Bombay High Court
Fazal-Ur-Rehman Abdul Basit Siddiqui vs The State Of Maharashtra on 5 May, 2021
Author: Prakash D. Naik
Bench: Prakash D. Naik
BAST-1926-2020.doc
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
BAIL APPLICATION (ST.) NO. 1926 OF 2020
Fazal-Ur-Rehman Abdul Basit Siddiqui ... Applicant
Versus
The State of Maharashtra ... Respondent
.....
Mr. Rajiv Mohan a/w Mr. Lakshya Gupta i/b. Mr. Sahana Manjesh,
Advocate for the Applicant.
Mr. A. R. Kapadnis, APP for the Respondent - State.
.....
CORAM : PRAKASH D. NAIK, J.
RESERVED ON : 23rd FEBRUARY, 2021.
PRONOUNCED ON : 5th MAY, 2021.
PER COURT:
1. This is an application for bail in MCOC Special Case No.
357 of 2020 pending before the Special Court under the Maharashtra
Control of Organized Crime Act, 1999 (herein after referred to as
"MCOC Act"), Greater Mumbai, at Mumbai.
2. The prosecution case is that threats were issued to the
complainant about the extortion in June, 2005. Police protection was
provided to him which was subsequently withdrawn since there was
no threat perception. The complainant is diamond merchant. On 15 th
October, 2005, unknown person fired at the complainant. C.R. No.
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224 of 2005 was registered with D.B. Marg Police Station for offence
under Section 307 of Indian Penal Code (for short "IPC") and Section
3, 25 & 27 of the Arms Act. Subsequently, investigation was
transferred to D.C.B. C.I.D. vide C.R. No. 5 of 2006. Section 387 r/w
Section 34 of IPC and Section 120-B of IPC were invoked. Thereafter,
Sections 3(1)(ii), 3(2), 3(4) of MCOC Act were applied. Accused
No.1 Sajid @ Raju Bashir Ahmed Sayyed and Accused No.2 Hussein
Khurshid Alam Shaikh @ Hassan @ Salim were arrested on 7 th
January, 2006. Arms were recovered from them. Accused No.3
Shaikh was arrested. Accused No.4 Siraj Aalam was arrested. The
applicant was arrested on 25th November, 2019 and produced before
the concerned Court on the same day. He was remanded to custody.
Investigation proceeded. Confessional statements of the accused
were recorded under Section 18 of the MCOC Act. According to
prosecution, applicant is the head of the gang. Several cases were
registered against the applicant. The charge-sheet provides that 27
cases were registered against the applicant. According to applicant,
he is acquitted in 11 cases. He is on bail in 9 cases. He is discharged
in 3 cases. 2 cases are under trial. In one case he is convicted.
3. The applicant preferred application for bail in
accordance with Section 167(2) of Cr.P.C. The said application was
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rejected by order dated 4th November, 2019. The applicant preferred
an application for interim bail on the basis of the High Power
Committee Guidelines situation issued on account of pandemic of
COVID-19. The said application was rejected by learned Special
Judge by order dated 15th June, 2020. The applicant preferred
application for bail before the Special Court under MCOC Act. The
said application was rejected by order dated 11th August, 2020.
4. This Court vide order dated 11 th December, 2020,
observed that the applicant is in custody in different cases from 2005
and hence his trial be conducted expeditiously. The trial Court was
directed to start the trial immediately and complete the same within
one month. Apparently, the trial is pending. Learned counsel for the
applicant submitted that this application is restricted to the right of
accused for default bail under Section 167(2) of Cr.P.C. Learned
counsel for the applicant has placed for consideration compilation of
several decisions of the Apex Court and this Court and the orders
passed by the trial Court in this proceeding.
5. Learned Advocate Mr. Rajiv Mohan urged following
submissions in support of the prayer for bail in accordance with
Section 167(2) of Cr.P.C.
