Bombay High Court
Parshuram S/O. Bajirao Dongre (In Jail) vs The State Of Maharashtra Thr. Police ... on 21 February, 2018
Author: S. B. Shukre
Bench: S. B. Shukre
1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
NAGPUR BENCH : NAGPUR
Criminal Writ Petition No. 85 of 2018
Petitioner : Parshuram s/o Bajirao Dongre, aged about 40 years,
Occ: Business, resident of Ward No. 3, Near Post
Office, Allapalli, Tahsil Aheri, District Gadchiroli
Versus
Respondent: The State of Maharashtra, throgh Police
Station Officer, Police Station, Aheri, District Gadchiroli Shri R. M. Daga, Advocate for petitioner Ms Ritu Kaliya, Addl. Public Prosecutor for respondent Coram : S. B. Shukre, J Dated : 21st February 2018 Judgment
1. Heard. Rule. Rule made returnable forthwith by consent of parties.
2. This petition challenges order dated 12.1.2018 passed by the Additional Sessions Judge, Gadchiroli in Misc. Criminal Application No. 2 of 2018 and also order dated 16.1.2018 passed by the Judicial Magistrate, First Class, Aheri in Crime No. 85/2017. ::: Uploaded on - 21/02/2018 ::: Downloaded on - 24/02/2018 01:47:33 ::: 2
3. By the order passed on 12.1.2018, application filed under Section 167 (2) Cr. P. C. by the petitioner was rejected by the Additional Sessions Judge. By the order passed on 16.1.2018, learned Magistrate rejected the application of the petitioner seeking his release on bail on the ground that mandatory provisions of Section 167 of the Code of Criminal Procedure relating to production of the accused before the Magistrate on the date his remand is to be extended or refused and passing of a specific order of extension of remand were not complied with, was rejected by learned Magistrate.
4. It so happened that on a complaint filed by Police Sub- Inspector, Aheri, crime being Crime No. 85/2017 for offences punishable under Section 420, 467, 468 and 471 of the Indian Penal Code was registered against the petitioner on 23.3.2017 at Aheri Police Station, District Gadchiroli. The allegations were that the petitioner acted as an agent for the naxalites operating in forest areas of Gadchiroli district and on behalf of naxals, collected extortion money from the civil contractors, tendu contractors, big traders and businessmen from the areas of Bhamragad, Etapalli and Aheri. It was also alleged that the petitioner extended help to naxals to convert demonitized currency notes of Rs. 500 and Rs. 1000 by showing false trading transactions with different persons. ::: Uploaded on - 21/02/2018 ::: Downloaded on - 24/02/2018 01:47:33 ::: 3 It was alleged that an amount of Rs. 1,20,00000/- in total was found to be credited to different accounts of the petitioner and as the petitioner could not give any satisfactory explanation to account for the same, it was suspected that he credited the amounts to his accounts after receiving them in cash in the nature of demonitized currency notes from various naxals. Later on, offences punishable under Sections 17, 18, 20 and 40 of the Unlawful Activities (Prevention) Act, 1967 were also added. The complaint in this regard was lodged on 23.7.2017 by PSI, Aheri.
5. The petitioner was arrested on 23.7.2017 and sent to police custody remand (PCR) for seven days. He was produced before the Magistrate on 31.7.2017. However, prayer for extension of his PCR was refused. The Magistrate took him in the magisterial custody remand (MCR) till 11.8.2017. A criminal revision application filed against refusal of extension of PCR in the meanwhile was allowed by the Additional Sessions Judge on 16.8.2017 and it appears, liberty was given to the investigating officer to seek extension of PCR. The order of learned Additional Sessions Judge allowing criminal revision application was also confirmed by this Court on 11.9.2017. The petitioner then was produced before the Magistrate who granted PCR of the petitioner till 21.9.2017.
