Jharkhand High Court
Pradyuman @ Praduman Sharma @ Saket @ ... vs The Union Of India Through National ... on 22 January, 2024
Author: Sujit Narayan Prasad
Bench: Sujit Narayan Prasad
Cr. Appeal (D.B.) No.1305 of 2022
1
IN THE HIGH COURT OF JHARKHAND AT RANCHI
Criminal Appeal (D.B.) No.1305 of 2022
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Pradyuman @ Praduman Sharma @ Saket @ Kundan, aged
about 50 years, S/o Late Anandi Thakur, R/o Village
Rustampur, PO & PS Hulasganj, District Jehanabad, Bihar.
... ... Appellant
Versus
The Union of India through National Investigation Agency
... ... Respondent
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CORAM:HON'BLE MR. JUSTICE SUJIT NARAYAN PRASAD
HON'BLE MR. JUSTICE PRADEEP KUMAR SRIVASTAVA
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For the Appellant : Mr. Shailesh Poddar, Advocate
For the Respondent : Mr. Amit Kumar Das, Advocate
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nd
Order No. 05/Dated 22 January, 2024
Per Sujit Narayan Prasad, J.
1. The instant appeal preferred under Section 21 of the National Investigation Agency Act, 2008 is directed against the order dated 15.10.2022 passed by learned AJC-XVI- cum-Spl. Judge, NIA Cases, Ranchi in Spl. (NIA) Case No.01 of 2022 arising out of R.C. Case No.05 of 2021 (NIA)/RNC) whereby and whereunder the petition filed under Section 167(2) of the Cr.P.C. on behalf of the appellant for enlarging him on bail as the chargesheet has not been submitted till today and 90 days have passed for filing the chargesheet against the appellant, has been rejected.
2. The brief facts of the case as per the pleading made in the Memo of Appeal, reads hereunder as :-
Cr. Appeal (D.B.) No.1305 of 2022 2 The case of prosecution in brief is that the Central Government received information that CPI (Maoist) cadres prominently Pradyuman Sharma along with Yogendra Ravidas, Nagendra Giri (armed cadre of CPI(Maoist)), Abhinav, Dhananjay Paswan (arms supplier of CPI(Maoist)) and others are conspiring to revive CPI (Maoist) organization in Magadh Zone. They have conspired to raise funds for procurement of arms and ammunitions and training cadres in IEDs and to liaise with incarcerated naxals, OGWS in various jails for commission terrorist activities. These activities fall u/s 16,17,18,20,38,39 and 40 of UAPA. The Government of India, Ministry of Home Affairs vide order F. No. 11011 / 79 / 2021 / NIA dated 27.12.2021 issued as per provision of Section 6(5) of the NIA Act 2008, directed the NIA to register the case as FIR No. 5/2021/NIA /RNC dated 30.12.21 at PS NIA Ranchi.
3. The Appellant was already in custody in a separate case being Chauparan PS Case No.263/2018 in which he was remanded to judicial custody on 20.08.2021 and the same was in the specific knowledge of the NIA Investigating Officer of the instant case.
4. It is the case of the appellant that as per the order dated 14.02.2022 of the instant case, it is evident that the IO had the knowledge of the appellant's judicial custody in Koderma Jail. Further as per the order dated 27.04.2022 of Cr. Appeal (D.B.) No.1305 of 2022 3 the instant case, it reflects that the IO had the knowledge of the Appellant's jail custody in connection with Chouparan PS Case No. 263/2018 as on the said date he also moved an application for interrogation of the Appellant which was granted to him vide order dated 17.05.2022 from 18.05.2022 till 21.05.2022 by the learned trial court.
5. Since then more than 90 days has already elapsed but no final report/charge-sheet or any application for extension of time has been submitted and hence this application under Section 167(2) of the Cr.P.C. was filed for his release on furnishing bail bond to the satisfaction of this learned court. For the purpose of calculating the period of 90 days the appellant has taken the date of 14.02.2022 as the said date is the first date where the knowledge of the custody of the appellant is reflected by the IO of the instant case.
