Karnataka High Court
Sunil Kumar @ Silent Sunil vs State By Yelahanka Police Station on 1 July, 2017
Author: Aravind Kumar
Bench: Aravind Kumar
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 01st DAY OF JULY, 2017
BEFORE
THE HON'BLE MR.JUSTICE ARAVIND KUMAR
CRIMINAL APPEAL NO.680/2017
C/W
CRIMINAL APPEAL NO.681/2017
IN CRL.A.NO.680/2017
BETWEEN:
SUNIL KUMAR @ SILENT SUNIL
S/O KRISHNAPPA
AGED ABOUT 36 YEARS
R/AT NO.S-4 FORTUNE ICON
APARTMENT
JODIDAR ASHWATHAPPA FARM
SAHAKAR NAGAR
BANGALORE-560 092.
... APPELLANT
(BY SRI. YOUNOUS ALI KHAN, ADVOCATE)
AND:
STATE BY
YELAHANKA POLICE STATION
BANGALORE
REPRESENTED BY
THE STATE PUBLIC PROSECUTOR
HIGH COURT OF KARNATAKA
HIGH COURT BUILDINGS
2
BANGALORE.
... RESPONDENT
(BY SRI SANDESH CHOWTA, SPP)
THIS CRIMINAL APPEAL IS FILED UNDER SECTION
12 OF THE KARNATAKA CONTROL OF ORGANISED CRIME
ACT, 2000 R/W 482 OF CR.P.C BY THE ADVOCATE FOR
THE APPELLANT PRAYING THAT THIS HON'BLE COURT
MAY BE PLEASED TO QUASH THE ORDER DATED
3.4.2017 GRANING POLICE CUSTODY PASSED BY THE
COURT OF PRINCIPAL CITY CIVIL AND SESSIONS JUDGE,
BENGALURU IN CR.NO.58/2017.
IN CRL.A.NO.681/2017
BETWEEN:
1. MOHAN KUMAR @
DOUBLE METER MOHAN
S/O LATE VENKATESH MURTHY
AGED ABOUT 30 YEARS
R/O KUTTI COLONY
MAHIM HOUSE ROAD
NEAR GANESH COLONY
SIDDAPUR
BANGALORE-560 066.
2. NAGARAJ @ WILSON GARDEN
NAGA, S/O JAIRAJ
AGED ABOUT 30 YEARS
R/AT NO. 165, 1ST MAIN
4TH CROSS, VINAYAKA NAGAR
WILSON GARDEN
BANGALORE-560 027.
... APPELLANTS
(BY SRI. YOUNOUS ALI KHAN, ADVOCATE)
3
AND:
STATE BY
YELAHANKA POLICE STATION
BANGALORE
REPRESENTED BY
THE STATE PUBLIC PROSECUTOR
HIGH COURT OF KARNATAKA
HIGH COURT BUILDINGS
BANGALORE-01.
... RESPONDENT
(BY SRI SANDESH CHOWTA, SPP)
THIS CRIMINAL APPEAL IS FILED UNDER SECTION
12 OF THE KARNATAKA CONTROL OF ORGANISED CRIME
ACT, 2000 R/W 482 OF CR.P.C BY THE ADVOCATE FOR
THE APPELLANT PRAYING THAT THIS HON'BLE COURT
MAY BE PLEASED TO QUASH THE ORDER DATED
15.03.2017 GRANING POLICE CUSTODY PASSED BY THE
COURT OF PRINCIPAL CITY CIVIL AND SESSIONS JUDGE,
BENGALURU IN CR.NO.58/2017.
THESE CRIMINAL APPEALS COMING ON FOR
ADMISSION THIS DAY, THE COURT DELIVERED THE
FOLLOWING:
4
JUDGMENT
These two appeals are preferred by accused No.12 and accused Nos.1 and 2 in Crime No.58/2017 registered by Yelahanka police for the offences punishable under Section 399, 402 IPC and Sections 30 and 27 of the Arms Act, 1959 questioning the orders dated 15.03.2017 and 03.04.2017 handing over them to police custody.
2. Appellant - accused No.12 in Crl.A.No.680/2017 was produced under a body warrant before jurisdictional Magistrate on 01.03.2017 and was remanded to police custody upto 04.03.2017, whereas, appellants - accused Nos.1 and 2 in Crl.A.No.681/2017 were apprehended and produced before jurisdictional Magistrate on 20.02.2017 and remanded to police custody upto 06.03.2017. In respect of said crime No.58/2017, provisions of Section 3 of The Karnataka Control of Organised Crimes Act, 2000 (for short 5 'KCOCA') was invoked and proceedings stood transferred to the Special Court having jurisdiction. In respect of Crime No.58/2017 in Crl.A.No.680/2017, a requisition for further police custody was sought for on 28.03.2017. During this interregnum period i.e., 04.03.2017 and 28.03.2017, appellant was in judicial custody, for reasons best known, no orders were passed on the same day and immediately thereafter jurisdictional Court passed the order on 03.04.2017 granting police custody of the appellant upto 07.04.2017. Likewise, appellants in Crl.A.No.681/2017 who were in custody from 20.02.2017 to 06.03.2917 had been remanded to judicial custody and on application being filed seeking for police custody, both the appellants were remanded to police custody from 15.03.2017 to 24.03.2017 by order dated 15.03.2017. Appellants being aggrieved by the said orders of 6 remanding to police custody are before this Court and are seeking for setting aside said orders.
