Karnataka High Court
Central Bureau Of Investigation vs Kenche Mahesh Kumar on 21 July, 2015
Bench: Mohan M. Shantanagoudar, R.B Budihal
R
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 21ST DAY OF JULY 2015
PRESENT
THE HON'BLE MR. JUSTICE MOHAN M. SHANTANAGOUDAR
AND
THE HON'BLE MR. JUSTICE BUDIHAL R.B.
CRIMINAL PETITION NO.1697/2014
BETWEEN:
Central Bureau of Investigation
No. 36, Bellary Road
Ganganagar
Bangalore-560032
Represented by
Inspector of Police
CBI:ACB:Bangalore
.. Petitioner
(By Sri C.H.Jadhav, Senior counsel for
Sri D.G. Hegde, Adv.)
AND :
Kenche Mahesh Kumar
@ Karapudi Mahesh
S/o K. Nagraj
Aged: Major
R/o Ward No.21
2
Near Katta Nanjappa School
J.P. Nagar, Near Bellary Road Circle
Hospet-583201
..Respondent
(By Sri Hashmath Pasha, Adv.,)
This Criminal Petition is filed under Section 439(2) of
Cr.P.C praying to cancel the order of bail granted to the
respondent/accused No.4 vide order dated 30.11.2013 by
the XLVI Addl. City Civil and Sessions Judge for CBI cases
at Bangalore CITY (CCH-47) in Crime No. RC 13(A)/2012
registered for the offences punishable under Sections
120-B, 409, 420, 379, 411 and 447 of Indian Penal Code;
Section 13(2) r/w 13(1)(d) of Prevention of Corruption Act,
1988; and under Section 21 r/w 4(1), 4(1)(A) and 23 of
MMDR Act, 1957 and under Section 24 of Karnataka Forest
Act, 1963.
A point is raised in this Criminal Petition as to whether
the computation of 90 days, as contemplated under Section
167 of the Cr.PC., would commence from the date the body
warrant is served on the jail authorities or whether it should
be taken as commencing from the date on which the
accused is produced before the Court.
This Criminal Petition having been reserved for orders
on the point raised, coming on for pronouncement of order
on the point raised and for final disposal, this day, MOHAN
M. SHANTANAGOUDAR .J., made the following.
3
ORDER ON THE POINT RAISED
The point to be considered in this Criminal Petition is
as under:
"Whether the computation of 90 days, as
contemplated under Section 167 of the Cr.PC.,
would commence from the date the body
warrant is served on the jail authorities or
whether it should be taken as commencing from
the date on which the accused is produced
before the Court ?"
2. Brief facts relevant for deciding the aforementioned
point are as under:
Respondent herein is one of the accused in RC
No.15(A)/2012 (Now numbered as Spl. CC No.135/2013).
He was arrested and remanded to custody on 2.3.2013 in
the said case. The petitioner - Central Bureau of
Investigation ('CBI' for short) was also investigating RC
4
No.13(A)/2012. The Court below allowed the prayer of the
Investigating Officer by order dated 29.5.2013 to array the
respondent herein as an additional accused in RC
No.13(A)/2012. After arraying the respondent as an
additional accused in RC No.13(A)/2012, the Investigating
Officer conducted investigation to certain extent. The
material collected during investigation primafacie
established nexus between the respondent and the crime.
As the presence of the respondent was needed for custodial
investigation, the Investigating Officer of CBI filed an
application seeking production of the respondent in RC
No.13(A)/2012 and for the purpose of effecting formal
arrest inasmuch as the respondent was already under
judicial custody in RC No.15(A)/2012. Considering the
material on record, the Special Judge for CBI cases by the
order dated 30.8.2013 directed to issue body warrant to the
concerned Prison Authorities to produce the respondent
before the Court below on 2.9.2013. The body warrant so
5
issued by the Court below was served on the concerned
Prison Authorities on 31.8.2013. The respondent was
produced before the Special Judge trying CBI cases in RC
No.13(A)/2012 on 2.9.2013. On the very day, the custody
of the respondent was handed over to the Investigating
Officer of CBI for custodial investigation. Subsequently,
the petitioner - CBI filed the charge sheet in RC
No.13(A)/2012 on 30.11.2013.
Application came to be filed by the respondent in RC
No.13(A)/2012 before the Court below seeking enlargement
on bail on the ground that the charge sheet is filed in RC
No.13(A)/2012 after 90 days from the date of service of
body warrant on the Jail authorities i.e., after 90 days from
31.8.2013. According to the respondent, the charge sheet
was filed on 92nd day after the service of body warrant and
not on or before 90 days. The trial Court accepting the
contention of the respondent enlarged the respondent on
bail by imposing certain conditions.