6. On 21.9.2017, the petitioner was produced before the ::: Uploaded on - 21/02/2018 ::: Downloaded on - 24/02/2018 01:47:33 ::: 4 Magistrate and he sent the petitioner on MCR till 4.10.2017. On 4.10.2017, the petitioner was produced before the Magistrate through video conference and it was directed by the Magistrate that he be produced on 18.10.2017. On this date, no specific order extending MCR was passed by the Magistrate and he only directed that the petitioner be produced on 18.10.2017. On 18.10.2017, a rubber stamp was used by the Magistrate in which the inapplicable words were to be struck off and gaps were to be filled up. However, the words "produced/not produced"
were not particularly selected and it was not known whether the petitioner was produced or not produced before the Magistrate. The gap, however, was filled up indicating that the petitioner be produced on 21.10.2017. The rubber stamp so used did not contain any order for extension of MCR.
7. On 21.10.2017, the Magistrate having jurisdiction over Aheri Police Station was on leave and, therefore, the petitioner was produced before the in-charge Magistrate who extended his MCR till 27.10.2017 by passing a specific order of extension of remand. He also noted that the petitioner was not produced before him. This order, however, was passed on the jail papers, commonly called as "jail warrants". On 21.10.2017, the investigating officer had already made an application before the court seeking further extension of MCR of the petitioner. On that application, ::: Uploaded on - 21/02/2018 ::: Downloaded on - 24/02/2018 01:47:33 ::: 5 the Magistrate having jurisdiction over Aheri Police Station, did not pass any specific order of extension of the remand. He used a rubber stamp of an order and affixed his signature in the gap provided for making of signature. This rubber stamp order was of the following nature :
"Accused produced/not produced before me he/she be produced on 27.10.17."
sd/- JMFC 25.10.17 Dt...................."
8. On 27.10.2017, the petitioner was not produced before the Magistrate and he was directed to be produced on 10.11.2017 by making a rubber stamp order. No extension of MCR was specifically granted.
9. Such orders prompted the petitioner to file a habeas corpus petition being Criminal Writ Petition No. 1044 of 2017 seeking his release from custody on the ground that there was no valid order of judicial remand and that the extension of his judicial custody granted for further 90 days by an order passed by the Additional Sessions Judge in Misc. Criminal Application No 41 of 2017 was without obtaining say of the petitioner. It was also submitted that there was violation of mandatory ::: Uploaded on - 21/02/2018 ::: Downloaded on - 24/02/2018 01:47:33 ::: 6 provisions of Section 167 Cr. P. C. not producing the petitioner before the Magistrate and in not passing specific orders of extension of MCR.
10. On 9.11.2017, the writ petition came up for hearing before the Division Bench of this Court. On that date, the Division Bench passed an order expecting the Magistrate to decide the question of MCR or release the petitioner forthwith on the ground of illegal detention. So, the matter of release of the petitioner on the ground of illegal detention went back to the Court of JMFC, Aheri. On 10.11.2017, the Magistrate passed the following order :
"Order The accused was produced before me today at 01.32 p. m. through video conferencing. His custody was extended till 25.11.2017. The jail authority is directed to produced the accused on 24.11.2017 through Video Conferencing.
Sd/- J. M. F. C. Dt 10.11.2017"
10. At this stage, I feel it necessary to reproduce the reliefs sought by the petitioner in Criminal Writ Petition No. 1044 of 2017 basically filed for seeking a writ of habeas corpus. The prayers read thus : ::: Uploaded on - 21/02/2018 ::: Downloaded on - 24/02/2018 01:47:33 ::: 7
"(a) To quash and set aside order dated 19.10.2017 passed by learned Additional Sessions Judge, Gadchiroli in Misc.
Criminal Application No. 41/2017;
(b) To direct that the petitioner be released on bail under provision Section 167 (2) of the Code of Criminal Procedure."
