Delhi District Court
State (Govt. Of Nct Of Delhi) vs Rizwan on 31 July, 2021
IN THE COURT OF SH. SANJAY SHARMA-II : ADDL. SESSIONS JUDGE-03,
(CENTRAL): TIS HAZARI COURTS, DELHI
Criminal Revision No. 126/2021
CNR No.: DLCT01-009161-2021
State (Govt. of NCT of Delhi)
Through Public Prosecutor
..... Petitioner
VERSUS
1. Rizwan
S/o Mr. Hakimuddin,
R/o Kanchan Park, Loni,
Ghaziabad, U.P.
2. Nasir @ Nishar
S/o Mr. Jamaludeen,
R/o Main Mangal Bazar,
Near Islamia Madrsa,
Kasba Bahsuma, PS Bahsuma,
District Meerut, U.P.
3. Shamshad @ Damru
S/o Mr. Meharban,
R/o Jamalpura, Near Islamia Madrsa,
Loni, Ghaziabad, U.P.
4. Sonu Baba Khan
S/o Mr. Vedpal,
R/o Village Aheda, PS Baghpat Kotwali,
District Bhagpat, U.P.
..... Respondents
Date of Institution : 24.07.2021
Date of Arguments : 31.07.2021
Date of Judgment : 31.07.2021
Cr. Rev. No.126/2021 State Vs. Rizwan & Ors. Page No. 1 of 11
ORDER
1. The criminal revision petition under Section 397 read with Section 399 of 'The Code of Criminal Procedure, 1973' (Hereinafter referred to as 'the Cr.P.C.') is directed against order dated 15.07.2021 (the impugned order) arising from FIR No. 137/2021, under Sec. 392/341/34 of 'The Indian Penal Code, 1860' (In short 'IPC') registered at PS I.P. Estate whereby Ld. Duty MM (Central District) Tis Hazari Courts, Delhi dismissed the application filed by the Investigating Officer for granting 2 days police remand of the respondents.
2. The facts leading to filing of the criminal revision petition are that on 08.06.2021 at 02.45 p.m., the case FIR was registered on the statement of the complainant that on 08.06.2021 at 03.30 a.m. on Ring Road, in front of WHO Office, ITO, New Delhi, he was robbed by 3 persons traveling in a car while he was boarding an auto rickshaw. The robbers robbed his wrist watch, a bag containing clothes and academic certificates, bank passbook and passport, a laptop bag containing laptops make 'Dell' and 'Lenona', mobile phone make 'Samsung', purse containing an amount of Rs. 20,000/-, an Aadhar Card and ATM cards.
3. On 11.06.2021, the respondent No. 1 to 3were arrested in FIR No. 451/2021 registered under Sec. 379 / 511 / 336 / 34 IPC and 25 /27 Arms Act at PS Shalimar Bagh. During their interrogation, they disclosed their involvement in the present case vide disclosure statements.
Cr. Rev. No.126/2021 State Vs. Rizwan & Ors. Page No. 2 of 11
4. The information regarding the said disclosure statement was received at PS I.P. Estate on 14.06.2021 at 01.36 p.m. vide G.D. No. 37A. Thereafter, the respondent No. 4 was also apprehended by PS Shalimar Bagh on 15.06.2021.
5. On 29.06.2021, IO SI Naveen Kumar, PS I.P. Estate filed an application before the Area Magistrate seeking permission for arrest and interrogation of the respondents.
6. Vide order dated 30.06.2021, the Area Magistrate allowed the said application and permitted IO SI Naveen Kumar to interrogate the respondents.
7. On 01.07.2021, IO SI Naveen Kumar arrested the accused persons in Tihar Jail and filed an application for production of the respondents before the Area Magistrate.
8. On 02.07.2021, the respondents were produced before Ld. Duty MM (Central) Tis Hazari Courts, Delhi through video conferencing and they were remanded to judicial custody for 14 days, on the application of IO SI Naveen Kumar.
9. On 14.07.2021, an application filed by IO SI Naveen Kumar seeking police remand of the respondents for 2 days.
10. Vide order dated 15.07.2021 (the impugned order), Ld. Duty MM (Central) Tis Hazari Courts, Delhi dismissed the application of IO SI Naveen Kumar seeking police remand of the respondents on the ground that 15 days time having computed from the date of arrest i.e. 01.07.2021 has expired.
Cr. Rev. No.126/2021 State Vs. Rizwan & Ors. Page No. 3 of 11
11. It would be appropriate to reproduce the impugned order, as under:
"15.07.2021 Present: Sh. Mohit, Ld. Substitute APP for the State.
Accused Rizwan, Nasir, Shamshad and Sonu Baba Khan are in JC.
IO SI Naveen Kumar in person.
Sh. Punit, Ld. Remand Advocate in person.
An application seeking 02 days police custody of accused persons has been filed by the IO alongwith the brief facts and reason for seeking the PC remand. It is stated by IO that accused persons have been formally arrested on 01.07.2021 and they have been sent to custody on 02.07.2021. Therefore, two days police custody of accused persons is required for the purpose of recovery of case property.