6. That the Appellant was languishing in the judicial custody in the Chauparan PS Case No. 263/2018 since 20.08.21 which is duly reflected in the order dated 27.04.22 and the order dated 14.02.2022 reflects that the IO had the knowledge of the appellant's jail custody in Koderma Jail. There is no justifiable reason or justification for the IO to not take the formal custody of the appellant since 14.02.2022 when he had the knowledge of the Cr. Appeal (D.B.) No.1305 of 2022 4 appellant's jail custody and that the appellant happened to be the named accused in the FIR.
7. It the further case of the appellant that on 21.07.2022 the IO moved an application seeking remand of appellant for an in depth examination which the IO had already done for 4 days from 18.05.22-21.05.22. However, still the learned trial court mechanically allowed the same by posting the matter for production of the appellant on 26.07.2022. Finally on 26.07.2022 the appellant was remanded in the instant case.
8. It is the case of the appellant that when till 15.10.2022 neither any charge-sheet, nor any application seeking extension of time for filing charge-sheet was filed, the appellant moved an application for default bail under section 167 (2) CrPC on 15.10.2022 before the learned trial court.
9. The learned trial court without considering the mandate of the law, dismissed the application for default bail vide order dated 15.10.2022 on the ground that since the date of remand which is 26.07.2022, the period of 90 days has not elapsed. Against the aforesaid order dated 15.10.2022, the instant appeal has been filed.
10. Learned counsel for the appellant has taken the ground for assailing the said order by showing the victimization which he has faced at the hands of the Cr. Appeal (D.B.) No.1305 of 2022 5 investigating agency by not taking his remand even though the investigating agency was having full knowledge about the commission of crime by the appellant in the instant case on 14.02.2022.
11. Learned counsel for the appellant has submitted that since the investigating agency was having full knowledge about the implication of the appellant in the criminal case and if the remand was not sought for then for no fault of his own, the compulsive bail for which the appellant becomes entitled the day when he has completed the period of 90 days which is to be counted from 14.02.2022 and not from 26.07.2022, the day when the court has passed order for remand of the appellant in the instant case.
12. The contention has been made that not seeking remand of the appellant in this case is nothing but in the teeth of the provision of Article 21 of the Constitution of India and, hence, the impugned order dated 15.10.2022 is fit to be interfered by quashing and setting it aside and the appellant may be directed to be released on bail on the ground of non-submission of the chargesheet within the stipulated period.
Cr. Appeal (D.B.) No.1305 of 2022 6
13. Per contra, Mr. Amit Kumar Das, learned counsel appearing for the National Investigation Agency, has vehemently opposed the prayer by defending the impugned order dated 15.10.2022.
14. It has been submitted based upon the averments of the counter affidavit which has been filed in terms of the order dated 02.02.2023 wherein the reason has been assigned that the order impugned does not suffer from error, i.e., the date of remand by the concerned court is dated 26.07.2022, hence, the period of 90 days for the purpose of grant of compulsive bail as under Section 167(2) of the Cr.P.C. is to be considered from 26.07.2022.
15. In response to the contention of the appellant that the said period of remand be deemed to be the date of remand when it came to the knowledge of the I.O. for the first time that the appellant is in judicial custody, i.e., on 14.02.2022, otherwise the same will lead to the unnecessary harassment to the appellant and in the teeth of Article 21 of the Constitution of India, it has been submitted on behalf of NIA that the it cannot be said to be deemed remand for the reason that the police while taking the person concerned in custody in a Cr. Appeal (D.B.) No.1305 of 2022 7 serious crime is to acknowledge the crime committed so as to collect evidence in this regard to come to the conclusion of complicity of the concerned person in the commission of crime. Therefore, merely because a person has been taken into police custody, the same cannot be construed to be the deemed remand.
16. So far as the argument that the same is in the teeth of Article 21 of the Constitution of India is concerned, it has been argued that Article 21 of the Constitution of India although provides for protecting the fundamental right of liberty but that is to be assessed by carving out the balance in enforcing the law and order.
17. So far as the applicability of Article 21 of the Constitution of India is concerned, it has been argued that more than 83 criminal cases have been registered against the appellant in different police stations and being the history-sheeter, he was interrogated on 14.02.2022 but on the date since no material has come to connect the appellant with the instant case and even thereafter, i.e., on 17.05.2022, hence no petition was filed for his remand before the competent court of criminal jurisdiction but the moment the material has Cr. Appeal (D.B.) No.1305 of 2022 8 been surfaced in course of investigation, petition was filed for his remand on 21.07.2022 and the appellant was remanded on 26.07.2022.
