Andhra HC (Pre-Telangana)
M.A. Nayeem Farooqui vs State Of A.P. on 11 November, 1997
Equivalent citations: 1998(1)ALD103, 1998(1)ALD(CRI)146
ORDER
1. For all appearances this was an ordinary bail application presented on 13-2-1997. The unusual fact that caught the eye when it came up on 14-2-1997 was that the petitioner, M.A. Nayeem Farooqui, was in a mental hospital at that time.
2. It was alleged that he was an accused in Crime No. 14 of 1997 of P.S., Abid Road, Hyderabad for offence under Section 354 JPC on a false complaint lodged by one Mrs. Surayya Jabeena that he abused her, caught hold of her hand and threatened to pull her sari. It was stated that he was arrested and was in jail since 16-1-1997, and that the entire investigation was over and statements of witnesses were recorded and charge-sheet was to be filed, but that he was forcibly sent to the mental hospital and was lodged in the prison ward. He moved Criminal M.P.No.181 of 1997 before the V Additional Sessions Judge for bail, but the same was dismissed on 7-2-1997. He sent telegrams to the Honourable the Chief Justice of this Court on 3-2-1997 stating that he was sent to the mental hospital on a false complaint. He was willing to furnish suitable security for releasing him on bail.
3. On 14-2-1997, at the request of the learned Public Prosecutor for getting instructions, the matter was adjourned to 18-2-1997. On that day, in viewof the petitioner's mental condition being in question, the learned Counsel for the petitioner and the learned Public Prosecutor agreed that he should be examined by an independent psychiatrist of repute. On the suggestion of the learned Counsel for the petitioner, Dr. Majeed Khan (Prof. M.AM. Khan), an eminent psychiatrist of the city, was requested to examine him and to report to this Court through the Public Prosecutor by 25-2-1997. Prof.MAM Khan in his summary of psychiatric evaluation of the petitioner, after examination and investigations carried on on 20th, 21st, 22nd and 24th February, 1997 and assessment of the petitioner's diabetic condition, reported as regards the mental condition of the petitioner that there was no evidence of any mental disease necessitating treatment and that his only problem was that of abnormal personality features, but as a matter of immediate concern stated:
"Uncontrolled Diabetes - Random Blood sugar level on 22-2-1997 was 420 mg./dl as against normal of 70-160 mg/dl and Urine had 2 grams % of sugar. Requires proper management of diabetic condition immediately."
On the petitioner's mental status, Prof M.AM. Khan reported as follows :
"The Psychiatric evaluation brings about very distinct persccutory thought disorder with total conviction, but these abnormal beliefs are centered around one Theme along namely the hostile attitude of some neighbours. There is no doubt that M.A. Nayeem Farooqui has Paranoid Personality Disorder and is an eccentric, querulous and litigant person who has an unusual sense of self importance and grandiosity and expects to be treated as a-special person and feels entitled to such treatment from the society and the authorities.
All his unrestrained and suspicious thought process and behaviour are only in relation to his neighbours and not in other spheres of life.
His tendency to indulge in unnecessary litigation is manifest in his giving about 150 petitions to Police and other authorities (according to his own statement) about various violations ranging from construction to parking irregularities.
Socially, because of his eccentricity and dysharmonious behaviour he has hardly any friends and even his close relatives have come to help him out after they read about his case in the newspapers."
On 25-2-1997, as the learned Public Prosecutor was unable to place before the Court a copy of the order which authorised the authorities concerned to put the petitioner in a mental hospital and in view of the report of Prof. M.AM Khan, I made the following order (relevant portion):
"In the circumstances, it is imperative that the authorities concerned must explain in indubitable terms as to how they have taken the petitioner to a mental hospital. In view of the report of Professor M.AM. Khan that the petitioner is suffering from uncontrolled diabetes which is a matter of immediate concern with random blood sugar level on 22-2-1997 at 420 mg./dl as against normal of 70-160 mg/dl etc. and that the petitioner 'requires proper management of diabetic condition immediately', the jail authorities shall take the petitioner to Nizam's Institute of Medical Sciences ('NIMS' for short) today itself and the Doctors there shall treat him. The Head of the Department in NIMS dealing with diabetic patients shall report to mis Court as to the condition of the petitioner by 3-3-1997. However, the medical expenses of the hospital shall be borne by the petitioner."
After the NIMS reported that the petitioner's diabetes was controlled, on 13-3-1997 I made the following order:
"The learned Advocate General is requested to assist the Court to unravel the legal complexities of this case to enable the Court to formulate clear guidelines in matters of this nature as to how the learned Magistrates should act and also as to how the State police should act. The learned Advocate General requests for one week's time. Office is directed to post this matter on 27-3-1997 at 2.15p.m.
However, this need not continue the detention of the accused in any custody -assuming that there is due and proper order for his custody, whether judicial or police, on the facts of the present case. The learned Public Prosecutor also states, after obtaining instructions, that the police do not require any detention of the accused in judicial custody. In fact after the application made by them by way of the remand report on 17-1-1997 for judicial custody for 15 days, even assuming that that was granted by the learned Magistrate the police never approached the Magistrate for extension of judicial custody. That much is admitted by the learned Public Prosecutor. In the circumstances, at any rate, the police have no authority to have seizin over the person of the accused. In the circumstances, the accused shall be no longer kept in the custody of the police and he is deemed to be a free person. The learned Public Prosecutor shall immediately instruct the police of this order and police, if any, holding custody of the accused shall be immediately removed. In view of the feet that the accused is undergoing treatment in Nizam's Institute of Medical Sciences at the instance of this Court, the authorities of NIMS shall be informed that as from now he is on his own and it is open to them to treat the accused at his wish.
