Allahabad High Court
Chandra Dev Ram Yadav And Anr. vs The State Of U.P And Anr. on 29 August, 2013
Author: Vishnu Chandra Gupta
Bench: Vishnu Chandra Gupta
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
AFR
Reserved
High Court of judicature at Allahabad,
Lucknow Bench, Lucknow
Criminal Miscellaneous case No. -812 of 2013
(U/s 482 Cr.P.C.)
1. Chandra Dev Ram Yadav, aged about 60 years, s/o late Kashi Nath Yadav, resident of Village Hazipur Bamhaur, Police Station Mubarakpur, District Azamgarh, Presently residing at Mohalla Sidhari, Katdhar Road, Police Station Sidhari, District Azamgarh.
2. Rang Nath Mishra, aged about 54 years, son of Sri Keshav Prasad Mishra, Resident of Village Sahsepur, P.O.-Khamaria, District Sant Ravi Das Nagar Bhadohi.
..................... Applicants/Petitioners
Vs.
1. State of U.P.
2.Investigating Officer of Case Crime No. 64 of 2012, Police Station-Hussainganj, District Lucknow
....................... Opposite Parties
Counsel for Applicant :-Sri Kapil Misra, Sri Satyendra Kumar Singh
Counsel for Opposite Party :- AGA
Hon'ble Vishnu Chandra Gupta, J.
Judgement
1.By means of this petition under section 482 of Criminal Procedure Code (for short 'Cr.P.C.') petitioners have prayed for quashing the order dated 16.02.2013 passed by learned in-charge District & Sessions Judge/ Additional Sessions Judge, Court No.1 Lucknow relating to case Crime 64 of 2012, under Sections 409, 420, 467, 468, 471, 204, 301, 174A, 120B IPC and 7/13(1)d r/w 13(2) of Prevention of Corruption Act, Police Station Hussainganj, District Lucknow remanding the petitioners/accused persons in the police custody from 9AM of 17th Feb, 2013 to 9.00 AM of 18th Feb 2013.
2.The brief facts for deciding the case are that both the petitioners were accused in the above mentioned case and they surrendered before the court for the first time on 10.01.2013 and moved application for their bail before the court concerned. The Court keeping in view the judgement rendered by the Apex Court in Lal Kamlendra Pratap Singh Vs. State of U.P.). 2009 (3) ADJ 322 (SC) released the petitioners on interim bail because the bail could not be disposed of on that day. The court fixed 19.01.2013 for hearing of the regular bail. On 19.01.2013 the petitioner again surrendered but the bail application could not be disposed of and case was listed for final disposal on 24.01.2013 and they were released on interim bail till 24.01.2013. As 24.01.2013 was holiday on account 'Barabafat' the petitioners surrendered in court on 25.01.2013. On that date too the bail could not be disposed of and they were released on interim bail till 02.02.2013. They again surrendered on 02.02.2013 and their bail application was rejected and they were taken into custody and remained to judicial custody and send to jail. On 05.02.2013 an application has been moved for police custody remand of petitioners by the investigating officer. The court fix 11.02.2013 for disposal of application. On 11.02.2013 the court directed the police to inform purpose of remand and for showing the provision on 15th February. The case was again adjourned and listed on 15.02.2013. On 15.02.2013 State sought adjournment, consequently the application was fixed on 16.01.2013 for disposal. On 16th February, 2013 the application was allowed and petitioners were ordered for police custody remand from 9 AM of 17.02.2013 to 9 AM of 18.02.2013. They were given in police custody and sent back to the jail in terms of the order passed by the Court.
3.The impugned order was assailed by the petitioners on the following grounds.
(i) That period of first 15 days shall be counted from the date of first remand on 02.02.2013, hence, the 17.02.2013 would be the 16th day as such the remand of the petitioner from 17.02.2013 onwards would be illegal and would be hit by Section 167(2) Cr.P.C..
(ii) That the petitioners were not present in the court when the impugned order has been passed. Hence, in view of provision contained in Clause (b) of proviso of sub-Section 2 of Section 167 Cr.P.C. remanding the petitioners in the police custody on 17.02.2013 would be illegal.