11. On 4.1.2018, the writ petition again came up for hearing before the Division Bench and the Division Bench passed the following order :
"On 9.11.2017, this Court passed an order, expecting the Magistrate to decide the question of MCR or release of the petitioner forthwith from illegal detention. It is informed to us that MCR is extended. In view of this, prayer
(a) in this petition does not at all survive.
The petitioner is at liberty to file a separate application under Section 167 (2) of the Code of Criminal Procedure for his release on bail.
All questions are left open.
The petition stands disposed of."
12. The petitioner, however, did not file any application under ::: Uploaded on - 21/02/2018 ::: Downloaded on - 24/02/2018 01:47:33 ::: 8 Section 167 (2) Cr. C. before the trial Court and instead, filed a criminal writ petition being Criminal WP No. 17 of 2018. Considering the nature of liberty granted to the petitioner by the Division Bench, this Court granted leave to learned counsel for the petitioner to withdraw the petition with liberty to file separate application under Section 167 (2) Cr. P. C. It was then that an application under Section 167 Cr. P. C. was moved before the Court of Additional Sessions Judge, Gadchiroli by petitioner which came to be rejected by one of the impugned orders dated 12th January 2018. As the petitioner was being produced before the Magistrate for seeking extension of his MCR, another application was also filed before the Magistrate seeking his release on bail on the ground that his detention was illegal, which was also rejected by the Magistrate by the other impugned order dated 16.1.2018.
13. Learned counsel for the petitioner submits that the period from 4.10.2017 till 10.11.2017 is crucial for deciding the question of right of the petitioner to seek his release on bail on the ground of not being produced before the Magistrate on the respective dates falling between the afore-stated two dates and also not specifically extending his MCR till further date by the Magistrate. He submits that the rubber stamp orders passed by the Magistrate between the said two dates would indicate that on most of the occasions, the petitioner was not produced before the ::: Uploaded on - 21/02/2018 ::: Downloaded on - 24/02/2018 01:47:33 ::: 9 Magistrate and that his remand was also not extended by passing specific orders on different dates and all this continued even after expiry of the period of 90 days from the date of arrest, it expired on 21.10.2017 and, therefore, the petitioner is entitled to be released on bail. He also points out from the order of the Division Bench passed on 9 th November 2017 that the Division Bench has already observed that without the specific order of the Court extending the MCR, the person cannot be detained and prima facie, in the present case it was of the view that the provisions of Section 309 of the Code of Criminal Procedure were not attracted. He also pointed out a prima facie observation of the Division Bench made in the order dated 9th November 2017 that in this case, there was no automatic extension of the period of MCR.
14. Learned counsel for the petitioner relies upon the following cases :
(1) Ram Narayan Singh v. State of delhi 1953 AIR (SC) 277 (2) Manohari v. State of Rajasthan 1983 Cri. L. J. 1231 (3) Subhash v. State of MP 1989 Cri. L. J. 1553 (4) Sonu Madanlal Yogi v. The State of Maharashtra & anr 2012 ALL MR (Cri) 4025 (5) Pankaj s/o Sundarlal Yadav v. The State of Maharashtra & anr 2017 ALL MR (Cri) ::: Uploaded on - 21/02/2018 ::: Downloaded on - 24/02/2018 01:47:33 ::: 10 (6) Prashant s/o Madhukar Yamde v. State of Maharashtra Cri. WP No. 1044 of 2017
15. Learned Additional Public Prosecutor submits that if on the date of return of the rule issued in a petition of habeas corpus on the ground of absence of valid order of remand or detention of the accused, the custody or detention is on the basis of a valid order, the writ has to be dismissed as held in the cases of Sanjay Dutt v. State of Maharashtra, through C. B. I. Bombay (II) reported in (1994) 8 SCC 410 and Ram Narayan Singh v State of Delhi reported in AIR 1953 SC 277. She submits that when release of the accused from custody of the court cannot be granted on the ground of illegal detention in a writ of habeas corpus, the accused can also not be released on bail under Section 167 (2) Cr. P. C. for the reason