizing the detention of the accused in the Police custody Crl.P.No.3301/2020 6 after expiry of 15 days from the date of his first production before the Magistrate. According to him, such subsequent authorization of detention in the Police custody amounts to abuse of process of the Court and has lead to failure of justice. He submits that thereby the rights of the petitioner are seriously affected.
10. In support of his contention, he relies upon the following judgments of the Hon'ble Supreme Court:
i) Budh Singh vs. State of Punjab (2001 Crl.L.J.2942)
ii) State of Maharashtra vs. Bharati Chandmal Varma (Mrs.) Alias Ayesha (2002)2 SCC 121
iii) Central Bureau of Investigation, Special Investigation Cell-I New Delhi vs. Anupam J Kulkarni (1992)3 SCC 141
11. Per contra Sri B.J.Rohith, learned HCGP justifies the impugned order of the Magistrate on the ground that interpretation of Section 167 Cr.P.C. by the counsel for the petitioner is erroneous and misplaced. He further submits that when the petitioner was remanded to the judicial custody by the impugned order, the investigation was still not completed and the Police custody was sought within 90 days Crl.P.No.3301/2020 7 from the date of production of the petitioner. Therefore, he submits that the Magistrate under Section 167 Cr.P.C. was very well authorized to remand the petitioner to police custody.
12. Learned HCGP for the respondent further submits that the Investigating Officer had filed a detailed report/application and on satisfying with the same, the Magistrate has granted Police custody. Under such circumstances, he submits the judgments relied upon by the learned counsel for the petitioner are not applicable. He submits that even after filing of the charge sheet and taking cognizance also, if further investigation is required and the Magistrate is satisfied about the same, it is open to the Magistrate/Court to grant the custody of the accused to the Investigating Officer and that is the settled law. In support of his contentions, he relies upon the following judgments:
i) Central Bureau of Investigation vs. Rathin Dandapath ((AIR 2015 SC 3285)
ii) Satyajit Ballubhai Desai vs. State of Gujarat (2014) 14 SCC 434
iii) State through CBI vs. Dawood Ibrahim Kaskar (AIR 1997 SC 2494) Crl.P.No.3301/2020 8
13. On his arrest, the petitioner was produced before the Magistrate on 29.12.2019 and he was remanded to judicial custody. Till 04.03.2020, he was in judicial custody. On the application of the investigating officer, by the impugned order the Magistrate remanded him to police custody on 04.03.2020 to 06.03.2020. Therefore, admittedly, the said remand was exercising the power under Section 167 of Cr.P.C. and that was beyond 15 days from the date of first production of the accused before the Magistrate.
14. Therefore, the whole question is "whether Section 167 of Cr.P.C. empowers the Magistrate to order for police custody beyond 15 days of the first production of the accused before him?"
15. In this context, it is material to refer to the relevant provisions of Section 167 of Cr.P.C. which read as follows:
"167. Procedure when investigation cannot be completed in twenty-four hours (1) Whenever any person is arrested and detained in custody and it appears that the investigation cannot be completed within the period of twenty-four hours fixed by section 57, and there are grounds for believing that the accusation or information is well-founded, the officer in-charge of the police station or the police officer making Crl.P.No.3301/2020 9 the investigation, if he is not below the rank of sub-
inspector, shall forthwith transmit to the nearest Judicial Magistrate a copy of the entries in the diary hereinafter prescribed relating to the case, and shall at the same time forward the accused to such Magistrate.
(2) The Magistrate to whom an accused person is forwarded under this section may, whether he has or has no jurisdiction to try the case, from time to time, authorise the detention of the accused in such custody as such Magistrate thinks fit, for a term not exceeding fifteen days in the whole; and if he has no jurisdiction to try the case or commit it for trial, and considers further detention unnecessary, he may order the accused to be forwarded to a Magistrate having such jurisdiction:
PROVIDED that,−
(a) the Magistrate may authorise the detention of the accused person, otherwise than in the custody of the police, beyond the period of fifteen days, if he is satisfied that adequate grounds exist for doing so, but no Magistrate shall authorise the detention of the accused person in custody under this paragraph for a total period exceeding−
(i) ninety days, where the investigation relates to an offence punishable with death, imprisonment for life or imprisonment for a term of not less than ten years;
(ii) sixty days, where the investigation relates to any other offence, and, on the expiry of the said period of ninety days, or sixty days, as the case may be, the accused person shall be released on bail if he is prepared to and does furnish bail, and every person released on bail under this sub-section shall be deemed to be so released under the provisions of Chapter XXXIII for the purposes of that Chapter;
(b) no Magistrate shall authorise detention of the accused in custody of the police under this section unless the accused is produced before him in person for the first time and Crl.P.No.3301/2020 10 subsequently every time till the accused remains in the custody of the police, but the Magistrate may extend further detention in judicial custody on production of the accused either in person or through the medium of electronic video linkage;
(c) no Magistrate of the second class, not specially empowered in this behalf by the High Court, shall authorise detention in the custody of the police.