It is stated by Ld. Substitute APP for the State that accused persons were sent in JC on 02.07.2021. Therefore, application for grant of PC may be allowed for one day. It is further argued that as per Section 167 Cr. P.C., the police custody could be awarded even on 15th day.
During the course of arguments, Ld. APP for the State has place reliance upon following judgments (1) Gautam P. Navlakha Vs. NIA Crl. Appeal No. 1707/2020 dated 08.02.2021, (2) Kapil Wadhaman Vs. Directorate of Enforcement & State of Maharashtra dated 20.08.2020, (3) Ravi Prakash Singh @ Arvind Singh Vs. State of Bihar S.C. Crl.
Appeal 325/2015 and (4) Chaganti Satnaryana & Ors. Vs. State of Andhra Pradesh S.C. Crl. No. 278/1986 dated 08.05.1986 in support of the arguments that as per law, one day PC could be granted.
Submissions Heard. Record perused.
Cr. Rev. No.126/2021 State Vs. Rizwan & Ors. Page No. 4 of 11 In the present matter, accused persons were formally arrested on 01.07.2021 in Tihar Jail itself and they were remanded to JC by producing the accused persons before the Court on 02.07.2021 and since then, no application has been moved by the IO seeking police custody of accused persons, if the same required for further investigation. Further, considering the fact accused persons were formally arrested on 01.07.2021 and they were remanded to JC by the Ld. Duty MM on 02.07.2021 and the application seeking has been filed by the IO today itself i.e., 15.07.2021, there is no reason to grant PC of accused persons, as from the date of arrest i.e., 01.07.2021, already 15 days has expired. Accordingly, the application stands dismissed.
The accused persons are remand to JC.
They be produced on 29.07.2021.
Copy of this order be given dasti to the IO as prayed for."
12. Feeling aggrieved and dissatisfied, the State has challenged the impugned order.
13. I have heard Mr. Amit Dabas, Ld. APP for the State and Mr. Sandeep Gupta, Ld. Legal Aid Counsel for the respondents and perused the case diary, produced by IO.
14. At the outset, Ld. Legal Aid Counsel submitted that an order refusing police remand is an interlocutory order and as such criminal revision petition is barred under Sec. 397 (2) of the Cr. P.C. He relied on judgment in 'State Vs. N.M.T. JOY IMMACULATE', (2004) 5 SCC 729.
15. Ld. Addl. PP for the State submitted that an order granting police remand is an interlocutory order whereas an order refusing police remand is not an interlocutory order as it leads to termination of a particular proceedings.
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16. The issue raised by Ld. Legal Aid Counsel is no more res integra.
17. In 'Kandhal Vs. State', Crl. Ref. 3/2009, vide judgment dated 04.05.2012, Hon'ble Division Bench of Gujarat High Court dealing with a reference as to whether an order refusing to grant police remand is an interlocutory order or an intermediate or a final order, held as under:
"In light of the aforesaid discussion, our final conclusion may be summarized thus:
(I) An order refusing to grant remand has direct bearing on the proceedings of the trial itself and in a given case will definitely have effect on the ultimate decision of the case.
(II) An order refusing to grant remand may affect the progress of the trial or its decision in any manner if Investigating Agency is deprived of having custodial interrogation of the accused so as to effectively investigate the offence and gather necessary evidence and material to put the accused to trial.
(III) An order refusing to grant police remand would be a final order and a revision under Section 397 read with Section 401 of the Code would be maintainable. "
18. In 'Ramanbhai Bholidas Patel Vs. State of Gujarat', Crl. Revision Application No. 65 of 2021, Hon'ble High Court of Gujarat held that an order granting police remand and order refusing police remand do not stand on the same footing and would not result into the same consequences and order refusing police remand is not an interlocutory order and is thus, amenable to revision under Sec. 397 of the Cr. P.C. Cr. Rev. No.126/2021 State Vs. Rizwan & Ors. Page No. 6 of 11
19. The relevant part of the aforesaid judgment, is as under:
"11. In so far as the contention raised by the learned Senior Counsel, this Court is of the opinion that the answer to the said contention rests in applying the feasibility test as laid down by the Supreme Court inasmuch as "whether by upholding the objection raised by the party, it would result in culminating the proceedings". Before the learned Sessions Court, what had been challenged was an order whereby the Magistrate had refused to grant police remand. That upon request to grant police remand being rejected, the prosecution proceedings as regards the remand stand terminated. Therefore, since the said order leads to termination of a particular proceedings, in the considered opinion of this Court, such an order cannot be termed as an interlocutory order and is thus, amenable to revisional jurisdiction under Section 397 of Cr. P.C. An order refusing to grant remand would result in the said proceeding coming an end. None grant of remand would result in the prosecution proceedings coming to an end and therefore, such an order cannot be termed to an interlocutory order and consequently, the same is revisable.
14. Thus, it becomes clear that an order refusing to grant police remand would not be an interlocutory order and therefore, an application for revision under Section 397 read with Sec. 401 of Cr. P.C. would be maintainable.