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i) The learned Special Judge has committed an error in
rejecting the application for default bail vide order dated 4 th
November, 2019.
ii) The trial Court had issued production warrant dated 12 th
December, 2012 against the applicant and in pursuant to that the
applicant was produced before the trial Court on 26 th December,
2012. The applicant is in custody of the trial Court since the date of
issuance of production warrant i.e. on 12 th December, 2012 and since
the date of the production of the applicant before the trial Court on
26th December, 2012. On the date of the production of the applicant/
accused before the trial Court on 26 th December, 2012 application
seeking Police custody remand was pressed by the prosecution. The
said prayer was declined by the trial Court and the applicant was
remanded to Judicial custody with direction to further produce the
applicant as and when directed. Perusal of order dated 26 th
December, 2012 shows that the trial Court was pleased to take the
applicant in judicial custody in this case and even justified the arrest
of the accused. The prayer for Police custody remand of the applicant
was turned down by the trial Court, since proper procedure which
required permission of the other Court in which the applicant was
undergoing judicial custody before his arrest in the present case was
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not followed. It is submitted that while the applicant was not
remanded to Police custody, the judicial custody stood affirmed in
the present case with direction to the Superintendent of concerned
Jail to produce him in the matter as and when called for.
iii) As per Section 167(2)(a)(i) of Cr.P.C., the offence
alleged against the applicant is punishable for a term of 10 years and
above and the Investigating Officer was under obligation to file
charge-sheet against the applicant within 90 days. The trial Court
could have extended the period of investigation up to 180 days as
per the Section 21(2)(b) of MCOC Act, if the application in this
regard had been moved by the prosecutor giving reasons for
extension of period of investigation. No such application was ever
moved by the prosecutor. Hence, as per statutory mandate, the time
period of investigation ended after 90 days of custody. The charge-
sheet in this case was filed in 2020. The applicant is in custody from
12th December, 2012. The charge-sheet was filed after 7 years. Once
the investigating agency fails to file charge-sheet within statutory
period indefeasible right under Section 167 (2) of Cr.P.C. r/w Article
21 of the Constitution of India accrued in favour of the accused.
Once the investigating agency failed to comply the period of 90 days,
the applicant was required to be released on bail under Section 167
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of Cr.P.C. upon his willingness to be released from his custody. The
application for default bail was preferred before filing of charge-
sheet.
iv) Once production warrant were issued by the trial Court
on 12th December, 2012, the Jail Superintendent was bound by the
directions of the Court to ensure production of applicant before the
Court on 26th December, 2012. During operation of production
warrant dated 12th December, 2012, the applicant was released from
custody in other matters pending against him and he would not have
been released from custody from production before the trial Court
and subjected to further order passed by the said Court on 26 th
December, 2012. Hence, once production warrant was issued by the
trial Court on 12th December, 2012, the applicant was in deemed
judicial custody of the trial Court. The custody of the applicant was
in the control of the trial Court and subjected to further directions.
v) Without prejudice to the submission that the applicant
was remanded to be custody of the trial Court when the production
warrant is issued on 12th December, 2012, the custody of the
applicant further affirmed when he was produced before the trial
Court on 26th December, 2012 and in the light of the orders passed
by the trial Court on the said date.
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vi) It is indisputable position of law that the accused is to be
held in custody of Police Officer or Court as soon as he surrender
before the Police or brought before the Court. In this context reliance
is placed on the Judgment of the Supreme Court in the case of
Sundeep Kumar Bafna V/s. State of Maharashtra and Anr. (2014) 16
SCC 623. It is submitted that the Apex Court in the said decision has
dealt with the meaning of custody in relation to criminal
proceedings.
vii) By order dated 26th December, 2012, the applicant was
held to be in custody and directions were issued to the Jail
Superintendent to the effect that his presence be secured before the
trial Court as and when desired. The trial Court is allowed to custody
for remand for want of compliance of procedure but there is no
doubt that the trial Court has taken the applicant in custody vide
order dated 26th December, 2012.
