Karnataka High Court
Mr.Rajesh @ Raju vs The State Of Karnataka on 11 November, 2020
Author: Suraj Govindaraj
Bench: Suraj Govindaraj
W.P.No.12745 of 2020
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 11TH DAY OF NOVEMBER, 2020
BEFORE
THE HON'BLE MR. JUSTICE SURAJ GOVINDARAJ
WRIT PETITION NO.12745 OF 2020 (GM-RES)
BETWEEN:
1. MR. RAJESH @ RAJU,
S/O LATE SHEKARA POOJARY,
AGED 24 YEARS,
RESIDING AT KUMPANAMAJALU,
TEKKI HITLU HOUSE,
PUDU VILLAGE,
BANTWAL TALUK - 574 143.
2. MR. YATHIN KUMAR @ YATHIN,
S/O KOTI POOJARY,
AGED 28 YEARS,
RESIDING AT KUDREBETTU POST,
BALTHILA VILLAGE,
BANTWAL TALUK,
MANGALURU - 574 143.
3. MR. MANEESH,
S/O GANGADHARA POOJARY,
AGED ABOUT 24 YEARS,
R/AT MSEZ COLONY, KODIKERE,
KUKAI, MANGALURU TALUK,
MANGALURU - 574 143.
... PETITIONERS
(BY SRI ANANDARAMA K., ADVOCATE)
W.P.No.12745 of 2020
2
AND:
THE STATE OF KARNATAKA,
REPRESENTED BY
PSI OF BANTWAL TOWN POLICE STATION,
BANTWAL - 574 143.
... RESPONDENT
(BY SRI K. NAGESHWARAPPA, HCGP)
THIS WRIT PETITION IS FILED UNDER ARTICLES
226 AND 227 OF THE CONSTITUTION OF INDIA READ
WITH SECTION 482 OF THE CR.P.C., PRAYING TO SET
ASIDE/QUASH THE ORDER DATED 29.09.2020 PASSED
BY THE ADDITIONAL CIVIL JUDGE AND JMFC COURT,
BANTWALA, DAKSHINA KANNADA, IN CRIME NO.95/2020
AND CONSEQUENTLY ISSUE A DIRECTION TO FURNISH
CERTIFIED COPY OF THE REMAND REPORT/
APPLICATION FILED U/S 167 OF THE CODE OF
CRIMINAL PROCEDURE TO THE PETITIONERS.
THIS PETITION COMING ON FOR ORDERS,
THROUGH VIDEO CONFERENCE IN BENGALURU, THIS
DAY, THE COURT MADE THE FOLLOWING:
ORDER
1. Sri Anandarama K., learned counsel for the petitioners submits that he has made payment of the Court Fee today morning by UPI and the UTR reference for the same is Chelan reference No.B21120007507551. Registry to verify. W.P.No.12745 of 2020 3
2. Office has raised objection No.2 as regards the filing of the verifying affidavit.
3. Sri. Anandarama K., learned counsel for the petitoners seeks for a week's time to file the verifying affidavit. He submits that there is urgency in the matter and the same may be taken up pending such compliance. He further submits that the order copy may be released only after compliance of the office objections. Acceding to his request the matter is taken up.
4. Sri K. Nageshwarappa, learned HCGP accepts notice for the respondent.
5. The petitioners are before this Court seeking to set aside/quash the order dated 29.09.2020 passed by the Additional Civil Judge and JMFC Court, Bantwala, Dakshina Kannada, in Crime No.95/2020 and for a consequent directions to the said Court to furnish the certified copy of the Remand W.P.No.12745 of 2020 4 Report/Application filed under Section 167 of the Code of Criminal Procedure to the petitioners.
6. The petitioners - accused Nos.1 to 3 were arrested by the Bantwala Town Police Station on 03.09.2020 and produced before the Civil Judge and JMFC, Bantwala, Dakshina Kannada on 04.09.2020 in connection with FIR in Crime No.95/2020 registered against them. The allegations in the said FIR is as regards the petitioners having committed the offences punishable under Sections 143, 147, 148, 279, 323, 324, 504 and 307 read with Section 149 of the IPC and Section 2A of the Karnataka Prevention of Destruction and Loss of Property Act, 1981.