Cr. Rev. No.126/2021 State Vs. Rizwan & Ors. Page No. 7 of 11 Thus, even on law, the submissions of learned Senior Counsel for the applicant of order refusing to grant remand being hit by bar of Section 397 (2) of Cr. P.C. stands negated."
20. On merits, Ld. Addl. PP for the State submitted that the impugned order suffers from jurisdictional error. He submitted that Ld. MM did not appreciate the legal provision governing the period of 15 days from the date of first remand as envisaged under Sec. 167 of the Cr. P.C. He submitted that the period of 15 days for grant of police remand is to be computed from the date of first remand and not from the date of arrest of the respondents. He submitted that Ld. MM did not consider the legal principles enunciated in the case law filed by Ld. APP. He submitted that Ld. trial Court wrongly observed that period of 15 days had expired. He referred Sub Section (2) of Section 167 of the Cr. P.C. to contend that the period of 15 days is calculated from the date of first remand. He submitted that Ld. MM granted first remand by remanding the respondents to judicial custody vide order dated 02.07.2021. He submitted that the said remand order directed production of the respondents on 16.07.2021 and therefore, the period of 15 days had not expired on the date of the impugned order i.e. on 15.07.2021. He submitted that as on 15.07.2021, the Investigating Officer had 2 more days till 17.07.2021 for seeking police custody of the respondents for effecting recovery of the robbed articles. He submitted that the impugned order is liable to be set aside and 2 days police custody of the respondents be granted. Cr. Rev. No.126/2021 State Vs. Rizwan & Ors. Page No. 8 of 11
21. Ld. Legal Aid Counsel submitted that the impugned order is legal, valid and proper and it does not warrant any interference by this Court.
22. As already noticed, the respondents were arrested in Tihar Jail on 01.07.2021 and they were remanded to judicial custody till 16.07.2021 vide order dated 02.07.2021. The period of 15 days for grant of police custody is reckoned from the date of first remand. The first remand of the respondents was granted on 02.07.2021 and therefore, Ld. MM committed a jurisdictional error that the period of 15 days has expired having computed from the date of arrest of the respondents. Having computed from the date of first remand, the period of 15 days would have expired on 16.07.2021.
23. In 'Gautam P. Navlakha Vs. National Investigation Agency', Crl. Appeal No. 1760 of 2020 decided on 08.02.2021, Hon'ble Supreme Court of India considered the scope of Section 167 of the Cr. P.C., as under:
"42. ...
17. ... A Magistrate can, therefore, authorize the detention of the accused for a maximum period of 15 days from the date of remand and place the accused either in police custody or in judicial custody during the period of 15 days' remand. It has, however, to be borne in mind that if an accused is remanded to police custody the maximum period during which he can be placed in police custody is only 15 days. Beyond that period no Magistrate can authorize the detention of the accused in police custody."
Cr. Rev. No.126/2021 State Vs. Rizwan & Ors. Page No. 9 of 11
24. In 'Kapil Wadhwan' (Supra) Hon'ble High Court of Bombay while dealing with the issue whether in computing the period of 90 days or 60 days as contemplated in Sec. 167 (2) of the Cr. P.C., the day of remand is to be included or excluded held that the day of first remand cannot be excluded in computing the period of remand.
25. Therefore, Ld. MM committed an jurisdictional error by declining police remand for 2 days i.e. 15.07.2021 and 16.07.2021. Accordingly, the impugned order is set aside. The criminal revision petition filed by the State is allowed.
26. Investigating Officer is granted 2 days (48 hours) police custody of the respondents from 01.08.2021 at 11.00 a.m. to 03.08.2021 at 11.00 a.m. He shall produce the respondents before the concerned Magistrate on 03.08.2021 at 11.00 a.m. physically or through electronic mode, as the case may be.
27. The concerned Jail Superintendent shall hand over the custody of the respondents to IO SI Naveen Kumar on production of certified copy of the present order. A copy of order be sent to Ld. MM, the concerned Jail Superintendent and IO.
Criminal Revision file be consigned to record room.
Announced in the open Court SANJAY SHARMA-II on this 31st July, 2021 Addl. Sessions Judge-03 (Central) Tis Hazari Courts, Delhi Cr. Rev. No.126/2021 State Vs. Rizwan & Ors. Page No. 10 of 11 State Vs. Rizwan & Ors.
CNR No.DLCT010091612021 Crl. Revision No. 126/2021 31.07.2021 Proceedings convened through Video Conferencing.
Present : Mr. Amit Dabas, Ld. Addl. PP for the State / petitioner.
Mr. Sandeep Gupta, Ld. Legal Aid Counsel for the respondents.
The respondent no. 1 / Rizwan is produced from Central Jail No. 04, Tihar, New Delhi.
IO SI Naveen Kumar in person. (physical mode) Vide separate order, the criminal revision petition filed by the petitioner is set aside. The revision file be consigned to record room.
Sanjay SharmaII ASJ03, Central District, Tis Hazari Courts, Delhi 31.07.2021 Cr. Rev. No.126/2021 State Vs. Rizwan & Ors. Page No. 11 of 11