6
Hence, the only point as mentioned supra has arisen
for consideration.
3. Sri C.H. Jadhav, learned senior advocate appearing
on behalf of the CBI taking us through the material on
record submits that the law nowhere prescribes that the
day of service of body warrant on the Jail authorities should
be taken as the starting point to calculate 60 days or 90
days as the case may be prescribed under Section 167(2)
of Cr.PC for the purpose of filing the charge sheet. He
submits that the date on which the concerned Presiding
Officer has first authorized detention of the accused should
be taken as the starting point to calculate 60 days or 90
days as prescribed under Section 167 of Cr.PC while
deciding the bail application. He further submits that the
respondent/ accused was already in detention in a different
case i.e., RC No.15(A)/2012 and such detention in RC
No.15(A)/2012 continued till the formal order of detention
7
was made by the Presiding Officer of the Court below in RC
No.13(A)/2012. Consequently, it cannot be said that the
respondent herein was detained in RC No.13(A)/2012 at
any time prior to actual date of production of the accused
before the Court inasmuch as he was already under
detention in RC No.15(A)/2012. Since the respondent was
already detained in RC No.15(A)/2012, a formal order was
passed by the Court below on 2.9.2013 authorizing
detention of the respondent in RC No.13(A)/2012. Thus
according to him, the starting date to reckon 90 days shall
be the date on which the Court below has first authorized
detention of the accused in RC No.13(A)/2012 i.e.,
2.9.2013 and not any date prior thereto.
Sri Hashmath Pasha, learned advocate appearing for
the respondent per contra argued that liberty of the
respondent was curtailed as soon as the body warrant was
served on the Jail authorities; merely because the
8
respondent was produced before the Special Court on
2.9.2013 by the Jail Authorities and merely because the
custody of the respondent was handed over to the
petitioner on 2.9.2013 in RC No.13(A)/2012, the period of
90 days as prescribed under Section 167 of Cr.PC will not
commence from that date. On the other hand, the period
of 90 days shall be calculated from the date on which the
body warrant was served on the Jail authorities i.e., from
31.8.2013 in the matter on hand. According to him, since
the body warrant was served on 31.8.2013, it is incumbent
on the part of the Prison Authorities to retain the presence
of the respondent in Prison till he is produced before the
Court below on 2.9.2013 and therefore the respondent's
liberty to that extent is curtailed from 31.8.2013 itself and
consequently, he is deemed to be in detention in RC
No.13(A)/2012 from 31.8.2013.
9
4. Before proceeding further, it would be beneficial to
note the relevant provisions of Section 167 of Cr.PC for
deciding the aforementioned point:
167. Procedure when investigation cannot be
completed in twenty-four hours,-
(1) Whenever any person is arrested and
detained in custody, and it appears that the
investigation cannot be completed within the
period of twenty-four hours fixed by section 57,
and there are grounds for believing that the
accusation or information is well-founded, the
officer in charge of the police station or the
police officer making the investigation, if he is
not below the rank of sub-inspector, shall
forthwith transmit to the nearest Judicial
Magistrate a copy of the entries in the diary
hereinafter prescribed relating to the case, and
shall at the same time forward the accused to
such Magistrate.
(2) The Magistrate to whom an accused
person is forwarded under this section may,
whether he has or has not jurisdiction to try the
10
case, from time to time, authorize the detention
of the accused in such custody as such
Magistrate thinks fit, for a term not exceeding
fifteen days in the whole; and if he has no
jurisdiction to try the case or commit it for trial,
and considers further detention unnecessary, he
may order the accused to be forwarded to a
Magistrate having such jurisdiction:
Provided that,-
(a) the Magistrate may authorize the detention
of the accused person, otherwise than in
the custody of the police, beyond the
period of fifteen days, if he is satisfied that
adequate grounds exist for doing so, but no
Magistrate shall authorize the detention of
the accused person in custody under this
paragraph for a total period exceeding,-
(i) ninety days, where the
investigation relates to an offence
punishable with death,
imprisonment for life or
imprisonment for a term of not less
than ten years;
11
(ii) sixty days, where the investigation
relates to any other offence, and,
on the expiry of the said period of
ninety days, or sixty days, as the
case may be, the accused person
shall be released on bail if he is
prepared to and does furnish bail,
and every person released on bail
under this sub-section shall be
deemed to be so released under
the provisions of Chapter XXXIII
for the purposes of that Chapter;
(b) no Magistrate shall authorize detention
of the accused in custody of the police
under this section unless the accused is
produced before him in person for the
first time and subsequently every time
till the accused remains in the custody
of the police, but the Magistrate may
extend further detention in judicial
custody on production of the accused
either in person or through the medium
of electronic video linkage:
12
(c) no Magistrate of the second class, not
specially empowered in this behalf by
the High Court, shall authorize
detention in the custody of the police.