that what is not granted by one court initially chosen by the accused, cannot be granted by another court in the sense that when a view is taken that petition for habeas corpus does not survive, it means by necessary implication that the Division Bench has found that on the date of return of the rule, there was a valid order of remand and thus, no illegal detention on that date. She also submits that now it is no longer res integra that an order of remand can be passed without the physical production of the accused before the Court and non-production of the accused will not vitiate an order of remand though it is desirable that the ::: Uploaded on - 21/02/2018 ::: Downloaded on - 24/02/2018 01:47:33 ::: 11 accused is produced before the court and the Magistrate passing an order of remand must, as far as possible, try to see that the accused is produced at the time when such an order is passed, which is the law laid down in the case of Raj Narain v. Supdt., Central Jail, New Delhi reported in AIR 1971 SC 178; ; Gowri Shankar v. State of Bihar reported in AIR 1972 SC 11 and Sandeep Kumar Dey v. The Officer Incharge reported in AIR 1974 SC 871. Learned Additional Public Prosecutor also places reliance upon the case of Sheetal d/o Jagdesh v. State of TN (2007 LawSuit (Mad) 1537.
16. Facts of the present case would indicate that the period between 4.10.2017 and 10.11.2017, as rightly submitted by learned counsel for the petitioner, is important so as to decide the question of illegal detention of the petitioner. From 4.10.2017 to 10.11.2017, there were four dates which are the dates of 4.10.2017, 18.10.2017, 21.10.2017 and 27.10.2017 when only rubber stamp orders were passed and remand was not specifically extended till further dates. On some of the occasions, admittedly, the petitioner was also not produced. However, in view of the law settled by the Hon'ble Apex Court in the case of Raj Narain v. Supdt., Central Jail, New Delhi; Gowri Shankar v. State of Bihar and Sheetal d/o Jagdesh v. State of TN (supra), non-production by itself would not vitiate the order of remand. In the present case, it is ::: Uploaded on - 21/02/2018 ::: Downloaded on - 24/02/2018 01:47:33 ::: 12 not shown by the petitioner that by his non-production any prejudice has been caused to him and, therefore, I do not find that on this count, the custody of the petitioner could be held as illegal. As regards the absence of specific remand orders on different dates, it is necessary for this Court to return a finding after taking into consideration the law laid down by the Hon'ble Apex Court in the cases relied upon by both the parties.
17. In Ram Narayan Singh (supra) while deciding the question of illegal detention in a habeas corpus petition, the Hon'ble Supreme Court held that those who feel called upon to deprive other persons of their personal liberty in the discharge of what they conceive to be their duty, must strictly and scrupulously observe the forms and rules of the law. The Hon'ble Apex Court then held that if the forms and rules of law have not been followed, the accused wold be entitled to be released on bail. There can be no doubt about the principle of law set out in Ram Narayan Singh (supra). But, the question would be, whether there has been valid remand order on the date when the right of bail under Section 167 (2) Cr. P. C. was asserted by the petitioner and if so, what would follow next. This question has not been answered in Ram Narayan Singh (supra), but has been answered by the Hon'ble Apex Court in the cases of Kanu Swanyal v. District Magistrate, Darjeeling & ors reported in AIR 1973 SC 2684 and Sanjay Dutt v. State, through C.B.I. Bombay (II) ::: Uploaded on - 21/02/2018 ::: Downloaded on - 24/02/2018 01:47:33 ::: 13 reported in (1994) 8 SCC 410. In Kanu Sanyal, the Hon'ble Apex Court held that the infirmity in the detention of the petitioner at the initial stage cannot invalidate the subsequent detention and the same has to be judged on its own merit. In Sanjay Dutt (supra), the Hon'ble Apex Court enunciated a principle by considering the decisions of its Constitution Benches including the decisions rendered in the cases of Naranjan Singh Nathawan and Ram Narayan Singh (supra) that the situation obtaining on the date of return of the rule decides the entitlement of an accused to seek his release on the ground of illegal detention in a habeas corpus