(iii) That the day on which the accused person surrendered before the court i.e. on 10.02.2013, 19.01.2013, 25.01.2013 and 02.02.2013 would be included while calculating first 15 days for the purpose of remaining the petitioner in the police custody. As such the police remand granted in this case beyond period of 15 days would be illegal.
(iv) That accused persons surrendered on 10.01.2013 and they remained on interim bail till 02.02.2013. The period during which they were remained on interim bail shall be deemed to be in custody for the purpose of Section 167(2) Cr.P.C. and 15 days expired during this period, therefore, the petitioners cannot be remained in the police custody. Hence police custody remand granted beyond first 15 days by the impugned order would be illegal.
4.Learned senior counsel appearing for the petitioners Sri Jyotinjay Mishra submitted that the Apex Court in Central Bureau of Investigation, Special Investigation Cell-1, New Delhi Vs. Anupam J. Kulkarni [1992 SCC (Cri) 554] has held that police custody remand could be granted initially for first 15 days by single order or in part. It was further submitted that the period of detention shall be computed from the first date of remand. It was further submitted that the Apex Court has categorically held that after expiry of the period of first 15 days of custody further remand for 60 or 90 days as the case may be, under sub-section 2 of sec.167 shall only be to judicial custody. After relying upon the judgement of Apex Court in Niranjan Singh & anr. Vs. Prabhakar Rajaram Kharote & Ors (AIR 1980 SC 785). It has been submitted that even if the accused is on bail he shall deem to be in custody. He also relied upon the judgement of Division Bench of this Court in Zaheer Abbas Vs. Ganga Prasad (AIR 1963 Alld 4) and contended that even if the accused is on bail may file petition for habeas corpus and will deem to be in custody for all practical purpose.
5.After relying upon the judgement it has been submitted by learned counsel for the petition that remand of the petitioner from 9.00 A.M. Of 17.02.2013 to 9.00 A.M. Of 18.02.2013 would be illegal.
6.Learned AGA Smt. Suniti Sachan contended on behalf of the State that this petition has become infructuous as the accused has already remanded to judicial custody after police custody remand, hence the petitioner shall have no right to challenge the impugned order and no fruitful purpose would be served even if the impugned order is set a-side. It was further submitted on the strength of authority of this Court in Amar Pal and Ors. Vs. State of U.P., (1995 Cri. L.J. 52) that grant or refusal of authorization of detention of an accused in police custody are bilateral proceedings between the prosecuting agency and the court and accused does not come in picture at all. Hence the presence of the accused at the time of remanding the accused from one custody to other is not at all required, specially when court after hearing the parties pass order to be affected from a particular date after the date of passing the order. The Magistrate would be fully competent to direct the Jail Authorities and the investigating officer for giving and taking the physical custody of an accused i.e. from judicial custody to police custody and again from police custody to judicial custody.
Point No.(i)
7.It is not in dispute that police custody remand would be granted during first 15 days from the date of first remand as held by the Apex Court in Aupam J. Kulkarni's case (supra). It has been held by Hon'ble Supreme Court in Tarun Prasad Chatterjee vs. Dinanath Sharma, AIR 2001 SC 36 that use of word 'from' indicate the beginning, hence the first day of the period ,therefore, is to be excluded in view of sec. 9 of General Clauses Act. Of course, the period of first 15 days shall be counted from the date of first remand, i.e. 02.02.2013 but the day on which the bail of accused person was rejected and taken in physical custody by the court and remanded to judicial custody would be treated to be first day of remand. While calculating first 15 days the calculation would start from 03.02.2013 and 02.02.2013 would be excluded, so the 17.02.2013 would be the 15th days.
8. The prosecution cannot take advantage of the fact that the order has been passed within 15 days and the court is competent to send the accused from judicial custody to police custody beyond 15 day. This cannot be done in view of the specific provision contained in Section 167(2) Cr.P.C.