viii) Once the applicant was produced before the trial Court
on 26th December, 2012, three out comes were possible viz. the
applicant be remanded to Police custody, that the applicant be
remanded to judicial custody and that the applicant be released on
bail. The order dated 26th December, 2012 indicate that the applicant
was not remanded to custody nor was he let out on bail. Thus, the
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applicant must be held in judicial custody of the trial Court. The
order dated 26th December, 2012 was for all purposes an order under
Section 309 of Cr.P.C. The right to default bail under Section 167 of
Cr.P.C. is recognized to be a part of procedure of law under Article 21
of the Constitution of India and does not merely statutory right. It is
fundamental right. Reliance is placed on the decision of the Apex
Court in the case of Bikramjit Singh V/s. State of Punjab 2020(4)
MLJ (Cri.) 376.
ix) Right to default bail can be enforced even after filing of
charge-sheet provided that the right under Section 167 was in effect
sought to be enforced by the accused in the period between expiry of
the statutory period to file charge-sheet and the date of filing the
charge-sheet. The applicant had relied on the decision of the Apex
Court in the case of Rakesh Kumar Paul V/s. State of Assam AIR
2017 SC 3948. The application of the applicant was in due
compliance of his obligation for enforcement of his indefeasible right
under Section 167 of Cr.P.C.
6. Apart from the decision referred to herein above,
learned counsel for the applicant relied upon the following decisions
in support of his submission.
i) Niranjan Singh V/s. Prabhakar Rajaram Kharote AIR
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(1980) SC 785.
ii) State of U.P. V/s. Deoman Upadhyaya AIR (1960) SC
1125.
iii) State of Maharashtra V/s. Swaraj Shrikant Thackrey,
2009 BOMLR 2465.
iv) Raja Ayappan V/s. State of Tamilnadu (2020) 5
Supreme Court Cases 118.
v) M. Ravindran V/s. Intelligence Officer, Directorate of
Revenue Intelligence 2020, SCC Online SC 867.
vi) Sarah Mathew and Ors Vs. Institute of Cardio Vascular
Diseases AIR (2014) SC 448.
vii) Directorate of Enforcement Vs. Deepak Mahajan and
Ors. AIR 1994 SC 1775.
viii) Gautam P. Navlakha Vs. National Investigation Agency,
delivered in Criminal Appeal No. 1707 of 2020 decided on 8 th
February, 2021.
ix) CBI V/s. Anupan J. Kulkarni AIR (1992) SC 1768.
x) State of West Bengal V/s. Dinesh Dalmiya, AIR (2007)
SC 1801.
xi) Deepak Satyavan Kudalkar V/s. State of Maharashtra
decided on 29th July, 2020 passed in LD/VC Criminal Bail
Application No. 197 of 2020.
7. Learned APP Mr. Kapadnis submitted that the
application is devoid of merits. The applicant is not entitled for bail
under Section 167(2) of Cr.P.C. The applicant was never remanded to
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custody. The right under Section 167(2) of Cr.P.C. is not accrued in
favour of the applicant. The applicant was arrested on 25 th
November, 2019. He was produced before the concerned Court for
remand. He was remanded in custody. On completing investigation,
charge-sheet is filed against the applicant. The statutory period in
accordance with Section 167(2) of Cr.P.C. would commence after
production of the applicant before the Court and remanding him to
custody by Court. There is no order remanding applicant to custody.
The applicant was not remanded to judicial custody. No such
inference could be drawn in the present case. The application
preferred before the trial Court was devoid of merits. The Judgments
relied upon by the learned counsel for the applicant do not support
the contention of the applicant. The prosecution has filed affidavit in
reply opposing the application for bail.
8. Learned APP relied upon the following decisions :
i) State of Haryana and Others V/s. Dinesh Kumar (2008)
3 SCC 222.
ii) State of West Bengal V/s. Dinesh Dalmia (2007) 5
Supreme Court Cases 773.
iii) C.B.I. V/s. Anupan J. Kulkarni (1992) 3 SCC 141.
iv) Roshan Beevi and Ors. V/s. Joint Secretary to
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Government of India, decided by Madras High Court, 1984
(15) ELT 289 Mad.