18. As such, merely because the appellant was interrogated, the same cannot be said to be the date of remand and hence the period of 90 days is not fit to be counted from 14.02.2022.
19. The submission has been made that based upon the aforesaid ground, if the learned court, while considering the compulsive bail as under Section 167(2) of the Cr.P.C., has rejected the same by considering the date of remand to be 26.07.2022, it cannot be said to suffer from an error, as such, the instant appeal lacks merit and the same is fit to be dismissed.
20. We have heard the learned counsel for the parties, perused the material available on record, the pleading made on behalf of the appellant as available in Memo of Appeal and the counter affidavit filed on behalf of the National Investigation Agency.
21. It is evident from the factual aspect that one criminal case being F.I.R. No.263 of 2018 of Chouparan Police Station, district Koderma was instituted in which the appellant was in judicial custody. During investigation of the instant case, i.e., R.C. Case No.05 of 2021 (NIA)/RNC), Cr. Appeal (D.B.) No.1305 of 2022 9 incriminating role of the appellant was surfaced and, as such, based upon evidence collected in course of investigation, the appellant was remanded in the instant criminal case on 26.07.2022, as such, the period of 90 days was completed on 24.10.2022 but the application was filed by the appellant before the completion of the period of 90 days, i.e., by filing application on 15.10.2022 by counting the period of 90 days from 14.02.2022, as the said date is the first date where the knowledge of the custody of the appellant is reflected by the IO of the instant case.
22. The appellant has taken ground that on 14.02.2022 the investigating agency was having the knowledge of his active involvement in the criminal case but even then no steps have been taken for seeking remand from the concerned court, thereby the period of remand be accepted from 14.02.2022.
23. Learned counsel for the appellant, therefore, has taken the ground that on 14.02.2022, the date of deemed remand in the instant case, will be said to be the date for the purpose of consideration of compulsive bail which is to be considered under Section 167(2) of the Cr.P.C. and since the chargesheet was not submitted within the period of 90 days, petition was filed for grant of compulsive bail as under Section 167(2) of the Cr.P.C.
Cr. Appeal (D.B.) No.1305 of 2022 10
24. Learned Special Judge has called upon the investigating agency. The ground in opposition was taken before it by the investigating agency that the date of remand will be said to be the remand if the concerned court takes judicial notice of the remand by passing specific order of remand with respect to an accused person against whom cogent evidence has come showing his complicity in commission of the offence.
25. Although the appellant was in custody on 14.02.2022 and thereafter on 17.05.2022 but, since no cogent material to connect the involvement of the appellant in commission of crime directly or indirectly was there, hence, he was not remanded in the instant case.
26. However, the moment material has come against him establishing his connection/nexus in commission of crime, the application was filed for his remand on 21.07.2022.
27. Accordingly, the learned Special Judge has ordered for remand of the appellant on 26.07.2022.
28. Hence, the period of 90 days for the purpose of compulsive bail will be considered by taking the date into consideration, i.e., the day when the order of remand was passed by the concerned learned Special Judge on 26.07.2022.
Cr. Appeal (D.B.) No.1305 of 2022 11
29. Learned Special Judge, on consideration of the aforesaid fact and considering the material available on record as also the ordersheets, has agreed with the grounds taken by the investigating agency.
30. Learned Special Judge, considering the fact that the order of remand was dated 26.07.2022 and the petition was filed under Section 167(2) of the Cr.P.C. on 15.10.2022 while the 90 days has been considered to be counted from 26.07.2022 and from that date 90 days will be completed only on 24.10.2022, as such, the petition filed on 15.10.2022 counting the period of 90 days either from 14.02.2022 or 17.05.2022 and not from 26.07.2022 has been rejected by giving specific finding based upon the date of remand, i.e., 26.07.2022, which is under challenge in this appeal by invoking the jurisdiction conferred to this Court under Section 21(4) of the National Investigation Agency Act, 2008.