This Court places on record its appreciation for the response of the authorities of NIMS pursuant to the directions of this Court."
4. Thereafter the matter came up before me on 2-7-1997. On that day, the Registrar (Judicial) was directed to obtain from the IV Metropolitan Magistrate's Court, at Hyderabad the entire records in Crime No. 14/97 of P.S., Abid Road, Hyderabad including the remand report and the orders thereon, and all other material relating to subsequent developments. Subsequently, die Superintendent, Government Hospital for Mental Care, Hyderabad was also directed to send the entire record relating to the petitioner and also to send a report as regards the diagnosis of his mental condition and the treatment administered to him. The learned Counsel for the petitioner also produced copies of the bail rejection order dated 31-1-1997 made by the V Metropolitan Sessions Judge, Manila Court at Hyderabad and the application made for the bail.
5. The record of the IV Metropolitan Magistrate at Hyderabad discloses that the petitioner was produced before him at 8.40 p.m. on 16-1-1997 along with the F.I.R. in Crime No. 14/97 registered "under Section 354 1PC and the remand report of the Sub-Inspector of Police, P.S., Abid Road, Hyderabad with a request to remand the petitioner for judicial custody for a period of fifteen days to enable the completion of investigation and for filing of charge sheet. The learned Magistrate required the petitioner to be produced on 17-1-1997 at 10.30 a.m. He was then produced on 17-1-1997 at 12.30a.m. and the learned Magistrate recorded as follows:
"The accused complained that in view of his effort to blow of a conspiracy as the editor of peoples defence he was beaten and implicated in a false case. His advocate pleaded that due to harassment the accused became insane and before remand he may be sent for medical treatment. In view of above representation, the escort police is directed to produce the accused before the Medical Officer, Osmania General Hospital, Hyderabad for physical examination regarding the alleged injuries as well as for examination regarding his mental health, obtain a certificate and to reproduce him before this Court."
Thereafter, the learned Magistrate addressed Dis.No.75/JYMM/Hyd/97 dated 17-l-1997to the Residential Medical Officer, Osmania General Hospital, Hyderabad for physical examination and report stating inter alia as follows :
"... You arc hereby required to examine the accused person by name M.A. Nayeem Farooqui regarding alleged injuries as well as examination regarding his mental health and issue a certificate to that effect. Escort police are directed to reproduce the accused before this Court after medical examination along with medical certificate."
On that letter the doctor in charge of casualty endorsed "refer to Psychiatrist, Mental Hospital". Thereafter, the learned Magistrate endorsed in his hand in green ink as follows :
"Send the accused to Mental Hospital, Erragadda with same escort party'', and thereafter, the following words were added in blue/black ink:
"with a direction to reproduce him after examination and treatment.'' The following letter was also addressed by the learned Magistrate to the Superintendent, Institute of Mental Diseases, at Erragadda in Dis.No.79/TVM.MyHyd/97 dated 17-1-1997:
"Sub :--Forwarding of Lunatic person by name MA Nayeem Farooqui S/o. M.A. Quddus Farooqui, aged 48 yrs in Cr.No.14/97 of P.S. Abid Road for treatment and reproduce before this Court after recovery - Reg.
I am sending herewith the person appears to be Lunatic by name M.A. Nayeem Farooqui S/o. M.A. Quddus Farooqui, aged 48 yrs in Cr.No.14/97 of P.S.Abid Road through H.C.No.3048 and P.C. 5560 of P.S.Abid Road for treatment and after recovery he may be produce (produced) before this Court.
Given under my hand and Seal of this Court this the 17th Day of January, 1997"
The record of the learned Magistrate also contains two letters, both dated 18-1-1997;' addressed by the Superintendent, Government Hospital for Mental Care, Hyderabad to the IV Metropolitan Magistrate at Hyderabad. Letter No.A&D/70/97 reads as follows:
"With reference to the above, (Dis. No.79/TV MM/Hyd/97 dated 17-1-1997), I am to state that Sri M.A. Nayeem Farooqui s/o M.A. Quddus Farooqui has been admitted to this hospital on 18-1-97 through Police Escort.... of P.S. Abids.
This is for your information,"
Copies of this letter were sent to (1) the Station House Officer, P.S., Abids, and (2) the Guard I/c of that hospital with instructions to take the above mentioned patient into his custody. The other letter No.A&D/71/97 sought clarification as follows:
"On 18-1-97 a male patient by name M A Nayeem Farooqui s/o M.A. Quddus Farooqui involved in Cr.No.14/97 of P.S. Abids was admitted into this hospital.
Kindly clarify whether the said patient should be treated and sent back to the Court OR should he be treated as a free citizen and released on his own, after treatment.
Kindly treat this as urgent.'' There is also letter No.A&D/102/97 dated 25-1-1997 addressed by the Superintendent of the hospital to the IV Metropolitan Magistrate, which reads as follows :
"This is to inform the Honourable Court that Sri M.A. Nayeem Farooqui s/o M.A. Quddus Farooqui was referred by you for treatment as per your orders ref. cited (Dis.No.79/IV MM/Hyd/97 dated 17-1-97).
He has been evaluated and examined by a Committee of experts, who are of the opinion that he is suffering from Psychiatric illness. He is in need of further continued treatment.
This is for your kind information."