3. I have heard the arguments of Sri.Younous Ali Khan, learned Advocate appearing for appellants and Sri Sandesh Chowta, learned SPP appearing for the State. Perused the records.
4. It is the contention of Sri Younous Ali Khan, learned Advocate appearing for appellants that under Section 167(2) Cr.P.C, police custody can be granted upto period of 15 days from the date of first production of accused before Court and Section 22(2) of KCOCA which is a special enactment, provides for grant of custody up to 30 days and said period has to be reckoned from the date on which accused were produced before Court for the first time. He would also contend that period of 30 days cannot be sought for intermittently and the starting point of limitation for 7 reckoning 30 days period would commence from the first date on which accused was produced and remanded to custody. He contends that in the instant case i.e., in both cases, period of remand was far exceeding 30 days period and as such, orders remanding appellants to police custody are liable to be set aside. In support of his submissions, he has relied upon the following judgments:
1) Crl.A.No.223/2015 in the matter of S.Manikanta @ Mani and others vs. State by Madivala Police Station reported in order dated 10.04.2015.
2) 1982 CRI.L.J 1103 STATE (DELHI ADMINISTRATION) VS. DHARAM PAL AND OTHERS
3) 1982 CRI.L.J 2366- STATE (DELHI ADMINISTRATION) VS. RAVINDER KUMAR BHATNAGAR
4) (1992) 3 SCC 141- CENTRAL BUREAU OF INVESTIGATION, SPECIAL INVESTIGATION CELL-I, NEW DELHI VS. ANUPAM J. KULKARNI 8
5) 2001 CRI.L.J.2492 BUDH SINGH VS. STATE OF PUNJAB
5. Per contra, Sri Sandesh Chowta, learned SPP appearing for the State by supporting the orders under challenge would contend that appeals itself are not maintainable under Section 12 of the KCOCA since order of remand is passed on an application filed by the prosecution and it is an interlocutory order and as such, there is a bar under Section 12 itself. On merits, he would contend that requisition for grant of police custody or remand for police custody of the appellant - accused No.12 in Crl.A.No.680/2017 came to be filed on 28.03.2017 and if for any reason said Court had not pass an order, no fault can be laid at the doors of the prosecution and thereby, order subsequently passed on 03.04.2017 would be valid and hence, he submits that appeals are liable to be dismissed.
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6. Having heard the learned Advocates appearing for the parties and on perusal of the records, it is noticed that a co-ordinate Bench of this Court in Crl.A.No.223/2015 disposed of on 10.04.2015 had an occasion to consider maintainability of the appeal filed under Section 12 of KOCOA challenging similar orders now under challenge in these appeals and co-ordinate bench, by order dated 07.04.2015, by overruling the office objections had passed the following order:
"Heard learned counsel for the
appellants.
Under Section 12 of the
Karnataka Control of Organized Crimes Act, 2000, the appeal is maintainable against any order of the Special Judge under the aforesaid Act. Therefore, office objection is overruled."
In the light of the said order having been passed, it has to be necessarily held that present appeals are maintainable and accordingly, contention raised in that regard is rejected.
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7. Now turning my attention to the core issue with regard to legality or otherwise of the orders under challenge, the relevant dates and sequence of events would be necessary and they are enumerated herein below:
Crl.A.No. Crl.A.No. Sl. 680/2017 681/2017 Particulars No. (Accused (Accused No.12) Nos.1 and 2) 1 The date on which accused 01.03.2017 20.02.2017 were produced before Court Accused persons remanded to police custody by order 01.03.2017 20.02.2017 2 dated 01.03.2017 and order upto upto dated 20.02.2017 for the 04.03.2017 06.03.2017 period 3 Date of invoking KCOCA 07.03.2017 07.03.2017 The date on which accused 04.03.2017 06.03.2017 4 persons were in judicial to to custody 03.04.2017 15.03.2017 Prosecution sought for grant 5 of police custody by 28.03.2017 15.03.2017 remanding application dated: Date of order remanding to 6 03.04.2017 15.03.2017 police custody 03.04.2017 15.03.2017 Period for police custody 7 to to granted 07.04.2017 24.03.2017 11
Thus, accused-appellants are calling in question orders dated 03.04.2017 and 15.03.2017 referred to herein above.
