Madras High Court
Syed Kaleemullah And Anr. vs The Appraising Officer, Special ... on 3 June, 1993
Equivalent citations: 1997(57)ECC83
ORDER Arunachalam, J.
1. Bail plea of the petitioners in both these petitions and another R.D. Sethuraman, involved in this crime, was negatived by this Court, by a common order pronounced on 18th May, 1993 in Crl. O.P. Nos. 5540, 5542 and 5922 of 1993.
2. Even so, petitioner in Crl. O.P. No. 6365 of 1993, chose to prefer yet another application for bail on 24th May, 1993, virtually challenging the sustainability of the earlier order passed by this Court, apart from raising a new contention.
3. On 31.5.1993, petitioner in Crl. O.P. No. 6533 of 1993 had chosen to renew his bail plea, on a single ground.
4. I do not intend to narrate facts in detail, for they have been stated in my earlier order, dated 18th May, 1993.
5. Mr. M.R.M. Abdul Kareem, learned Senior Counsel appearing on behalf of the petitioner in Crl. O.P. No. 6365 of 1993, realising that if the validity of the earlier order of this Court had to be challenged on its inherent merits, it must be before the higher forum, restricted his submissions, which are three¬fold, as hereunder:
(i) On 14.5.1993, petitioner was produced before the remanding Magistrate by the Prison authorities, when the Customs Officers did neither attend the Court nor file any application seeking extension of remand. In that contingency when extension of remand had not been asked for, it must obviously be due to lack of any case against the petitioner. The remanding magistrate had acted without jurisdiction in extending the remand.
(ii) After the betrothal of the petitioner at Hyderabad earlier in April, 1993, the first Bakrid is falling on 2nd June, 1993 and hence on sympathetic consideration, petitioner may have to be enlarged on bail.
(iii) Petitioner is suffering from gastroenteretitis and on medical grounds, he may have to be released on bail to facilitate effective private treatment.
6. Mr. B. Kumar, learned Counsel representing the petitioner in Crl. O.P. No. 6533 of 1993 contended that after 18.5.1993, when the earlier order of this Court was pronounced, the Customs Officials could not have dealt with the instant case in any manner and extension of remand pleaded for by them on 25.5.1993, was without competence and if at all the C.B.I., Madras, which ought to have taken up investigation soon after the earlier order of this Court was pronounced, must have pleaded for remand extension. Learned Counsel pointed out a portion of the order passed by the remanding Magistrate in W.P. No. 170 of 1993, wherein he has observed that the investigation had not yet been handed over to the C.B.I. This according to the learned Counsel, was totally in disobedience to the orders of this Court, which had directed forthwith taking over of the investigation by C.B.I., Madras.
7. Mr. P. Rajamanickam, learned Counsel appearing on behalf of the respondent, while countering the argument of Mr. M.R.M. Abdul Kareem and Mr. B. Kumar, contended that investigation was taken over formally at 6.30 p.m. on 24.5.1993 by the C.B.I. and since remand extension had to be asked for on 25.5.1993, not wanting a vacuum to be created, the customs officials had pleaded for extension of remand on 25.5.1993, wherein specific mention had been made of the C.B.I, having taken over the case on the earlier day. He further contended that remand extension was made by the Magistrate on application of his mind and there was nothing illegal about the extension of remand.
8. He submitted that even on 14th May. 1993 an application for extension of remand was made by the Customs Officials, but the case record summoned from the file of the Additional Chief Metropolitan Magistrate, E.O.I., Emgore, Madras, does not contain the said application. However, he pointed out that the learned Magistrate had extended the remand till 28.5.1993, which must be held to be the consequence of application of judicial discretion, being fully aware of the alleged roles played by the petitioners in the instant crime of grave magnitude.
9. Certain authorities have been placed before me by the prosecuting and defence counsel in support of their respective contentions.
10. I have carefully considered the divergent contentions advanced by either party. If the petitioner in Crl. O.P. No. 6365 of 1993, has any health problem, the jail authorities shall produce him before the Government General Hospital for effective expert treatment. In the event of necessary facility not being available at the Government General Hospital, Madras, the petitioner will always be entitled to bring the said fact to the notice of this Court, when non-availability of such facilities at the prime government institution, could be scrutinised.
11. Keeping in view the seriousness of the allegations made by the prosecution against the petitioner in Crl. O.P. No. 6365 of 1993, it will not be possible to take a sympathetic view to enlarge him on bail since Bakrid festival falls on 2.6.1993. In any event, by the time this order is pronounced, Bakrid would already have been celebrated. I find practically no merit in the contention of the learned Senior Counsel, that a sympathetic view may have to be taken, connecting it to the festival season.