The record does not contain any replies sent by the learned Magistrate to these letters to the Superintendent of the hospital. The record of the IV Metropolitan Magistrate, at Hyderabad also does not contain any other application for further remand of the petitioner other than the one dated 16-1-1997.
6. The record of the Government Hospital for Mental Care (also described as Institute of Mental Health) shows that the petitioner was produced on 17-1-1997 at the institute at 4-45 p.m., and that he was asked to be brought the next day morning by 9 a.m. noting that hospital timings were 9 a.m. to 4 p.m. He was brought by the Head Constable and Police Constable of P.S. Abid Road on 17-1-1997 under letter Dis.No.79/TV M.M/ Hyd/97 of that date "for treatment and after recovery" to be produced before the Court. It is obvious that the petitioner was kept in the lock-up of the police station for the night intervening the 17th and 18th of January, 1997. On 18-1-1997 (time not noted), he was brought by police constables of P.S. Abids and was admitted under registration No. A 1066701 and placed in the male criminal ward. Against the status of the patient, it was noted : "not specified"; and it was also noted against additional information: "to be produced before the Court after treatment". The record of the institute docs not show that any replies were received from the IV Metropolitan Magistrate to the letters dated 18-1-1997 of the Superintendent of the institute referred to above. The record contains copies of those letters and of letter No.A&D/102/97 dated 25-1-1997. He was taken to Dr. MajeedKhan (Professor M.AM. Khan) on 21-2-1997 by guards of the Central Prison, Secunderabad pursuant to letter No.CPS/UT/2004-07/97 dated 21-2-1997 of the Superintendent Vc, Central Prison, Secunderabad referring to the order of this Court dated 18-2-1997. The petitioner was also similarly taken to Professor M.A.M.Khan on 22-2-1997 and on subsequent dates. The petitioner was discharged by the Government Hospital for Mental Care and handed over to police escort to the Central Prison on 26-2-1997 at 2.30 am. with reference to the order of this Court dated 25-2-1997 and was admitted in the NIMS at the emergency medicine at 3.05 a.m. on 26-2-1997. This is also supported by letter dated 26-2-1997 of the Superintendent of Jails, Central Prison, Secunderabad addressed to the Registrar (Judicial) of the High Court. The record of the NIMS also shows that the petitioner was fit for discharge on 11-3-1997 and diagnosis at discharge was "Diabetes Mellitus, Hypertension, Diabetic Retinopathy, Early Diabetic Nephropathy".
7. The only other detail to be noted is that under letter No. CPS/UT/1972/97 dated 20-2-1997 the Superintendent I/c, Central Prison, Secunderabad informed the Registrar (Judicial) of the High Court with reference to the order of this Court dated 18-2-1997 as follows:
' 'With reference to the Hon'ble High Court of Andhra Pradesh, Hyderabad orders cited, I am to submit that by name M.A. Nayeem Farooqui (Cr.No.14/97 of P.S.Abids Road) is not remanded to this Jail till date. Hence I submit that it is not possible to take any steps in this matter.
This is submitted for favour of information."
In the order dated 18-2-1997 this Court, inter alia, directed as follows :
"In the circumstances, the Superintendent, District Jail at Musheerabad, Hyderabad is directed to have the petitioner, who it is stated is at present in Government Mental Hospital, Erragadda, Hyderabad to be taken to Dr.. Majeed Khan for examination of his mental condition and reporting to this Court."
8. Thus, it is obvious that the petitioner was not remanded to judicial custody by the learned IV Metropolitan Magistrate pursuant to remand report and request for remanding him to judicial custody for a period of fifteen days. He did not remand the petitioner to police custody either. He first sent the petitioner to the Osmania General Hospital, Hyderabad for physical examination as well as for examination regarding his mental health and thereafter sent him to the Government Hospital for Mental Care, Erragadda' 'with a direction to reproduce him after examination and treatment." It was the police, not the jail authorities, who took the petitioner to the Osniania General Hospital and then to Government Hospital for Mental Care at Erragadda.
9. On behalf of the petitioner, Criminal M.P.No.83/97 was preferred under Section 439 of the Criminal Procedure Code for bail before the V Additional Metropolitan Sessions Judge (Manila Court) at Hyderabad by the petitioner's wife supported by her ^affidavit dated 24-1-1997. In that affidavit, it was stated that the petitioner voluntarily appeared before the police in Abids police station on 16-1-1997 and that he was taken into police custody and, after interrogation in Crime No.14/97 registered against him, he was produced before the IV Metropolitan Magistrate on I7-1-I997 and was sent to mental institute for observation. That petition was dismissed by the V Additional Metropolitan Sessions Judge, at Hyderabad, by order dated 31-1-1997 observing :
"On perusal of C,D. it is found that only 5 witnesses were cited and investigation is still going on. Therefore, petition is dismissed."
She thereafter got filed Criminal M.P.No.181/97 before the V Additional Metropolitan Sessions Judge (Mahila Court) at Hyderabad under Section 439 of the Criminal Procedure Code for releasing her husband (the petitioner herein) on bail alleging that the facts stated in the F.I.R. did not constitute any offence as her husband was "some what mentally derailed due to mental tension". That was also dismissed on 7-2-1997, inter alia, observing as follows :
"The petitioner's Counsel seeks bail stating that the petitioner was suffering from psychiatric illness and needs continuous treatment. It appears when the accused was produced before the Magistrate he was not (sent to)? Superintendent of Institute of Mental Health, Erragadda as he appeared to be a lunatic. The petitioner is still in the hospital and he is under treatment. The petitioner's Counsel claims bail stating that he would take the best available treatment. In view of the nature of the ailment as Psycliiatric illness and as the offence alleged is one punishable under Section 354 of IPC, as such it is not desirable to grant bail at this stage unless the doctors give an opinion that he can be set free. Hence, this petition is dismissed."