8. The issue as to when the period of 30 days as indicated under Section 22(2) of the KCOCA would commence is no more res integra in view of the law laid down by Hon'ble Apex Court in the case of CENTRAL BUREAU OF INVESTIGATION, SPECIAL INVESTIGATION CELL -I vs ANUPAM J. KULKARNI reported in (1992)3 SCC 141 wherein Hon'ble Apex Court had examined as to the manner, mode and method of computation of total period of remand of police custody as prescribed under Section 167 Cr.P.C. which is analogous to Section 22 of the KCOCA. It has been held by the Hon'ble Apex Court that if accused is detained in police custody, maximum period in which he can be kept in custody is only 15 days either 12 pursuant to single order or more than one such orders. It came to be held that on the whole, such custody cannot be beyond 15 days and further remand to facilitate investigation can only be detention of accused in judicial custody. The Magisterial powers contemplated under Section 167(2) was held to be as under:
"13. Whenever any person is arrested under Section 57 Cr.P.C. he should be produced before the nearest Magistrate within 24 hours as mentioned therein. Such Magistrate may or may not have jurisdiction to try the case. If Judicial Magistrate is not available, the police officer may transmit the arrested accused to the nearest Executive Magistrate on whom the judicial powers have been conferred. The Judicial Magistrate can in the first instance authorise the detention of the accused in such custody i.e., either police or judicial from time to time but the total period of detention cannot exceed fifteen days in the whole. Within this period of fifteen days there can be more than one order changing the nature of such custody either from police to judicial or vice-versa. If the arrested accused is produced before the Executive Magistrate he is empowered to authorise the detention in such custody either police or judicial only for a week, in the same 13 manner namely by one or more orders but after one week he should transmit him to the nearest Judicial Magistrate along with the records. When the arrested accused is so transmitted the Judicial Magistrate, for the remaining period, that is to say excluding one week or the number of days of detention ordered by the Executive Magistrate, may authorise further detention within that period of first fifteen days to such custody either police or judicial. 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 can not 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 earlier - 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 Section 167(2) and the proviso and can remand him to such 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 14 Section 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 Section 167(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."
In conclusion, it came to be held by Hon'ble Apex Court that starting point for computation of period of 15 days as indicated in Section 167(2) Cr.P.C. is to be computed from the date of such detention and after expiry of the period of 15 days, it should be only judicial custody.
9. A co-ordinate Bench of this Court in Crl.A.223/2015 disposed of on 10.04.2015 following the dicta laid down by Hon'ble Apex Court has also held that entrustment of accused to the police custody for 30 days under the KCOCA shall be only from the first remand and not after expiry of 30 days therefrom. 15
10. In view of the law laid down by Apex Court in ANUPAM J.KULKARNI's case referred to above, when orders under challenge is examined, it would indicate that handing over of the accused persons to police custody was beyond the prescribed period of 30 days as indicated under Section 22 of the KCOCA , particularly, insofar as appellant - accused No.12 in Crl.A.No.680/2017 inasmuch as, the date on which accused No.12 came to be produced before the jurisdictional Magistrate being on 01.03.2017 , first order having been passed on 01.03.2017 handing over the accused No.12 to the police custody upto 04.03.2017, second order of handing over of accused to the police custody which came to be passed on 03.04.2017 was beyond the period of 30 days as prescribed under Section 22 of the KCOCA .
11. Insofar as period of police custody of appellants - accused Nos.1 and 2 in Crl.A.No.681/2017 16 is concerned, the records would disclose that at the first instance, they were remanded to police custody from 20.02.2017 to 06.03.2017. Thus, the period of 30 days started ticking from 20.02.2017 and ended on the 30th day i.e., 22.03.2017. However, second order which came to be passed by the jurisdictional Court handing over the accused persons to police custody was passed on 15.03.2017 handing over them for police custody up to 24.03.2017 which was beyond the period of 30 days i.e., beyond 22.03.2017. In that view of the matter, to the extent of handing over of the accused persons to the police custody beyond 30 days period would be contrary to Section 22 of KCOCA and the dicta laid down by Hon'ble Apex Court in ANUPAM J. KULKARNI's case as noticed herein above would be squarely applicable.
12. Though learned Advocates appearing for the parties have made attempts to contend the consequences flowing from such orders which came to 17 be passed by the jurisdictional Court beyond the prescribed period would be valid or legal, this Court would not examine said contention inasmuch as, it is a matter at large before the jurisdictional Court for being canvassed, adjudicated and answered. Any opinion expressed in that regard at this stage is likely to prejudice the rights of either of the parties. Hence, no opinion is expressed in that regard.
13. For the reasons aforestated, I proceed to pass the following:
JUDGMENT
(i) Criminal Appeals are hereby allowed.
(ii) Order dated 03.04.2017 passed in Crl.A.No.680/2017 and order dated 15.03.2017 passed in Crl.A.No.681/2017 by Principal City Civil and Sessions Judge, Bengaluru in Crime No.58/2017 are hereby 18 set aside subject to observations made herein above.
SD/-
JUDGE *sp