16. The Hon'ble Supreme Court in Anupam J.Kulkarni's case referred to supra while considering the same legal issue, interpreting Section 167 of Cr.P.C. in para 8 of the judgment held as follows:
"8. Having regard to the words "in such custody as such Magistrate thinks fit for a term not exceeding fifteen days in the whole" occurring in Sub-section (2) of Section 167 now the question is whether it can be construed that the police custody, if any, should be within this period of first fifteen days and not later or alternatively in a case if such remand had not been obtained or the number of days of police custody in the first fifteen days are less whether the police can ask subsequently for police custody for full period of fifteen days not availed earlier or for the remaining days during the rest of the periods of ninety days or sixty days covered by the proviso. The decisions mentioned above do not deal with this question precisely except the judgment of the Delhi High Court in Dharam Pal's case. Taking the plain language into consideration particularly the words "otherwise than in the custody of the police beyond the period of fifteen days" in the proviso it has to be held that the custody after the expiry of the first fifteen days can only be judicial custody during the rest of the periods of ninety days or sixty days and that police custody if found necessary can be ordered only during the first period of fifteen days. To this extent the view taken in Dharam Pal's case is correct."
(emphasis supplied) Crl.P.No.3301/2020 11 Summarizing the legal principle on the point in para 13 of the above referred judgment, it was held that as follows:
"13. ........................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. .................................."
(emphasis supplied)
17. Relying on its judgment in Anupam J.Kulkarni's case, the three Judges Bench of the Hon'ble Supreme Court in Budh Singh's case referred to supra in para 5 of the judgment held as follows:
"5. In the face of facts, as noticed above, the order of the learned Judicial Magistrate, dated 4.1.2000 in our opinion, did not require any interference. The mandate of Section 167 Criminal Procedure Code, 1973 postulates that there cannot be any detention in police custody, after the expiry of the first 15 days, so far as an accused is concerned. That period of 15 days had in this case admittedly expired on 4.1.2000. The impugned order of the High Court violates the statutory provisions contained in Section 167 Cr.P.C. Since it authorises police remand for a period of seven days after the expiry of the first fifteen days period. In C.B.I., Special Investigation Cell - I, New Delhi v. Anupam J. Kulkarni (1992) 3 SCC 141:
(1992 AIR SCW 1976: AIR 1992 SC 1768: 1992 Cri LJ 2768) this Court considered the ambit and scope of Section 167 Cr.P.C. and held that there cannot be any detention in police custody after the expiry of the first 15 days even in a case where some more offences, either serious or other wise committed by an accused in the same transaction come to light at a later stage. The Bench, however clarified that the bar did not apply if the same arrested accused was involved in some other or different case arising out of a different transaction, in which event the period of remand needs to be considered Crl.P.No.3301/2020 12 in respect to each of such cases. The impugned order of the High Court under the circumstances, cannot be sustained. The direction to grant police remand for a period of seven days by the High Court is, accordingly, set aside. The appeal, therefore, succeeds and is allowed to the extent indicated above."
(emphasis supplied)
18. In the judgments in Rathin Dandapath's case, Satyajit Ballubhai Desai's case and Dawood Ibrahim Kaskar's case referred to supra relied upon by learned HCGP, the points that had fallen for consideration were whether at the post cognizance stage, the Magistrate under Sections 73, 173(8) and 309(2) of Cr.P.C. etc can issue warrant for arrest of a person who was not accused in the charge sheet or can remand the accused to police custody. Therefore, the said judgments are not applicable to the facts of the case.
19. The matter is fully covered by the judgment of the larger Bench of the Supreme Court in Budh Singh's case referred to supra. The impugned order remanding the petitioner to police custody beyond 15 days of first production before the Magistrate was contrary to Section 167 Cr.P.C. and the judgments of the Supreme Court in Anupam J.Kulkarni's case and Budh Singh's case referred to supra. Thus, the same Crl.P.No.3301/2020 13 amounts to abuse of the process of the Court and has led to failure of justice. Therefore, the petition is allowed.
The impugned order dated 04.03.2020 passed by the Principal Civil Judge & J.M.F.C., Nelamangala in Crime No.206/2019 of Dobbaspete police station remanding the petitioner to police custody is hereby quashed.
In view of disposal of the main petition, pending IAs stood disposed of.
Sd/-
JUDGE Akc/KSR