These petitions for bail were submitted and the orders therein were made on the unverified assumption that the petitioner was remanded to judicial custody and was duly detained in the Government Hospital for Mental Care.
10. On the earlier occasions, when the present petition came up for hearing, the learned Public Prosecutor was unable to state with definiteness whether any remand order was made by the learned Magistrate, but asserted that the petitioner was not in police custody and that he could be only in judicial custody, because the police of P.S., Abids did not ask for police custody. It was on that basis that on 18-2-1997,the Superintendent, District Jail at Mushcerabad was directed to have the petitioner taken to Dr. Majeed Khan to which, as already pointed out, the Superintendent, Central Prison, Secunderabad replied by letter dated 20-2-1997 to the Registrar (Judicial) that the petitioner was not remanded to that jail; however, in obedience to the directions of this Court he complied. The record produced discloses that on 17-1-1997 the learned Magistrate directed the police, P.S., Abids to take the petitioner to Osniania General Hospital for physical examination and then again to the mental hospital at Erragadda i.e., Government Hospital for Mental Care, with same escort party with a direction to reproduce him after examination and treatment, without making any remand order; and it was they who took him to that hospital. In the letter dated 17-1-1997 to the Superintendent, Institute of Mental Diseases also, the learned Magistrate stated that the petitioner was being sent with the police of P.S.Abid Road "for treatment and after recovery he may be produced before this Court". Though the petitioner was produced by the police of P.S., Abids on 17-1-1997 at 4.45 p.m. he was not admitted in the Government Hospital for Mental Care on that day - he was asked to be brought the next day i.e., on 18-1-1997, and he was admitted on that day noting his status as "not specified", and "to be produced before the Court after treatment". As already observed earlier, the learned Magistrate did not reply to the letter of the Superintendent, Government Hospital for Mental Care dated 18-1-1997 seeking clarification whether the petitioner "should be treated and sent back to the Court or should be treated as a free citizen and released on his own, after treatment". It is also seen that the petitioner was discharged from the Government Hospital for Mental Care in the early hours on 26-2-1997 pursuant to the directions of this Court and was admitted in the NIMS, and was thereafter released pursuant to the directions of this Court dated 13-3-1997.
11. The facts thus disclose that the petitioner, who was arrested on 16-1-1997 without warrant obviously under Section 41 of the Code of Criminal Procedure ('Cr.P.C.' for short) by the police, P.S., Abids, was detained and kept in custody after he was produced before the learned IV Metropolitan Magistrate, upto 25-2-1997 without any remand order being passed by the learned Magistrate, even though the police in their remand report dated 16-1-1997 sought judicial custody only for fifteen days and did not seek for any custody of the petitioner thereafter. Was the learned Magistrate right in allowing this to happen? This raises basic questions and requires an excursion into the fundamentals, because the issue involved is the liberty of the citizen to safeguard which :
(i) a police officer making an arrest without warrant is required under Section56 of Cr.PC to take or send the person arrested without unnecessary delay before a Magistrate having jurisdiction in the case etc., with a further safeguard under Section 57 of the Cr.PC that "no police officer shall detain in custody a person arrested without warrant for a longer period than under all the circumstances of the case is reasonable, and such period shall not, in the absence of a special order of a Magistrate under Section 167, exceed twenty-four hours exclusive of the time necessary for the journey from the place of arrest to the Magistrate's Court"; and
(ii) discretion is conferred under subsection (2) of Section 167 of the Cr.P.C. on the Magistrate to whom an accused person is forwarded, to authorise the detention of the accused in such custody as such Magistrate thinks fit for a term not exceeding fifteen days on the whole etc., subject to the proviso to that sub-section.
12. In C.B.I, v. Anupam J. Kulkarni, , the Supreme Court discussed in detail the discretion vested in the Magistrate under Section 167(2) of the Cr.P.C. after adverting to its legislative history and observed as follows :
"Now coming to the object and scope of Section 167 it is well settled that it is supplementary to Section 57. It is clear from Section 57 that the investigation should be completed in the first instance within 24 hours; if not the arrested person should be brought by the police before a Magistrate as provided under Section 167. The law does not authorise a police officer to detain an arrested person for more than 24 hours exclusive of the time necessary for the journey from the place of arrest to the Magistrate Court. Sub-section (1) of Section 167 covers all this procedure and also lays down that the police officer while forwarding the accused to the nearest Magistrate should also transmit a copy of the entries in the 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 further or not. It may be noted even at this stage the Magistrate can release him on bail if an application is made and if he is satisfied that there are no grounds to remand him to custody but if he is satisfied that further remand is necessary then he should act as provided under Section 167. It is at this stage sub-section (2) comes into operation.... The section is clear in its terms. The Magistrate under this section can authorise the detention of the accused in such custody as he thinks fit but it should not exceed fifteen days in the whole. Therefore the custody initially should not exceed fifteen days in the whole. The custody can be police custody or judicial custody as the Magistrate thinks fit. The words "such custody" and "for a term not exceeding fifteen days in the whole'' are very significant. It is also well settled now that the period of fifteen days starts running as soon as the accused is produced before the Magistrate."