31. This Court, before delving into the merit of the impugned order, deems it fit and proper to refer herein that under the Code of Criminal Procedure the word "remand" has not been defined.
32. The concept of remand is in order to achieve the object of Article 21 of the Constitution of India in view of the provision as contained under Section 154 Cr.P.C. which provides regarding Information in cognizable cases to be Cr. Appeal (D.B.) No.1305 of 2022 12 given to officer in charge of a police station, which shall be reduced to writing by him or under his direction, and be read over to the informant.
33. Section 57 of the Cr.P.C. provides that person arrested not to be detained more than twenty-four hours. It is for the purpose that there may not be any illegal detention and, as such, it has been provided 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.
34. It is thus evident that within the period of 24 hours the person so arrested, is to be produced before the local Magistrate for an order to be passed under Section 167 of Cr.P.C.
35. Section 167 Cr.P.C. provides the procedure when investigation cannot be completed in 24 hours. As per Sub- Section (1) thereof, wherein it has been provided that 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 Cr. Appeal (D.B.) No.1305 of 2022 13 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.
36. The aforesaid provision as contained under Sub- Section (1) of Section 167 Cr.P.C. thus, mandatorily provides that the police cannot keep a person in custody beyond the period of 24 hours, rather, the accused person is to be produced before the local Magistrate and the occasion to produce the said accused person before the Magistrate is that the investigation since has not completed within the period of 24 hours.
37. As such, in order not to allow travesty of justice and to come to the truth of the case instituted under Section 154 Cr.P.C. or under Section 156(3) Cr.P.C., if such enquiry is converted into F.I.R., then for the purpose of securing the evidence, allowing such accused persons go out of police custody will seriously prejudice the investigation and hence, as per the provision of Section 167(1) Cr.P.C. such accused person is to be produced before the Magistrate for taking him in judicial custody. Thereafter, the police, by Cr. Appeal (D.B.) No.1305 of 2022 14 making application for his remand for the further interrogation, the same prayer can be made.
38. It is, thus, further evident that while providing the provision of Section 167(1) Cr.P.C., the spirit of Article 21 of the Constitution of India has been taken into consideration so that the person concerned against whom accusation has been made may not be subjected to illegal detention and be not allowed to remain in police custody, rather, it is incumbent upon the police officer to make application with proper evidence requiring his remand of the said accused in the said case so that the investigation be completed.
39. Thereafter, the provision of Sub-Section (2) of Section 167 is there under the Code of Criminal Procedure which is for the purpose of conclusion of investigation. The aforesaid statute also takes care that the investigation cannot be allowed to go on for eternity keeping such person who is suspect of accusation in judicial custody.
40. Therefore, depending upon the nature of case, the statute has provided by commanding the investigating agency to conclude the investigation within 60 or 90 days, as the case may be.
41. The question is that when the investigation will not be completed within 60 or 90 days, as the case may be, for no fault of the accused person against whom the Cr. Appeal (D.B.) No.1305 of 2022 15 accusation has been leveled, why he be kept in judicial custody.