9. The question urged before this Court is whether the
applicant was entitled for the default bail under Section 167(2) of
Cr.P.C. The factual matrix of the present case indicate that FIR was
registered vide C.R. No. 224 of 2005 with D.B. Marg Police Station
under Section 307 of IPC and subsequently investigation was taken
over by D.C.B. C.I.D. vide C.R. No. 5 of 2006. The provisions of the
MCOC Act were invoked. The applicant was involved in several other
cases. Apparently he was in custody in those cases. Apparently, the
trial Court issued production warrant to the concerned Jail Authority
on 12th December, 2012. The applicant was detained in Tihar Central
Jail in connection with other cases. The applicant was produced
before the trial Court in pursuance to production warrant issued by
the Court. While he was produced before the Court, the advocate
representing the applicant submitted that 14 cases were registered
against the applicant. The trial Court noted that the applicant was
not arrested in the present case. He was shown as wanted accused in
this case. The defence contended that the production warrant was
issued only for production of the accused and not for giving his
custody to the Police. Police have not taken any steps to get custody
of the applicant. The order dated 26 th December, 2012, mentions that
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the Court perused the Miscellaneous Application preferred by the
State for production warrant which was issued as the accused was
detained in Tihar Jail at present and there must be case against him
in the concerned Court at Delhi. The Police are entitled to arrest the
person if there is material and even though such person is detained
in jail in some other cases, there is certain procedure to be followed
before arresting such person, who is in magisterial custody of some
other Court. Hence, the Court is of the opinion that this accused
cannot be directly handed over to the custody of the Police today
unless the concerned Court seized of the cases against the accused is
informed about the same. The basic purpose is to avoid conflict in
judicial orders before handing over the custody directly. The name of
the accused is shown as wanted accused. Offence is registered with
D.B. Marg Police Station and later on with D.C.B. C.I.D. The
allegations justifies the arrest of present accused person. At this stage
the outcome of the arrest cannot be anticipated and the Court is of
the opinion that the arrest is justified. Apart from the prayer for
production warrant, the Police ought to have approached to
concerned Court at Delhi seized of the cases against the accused.
That has neither been done by Police nor noticed by the Court. It
does not mean that the short coming cannot be corrected now.
Hence, the Police shall intimate the Court at Delhi seized of the cases
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against the accused and custody cannot be handed over to the Police.
The Court directed that the Investigating Officer is at liberty to seize
the cases against the accused after intimating the concerned Court.
The accused be sent back to Tihar Jail and till that time he could not
be produced unless called. The Police are at liberty to move before
the Court for giving intimation to that Court for taking custody. The
prayer, if any, for Police custody will be heard and decided in future.
The letter produced by the prosecution with regards to the request to
CMM, Delhi for handing over the custody of the accused suggests
that the order from the Court at Delhi is necessary which justifies
giving intimation to the Court.
10. The order dated 26th December, 2012 clearly indicate
that the accused was not remanded to custody. It is also specifically
mentioned that the prayer for Police custody would be decided in fu-
ture. The accused is however trying to take advantage of the obser-
vation of the Court stating that arrest is justified. It is pertinent to
note that without taking the accused in custody he was sent back to
the Jail where he was detained in another case with direction to the
Police to take appropriate steps. It cannot be inferred that the appli-
cant was in judicial custody. The the applicant is not in custody of
the trial Court from 12th December, 2012 or 26th December, 2012. No
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inference as contended by learned advocate for the applicant, that
applicant was remanded to judicial custody could be drawn. Remand
cannot be for an indefinite period.
11. The applicant preferred an application before the
trial Court viz. Miscellaneous Application No. 1618 of 2019 for
cancellation of production warrant dated 26th December, 2012. The
applicant also preferred application for bail viz. Bail Application
No.876 of 2016 before the trial Court for grant of statutory/default
bail under Section 167(2) of Cr.P.C. Both the applications were
disposed of by order dated 4th November, 2019. The order dated 4th
November, 2019 passed by the trial Court in Miscellaneous Applica-
tion No. 1687 of 2019 has been placed on record by the prosecution
by way of annexures to the affidavit in reply by the prosecution. The
said orders indicate that the accused have presented the application
for cancellation of production warrant dated 26 th December, 2012.