12. The main ground to be considered is whether the order of remand passed by the Magistrate on 14.5.1993, without an application pleading for extension of remand by the customs authorities, is illegal and ab initio void. The records called for from the learned Magistrate contain the following endorsement.
Accused produced at 5.30 p.m. R.E. till 28.5.1993. Since remand warrant already issued is stated to have been misplaced by the jail authorities, issue fresh remand warrant. 14.5.1993.
While passing the order of remand on 14.5.1993, learned Magistrate had before him, the prior history of this case and the fact that this petitioner is a foreigner. Though Mr. P. Rajamanickam, Counsel for the respondent contended, that extension of remand was pleaded for by filing an application, since such an application does not form part of the Court records, I am inclined to take the view that such an application had not been filed, for if it had been presented, there was no reason why the remanding Magistrate would not have appended it in the case file and passed orders of remand on the application itself, which is the normal pattern followed, while extending remands. It will not only be better, but it will almost always be necessary, that if extension of remand is required, an application is filed setting out the reasons for judicial scrutiny. However, merely because extension of remand has not been asked for by the prosecuting agency, it cannot be concluded, that the remanding Magistrate has no power to order extension of remand, if on the available material, he was of the opinion that extension of remand was necessary in the interests of justice. If it were to be held, that without a plea for extension of remand, the remanding Magistrate cannot act and that he has to necessarily set at liberty the concerned accused, even if the crime was grave enough, it is then possible to comprehend a Court becoming a mere powerless figure-head if either due to negligence or collusion remand extension applications are not presented, even in grave crimes. The ultimate authority is the remanding Court and the discretion to extend the remand cannot be bartered away to the whims of the prosecuting agency, who for reasons best known to them, omit to plead for extension of remand. It cannot be gainsaid, that if the remanding Magistrate on the available facts before him, felt, that extension of remand was not called for, he will be entitled to release the concerned accused and at the same time if his view is vice versa, order extension of remand. I agree with the observations of the Full Bench of the Patna High Court in Ramesh Kumar Ravi v. State of Bihar 1987 Crl LJ 1489 that a Magistrate has jurisdiction to pass an order of remand despite the absence of any formal written application or a request for such remand being made by the Police or the prosecution and that it would be doing violence to the plain language of Section 167(2) and 309(2) of the Code by reading into them a requirement of a formal application for remand, or, in any case, an insistent request therefor. The view expressed by me is echoed in the following observations of the Patna High Court.
By no stretch of imagination can this power of the Court be whittled down and be indeed passed on to the mere discretion of the investigation agency alone.
13. Mr. M.R.M. Abdul Kareem, placed strong reliance on the decision of the Division Bench of this Court in G.K. Moopanar v. State 1990 LW (Crl) page 113. That was a case, where the Congress (I) party in Tamil Nadu State, had announced a peaceful protest at various Railway stations throughout Tamil Nadu on 10.3.1990, in support of their demand that a railway station should be named after late Sri Kamaraj, former Chief Minister of Tamil Nadu. Since 8.3.1990 several persons were arrested as a preventive measure and remanded to custody, on 10.3.1990. They resorted to agitation which according to the petitioners therein was a peaceful political satyagraha. They claimed that over 20,000 members of the party who had participated in the agitation, were arrested by the police at various places in Tamil Nadu. In that background, it was argued that the remanding Magistrate had not satisfied himself from the entries in diary, etc., that investigation could not be completed within 24 hours fixed by Section 57 of the Code and that remand extension under Section 167(2) of the Code cannot be made merely on the request of the prosecution. It was also argued that the detention authorised under Section 167(2) cannot be for a remand exceeding 15 days on the whole. That Division Bench of this Court held, that discretion was ultimately left to the Court and it would not be desirable to list the circumstances when the Court has to exercise its judicial discretion. The question of need of a formal application for extension of remand, was not considered by the Division Bench. There cannot be a second opinion, that application of mind by the remanding Magistrate would be required for extension of remand, but that will be a question of fact which will vary from case to case.