42. Therefore, by virtue of the judicial pronouncement of the Hon'ble Apex Court such person who is facing accusation, in case of non-completion of investigation within the period of 60 or 90 days, as the case may be, will have a right to make prayer for his release from judicial custody on the ground that even if expiry of period of 90 days since the investigation has not been completed and, therefore, chargesheet is not there, hence, he became entitled for the compulsive bail, reference in this regard be made to the judgment rendered by Hon'ble Apex Court in the case of Hitendra Vishnu Thakur v. State of Maharashtra, (1994) 4 SCC 602 wherein at paragraph 20 the Hon'ble Apex Court has held which reads hereunder as :-
"20. Section 57 of the Code of Criminal Procedure provides that a person arrested shall not be detained in custody by the police for a period longer than that which is reasonable but that such period shall not exceed 24 hours exclusive of the time necessary for journey from the place of arrest to the court of the Magistrate in the absence of a special order under Section 167 of the Code. The Constitution of India through Article 22(2) mandates 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 journey from the place of arrest to that court and that Cr. Appeal (D.B.) No.1305 of 2022 16 no person shall be detained in custody beyond that period without the authority of the Magistrate. Thus, the Constitution of India as well as the Code of Criminal Procedure expect that an arrested person, who has been detained in custody, shall not be kept in detention for any unreasonable time and that the investigation must be completed as far as possible within 24 hours. Where the investigation of the offence for which accused has been arrested cannot be completed within 24 hours and there are grounds for believing that the accusation or information against the accused is well-founded, the police is obliged to forward the accused along with the case diary to the nearest Magistrate for further remand of the accused person. The Magistrate, on the production of the accused and the case diary, must scrutinise the same carefully and consider whether the arrest was legal and proper and whether the formalities required by law have been complied with and then to grant further remand, if the Magistrate is so satisfied. 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 with great promptitude in the prescribed period. Sub- section (2) of Section 167 of the Code lays down that the Magistrate to whom the accused is forwarded may authorise his detention in such custody, as he may think fit, for a term specified in that section. The proviso to sub-section (2) fixes the outer limit within which the investigation must be completed and in case the same is not completed within the said prescribed period, the accused would acquire a right to seek 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 the Code of Cr. Appeal (D.B.) No.1305 of 2022 17 Criminal Procedure. The said chapter comprises of Sections 436 to 450 but for our purposes it is only Sections 437 and 439 of the Code which are relevant. Both these sections empower the court to release an accused on bail. The object behind the enactment of Section 167 of the Code was that the detention of an accused person should not be permitted in custody pending investigation for any unreasonably longer period. However, realising that it may not be possible to complete the investigation in every case within 24 hours or even 15 days, as the case may be, even if the investigating agency proceeds with utmost promptitude, Parliament introduced the proviso to Section 167(2) of the Code prescribing the outer limit within which the investigation must be completed. Section 167 read with Section 20(4) of TADA, thus, strictly speaking is not a provision for "grant of bail"
but deals with the maximum period during which a person accused of an offence may be kept in custody and detention to enable the investigating agency to complete the investigation and file the charge-sheet, if necessary, in the court. The proviso to Section 167(2) of the Code read with Section 20(4)(b) of TADA, therefore, creates an indefeasible right in an accused person on account of the 'default' by the investigating agency in the completion of the investigation within the maximum period prescribed or extended, as the case may be, to seek an order for his release on bail. It is for this reason that an order for release on bail under proviso (a) of Section 167(2) of the Code read with Section 20(4) of TADA is generally termed as an "order-on-default" as it is granted on account of the default of the prosecution to complete the investigation and file the challan within the prescribed period. As a consequence of the amendment, an accused after the expiry of 180 days from the date of his arrest becomes entitled to bail irrespective of the nature of the offence with which he Cr. Appeal (D.B.) No.1305 of 2022 18 is charged where the prosecution fails to put up challan against him on completion of the investigation. With the amendment of clause (b) of sub-section (4) of Section 20 read with the proviso to sub-section (2) of Section 167 of CrPC an indefeasible right to be enlarged on bail accrues in favour of the accused if the police fails to complete the investigation and put up a challan against him in accordance with law under Section 173 CrPC. An obligation, in such a case, is cast upon the court, when after the expiry of the maximum period during which an accused could be kept in custody, to decline the police request for further remand except in cases governed by clause (bb) of Section 20(4). There is yet another obligation also which is cast on the court and that is to inform the accused of his right of being released on bail and enable him to make an application in that behalf. (Hussainara Khatoon case [Hussainara Khatoon v. Home Secy., State of Bihar, (1980) 1 SCC 98 : 1980 SCC (Cri) 40 :
AIR 1979 SC 1369] ). This legal position has been very ably stated in Aslam Babalal Desai v. State of Maharashtra [(1992) 4 SCC 272 : 1992 SCC (Cri) 870 : AIR 1993 SC 1] where speaking for the majority, Ahmadi, J. referred with approval to the law laid down in Rajnikant Jivanlal Patel v. Intelligence Officer, Narcotic Control Bureau, New Delhi [(1989) 3 SCC 532] wherein it was held that : (SCC p. 288, para 9) "The right to bail under Section 167(2) proviso (a) thereto is absolute. It is a legislative command and not court's discretion. If the investigating agency fails to file charge-sheet before the expiry of 90/60 days, as the case may be, the accused in custody should be released on bail. But at that stage, merits of the case are not to be examined. Not at all. In fact, the Magistrate has no power to remand a person beyond the stipulated period of 90/60 Cr. Appeal (D.B.) No.1305 of 2022 19 days. He must pass an order of bail and communicate the same to the accused to furnish the requisite bail bonds."