The Supreme Court also made it clear in that case that "taking the plain language into consideration particularly the words 'otherwise than in the custody of the police beyond the period of fifteen days' in the proviso, it has to be held that the custody after the expiry of the first fifteen days can only be judicial custody during the rest of the periods of ninety days or sixty days and that police custody if found necessary can be ordered only during the first period of fifteen days." The Supreme Court then elaborated as follows:
"The detention in police custody is generally disfavoured by law. The provisions of law lay down that such detention can be allowed only in special circumstances and that can be only by a remand granted by a Magistrate for reasons judicially scrutinised and for such limited purposes as the necessities of the case may require. The scheme of Section 167 is obvious and is intended to protect the accused from the methods which may be adopted by some over-zealous and unscrupulous police officers. Article 22(2) of the Constitution of India and Section 57 of Cr.P.C. give a mandate that every person who is arrested and detained in police custody shall be produced before the nearest Magistrate within a period of 24 hours of such arrest excluding the time necessary for the journey from the place of the arrest to the Court of the Magistrate and no such person shall be detained in the custody beyond the said period without the authority of a Magistrate. These two provisions clearly manifest the intention of the law in this regard and therefore it is the Magistrate who has to judicially scrutinise circumstances and if satisfied can order the detention of the accused in police custody. Section 167(3) requires that the Magistrate should give reasons for authorising the detention in the custody of the police. It can be thus seen that the whole scheme underlying the section is intended to limit the period of police custody. However, taking into account the difficulties which may arise in completion of the investigation of cases of serious nature the Legislature added the proviso providing for further detention of the accused for a period of ninety days but in clear terms it is mentioned in the proviso that such detention could only be in the judicial custody. During this period the police are expected to complete the investigation even in serious cases. Likewise within the period of sixty days they are expected to complete the investigation in respect of other offences. The legislature however disfavoured even the prolonged judicial custody during investigation. That is why the proviso lays down that on the expiry of ninety days or sixty days the accused shall be released on bail if he is prepared to and does furnish bail."
In Aslam Sabalal Desai v. State of Maharashtra, ,Ahmadi, I, discussed the scheme of the Cr.P.C. is so far as it related to investigation and the criminal law having been set in motion by filing of an FIR and, after referring to Sections 41,57,154, 155 and 167 of the Cr.PC and Article 22(2) of the Constitution, observed that "on a conjoint reading of Sections 57 and 167 of the Code it is clear that the legislative object was to ensure speedy investigation after a person has been taken in custody", and that "the law expects that the investigation must be completed with dispatch and the role of the Magistrate is to oversee the course of investigation and to prevent abuse of the law by the investigating agency". The learned Judge summed up, inter alia, as follows :
"The provisions of the Code, in particular Sections 57 and 167, manifest the legislative anxiety that once a person's liberty has been interfered with by the police arresting him without a Court's order or a warrant, the investigation must be carried out with utmost urgency and completed within the maximum period allowed by the proviso (a) to Section 167(2) of the Code. It must be realised that the said proviso was introduced in the Code by way of enlargement of time for which the arrested accused should be kept in custody."
K. Ratnaswamy, J., concurred with Ahmadi, J., and observed as follows :
"In State of M.P. v. Mubarak Alt, , this Court held that 'investigation starts after the police officer receives information in regard to an offence under the Code. Investigation consists generally of the following steps (a) proceeding to the spot; (b) ascertainment of the facts and circumstances of the case; and (c) discovery and arrest of the suspected offender. Section 41 empowers him, without an order from a Magistrate and without a warrant, to arrest any person concerning the said cognizable offence or when entertaining reasonable suspicion, a reasonable complaint or on having credible information, in the circumstances enumerated thereunder. Section 57 (61 of the old Code) entitles the investigating officer to detain the arrested person in custody, but within imposed statutory limit, namely he shall not detain the arrested person in custody for more than 24 hours excluding the requisite time necessary for the journey from the place of arrest to the Magistrate's Court.
Section 57, is supplemental to and effectuates the constitutional mandate of Article 22(2) that every person who is arrested and detained in custody shall be produced before the nearest Magistrate within a period of 24 hours of such arrest excluding the time necessary for the journey from the place of the arrest to the Court of the Magistrate and no such person shall be detained in custody beyond the said person without the authority of a Magistrate."
In Directorate of Enforcement v. Deepak Mahajan, , after referring to the various decisions, the Supreme Court observed as follows, with reference to the main object of Section 167 of the Cr.PC:
"Section 167 is one of the provisions falling under Chapter XII of the Code commencing from Section 154 and ending with Section 176 under the caption 'Information to the police and other powers to investigate'. Though Section 167(1) refers to the investigation by the police and the transmission of the case diary to the nearest Magistrate as prescribed under the Code etc., the main object of sub-section (1) of Section 167 is the production of an arrestee before a Magistrate within twenty-four hours as fixed by Section 57 when the investigation cannot be completed within that period so that the Magistrate can take further course of action as contemplated under sub-section (2) of Section 167"
The Supreme Court also referred to various provisions in Chapter V of the Cr.P.C. titled "Arrest of persons" empowering different authorities and even private persons to arrest a person and noted the distinction between the words 'custody' and 'arrest' as follows :
"Thus the Code gives power of arrest not only to a police officer and a Magistrate but also under certain circumstances or given situations to private persons. Further, when an accused person appears before a Magistrate or surrenders voluntarily, the Magistrate is empowered to take that accused person into custody and deal with him according to law. Needless to emphasize that the arrest of a person is a condition precedent for taking him into judicial custody thereof. To put it differently, the taking of the person into judicial custody is followed after the arrest of the person concerned by the Magistrate on appearance or surrender. It will be appropriate, at this stage, to note that in every arrest, there is custody but not vice versa and that both the words 'custody' and 'arrest' are not synonymous terms. Though 'custody' may amount to an arrest in certain circumstances but not under all circumstances. If these two terms are interpreted as synonymous, it is nothing but an ultra legalist interpretation which if under all circumstances accepted and adopted, would lead to a startling anomaly resulting in serious consequences, vide Roshan Beevi v. Joint Secretary, Government of Tamil Nadu, 1984 Cri.LJ 134 = 1983 MLW (Cri) 289 (Mad).
