Gujarat High Court
State Of Gujarat vs Hafijhusen Adnan @ Jaid Tajuddin on 5 April, 2013
Author: S.R.Brahmbhatt
Bench: S.R.Brahmbhatt
STATE OF GUJARAT....Applicant(s)V/SHAFIJHUSEN ADNAN @ JAID TAJUDDIN GOSMOHIDDIN MULLA R/SCR.A/837/2013 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CRIMINAL APPLICATION NO. 837 of 2013 FOR APPROVAL AND SIGNATURE: HONOURABLE MR.JUSTICE S.R.BRAHMBHATT ================================================================ 1 Whether Reporters of Local Papers may be allowed to see the judgment ? 2 To be referred to the Reporter or not ? 3 Whether their Lordships wish to see the fair copy of the judgment ? 4 Whether this case involves a substantial question of law as to the interpretation of the Constitution of India, 1950 or any order made thereunder ? 5 Whether it is to be circulated to the civil judge ? ================================================================ STATE OF GUJARAT....Applicant Versus HAFIJHUSEN ADNAN @ JAID TAJUDDIN GOSMOHIDDIN MULLA & 4....Respondents ================================================================ Appearance: MR RC KODEKAR ADDL PUBLIC PROSECUTOR for the Applicant D.D. PATHAN, ADVOCATE for the Respondents No. 1 - 5 MR KHALID G SHAIKH, ADVOCATE for the Respondents No. 1 - 5 MR MHM SHAIKH, ADVOCATE for the Respondents No. 1 - 5 MS RATNA VORA, ADVOCATE for the Respondents No. 1 - 5 ================================================================ CORAM: HONOURABLE MR.JUSTICE S.R.BRAHMBHATT Date : 05/04/2013 ORAL JUDGMENT
Heard learned advocates for the parties.
Rule.
Learned advocates for the respondents waives service of notice of Rule on behalf of the respondent nos.1 to 5. With the consent of learned advocates for the parties, Rule is fixed forthwith.
The State has approached this Court by invoking provisions of Articles 226 and 227 of the Constitution of India read with Section 482 of the Code of Criminal Procedure with the following prayers:
(a) Your Lordships may be pleased to admit and allow this petition;
(b) Your Lordships may be pleased to quash and set aside the order passed below Exh. 11 in Criminal Revision Application No. 118 of 2013 on 16.03.2013 passed by the learned Additional Sessions Judge, Court No. 10, Ahmedabad, as also the order passed by the learned Additional Metropolitan Magistrate, Court No. 11, Ahmedabad dated 13/03/2012 rejecting the further remand of accused and further be pleased to grant further remand of ten days of the respondents accused;
(c) Pending admission, final hearing and direction of this application, Your Lordships may be pleased to stay the execution, operation and implementation of the order passed below Exh. 11 in Criminal Revision Application No. 118 of 2013 on 16/03/2013 passed by the learned Additional Sessions Judge, Court No. 10, Ahmedabad, as also the order passed by the learned Additional Metropolitan Magistrate, Court No. 11, Ahmedabad dated 13/03/2012;
The facts in brief leading to filing this petition indicate that the offence was registered under Sections 130, 224, 120(B) and 511 of the Indian Penal Code and under Section 45 of the Prison Act before the Ranip Police Station. The respondents were in fact under trial prisoners in respect of another case and therefore, special permission was sought from the Sessions Court for interrogating them, which was granted and respondents were interrogated for the period of 10 days, which came to be over on 23.02.2013 and thereafter, formal arrest was effected and they were produced before the Magistrate on 28.2.2013 and the learned Magistrate granted remand upto 5.3.2013 and thereafter on account of further investigation and various reports from the expert agencies, it was decided on the part of the Investigating Officer to seek remand for further period and hence, application came to be moved on various grounds which are mentioned in the memo of application for seeking remand. The said application came to be dismissed by the learned Magistrate on 13.3.2013 on various grounds and relying upon the decision of the Court in case of Devendrakumar and another Vs. State of Haryana and others, reported in (2010) 6 SCC 753. The said order of rejection was assailed in Revision Application No. 118 of 2013, whereunder, the concerned Court also did not accept the application and rejected the same vide order dated 16.3.2013. Hence, present petition before this Court under Articles 226 and 227 of the Constitution of India read with Section 482 of the Code of Criminal Procedure.