43. Similarly, in the case of Uday Mohanlal Acharya v. State of Maharashtra, (2001) 5 SCC 453, the Hon'ble Apex Court has observed that the object behind the provisions of Section 57 Cr.P.C. and 167(2) Cr.P.C., which are required to be read together, is that the accused should be brought before a Magistrate without much delay and that the Magistrate will have succinct of the matter within 24 hours, the relevant paragraph of the aforesaid judgment is quoted and referred hereunder as :-
"5. Before examining the correctness of the rival submissions and finding out as to when the right accrues to the accused for being released on bail under the proviso to sub-section (2) of Section 167 and when that right gets extinguished, it will be appropriate to notice the very scheme of the Code. Under Section 56 of the Code of Criminal Procedure it is the bounden duty of the police officer arresting a person to produce him before a Magistrate having jurisdiction without unnecessary delay. Under Section 57 of the Code there is an embargo on the police officer to detain in custody a person arrested beyond 24 hours excluding the time necessary for the journey from the place of arrest to the Court of the Magistrate. The object behind the aforesaid two provisions which are required to be read together is that the accused should be brought before a Magistrate without much delay and that the Magistrate will have succinct of the matter within 24 hours. The aforesaid provision in fact is in consonance with the constitutional mandate Cr. Appeal (D.B.) No.1305 of 2022 20 engrafted under Article 22(2). The continuance of detention for the purpose of investigation beyond 24 hours has to be authorised by the Magistrate from time to time and without such special order from the Magistrate the detention may be illegal. Under the Criminal Procedure Code of 1878 a Magistrate was not entitled to allow detention of an accused in custody for a term exceeding 15 days on the whole. It was also found that the investigation could not ordinarily be completed within 15 days. The Law Commission, therefore, suggested that an accused could be denied to remain in custody for more than 60 days which got engrafted in Section 167 of the present Code (Criminal Procedure Code, 1973). The legislature, however, felt that a drastic change was called for to alter the tardy pace of investigation and, therefore, by the Criminal Procedure Code (Amendment) Act, 1978 (Act 45 of 1978), proviso (a) to sub-section (2) of Section 167 has been added. Under the amended provision, therefore a Magistrate is empowered to authorise detention of the accused in custody, pending investigation for an aggregate period of 90 days in cases where the investigation relates to offence punishable with death, imprisonment for life or imprisonment for not less than 10 years or more and in other cases the period of 60 days has been kept. The extended period of 90 days was brought into the Criminal Procedure Code by an amendment as it was found that in several cases of serious nature it was not possible to conclude the investigation. This provision of Section 167 is in fact supplementary to Section 57, in consonance with the principle that the accused is entitled to demand that justice is not delayed. The object of requiring the accused to be produced before a Magistrate is to enable the Magistrate to see that remand is necessary and also to enable the accused to make a representation which he may wish to Cr. Appeal (D.B.) No.1305 of 2022 21 make. The power under Section 167 is given to detain a person in custody while the police goes on with the investigation and before the Magistrate starts the enquiry. Section 167, therefore, is the provision which authorises the Magistrate permitting detention of an accused in custody and prescribing the maximum period for which such detention could be ordered. Having prescribed the maximum period, as stated above, what would be the consequences thereafter has been indicated in the proviso to sub- section (2) of Section 167. The proviso is unambiguous and clear and stipulates that the accused shall be released on bail if he is prepared to and does furnish the bail which has been termed by judicial pronouncement to be "compulsive bail" and such bail would be deemed to be a bail under Chapter 33. The right of an accused to be released on bail after expiry of the maximum period of detention provided under Section 167 can be denied only when an accused does not furnish bail, as is apparent from Explanation I to the said section. The proviso to sub- section (2) of Section 167 is a beneficial provision for curing the mischief of indefinitely prolonging the investigation and thereby affecting the liberty of a citizen. ... ... ... ... ..."