5. It is by now well settled that the body
warrant/production warrant cannot be equated to the
warrant of arrest. The order issuing the body
warrant/production warrant cannot be construed to be an
authorization for detaining the person. Body warrant would
be issued only for the purpose of securing the person who
is already detained in custody in another case. The body
warrant cannot mean that the same shall be an
authorization to curtail the liberty of a person and to keep
him in custody till the date on which the production is
ordered for. If the prisoner who is already detained in 'A'
case gets an order of bail and complies with all the
conditions of the bail order, he shall have to be released
pursuant to such bail order, even if the body warrant is
13
issued to the said prisoner in another case i.e., 'B' case in
the meanwhile. The Prison Authorities in such case cannot
treat the body warrant in 'B' case as an authorization to
detain the prisoner till he is produced before the 'B' Court.
Thus merely because the body warrant was served on the
Jail authorities for production of the detenue who was
already detained in RC No.15(A)/2012, it cannot be said
that such prisoner was deemed to have been detained in RC
No.13(A)/2012 also. Since warrant of arrest was not
issued by the Court in RC No.13(A)/2012 for arresting the
respondent, the accused/respondent could not have been
arrested and produced before the Court below in RC
No.13(A)/2012. On the other hand, because of body
warrant, the respondent/accused had to be taken from the
prison premises to the Court before which RC
No.13(A)/2012 is pending merely for production before the
said Court. Thereafter it was always open for the Presiding
Officer of the Court below to decide as to whether the
14
custody of the respondent should be given to the
Investigating Officer in RC No.13(A)/2012 or not. Under
given circumstances, if the Court feels that it is not a fit
case for granting custody of the Prisoner to the
Investigating officer for custodial investigation, it may even
refuse to do so. Only if the Court were to decide that it is
necessary to have the respondent in the custody of the
Investigating Officer for custodial investigation, the custody
of the respondent would be given to the Investigating
Officer. Therefore the detention of the respondent in RC
No.13(A)/2012 would begin only after the Presiding Officer
of the Court below passed an order directing handing over
of custody of the respondent to the Investigating Officer in
RC No.13(A)/2012 and not earlier thereto.
6. The Apex Court in the case of STATE OF W.B. .vs.
DINESH DALMIA reported in (2007)5 SCC 773 has observed
that the reading of Sections 167(1) and 167(2) of Cr.PC
15
with proviso clearly transpires that the accused should be
in fact under the detention of Police for investigation. It is
further observed that if the accused himself voluntarily
surrenders before the Magistrate and no physical custody of
the accused was given by the Court to the Police for
investigation, it cannot be said that the accused was in
custody for the purpose of investigation. The whole
purpose of Section 57 r/w Section 167 of Cr.PC is that the
accused should not be detained for more than 24 hours and
subject to 15 days' Police remand, it can further be
extended up to 60 days or 90 days as the case may be.
But the custody of Police for investigation purpose cannot
be treated as judicial custody/detention in another case.
The Police custody means, the Police custody in a particular
case for investigation and not judicial custody in another
case. A notorious criminal may have number of cases
pending in various Police Stations in a city or outside the
city. If the notional surrender or detention in one pending
16
case is counted in respect of another pending case, then
the Police will not get the opportunity to get custodial
investigation. The period of detention before the
Magistrate in such matters can be treated as device to
avoid granting of physical custody of the accused to the
Police and claim the benefit of proviso to sub-section (2) of
Section 167 of Cr.PC and to get released on bail. This kind
of device cannot be permitted under Section 167 of Cr.PC.
From the aforementioned observations of the Apex Court, it
needs to be concluded that the date on which the accused
has voluntarily surrendered himself in another case or the
date on which the body warrant was served on Prison
Authorities in RC No.13(A)/2012 cannot be taken as the
starting point for statutory period as envisaged in proviso to
sub-section (2) of Section 167 Cr.P.C.