7. It is stated that the respondent-police had produced the petitioners before the Sessions Judge on 04.09.2020 and sought for Remand of the accused to police custody by filing an application under Section 167 of Cr.P.C. and vide order dated 04.09.2020 the Civil Judge and JMFC Bantawala remanded the accused to police custody until the COVID-19 test W.P.No.12745 of 2020 5 results of the accused were obtained, thereafter after results were obtained at about 4.00 p.m., the case was called out noticing that, COVID-19 tests were negative in nature the petitioners/accused Nos.1 to 3 were remanded to judicial custody.
8. On 24.09.2020 the petitioners/accused through their Advocate submitted an application requesting the certified copy of the remand report and certified copy of the application filed by the respondent under Section 167 of Cr.P.C.
9. The said application came to be rejected by the Civil Judge and JMFC vide its order dated 29.09.2020 on the ground that the said document is one between the Court and the Investigation Officer forming a part of Section 172(3) of the Cr.P.C. and hence cannot be given to the accused/petitioners. It is aggrieved by the said order the petitioners are before this Court.
10. Sri Anandarama, learned counsel for the petitioners would submit that in terms of Chapter 13 of the W.P.No.12745 of 2020 6 Karnataka Criminal Rules and Practices, 1968, which deals with the records of the Courts, the application for detention in police custody filed under Section 167 of Cr.P.C. and any order thereon form part of the record to be maintained under Rule 5A by the Court in terms of Rule 3(a)(6) of Chapter 13, Section 1.
11. By relying on Chapter 14 of the said Rules and Practices Sri Anandarama submits that the parties to the case are entitled to at any stage of the proceedings to obtain copy of the record of the case, including exhibits which have been admitted in evidence as stated under Rule 2 of Chapter 14.
12. By connecting both the said Rules he submits that the application for detention that is a remand application forming part of the record of the case the petitioners would be entitled to copies thereof in terms of Rule 2 of Chapter 14. Thus, he submits that the refusal by the Civil Judge and JMFC of Bantawala to furnish the copy of the said application and order is violating the rights of the petitioners in W.P.No.12745 of 2020 7 obtaining the certified copies of the Remand Application and the order on Remand.
13. Sri Anandarama, learned counsel for the petitioners also relies on the decision of Division Bench of Kerala High Court in the case of In Re Raman Velu reported in 1972 KLT 922, more particularly at Para Nos.3, 12, 13 and 16, which are re-produced herein below for easy reference.
"3. This leads us to the question whether the "remand report" is a public document. Neither S. 167 nor S. 344 of the Code of Criminal Procedure, which contains the provisions for Remand and extension of Remand of the accused respectively, contemplates expressly any report by the police, which in practice is called the "remand report". S 167(1) states:
'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 S. 61, 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 W.P.No.12745 of 2020 8 to the nearest 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'
12. The proceeding relating to the Remand of an accused is neither a confidential nor a non-judicial act. The document also cannot be called to be notes of evidence. We do not, therefore, find any merit in the contention that there is a statutory bar against the grant of certified copy in Rule 322 of the Criminal Rules of Practice (Travancore Cochin).
13. The learned Government Pleader further submits that under S. 172(2) of the Crl. P.C there is a bar against the accused calling for the case diary or seeing it even where the court, during the course of an enquiry or trial sends for and uses such diary in aid of such enquiry or trial. This prohibition, as we view it, is only against the use by the accused of the case diary as such, but not against "remand report" submitted by the investigating officer. It has to be noted that the use of the case diary by the Court in the course of a trial or enquiry is not as evidence in the case, but only in aid of such enquiry or trial.
If any portion of the case diary is used against him, the accused, even in terms of sub-s. (2) of S. 172 Crl. P.C has the right to see or know the statement to the extent to which it is used or intended to be used against him in evidence. The legislature has consciously provided a safeguard with W.P.No.12745 of 2020 9 respect to the claim for inspection of the case diary by the accused. The same safeguard, there would have been, with respect to the "remand report" also, if the legislature bad any intention to treat it as a privileged document beyond the reach of the accused. The correct position seems to be that the prohibition contained in sub-s. (2) of S. 172 Crl. P.C, against the right of the accused to inspect the case diary, does not extend to the "remand report".