Learned APP relying upon the decision of the Apex Court in case of CBI Vs. Anupam J. Kulkarni, reported in AIR 1992 SC 1768 as well as decision of this Court in case of CBI vs. Amit Shah in Special Criminal Application No. 1497 of 2010 decided on 06.08.2012 contended that the orders impugned in this petition are erroneous and remand ought to have been granted looking to the seriousness of the allegations and requirement of the investigation and custodial interrogation in respect of present respondents.
Learned APP further submitted that the decision cited in respect of Devendrakumar (supra) was of no avail and rather the ratio laid down in the judgment helps the case of the investigating agency in seeking remand as the Court while accepting the ratio on case of CBI Vs. Anupam J. Kulkarni (supra) held that the second application for remand as envisaged under Section 167 of the Code of Criminal Procedure. Learned APP invited this court s attention to the application of remand which contains serious requirement to custodial interrogation as the serious doubts and clarifications were required to be interrogated on the circumstances and grounds for digging tunnel in present case and the ultimate aim of prisoners to flee from the custody, the nexus of the respondents with terrorists etc. being very serious aspects, the remand was essential and therefore, the same could not have been denied by the courts below.
Learned advocate Shri Shaikh appearing for the respondents has relied upon the decision in case of Devendrakumar (supra) and submitted that the period of 15 days was though not over but now in light of the emphatic pronouncement of Supreme Court, no remand could be even considered as the time for which permission was required to be obtained had gone by.
Learned advocate for the respondents has invited this court s attention to the order passed by the Special Designated Court, which granted permission to Investigating Officer to seek further remand for interrogation and same was granted for 10 days and after 10 days period was over by 23.2.2013, no further request for interrogation was coming forward. Learned advocate for the respondents submitted that the asking of further remand on the report of fire brigade officer of tunnel being found to be more lengthier than the earlier, now the remand cannot be demanded. Learned advocate for the respondents has also submitted that the same grounds and circumstances were already available with the applicant even on earlier occasion and therefore, on the same grounds and circumstances, no further remand can be granted.
Learned advocate for the respondents looking to the papers, the grounds which are urged in this application were very much available with the applicants even on earlier and they were pressed into service even while seeking remand from the Special Judge and repetition of those grounds in the present application are of no avail to applicant.
This Court is of the considered view that the close perusal of the two orders of the courts below, which clearly indicates that the remand could not have been granted and both the courts have made extensive observations on merits for not granting remand. The Court need not elaborately dwell much there upon for avoiding repetition. But suffice it to say that the custodial interrogation on account of police custody is never the subject matter of right and provisions of law in terms of Section 167 is unequivocally clear qua the remand and period of remand. The said Section 167 was interpreted by the Courts time and again in case of CBI Vs Anupam J. Kulkarni (supra) and in the subsequent judgment of Supreme Court reported in (2010) 6 SCC 753 in case of Devendrakumar (supra), the Supreme Court has in para-16 clearly observed as under:
Of course, we do not agree with the submissions made by Mr. Luthra that the second application for police remand is not maintainable even if made during the first 15 days period after arrest. The said point has also been considered and decided in the above case. Within the first 15 days of arrest the Magistrate may remand the accused either to judicial custody or police custody for a given number of days, but once the period of 15 days expires, the Magistrate cannot pass orders for remand.
emphasis supplied.
This Court is of the view that following factors would militate against prayers for remand in the instant case.
The Investigating Agency had sufficient time for interrogation as initially Special Court had granted permission to interrogate for period of 10 days and liberty was reserved for asking more time. This period was over and the liberty so reserved was not utilized as no further time was requested. Nothing prevented the investigating agency to reiterate its request for further interrogation from the special court in terms of liberty.
The grounds urged for remand do not suggest that they were not available to the investigating agency and therefore they were justified in seeking further remand. The ground of detection of tunnel s length in itself cannot be said to be so important and vital ground as to permit custody of accuse to investigating agency.
The remand by investigating agency is never a matter of right and even if the 15 days of statutory time as envisaged in section 167 is not order if the investigating agency failed in pointing out cogent reasons for remand than ordinarily court should not accede to such prayers for further remand unless and until dire consequences are pleaded and established.
Hence, the petition being bereft of merits, deserves rejection and is rejected accordingly. Rule discharged.
(S.R.BRAHMBHATT, J.) pallav Page 7 of 7