petition. It held that if on the date of return of the rule the custody or detention is on the basis of a valid order, no release of the accused on the ground of illegal detention in a writ of habeas corpus can be granted. This would mean, and I am in agreement with learned Additional Public Prosecutor in this regard, that if in a habeas corpus petition detention cannot be held to be illegal in a situation where on the date of return of the rule the detention is on the basis of a valid order, by some logic, it can be said in statutorily bail matters that no right to seek a statutory bail under Section 167 (2) Cr. P. C. would accrue to the accused if on the date on which he moves an application for grant of bail on default , his detention is seen to be supported by a valid order of remand. Ultimately, what is relevant is what obtains on the date of application and not what was it before the date on which the application is filed. It may be that ::: Uploaded on - 21/02/2018 ::: Downloaded on - 24/02/2018 01:47:33 ::: 14 subsequent order validly passed will not validate the previous illegal detention as is the view taken by the Division Bench of Rajasthan High Court in Manohari (supra), and the Division Bench of this Court in an interim order passed on 9.11.2017 in cri. WP No. 1077 of 2017. But, what counts ultimately is continuation or ceasing of right to seek statutory bail on the day of filing of an application under Section 167 (2) Cr. P. C. . This is also the law laid down by the Hon'ble Supreme Court in the case of Rambeer Shokeen v. State of NCT of Delhi reported in 2018 LawSuit (SC) 54 when it observed that as the charge-sheet was filed before the expiry of extended time limit, the prayer for grant of statutory bail on the ground of default did not survive for consideration.
18. In the present case, when the habeas corpus petition came up before the Division Bench on 9 th November 2017, the Division Bench observed that it expected learned Magistrate to pass order on the next day on question of MCR or release of the petitioner forthwith from illegal detention. Accordingly, learned Magistrate passed an order on 10.11.2017 which is reproduced earlier. This order is clear enough to indicate that the valid remand order was passed by learned Magistrate on 10.11.2017. On 4th January 2018, in view of the order so passed by the learned Magistrate on 10.11.2017, the Division Bench held that prayer clause (a) of the petition did not at all survive. I have already reproduced ::: Uploaded on - 21/02/2018 ::: Downloaded on - 24/02/2018 01:47:33 ::: 15 prayer clause (a) of the habeas corpus petition which shows that the order dated 19.10.2017 passed by the Additional Sessions Judge in Misc. Criminal Application No. 41 of 2017 was sought to be quashed and set aside. This application (41/17) was filed by the petitioner under Section 43 (d) (2) of the Unlawful Activities (Prevention) Act, 1967 read with Section 167 Cr. P. C. This application was decided on 19.10.2017 by the Additional Sessions Judge. By this order, the learned Additional Sessions Judge extended not the period of investigation, but the judicial custody of the accused for 90 more days. According to learned counsel for the petitioner, what is permissible under Section 43 is the extension of investigation and not the extension of judicial custody and, therefore, even though the judicial custody was extended for 90 more days under the said order, it has to be construed as extension of the period of investigation. I am afraid, such an argument cannot be heard in the face of the order passed by the Division Bench of this Court on 4 th January 2018 when it held that prayer clause (a) of the petition did not at all survive for its consideration. So, the order dated 19.10.2017 has become final and is binding upon the petitioner. It extends the period of judicial custody for 90 more days. Admittedly, the period of 90 days was to expire on 21.10.2017 and before expiry of that period, the extension of judicial custody had occurred in the present case. It would then follow that the petitioner would have no case to seek his release on bail in ::: Uploaded on - 21/02/2018 ::: Downloaded on - 24/02/2018 01:47:33 ::: 16 pursuance of his statutory right under Section 167 (2) Cr. P. C. on the ground of default as it was no longer available in view of extension of his judicial custody for 90 more days.