7. The similar point as mentioned supra was
considered by the High Court of Gujarat in Special Criminal
17
Application No.550/2011 in the case of KAPILESH
NAVINDCHANDRA DAFTARY .vs. STATE OF GUJARAT
decided on 13.6.2011. The High Court of Gujarat in the
said matter relying upon various Judgments of the Apex
Court concluded that the statutory period as envisaged in
proviso to sub-section (2) of Section 167 of Cr.PC would
commence only from the date when the accused was
produced before the Magistrate and was ordered for
custody in second matter and not earlier thereto. In the
said matter also, the transfer warrant was issued by the
Magistrate for transporting the prisoner who was detained
in one case to cooperate during investigation in second
case. It is also observed in the said matter that even the
initial period of custody of an arrested person till he is
produced before the Magistrate i.e., till the period of 24
hours as contemplated under Section 57 of Cr.PC is neither
referable to nor in pursuance of an order of remand passed
by the Magistrate and such period when the accused was in
18
the custody of the Police officer in exercise of the powers
under Section 57 of Cr.PC stands excluded from the
statutory period of 90 days or 60 days as the case may be
and it will begin to run from the date of order of remand.
While observing so, Gujarat High Court has also relied upon
the dictum laid down by the Apex Court in the case of
CHAGANTI SATYANARAYANA AND OTHERS .vs. STATE OF
ANDHRA PRADESH reported in (1986)3 SCC 141.
8. In the case Chaganti Satyanarayana cited supra,
the Apex Court has concluded thus:
24. xxxx xxx xxx We must bear in mind that
significant changes have been made in Section
167 as well as to the proviso by Act 45 of 1978
such as increasing the period for investigation in
grave cases from 60 to 90 days, conferring of
powers of remand on Executive Magistrates in
certain situations etc. Therefore, it can be
legitimately contended that the words occurring
in proviso (a) should be construed within the
19
frame-work of the proviso itself without any
reference to Section 167(2). If such a
construction is made, it may be seen that the
proviso forbids the extension of remands only
beyond a total period of 90 days under clause
(i) and beyond a total period of 60 days under
clause (ii). Thus if proviso (a) is treated as a
separate paragraph it necessarily follows that
the period of 90 days or 60 days as the case
may be, will commence running only from the
date of remand and not from any anterior date,
in spite of the fact that the accused may have
been taken into custody earlier by a police
officer and deprived of his liberty.
25. Thus in any view of the matter i.e.,
construing proviso (a) either in conjunction with
sub-section (2) of Section 167 or as an
independent paragraph, we find that the total
period of 90 days under clause (i) and the total
period of 60 days under clause (ii) has to be
calculated only from the date of remand and not
from the date of arrest.
(Emphasis Supplied)
20
While concluding as mentioned supra, the Apex Court
has observed that if the initial order of remand is to be
made with reference to the date of arrest, then the order
will have retrospective coverage for the period of custody
prior to the production of the accused before the Magistrate
i.e., the period of 24 hours' custody which a police officer is
entitled to have under Section 57 besides the time taken for
the journey. Such a construction will not only be in discord
with the terms of Section 57 but will also be at variance
with the terms of sub-section (2) of Section 167 of Cr.PC
itself. If the contention of Sri Hashmath Pasha is to be
accepted, then the words in sub-section (2) viz., "no
Magistrate shall authorize the detention of the accused ... ...
... for a total period exceeding 90 days" will have to be
read differently insofar as the first order of remand is
concerned so as to read as "for a term not exceeding 90
days in the whole from the date of arrest". Hence it is clear
that the contention of respondent's counsel would definitely
21
necessitate the adding of more words to the section than
what the Legislature has provided.
10. Thus, the Apex Court has made it clear that the
period of 90 days or 60 days contemplated under Section
167(2) of Cr.PC., will commence running only from the date
of remand and not from any anterior date inspite of the fact
that the accused may have been taken into custody earlier
by a Police Officer and deprived of his liberty. The
observations made in the case of Chaganti Satyanarayana
cited supra fully answer the arguments of Mr. Hashmath
Pasha.
11. It is also beneficial to refer to the Judgment of
this Court in the case of DORAI AND ANOTHER .vs. STATE
OF KARNATAKA reported in 1994 Crl.LJ 2987 wherein this
Court after considering almost all the Judgments prior to
delivery of the said Judgment, has concluded thus:
22
30. A careful consideration of the provisions of
S.167 and the law laid down by the Supreme
Court in Lakshmi Brahman's case (AIR 1983 SC
439) and the decision of the Full Benches of
Gujarat, Patna and Rajasthan High Courts makes
it clear that an accused is entitled as of right to
bail under the proviso to S. 167(2) only if the
charge-sheet is not filed within 90 days or 60
days as the case may be, from the date the
Magistrate first authorized detention of the
accused and that once the charge-sheet is filed
within that period S. 167 ceases to apply and the
accused cannot seek bail by virtue of proviso to
S. 167(2) on any other ground. In the present
case the fact that though the charge-sheet was
filed within the period of 90 days the Magistrate
had not passed an order taking cognizance
within that period does not entitle the accused to
seek bail under proviso to S. 167 (2) without
reference to the merits of the case.