14. It cannot be gainsaid that on 25.5.1993 yet another application for remand extension was preferred by the prosecuting agency (Customs) detailing salient facts, on consideration of which the learned Magistrate had chosen to extend the remand further till 8th June, 1993. The question is whether the remand extension, without an application, was illegal and therefore subsequent extension of remand on 28.5.1993, though may be legal, cannot cure the prior illegality and hence the petitioner as a matter of right, will be entitled to be liberated. There is enough case law on this question. In Niranjan Singh v. State of Punjab the following observations were made:
Before a person is deprived of his personal liberty the procedure established by law must be strictly followed and must not be departed from to the disadvantage of the person affected. This proposition, however, applied with equal force to cases of preventive detention before the commencement of the Constitution. The Constitution does not make any difference in regard to the position. The position is now made more clear by the express provisions of s. 13, Preventive Detention Act which provides that a detention order may at any time be revoked or modified and that such revocation shall not bar the making of a fresh detention order under s.3, against the same person. As in habeas corpus proceedings, the Court is to have regard to the legality or otherwise of the detention at the time of return and not with reference to the date of institution of the proceedings; in the absence of proof of bad faith, the detaining authority can supersede an earlier order of detention challenged as illegal and make a fresh order whenever possible which is free from defects and duly complies with the requirements of the law in that behalf. The question of bad faith, if raised, would certainly have to be decided with reference to the circumstances of each case but the observations in one case cannot be regarded as a precedent in dealing with other cases.
That was a case where the earlier order of preventive detention, after obtaining the opinion of the Advisory Board, was not properly framed, which lacuna led to the passing of a fresh order of detention, after revocation of the earlier order. On this basis, it was urged by Mr. M.R.M. Abdul Kareem that a fresh remand order must have been asked for and a mere extension should not have been pleaded. As long as no bad faith or mala fides have been alleged, it cannot be a matter of dispute, that the Court is bound to have regard to the legality or otherwise of the detention of the petitioner at the time of return and not with reference to the date of institution of proceedings.
15. In (Talib Hussain v. State of J & K) it was stated, that in habeas corpus proceedings for issue of writ, the Court has to consider the legality of detention on the date of hearing. If detention on that date was lawful, no writ can be issued. This principle would equally apply to the present facts. I hasten to add, that I am not prepared to hold, that extension of remand on 14.5.1993 without an application seeking such extension, was illegal. When the case record was before the learned Magistrate, he was entitled to extend remand, if he felt, that there existed a case for such extension.
16. Similar view was expressed by the Supreme Court in Ram Narayan Singh v. The State of Delhi . It was stated as follows:--
In habeas corpus proceedings, the Court is to have regard to the legality or otherwise of the detention at the time of return and not with reference to the institution of the proceedings.
In a question of habeas corpus, when the lawfulness or otherwise of the custody of the persons concerned is in question, the documents containing order of remand would be of vital importance and should be produced at the time of filing return.
I have perused the order extending remand and I am unable to visualise any infirmity in the said order. In the very same case, the Supreme Court observed that detention of a person in custody after the expiry of remand order, without any fresh order of remand committing him to further custody while adjourning the case under Section 344 Criminal Procedure Code (old) was illegal. Such a contingency does not a arise on the instant facts.
17. A Single Judge of Jaipur Bench of Rajasthan High Court in Kana v. State 1980 Crl LJ 344 stated as hereunder:
Except in a case where Section 167, Cr. PC applies and where the detention of the accused cannot be authorised, exceeding (period of) 90 days, and on this account the accused becomes entitled for being released on bail, if he is prepared to and does furnish bail, there is no warrant to hold that in all cases, in which at some anterior date the detention of the accused was illegal, the accused is entitled to be released on bail, if the detention is legal at the time when the bail application is filed or it comes for consideration. If the detention of the accused is legal, when the bail application is preferred, his previous illegal detention should not be considered.
On these observations of the Rajasthan High Court, I have to only add, that the ultimate verdict will depend upon the peculiarity of facts placed for consideration before Court and an universal law for rigid application, cannot be formulated.
18. A Division Bench of the Allahabad High Court in Mohd. Daud v. Supdt. of Distt. Jail, Mordabad 1993 Crl LJ page 1358 stated that in a habeas corpus petition, validity of detention has to be determined at the time of return and not with reference to institution of proceedings. The difference between Section 309 and 167 Cr. PC was considered and it was observed that under Section 167 Cr. P.C., a Magistrate or Judge had to apply its judicial mind to consider whether on the materials collected, remand was necessary and justified. The said Court further held that invalid initial remands can be rectified by subsequent orders. All these enunciated law will be unnecessary, for I have already held, that extension of remand on 14.5.1993, though without an application, was perfectly valid.
19. In Babu Nandan v. The State 1972 Crl 423 a Full Bench of the Patna High Court held, that when no order of remand on the date of hearing of habeas corpus petition was produced, the accused therein was entitled to a direction of release by grant of a writ of habeas corpus. It was further observed, that an order remanding an accused person to custody for a term exceeding 15 days at a time was bad and the person so detained will have to be directed to be released by grant of a writ of habeas corpus. The said Court further stated that the order of remand recorded as "Accused as before" would tantamount to an order of remand. Under Section 344(1-A) of the old Code, it was held that it was not a condition precedent for a valid order under that section that the accused must, at the time of passing of order of remand, be in valid custody under a valid order.