He is shown as wanted accused in charge-sheet of special MCOC
Case No. 9 of 2006. The trial of that case was conducted and the
matter was disposed of against the accused. During the trial the
accused was detained in Tihar Jail in other cases. The production
warrant was issued by the Court at the request of prosecution. He
was produced before the Court on 26 th December, 2012 by executing
production warrant. The prosecution filed separate application for
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grant of Police custody which was rejected. The prosecution was
directed to take appropriate steps to arrest the accused and he was
sent back to Tihar Jail. The investigating Officer did not take any
steps securing custody of the accused in the present case. The ac-
cused contented that, due to production warrant issued by trial Court
earlier the Superintendent of Tihar Jail Central Prison is not
releasing the accused. Hence, directions about the cancellation of the
production warrant be issued to Tihar Central Jail. The order further
mentions that the prosecution had prayed for issuing fresh
production/transfer warrant, on the ground that the applicant was
produced from Tihar Prison on 26th December, 2012. The
prosecution was directed to obtain custody of the accused by
complying procedure. The appropriate steps would be taken for pro-
duction of the accused. The accused is undergoing life imprisonment
in connection with Judgment passed by the Sessions Court, Ahmad-
abad. The learned Special Judge framed two question for determina-
tions. First, whether production warrant dated 26 th December, 2012
issued for producing the accused from Tihar Central Jail is in
existence? Second, whether the prosecution is entitled for issuing
fresh production warrant of the accused to Sabarmati Central Prison,
Gujarat? While disposing the said Miscellaneous Application, the trial
Court has observed that the applicant was absconding. Charge-sheet
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is to be filed against wanted accused. Trial against the arrested ac-
cused was disposed of. Accused was produced on 26 th December,
2012. The Court refused to hand over custody of the accused by ob-
servation that the procedure be followed for obtaining warrant under
Section 267 of Cr.P.C. by applying before the Court under whose or-
der applicant is detained in Tihar Central Jail The accused was sent
back to Tihar Central Jail. The purpose of issuing production warrant
as per Sections 266 to 271 is governed by Chapter XXII which relates
to attendance of persons confined or detained in prisons. The Court
mandates that, if the production warrant of accused is issued under
Section 267 of Cr.P.C. and such accused is produced before the Court
the purpose of issuing such production warrant ceases. Hence, the
production warrant of the accused had ceased on 26 th December,
2012 when he was produced before Court. Hence, the said produc-
tion warrant was not in existence. The contention of the applicant
that the production warrant is in existence according to Tihar Central
Jail was not supported by any material. On the contrary the applicant
is undergoing sentence of imprisonment on conviction by the Court
at Sabarmati Central Prison. Thus, the Court gave findings that the
production warrant dated 12th December, 2012 is not in existence.
The Court further observed that 14 trials were pending against the
applicant. No time limit is incorporated under Sections 266 to 271 of
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Cr.P.C. Production warrant as prayed by the state can be re-issued.
The application preferred by the applicant was rejected. Production
warrant was issued under Section 267 of Cr.P.C. directing Jail Super-
intendent Sabarmati, Ahmadabad to produce the accused on 25 th No-
vember, 2019. In pursuant to that the applicant/accused was pro-
duced before trial Court on 25 th November, 2019 and he was re-
manded to custody in accordance with the orders of the Court. The
charge-sheet was thereafter filed against him within statutory period.
12. While rejecting the application for default bail viz.
Bail Application No.867 of 2019, the trial Court observed that the ac-
cused has not specifically brought on record as and when and how
he was arrested in the present case initiating the limitation period for
filing charge-sheet under Section 167(2) of Cr.P.C. or Section 21(2)
of MCOC Act. The Court relied upon the the decision of the Madras
High Court in the case of State V/s. K.N. Neharu in which it was held
that the Police Officer who takes accused from jail into his custody in
execution of production warrant issued by the Court would not
amount to arrest. Such person has to be produced before the Court
for obtaining order of arrest. The accused has not succeeded to prove
his arrest in the present case, hence the provisions for default bail
under Section 167(2) of Cr.P.C. and Section 21(2) of MCOC Act are
not applicable to the applicant/accused.