16. Having considered the matter in its various aspects, we are of the opinion that the accused is entitled to apply for and obtain certified copy of the remand report. In this view, the order passed by the learned Sub Divisional Magistrate for the grant of the certified copy applied for is upheld and the reference by the learned District Magistrate is rejected."
14. On the other hand Sri K. Nageshwarappa, learned HCGP would submit that many a times there are very confidential matters (at that stage) which are stated in the remand application which if made known to the accused could have an adverse effect on the Investigation and the very purpose of the Remand being sought by jurisdictional police would be lost if W.P.No.12745 of 2020 10 the accused were to know the reasons of such Remand. He submits that these could be made available after Investigation but not during the pendency of Investigation. On these grounds, he submits that the application was rightly rejected by the Civil Judge and JMFC Bantawala.
15. Heard Sri Anandarama, learned counsel for the petitioners and Sri K. Nageshwarappa, learned HCGP for the respondent-State.
16. The question of legal importance that arises in the matter is, Whether in all cases the accused would be entitled to copy of the Remand Application filed by the Investigation Officer, on which basis the accused had been remanded to Judicial Custody under Court order?
17. A criminal proceedings when initiated against the persons could result in a punitive action against said persons including the loss of liberty during the period in which the said accused are retained in judicial W.P.No.12745 of 2020 11 custody and if convicted on account of the sentence awarded.
18. Though the interest of the State is required to be protected by prosecuting offenders who have violated the provision of the various criminal statutes, it is also required that the interest of the accused is protected from any arbitrary actions and or from the exercise of police powers of the Investigating Officer/State.
19. One of the important steps in the course of Investigation and or in Criminal Proceedings is the production of the accused on arrest within 24 hours of his arrest, and if required the Investigating Officer could seek for the Remand of the accused for the purpose of Investigation by way of interrogation or otherwise.
20. Though the exercise of power of Remand would be done by the Magistrate of the Court concerned, by judicially applying his/her mind, he/she would be so W.P.No.12745 of 2020 12 doing on the basis of the application for Remand filed by the Investigating Officer. Since, in the absence of the said the remand application there would be no requirement to remand accused to judicial custody. The remand application could, on many occasions, either detail out the reasons on which basis remand is sought for, or the same could be stated in a short synoptic manner. The question that arises is whether the accused would be entitled to get copy of the said remand application. Since if the contents of the said application is made known to the accused, the purpose of the Remand itself may be lost.
21. It is at this stage that the exercise of the discretion would have to be made by the concerned Judge when an application seeking for copy of the Remand Application is sought for and the concerned Judge if in exercise of sound judicial discretion were to come to a conclusion that the furnishing of the application would not cause any adverse impact on the Investigation the copy of the application can be made W.P.No.12745 of 2020 13 available by concerned Judge to the accused. Per contra, if the concerned Judge in exercise of sound judicial discretion were to come to a conclusion that the furnishing of the application would cause an adverse impact on the Investigation the copy of the application can be refused to be made available by concerned Judge to the accused. This being so for the reasons that the matter is still under Investigation and the sanctity of the Investigation is required to be preserved at that stage.
22. Hence, I answer the question by holding that in all cases the accused would not be entitled to copy of the Remand Application filed by the Investigation Officer, on which basis the accused had been remanded to Judicial Custody under Court order, the furnishing of a copy of the remand application at the stage of Investigation would be in the sole judicial discretion of the concerned Judge, once the Investigation is completed and charge sheet is laid, the Accused W.P.No.12745 of 2020 14 would be entitled to copies of the remand application/s as a matter of right.
23. In view of the above discussion, the order dated 29.09.2020 passed by the Additional Civil Judge and JMFC Court Bantawala in Crime No.95/2020 is set aside and the matter is remitted to the said Civil Judge and JMFC Court, Bantawala, to consider the application filed in light of the above observations.
23. The petition is disposed of.
Sd/-
JUDGE SBS*