While interpreting the expression 'in custody' within the meaning of Section 439 Cr.P.C., Krishna Iyer, J. speaking for the Bench in Niranjan Singh v. Prabhakar Rajaram Kharote, observed that:
"He can be in custody not merely when the police arrests him, produces him before a Magistrate and gets a remand to judicial or other custody. He can be stated to be in judicial custody when he surrenders before the Court and submits to its directions."
The above rulings clearly establish that when an arrested accused person is brought by the police before a Magistrate under Section 167 of the Cr.PC seeking detention, whether in police custody or in judicial custody, stating that investigation into the crime alleged against that person is not completed, the Magistrate has the responsibility of exercising his discretion for authorising further detention with circumspection and keeping in view all the relevant factors, In State of Bihar v. Ram Naresh, , the Supreme Court has observed that though investigation and collection of requisite evidence and the prosecution for the offence with reference to such evidence are the functions of the executive, the Magistrate also has his allotted functions in the course of these stages. Referring to the provisions of the Criminal Procedure Code, 1898, which was in force then, the Supreme Court observed as follows as regards the discretion vested in the Magistracy:
"For instance, in the course of investigation, a person arrested must be brought before him within 24 hours (Section 61, Cr.PC). Continuance of the arrested person in detention for purposes of investigation from time to time has to be authorised by him (Section 167, Cr.PC). A search can be conducted on the issue of warrant by him (Section 94, Cr. PC). Statements of witnesses and confessions may be recorded by him (Section 164, Cr. PC). In an appropriate case he can order investigation or further investigation (Sections 155(2) and 202, Cr. PC). In all these matters the exercises discretionary junctions in respect of which the initiative is that of the exeattive but the responsibility is his. His discretion in such matter has necessarily to be exercised with reference to such material as is by then available and is not a prima facie judicial determination of any specific issue. The Magistrate's functions in these matters are not only supplementary, at a higher level., to those of die executive but are intended to prevent abuse"
For instance in Madhu Limaye 's case, AIR 1969 SC 1014, the Supreme Court observed that Article 22(1) provided that no person who was arrested should be detained in custody without being informed, as soon as may be, of die grounds for such arrest nor should he be denied die right to consult and be defended by a legal practitioner of his choice, and that that Article embodied a rule which had always been regarded as vital and fundamental for safeguarding personal liberty in all legal systems where the Rule of law prevailed, and that die two requirements of Article 22( 1) were meant to afford the earliest opportunity to the arrested person to remove any mistake, misapprehension or misunderstanding in die minds of die arresting authority and, also to know exactly what the accusation against him was so that he could exercise die second right, namely, of consulting a legal practitioner of his choice and to be defended by him, and that Article 22(2) provided "the next and most material safeguard that the arrested person must be produced before a Magistrate within 24 hours of such arrest so that an independent authority exercising judicial powers may without delay apply its minds to his case". The Supreme Court then observed as follows :
' 'As stated in Ram Narayana Singh v. State of Delhi, , this Court has often reiterated that those who feel called upon to deprive other persons of liberty in the discharge of what they conceive to be their duty must, strictly and scrupulously, observe the forms and rules of law. Whenever that is not done the petitioner would be entitled to a writ of habeas corpus directing his release."
In Joginder Kumar v. State of UP., , a three Judges Bench of the Supreme Court, after referring to various authorities, held as follows:
' 'No arrest can be made because it is lawful for the police officer to do so. The existence of the power to arrest is one tiling. The justification for the exercise of it is quite another. The police officer must be able to justify the arrest apart from his power to do so. Arrest and detention in police lockup of a person can cause incalculable harm to the reputation and self-esteem of a person. No arrest can be made in a routine manner on a mere allegation of commission of an offence made against a person. It would be prudent for a police officer in the interest of protection of the constitutional rights of a citizen and perhaps in his own interest that no arrest should be made without a reasonable satisfaction reached after some investigation as to the genuineness and bona fides of a complaint and a reasonable belief both as to the person's complicity and even so as to the need to effect arrest. Denying a person of his liberty is a serious matter. The recommendations of the Police Commission merely reflect the constitutional concomitants of the fundamental right to personal liberty and freedom. A person is not liable to arrest merely on the suspicion of complicity in an offence. There must be some reasonable justification in the opinion of the officer effecting the arrest that such arrest is necessary and justified."