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13. On perusal of the documents on record and the orders
referred to herein above it cannot be said that the applicant was in
judicial custody of the trial Court from 12th December, 2012 or 26th
December, 2012. The applicant was not arrested. He was not
remanded to Police custody or judicial custody. The inferences
drawn by the applicant that he is in judicial custody is devoid of
merits. The applicant was arrested in pursuant to the production
warrant issued vide order dated 4th November, 2019 and he was
produced before the Court on 25 th November, 2019. He was
remanded to custody. The statutory period in accordance with Sec-
tion 167 of Cr.P.C. would start running from the date of which the
applicant has been remanded to custody by the trial Court. The
decision relied upon by the learned counsel for the applicant do not
support the submissions of applicant. It is settled law that in accor-
dance with Section 167(2) of Cr.P.C., if the charge-sheet is not filed
within stipulated period, the accused has a right to seek bail in
accordance with Section 167(2) of Cr.P.C. before filing of charge-
sheet. The facts of the present case do not qualify such right in
favour of the applicant to grant default bail.
14. It would be appropriate to examine amended Section
167 of Cr.P.C. This provision relates to the procedure when
investigation cannot be completed in Twenty Four hours. Section 167
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of Cr.P.C. reads as follows:
"(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 case, from time to
time, authorise 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 authorise 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 authorise 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;
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(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 authorise 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;]
(c) no Magistrate of the second class, not
specially empowered in this behalf by the High
Court, shall authorise detention in the custody
of the police.
[Explanation I.- For the avoidance of doubts, it is
hereby declared that, notwithstanding the expiry
of the period specified in paragraph (a), the
accused shall be detained in custody so long as
he does not furnish bail;]
[Explanation II.- If any question arises whether
an accused person was produced before the
Magistrate as required under Clause (b), the
production of the accused person may be proved
by his signature on the order authorising
detention or by the order certified by the
Magistrate as to production of the accused person
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through the medium of electronic video linkage,
as the case may be.]
[provided further that in case of a woman under
eighteen years of age, the detention shall be
authorised to be in the custody of a remand home
or recognised social institution]
2(A) Notwithstanding anything contained in sub-
section (1) or sub- section (2), the officer in charge of
the police station or the police officer making the
investigation, if he is not below the rank of a sub-
inspector, may, where a Judicial Magistrate is not
available, transmit to the nearest Executive Magistrate,
on whom the powers of a Judicial Magistrate or
Metropolitan Magistrate have been conferred, a copy of
the entry in the diary hereinafter prescribed relating to
the case, and shall, at the same time, forward the
accused to such Executive Magistrate, and thereupon
such Executive Magistrate, may, for reasons to be
recorded in writing, authorise the detention of the
accused person in such custody as he may think fit for a
term not exceeding seven days in the aggregate; and, on
the expiry of the period of detention so authorised, the
accused person shall be released on bail except where
an order for further detention of the accused person has
been made by a Magistrate competent to make such
order; and, where an order for such further detention is
made, the period during which the accused person was
detained in custody under the orders made by an
Executive Magistrate under this sub- section, shall be
taken into accountin computing the period specified in
paragraph (a) of the proviso to sub-section (2):
[Provided that before the expiry of the period
aforesaid, the Executive Magistrate shall transmit
to the nearest Judicial Magistrate the records of
the case together with a copy of the entries in the
diary relating to the case which was transmitted
to him by the officer in charge of the police
station or the police officer making the
investigation, as the case may be.]
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(3) A Magistrate authorising under this section
detention in the custody of the police shall record
his reasons for so doing.
(4) Any Magistrate other than the Chief Judicial
Magistrate making such order shall forward a
copy of his order, with his reasons for making it,
to the Chief Judicial Magistrate.
(5) If in any case triable by a Magistrate as a
summons-case, the investigation is not concluded
within a period of six months from the date on
which the accused was arrested, the Magistrate
shall make an order stopping further
investigation into the offence unless the officer
making the investigation satisfies the Magistrate
that for special reasons and in the interests of
justice the continuation of the investigation
beyond the period of six months is necessary.