Point No (ii)
9.So far transfer of custody from judicial custody to police custody is concerned if court direct the jail authorities and the investigating officer to take physical custody of the accused from jail for a certain period would be fall within the domain of the court concerned. In such situation it would not necessary that the accused should be brought first before the Magistrate or the court and then handed over to the police in his presence. The presence of the accused is necessary at the time of hearing of the matter regarding police custody remand. It is not the case that petitioner were not given opportunity of being heard before passing the impugned order. I do not find any substance in any of the submissions raised by learned counsel for the petitioner in this regard.
Point No.(iii)
10.So far as inclusion of 10th January, 19th January, 25th January and 2nd February, 2013 while calculating first 15 days is concerned, the day on which the petitioners surrendered and release on interim bail shall not deem to be the date of remanded to the judicial custody. No doubt they surrendered before the court concerned themselves to be taken into physical control of the court but the court has not change the custody either to the police custody or to judicial custody in jail. Therefore, unless the accused are remanded either to the judicial custody or to the police custody by the court it will not be the date of remand within the meaning of Section 167 (2) Cr.P.C.
Point No.(iv)
11.So far as question of custody is concerned technically the accused if on bail shall deem to be under some restrictions but would not be in physical custody of the court. In Niranjan Singh'case (supra) in para 7 this controversy has been set at rest, which is reproduced herein below;
" 7. When is a person in custody, within the meaning of s.439 Cr. P.C. ? When he is in duress either because he is held by the investigating agency or other police or allied authority or is under the control of the court having been remanded by judicial order, or having offered himself to the court's jurisdiction and submitted to its orders by physical presence. No lexical dexterity nor precedential profusion is needed to come to the realistic conclusion that he who is under the control of the court or is in the physical hold of an officer with coercive power is in custody for the purpose of s. 439. This word is of elastic semantics but its core meaning is that the law has taken control of the person. The equivocatory quibblings and hide-and-seek niceties sometimes heard in court that the police have taken a man into informal custody but not arrested him, have detained him for interrogation but not taken him into formal custody and other like terminological dubieties are unfair evasions of the straightforwardness of the law. We need not dilate on this shady facet here because we are satisfied that the accused did physically submit before the Sessions Judge and the jurisdiction to grant bail thus arose"
12.So person cannot be remanded either to judicial custody or in police custody if he is not in actual physical control of the court. An accused on bail cannot deem to be in custody within the meaning of Section 167 Cr.P.C.. Such accused could not be remanded either to judicial or police custody, as in both the situation accused sent to in physical custody of jail authorities or police. as the case may be, which would not be possible if the accused is on bail . This is crystal clear from the scheme of Section 167 Cr.P.C. The perusal of Section 167 (2) Cr.P.C. provides that in case of default of submitting the charge sheet in 60 or 90 days as the case may be, the accused would be entitled for bail, so if the accused already on bail cannot be granted bail in default of filing the charge sheet by the investigation agency in 60 days or 90 days. Hence it cannot be said that accused released on interim or regular bail by the court shall deem to be in custody for the purpose of Section 167 Cr.P.C. I fortified my view with judgement of Apex Court reported in Mithabhai Pashabhai Patel Vs. State of Gujrat, AIR 2009 SC (Supp) 1658
13.Having considered all the facts and circumstance of the case and keeping in view the law cited on the subject it is held that the order of remand of the petitioners in police custody from zero hours to 9.00 a.m. on 18. 02.2013 would not a valid remand being beyond first 15 days. The order to that extent is,thus,liable to be set aside. Consequently to that extent this petition deserve to be allowed.
14.Hence petition is partly allowed. The impugned order dated 16.02.2013 remanding the petitioner to police custody remand from 9.00 A.M. of 17.02.2013 to midnight, i.e. till 12.00 A.M. would be valid and upheld but police custody remand from zero hours to 9.00 A.M. on 18.02.2013 would be illegal and is accordingly set a side.
15.However, the petitioners were subsequently remanded in judicial custody by a valid remand from time to time, the illegality stand cured.
Date ; 29th Aug, 2013 Ajay