The Supreme Court has been laying down guidelines to be followed while making arrests : Sheela Barse v. State of Maharashtra, and recently in D.K. Basu v. State of West Bengal, . One of the guidelines given in these cases is that the arrestee should be informed of his right under Section 54 of the Cr.P.C. to be medically examined, and that the Magistrate should enquire from the arrested person whether he has any complaint of torture or mal-treatment in police custody, and that the arrestee should, when he so requests? be examined at the time of his arrest and major and minor injuries, if any present on the body, must be recorded at that time, etc. 13, The consequences of Magistrates exercising their discretion under Section 167 of the Cr.PC in a mechanical manner without proper application of mind have been noticed by the Supreme Court in several cases. In State of UP. v. Ram Sagar Yadao, , the Supreme Court observed as follows:
"It is notorious that remand orders are often passed mechanically without a proper application of mind. Perhaps, the Magistrates are not to blame because, heaps of such applications are required to be disposed of by them before the regular work of the day begins. ... It is obvious that he (the Magistrate) was led into passing an order of remand on the basis of the usual statement that the offence of which the accused was charged was still under investigation. What is important is that Brijlal had not committed any offence at all for which he could be remanded and, far from being an accused, he was in the position of a complainant. Respondent 1 (Station House Officer, House Officer, Hussainganj Police Station) was the architect of his remand and the motive for obtaining the remand order was to keep Brijlal in custody so as to prevent him from disclosing to his people who beat him and where."
See also Khatri (11) v. Stale ofBihar, and Veena Sethi v. State ofBihar, . In the latter case, persons arrested in connection with certain offences and declared insane at the time of their trial were put in Central Jail with a direction to submit half yearly medical reports, and even though acquitted after trial and declared as sane, no action for their release was taken by the authorities for a number of years.
14. In the present case, the petitioner was accused under Section 354 of the Indian Penal Code i.e., "assault or criminal force to woman with intent to outrage her modesty". The punishment originally provided was "imprisonment of either description for a term which may extend to two years, or with fine, or with both". However, under Andhra Pradcsh Act 6 of 1991, the portion in the Section relating to punishment was amended with effect from 1-4-1991 as follows:
".... shall be punished with imprisonment of either description for a term which shall not be less than five years but which may extend to seven years and shall also be liable to fine:
Provided that the Court may, for adequate and special reasons to be mentioned in the judgment, impose a sentence of imprisonment of either description for a term which may be less than five years, but which shall not be less than two years."
Originally, under the First Schedule to the Cr.PC read with clauses (a) and (c) of Section 2 thereof, that offence was bailable and cognizable; by Andhra Pradesh Amendment Act 3 of 1992 it was made non-bailable with effect from 15-2-1992. Thus, after the amendment, the case relating to this offence has become a warrant case. In the remand report dated 16-1-1997, it was stated, inter alia, as follows :
"While the investigation in progress, today i.e. on 16-1-1997 at about 17.30 hrs., the accused A/A Nayeem Farooqiii, voluntarily came to police station and go on abusing all the police officers who were present in the police station in a most filthy., language, then I effected the arrest of the accused and issued arrest memo. On enquiry he admitted his guilty.
Hence, the accused person M.A, Nayeem Farooqui, S/o M.A. Quddus Farooqui,... is being produced before the Honourable Magistrate along with remand report with a request to remand him for judicial custody for a period of (15) days to enable to complete the investigation and to file the charge-sheet."
From the above, it appears that the petitioner was arrested more because of the manner in which he conducted himself in the police station and there was really not much investigation to be completed. Keeping in view the observations of the Supreme Court in Joginder Kumar 's case, , a question arises whether he should have been arrested at all on the facts obtaining.
15. The learned Magistrate sent the petitioner to the Osmania General Hospital presumably under Section 54 of the Cr.PC. That Section occurs in Chapter V dealing with arrest of persons. The object of that provision has been explained by Bhagwati, J., in Sheela Barse's case, and by Dr. Anand, J., in D.K. Basu 's case, referred to by me earlier. Section 54 of the Cr.PC reads as follows :
"54. Examination of arrested person by medical practitioner at the request of the arrested person :--When a person who is arrested, whether on a charge or otherwise, alleged at the time when he is produced before a Magistrate or at any time during the period of his detention in custody that the examination of his body will afford evidence which will disprove commission by him of any offence or which will establish by any other person of any offence against his body, the Magistrate shall, if requested by the arrested person so to do direct the examination of the body of such person by a registered medical practitioner unless the Magistrate considers that the request is made for the purpose of vexation or delay or for defeating the ends of justice."
It is obvious, from a reading of this provision, that the examination contemplated by the section is for two purposes : (1) for affording evidence which would disprove commission by the accused person of any offence; or (2) for establishing the commission of any offence against his body by another person. In both cases, the examination is related to offences alleged and is intended to be part of investigation for bringing out material evidence at the earliest point of time when the person arrested is produced before a Magistrate or at any time during the period of his detention in custody. This section does not provide for an examination of an arrested person as regards his mental disorder, if any.
16. The learned Advocate General pointed out that the learned Magistrate, though was right in sending the petitioner to the Osmania General Hospital for examination for injuries by a doctor, was not right in detaining the petitioner without any remand order, and was clearly in error in sending the petitioner to the Government Hospital for Mental Care without following the provisions of the Mental Health Act, 1987 ('the Act' for short). Section 89(l) of the Act lias repealed the Indian Lunacy Act, 1912.