(6) Where any order stopping further
investigation an offence has been made under
sub-section (5), the Sessions Judge may, if he is
satisfied, on an application made to him or
otherwise, that further investigation into the
offence ought to be made, vacate the order made
under sub-section (5) and direct further
investigation to be made into the offence subject
to such direction with regard to bail and other
matters as he may be specify."
15. On perusal of aforesaid provision, it may be seen that
sub-Section (1) is the mandatory provision, governing what a police
officer should do, when the person is arrested and detained in
custody and when it appears that the investigation cannot be
completed within the period of Twenty Four hours fixed by Section
57. Sub-Section (2) pertains to the powers of remand available to a
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Magistrate and the manner in which, such powers should be
exercised. The term of Sub-Section (1) of Section 167 have to be
read in conjunction with Section 57. It is clear that Section 57
interdicts a police officer from keeping in custody a person without
warrant for a longer period then Twenty Four hours without
production before the Magistrate, subject to the exception that the
time taken for performing the journey from the place of arrest to the
Magistrate Court, can be excluded from the prescribed period of
Twenty Four hours. Since, Sub-Section (1) provides that, if the
investigation cannot be completed, within the period of Twenty Four
hours, fixed by Section 57, the accused has to be forwarded to the
Magistrate along with the entries in the diary, it follows that a police
officer is entitled to keep an arrested person in custody for a
maximum period of Twenty Four hours for the purposes of
investigation. Hence, the initial period of custody of an arrested
person, till he is produced before a Magistrate is neither referable to
nor in pursuance of an order of remand passed by a Magistrate. The
powers of remand given to a Magistrate, become exercisable after an
accused is produced before him in terms of Sub-Section (1) of
Section 167. Sub-section (1) of Section 167 covers this procedure
and also state that the police officer while forwarding the accused to
the nearest Magistrate should also transmit a copy of entries in the
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diary relating to the case. The entries in the diary are meant to
afford to the Magistrate the necessary information upon which he
can take the decision whether the accused should be detained in the
custody or not. The law enjoins upon the investigating agency to
carry out the investigation, in a case where a person has been
arrested and detained, with utmost urgency and complete the
investigation promptly in prescribed period. The proviso to
sub-section (2) fixes the outer limit within which investigation must
be completed and in case the same is not completed within the
prescribed period, the accused would acquire a right to be released
on bail and if he is prepared to and does furnish bail, the Magistrate
shall release him on bail and such release shall be deemed to be
grant of bail under chapter XXXIII of Cr.PC. The proviso inserted by
Act No. 45 of 1978, comes into operation where the Magistrate
thinks fit that further detention beyond the period of fifteen days is
necessary and it lays down that, the Magistrate may authorise the
detention of the accused person otherwise than in the custody of
police beyond period of 15 days. The proviso to Section 167(2)
clearly state that the total period of detention should not exceed
Ninety days in cases where the investigation relates to serious
offences mentioned therein and sixty days in other cases and if by
that time charge-sheet is not filed on the expiry of said periods the
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accused shall be released on bail.