20. In Narayan v. State of Rajasthan 1982 Crl LJ 2319, it was observed that if cognizance had been taken after the expiry of 90 days, detention of accused was illegal and subsequent remands under Section 309(2) of the Code cannot validate it and that accused must be released on bail. The principle laid down therein does not require further scrutiny for such a contingency does not arise in the present case.
21. The question decided in Manohari v. State of Rajasthan 1983 Crl LJ 1231 was whether the order of remand under Section 309(2) Cr. P.C. in the absence of accused was valid. It was held that such remand orders were not invalid. But, however, an observation was made that though in cases of habeas corpus, the Court would only see if on the day of passing of the order, the detention was illegal or not, in cases of grant of bail, the validity of earlier orders of remand can be taken into consideration. In such cases the earlier illegal orders of remand cannot be validated by a subsequent valid order of remand. This principle also has no bearing to the facts needing decision in these petitions.
22. The decision of a Division Bench of the Andhra Pradesh High Court in A. Narayana Reddy v. State of Andhra Pradesh does not benefit the petitioners, since, that was a case where the accused continued to be in detention pursuant to the orders of remand without production of accused before taking congnizance of offences by the Court. In that contingency the Division Bench stated that the detention on the date when the Court took cognizance of the offences would be illegal and Section 309(2) of the Code of Criminal Procedure would not cure the illegal detention and the detained accused would be entitled to grant of bail on that account.
23. Again in M.A. Dhaman v. State of Andhra Pradesh the main question posed was the illegality of remand and its extension in the absence of accused. As already stated, the grounds urged in the instant petitions are totally different.
24. I am unable to agree with Mr. M.R.M. Abdul Kareem that the extension of remand on 14.5.1993 without an application, was illegal and on that sole ground, petitioner in Crl. O.P.No. 6365 of 1993 would be entitled to bail. His bail plea shall stand negatived.
25. I am unable to agree with Mr. B. Kumar that the petitioner in Crl. O.P.No. 6533 of 1993 will have to be necessarily enlarged on bail due to the incompetence of the customs officials to plead for extension of remand on 25.5.1993, since the C.B.I, had taken over investigation even on 24.5.1993. I have already observed that the responsibility is cast on the Court to consider the need for extension of remand or otherwise on the facts placed before it. Merely because the earlier investigating agency had pleaded for extension of remand, I am unable to visualise how the order passed by the learned Magistrate extending the remand of the petitioner can cease to have any value in the eye of law. Late in the evening of 24.5.1993, C.B.I. had taken over investigation. Before they could get acquainted with the facts, the earlier remand was in the verge of getting expired, and naturally not wanting a vacuum to be created, the earlier investigating agency had chosen to prefer an application for extension of remand, stating fairly that the C.B.I. had taken over the investigation on the earlier day. Once the order of remand had been passed by the Magistrate, on application of his mind, to the facts placed before him, merely because the C.B.I. had not asked for extension of remand, it cannot be held that the Magistrate had no jurisdiction to continue the remand period of the petitioner in Crl. O.P. No. 6533 of 1993. It may be that the learned Magistrate had committed a mistake in his order in M.P. No. 170 of 1993 dated 24.5.1993, wherein he has stated, "that investigation is not yet handed over to C.B.I. for the petition referred to by him and filed by the Customs Department, clearly shows that C.B.I. had taken over the case on 24.5.1993 and two of the accused persons were still absconding. It cannot also be overlooked that the earlier order of this Court directing the C.B.I. to take up investigation in this grave crime, was placed for consideration before the Magistrate. The contention of Mr. B. Kumar deserves out-right rejection. Bail plea of petitioner in Crl. O.P. No. 6533 of 1993 shall also stand negatived.
26. Before parting in this case, I must observe that the investigating agency must be conscious that the petitioners are in jail from the middle of April, 1993 (various dates) and that investigation will have to be speeded up effectively, for the liberty of citizens is dependent upon the outcome of the probity of investigation. Petitioners cannot be kept in jail endlessly on the ground that one or other of the accused involved in this crime are yet to be apprehended and scrutiny of material collected is bound to take more time. The investigating agency should make itself aware, that if, the investigation is allowed to stand still, petitioners would be entitled to renew their plea for bail. With these observations, both these petitions are dismissed.