17. The Government Hospital for Mental Care comes within the definition of "psychiatric hospital" under Section 2(q) of the Act. Section 2(1) defines 'mentally ill person', meaning as "a person who is in need of treatment by reason of any mental disorder other than mental retardation". Chapter IV of the Act provides for admission and detention of mentally ill persons in psychiatric hospital or psychiatric nursing home. Part I of that Chapter deals with admission for treatment in such hospital or nursing home on voluntary basis of any person who considers himself to be a mentally ill person, and of a minor where the guardian of that minor considers him/her to be a mentally ill person. Part II deals with admission under special circumstances i.e., when an application is made in that behalf by a relative or a friend of the mentally ill person, and Part III of that Chapter deals with reception orders. 'Reception order' is defined in Section 2(s) of the Act, as meaning "an order made under the provisions of this Act for the admission and detention of a mentally ill person in a psychiatric hospital or psychiatric nursing home". Sections 20 to 36 fall under this Part. Section 20 of the Act provides for application for reception order to a Magistrate (as defined under Section 2(h) of the Act) by (a) a medical officer-in-charge of a psychiatric hospital or psychiatric nursing home, or (b) by the husband, wife or any other relative of the mentally ill person. In the present case no such application under Section 20 of the Act was made to the learned Magistrate. The other relevant provisions to be noticed are Sections 23, 24 and 28. Section 23 of the Act is as follows:
"23, Powers and ditties of police officers in respect of certain mentally ill persons :--
(1) Every Officer in charge of a police station, -
(a) may take or cause to be taken into protection any person found wandering at large within the limits of his station whom he has reason to believe to be so mentally ill as to be incapable of taking care of himself, and
(b) shall take or cause to be taken into protection any person within the limits of his station whom he has reason to believe to be dangerous by reason of mental illness.
(2) No person taken into protection under sub-section (1) shall be detained by the police without being informed, as soon as may be, of the grounds for taking him into such protection, or where, in the opinion of the officer taking the person into protection, such person is not capable of understanding those grounds, without his relatives or friends, if any, being informed of such grounds.
(3) Every person who is taken into protection and detained under this section shall be produced before the nearest Magistrate within a period of twenty-four hours of taking him into such protection excluding the time necessary for the journey from the place where he was taken into such protection to the Court of the Magistrate and shall not be detained beyond the said period without the authority of die Magistrate."
Section 24 of the Act provides for the procedure to be followed by the Magistrate on production of mentally ill person under Section 23, as follows :
"24. Procedure on production of mentally ill person :--(1) If a person is produced before a Magistrate under subsection (3) of Section 23, and if in his opinion, there are sufficient grounds for proceeding further, the Magistrate shall-
(a) examine the person to assess his capacity to understand,
(b) cause hint to be examined by a medical office, and
(c) make such inquiries in relation to such person as he may deem necessary, (2) After the completion of the proceeding under sub-section (1), the Magistrate may pass a reception order authorising the detention of the said person as an in-patient in a psychiatric hospital or psychiatric nursing home,-
(a) if the medical officer certifies such person to be a mentally ill person, and
(b) if the Magistrate is satisfied that the said person is a mentally ill person and that in the interests of the health and personal safety of that person or for the protection of others, it is necessary to pass such order:
Provided that if any relative or friend of the mentally ill person desires that the mentally ill person be sent to any particular licensed psychiatric hospital or licensed psychiatric nursing home for treatment therein and undertakes in "writing to the satisfaction of the Magistrate to pay the cost of maintenance of the mentally ill person in such hospital or nursing home, the Magistrate shall, if the medical officer in charge of such hospital or nursing home consents, make a reception order for the admission of the mentally ill person into that hospital or nursing home and detention therein;
Provided further that if any relative or friend of the mentally ill person enters into a bond, with or without sureties for such amount as the Magistrate may determine, undertaking that such mentally ill person will be properly taken care of and shall be prevented from doing any injury to himself or to others, the Magistrate may, instead of making a reception order, hand him over to the care of such relative or friend."
Section 28 of the Act provides for detention of alleged mentally ill person pending report by medical officer, as reads as fellow's :
"28. Detention of alleged mentally ill person pending report by medical officer:-(1) When any person alleged to be a mentally ill person appears or is brought before a Magistrate under Section 23 or Section 25, the Magistrate may, by order in writing, authorise the detention of the alleged mentally ill person under proper medical custody in an observation ward of a general hospital or general nursing home or psychiatric hospital or psychiatric nursing home or in any other suitable place for such period not exceeding ten days as the Magistrate may consider necessary for enabling any medical officer to determine whether a medical certificate in respect of that alleged mentally ill person may properly be given under Clause (a) of sub-section (2) of Section 24.
(2) The Magistrate may, from time to time, for the purpose mentioned in subsection (1), by order in writing, authorise such further detention of the alleged mentally ill person for periods not exceeding ten days at a time as he may deem necessary :
Provided that no person shall be authorised to be detained under this subsection for a continuous period exceeding thirty days in the aggregate.'' It is not the stand of the police in the present case that they brought the petitioner to the Magistrate under Section 23 or that the Magistrate passed a reception order authorising the detention of the petitioner under Section 24 of the Act. The only provisions relating to accused persons of unsound mind, against whom trials and inquiries are held, are in Chapter XXV of the Cr.PC. The petitioner is not attracted by those provisions.
18. The learned IV Metropolitan Magistrate, therefore, egregiously erred in sending the petitioner to the Government Hospital for Mental Care by his order dated 17-1-1997 with a direction to reproduce him after examination and treatment, which he could have done only if moved under the Act and in accordance with the provisions thereof. He seems to have made that order in a casual and mechanical manner without application of mind and without apprising himself of the law in that regard. I would only caution that Magistrates have to be very observant and vigilant in making orders under Section 167 of the Cr.PC and other similar provisions when discretion has to be exercised by them and personal liberties are involved.
19. As the petitioner was already directed to be released by order dated 13-3-1997, no further orders are necessary now in this petition. It is accordingly closed. I thank the learned Advocate General for the assistance rendered.