16. In the case of Chhaganti Satyanarayan & Ors. V/s.
State of Andhra Pradesh (1986) 3 SCC 141, the Supreme Court has
held that the total period of 90 days or 60 days can begin to run from
the date of order of remand. In the aforesaid decision, the question
which arose for consideration was whether the period of 60 days or
90 days contemplated under Section 167(2) of Cr.PC shall be calcu-
lated from the date of arrest or from the date of first remand. The
Hon'ble Supreme Court after analysing the provision of Section 167,
historical background of the said provision, the objective behind the
proviso has held that construing proviso (a) either in conjunction
with Sub-Section (2) of Section 167 or as an independent para-
graph, the total period of 90 days under clause (i) and the total pe-
riod of 60 days under clause (ii) has to be calculated only from the
date of remand. The Court considered several decisions including de-
cision in the Hussainara Khatoon V/s. State of Bihar AIR 1979 SC
1377 observed that computing the total period of detention pre-
scribed in clauses (i) and (ii) of proviso (a) to Section 167(2) of the
Code, the date of the production of the accused before the Magistrate
should be taken as starting point. The Court further observed that,
the proviso (a) authorizes a Magistrate to order further detention of
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an accused person, otherwise than in police custody which means
that maximum period under which a Magistrate can place on ac-
cused in police custody is only 15 days. A limitation to the powers of
further remand is however, placed by introducing the Magistrate
from authorizing the detention of an accused person in custody ac-
cused person in custody beyond a total period of 90 days where the
offence is punishable with death, imprisonment for life or for a term
not less than 10 years and beyond total period of 60 days in other
cases. The words used in proviso (a) are "no Magistrate shall autho-
rize the detention of the accused person in custody". Under this para-
graph for a total period exceeding 90 days /60 days. Detention can
be authorized by Magistrate only from the time the order of remand
is passed. The total period of 90 days or 60 days can begin to run
only from the date of order of remand. The intention of the legisla-
ture can also be gathered by comparing proviso (a) of sub-section (5)
of Section 167. The legislature has consciously referred to the date
of arrest in Section 167(5) but had made no such reference in Sec-
tion 167(2) of proviso (a) thereto. If it was the intention of the legis-
lature that the period of remand of 15 days in the whole envisaged in
Sub-section (2) or the total period of 90 days / 60 days prescribed in
proviso (a) should be calculated from date of arrest then legislature
would have expressly said so as it had done under Section 167(5).
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17. It is evident from various decisions referred to herein
above that the Apex Court has examined the provision of Section
167(2) of Cr.PC and has held that the detention of the accused is
authorized on the date when he is in produced before the Court and
remanded to custody. The period of 60 days/ 90 days would start
running from the date of remand. The first decision delivered after
in depth analysis of the right of bail construed under Section 167(2)
of Cr.PC in the case of Chaganti Satyanaran (Supra). From the ratio
in CBI V/s. Anupam Kulkarni also it is crystal clear that the period of
detention envisaged under Section 167(2) shall be calculated from
the date of remand. In the case of Pragnya Singh Thakur V/s. State
of Maharashtra also it was observed that the period as stated above
starts running from the date of order of remand.
18. In the light of the factual aspects and the legal
provisions it is evident that the applicant was not entitled for bail in
accordance with Section 167(2) of Cr.P.C. Applicant was never re-
manded to custody. Subsequently, he was arrested on 25 th Novem-
ber, 2019. He was produced before Court and remanded to custody.
Section 21 of MCOC Act relates to modified application of certain
provisions of the Code. Clause 2 of the said provision mentioned that
Section 167 of the Code shall apply in relation to a case involving an
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offence punishable under this Act subject to the modifications that in
sub-section (2).
a) the reference of "fifteen days", and sixty days
wherever they occur, shall be construed as references
"thirty days" and "ninety days", respectively;
b) after the proviso the following proviso shall be
inserted, namely:-
" Provided further that if it is not possible to complete
investigation within said period of ninety days, the Special
Court shall extend the said period of 180 days, on the re-
port of the Public Prosecutor indicating the progress of the
investigation and the specific reasons for detention of the
accused beyond the said period of ninety days."
19. In the present case the applicant was not remanded
to custody. The statutory period and the right under Section 167(2)
of Cr.P.C. is not accrued in favour of the applicant. The applicant was
on ultimately arrested on 25th November, 2019 and charges-sheet has
been filed within stipulated time against the applicant. The issuance
of production warrant or the order dated 26 th December, 2012
passed by the trial Court does not amount to arrest and grant of judi-
cial custody has contended by the applicant. The applicant was never
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in custody of the trial Court in the present case till 25 th November,
2019. In the light of the provisions under Section 266 to 271 of
Cr.P.C., the contention of the applicant deserves to be rejected. No
case for grant of bail in accordance with Section 167(2) of Cr.P.C. is
made out.
ORDER
Criminal Bail Application (St.) No.1926 of 2020 is rejected and stands disposed of accordingly.
(PRAKASH D. NAIK, J.)
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