(Emphasis Supplied)
23
12. In the matter on hand, undisputedly the Presiding
Officer of the Court below authorized detention of the
respondent for the first time on 2.9.2013 in R.C.
No.13(A)/2012 and not earlier thereto. On the very date,
the custody of the respondent was handed over to the
petitioner - CBI for investigation. Consequently, the
respondent was in custody of the petitioner from 2.9.2013
in RC No.13(A)/2012 and not earlier thereto. It is not in
dispute that the petitioner has filed the charge sheet in RC
No.13(A)/2012 on 30.11.2013. It is also not disputed by
Sri Hashmath Pasha that in case if the starting point of 90
days (in the matter on hand) is reckoned from 2.9.2013,
then the charge sheet is filed within 90 days. The legal
position as mentioned supra as well as our aforementioned
discussion leads us to the only conclusion that the period of
90 days contemplated under Section 167(2) of Cr.PC will
commence running only from 2.9.2013 i.e., the date on
which the respondent was produced before the Special
24
Judge and was handed over to the custody of the petitioner
for investigation and not from any anterior date.
13. The contention of Sri Hashmath Pasha that liberty
of the respondent was curtailed from the date of service of
body warrant on Jail Authorities and that he was taken to
the Court from the Prison premises under the Police
surveillance should be deemed that he was in custody of
the Police in RC 13(A)/2012, is unacceptable in view of the
specific observations made by the Apex Court in the case of
Chaganti Satyanarayana mentioned supra.
14. The Court below while passing the order dated
30.11.2013 in RC No.13(A)/2012 enlarging the respondent
on bail has relied upon the Judgment of this Court in the
case of VIJAY KUMAR @ KAVLA & OTHERS .vs. STATE BY
ANEKAL POLICE reported in ILR 2009 KAR 327. While
deciding the said matter, all the aforementioned Judgments
relied upon by us were not brought to the notice of the
25
Court and consequently the said Judgments were not
adverted to by the learned Judge. Even otherwise, the
question as raised in this case was not specifically raised,
consequently was not specifically dealt in detail and decided
in the said matter. This Court in Vijay Kumar's case was
mainly concentrating on the question relating to release on
bail under Section 167(2) of Cr.PC. The Division Bench in
Vijay Kumar's case has ruled that if the charge sheet is not
filed within 90 days, he/she has got right to be released on
bail and even if there is one day delay in filing the charge
sheet after 90 days, the same would enure to the benefit of
the accused. Be that as it may, in the light of the definite
dictum laid down by the Apex Court in Chaganti
Satyanarayana's case and Dinesh Dalmia's case mentioned
supra, the date on which the accused was remanded to
custody shall be taken as the date of starting point for
computing 90 days or 60 days as the case may be for
26
deciding the bail application filed under Section 167(2) of
Cr.PC.
Accordingly, the point raised in this Criminal Petition
is answered as under:
"The computation of 90 days as
contemplated under Section 167 of Cr.PC., would
commence from the date on which the detention
of the accused is authorized in such custody as
the Magistrate/Sessions Judge deems fit and not
from the date, on which the body warrant was
served on the Jail authorities".
Sd/-
JUDGE
Sd/-
JUDGE
gss/-
27
MSGJ/BRBJ:
21.7.2015
ORDER
We had heard the learned advocates on the point raised in the criminal petition on 8.7.2015 and had reserved for orders. Today, we have pronounced the order in the Court on the aforesaid point.
2. After pronouncing the order, we have heard the learned advocates. From the submissions made at the Bar, we find that no other point needs to be decided in this Criminal Petition.
In view of the above, the order of XLVI Additional City Civil and Sessions Judge & Special Judge for CBI Cases, Bangalore city (CCH-47) dated 30th November 2013 in R.C.No.13(A)/2012 is liable to be set aside. Accordingly, the same stands set aside. Further proceedings shall be taken against respondent/accused No.4 as per law. 28
Criminal petition is allowed accordingly.
Sd/-
JUDGE Sd/-
JUDGE gss/-