19. Even if we construe the words used in order dated 19.10.2017 passed by the Additional Sessions Judge saying judicial custody was extended for 90 more days as implying extension of time to complete the investigation and file the charge-sheet, which the petitioner would have us believe, still, I do not think that the petitioner has succeeded in making out a case for his release on bail under Section 167 (2) Cr. P. C. The application under Section 167 (2) Cr. P. C. was filed by the petitioner on 10.11.2017. Much prior to this date, the remand of the petitioner was validly extended on 10.11.2017 by the Magistrate. After that date, further extensions of remand are being properly made by the Magistrate and there is no dispute about the sqame. The principle laid down in the cases of Kanu Sanyal and Sanjay Dutt (supra) on the basis of its underlying logic, would come into play here. If it is found that on the date on which the application under Section 167 (2) Cr. P. C. is filed the detention is on the basis of a valid order, the detention cannot be held as illegal and that means that the petitioner does not have in law any surviving right of statutory bail. Alternatively, it can also be found, by relying on Ranbeer Shokeen (supra) that petitioner's application filed on ::: Uploaded on - 21/02/2018 ::: Downloaded on - 24/02/2018 01:47:33 ::: 17 10.11.2017 for grant of statutory bail was premature as on that date, in the own words of the petitioner, the time extended to complete the investigation and file the charge-sheet as per order dated 19.10.2017 passed by the learned Additional Sessions Judge in Misc. Criminal Application No. 41 of 2007 had not expired.
20. In the case of Manohari v. State of Rajasthan (supra), it was held by the Division Bench of Rajasthan High Court that no remand order can be passed in the absence of accused and if it is passed, it is not a valid order. The same is the view taken by the learned Judge of the MP High Court in the case of Subhash v. State of M. P. (supra). I have already held that law in this regard is well settled by the Hon'ble Apex Court by holding that it is not a defect which by itself would vitiate the remand order. Therefore, the view so taken in Manohari and Subhash cannot be applied to the facts of the present case.
21. In the case of Sonu Madanlal Yogi (supra), the facts were different. It was noted that till the date of passing of the order, there was no valid remand order and, therefore, the detention of the accused was held to be illegal. I have already found that on the relevant date, there was in existence a valid remand order and, therefore, detention cannot be held to be illegal.
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22. In the case of Pankaj s/o Sundarlal Yadav (supra), the facts were different with the accused having already asserted his right of default bail much before filing of supplementary charge-sheet. Such being not the facts of the present case, the case of Pankar s/o Sundarlal Yadav (supra) would render no assistance to the petitioner.
23. In Prashant s/o Madhukar Yamde (supra), it was held that the accused could not be detained in custody unless he was produced before the Magistrate either in person or through the medium of electronic video linkage. However, the view so taken by the Division Bench of this Court cannot be followed by me in the face of the law settled by the Hon'ble Apex Court in the cases of Raj Narain, Gowri Shankar and Sandeep Kumar Dey (supra), discussed earlier.
24. In the result, I find no merit in this petition. Of course, the petition also seeks additional relief in the nature of grant of compensation owing to petitioner's illegal detention, but it has to be held as no longer available in view of the finding that the petitioner is not entitled to seek statutory bail recorded earlier. The petition thus deserves to be dismissed.
25. Before parting with the judgment, I record my appreciation ::: Uploaded on - 21/02/2018 ::: Downloaded on - 24/02/2018 01:47:33 ::: 19 for Shri R. M. Daga, learned counsel for the petitioner and Ms Ritu Kaliya, learned Additional Public Prosecutor for the respondent-State for rendering their invaluable assistance to this Court enabling resolution of the vexed issues involved herein.
26. The petition stands dismissed. Rule is discharged S. B. SHUKRE, J joshi ::: Uploaded on - 21/02/2018 ::: Downloaded on - 24/02/2018 01:47:33 :::