44. Further, the Hon'ble Apex Court in the case of Aslam Babalal Desai v. State of Maharashtra, (1992) 4 SCC 272, has taken similar view at paragraph 11 which is being quoted hereunder :-
"11. 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. It expects that the investigation should be completed within 24 hours and if this is not possible within 15 days and failing that within the time stipulated in clause (a) of the proviso to Cr. Appeal (D.B.) No.1305 of 2022 22 Section 167(2) of the Code. 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. As stated earlier, the legislative history shows that before the introduction of the proviso to Section 167(2) the maximum time allowed to the investigating agency was 15 days under sub- section (2) of Section 167 failing which the accused could be enlarged on bail. From experience this was found to be insufficient particularly in complex cases and hence the proviso was added to enable the Magistrate to detain the accused in custody for a period exceeding 15 days but not exceeding the outer limit fixed under the proviso (a) to that sub-section. We may here mention that the period prescribed by the proviso has been enlarged by State amendments and wherever there is such enlargement, the proviso will have to be read accordingly. The purpose and object of providing for the release of the accused under sub-section (2) of Section 167 on the failure of the investigating agency completing the investigation within the extended time allowed by the proviso was to instil a sense of urgency in the investigating agency to complete the investigation promptly and within the statutory time-frame. ... ... ..."
45. The very import of the aforesaid of the aforesaid provision is to protect the person concerned who is facing the accusation from illegal detention and to protect the personal liberty as enshrined under Article 21 of the Constitution of India.
46. Such consideration has been given by giving a reasonable time as per the legislature for the purpose of completion of investigation within the period of 60 or 90 Cr. Appeal (D.B.) No.1305 of 2022 23 days, as the case may be. But, if the investigation has not been completed within the aforesaid period, then as a matter of right, the concerned person is to be released on bail said to be commonly known as the compulsive bail.
47. Therefore, the period either of 60 days or 90 days or the stretched period of 180 days as provided under the U.A.(P) Act, 1967 is to be counted from the date of remand so as to take benefit of the provision of Sub-Section (2) of Section 167 Cr.P.C.
48. The law is well settled that if any statutory provision is there, the same is to be read out in entirety and it cannot be in piecemeal. Herein, Section 167 Cr.P.C. consists of 6 Sub-Sections but for the purpose of compulsive bail, the relevant would be Section 167(1) and Section 167(2).
49. The question of applicability of Sub-Section (2) of Section 167 will only come if there is an order passed by local Magistrate in exercise of power conferred under Section 167(1) of the Cr.P.C.
50. Coming back to the facts of this case, learned counsel appearing for the appellant is admitting the fact that the date of remand is 26.07.2022, as such, according to him also since he has filed application under Section 167(2) Cr.P.C. for compulsive bail, hence, 90 days is to be counted from the date of remand as has been passed in this case in exercise of power conferred under Section Cr. Appeal (D.B.) No.1305 of 2022 24 167(1) by the local Magistrate on 26.07.2022. But, the case of the appellant is that he was in custody on 14.02.2022 and 17.05.2022 but purposely he was not remanded in the instant case.
51. As such, he has been emphasizing upon the ground that his remand be treated to be deemed remand from the day when for the first time the I.O. has got the knowledge about the custody of the appellant in another case.
52. It is important to note herein that against the appellant altogether 83 criminal cases are pending of like nature implicating him as the active member of the banned organization, i.e., CPI (Maoist), as such, the offence of the U.A(P). Act has also been leveled against him.
53. Leaving apart the aforesaid fact, the issue which has been raised that the day when the appellant was taken into custody by the police with the permission of the concerned court since he was in custody in other criminal case, as such, the remand be treated to be deemed remand from the date of custody, i.e., from 14.02.2022.
54. As we have already referred hereinabove that the word remand has not been defined under the Cr.P.C., as such, where is the question of deemed remand. The word "remand" has been interpreted by the court of law which is the power of the Magistrate to remand a person against Cr. Appeal (D.B.) No.1305 of 2022 25 whom accusation has been made in judicial custody as has been discussed and referred hereinabove.
55. The said power is only under Section 167(1) of the Cr.P.C. The said provision provides power to the Magistrate to pass an order for taking a person in judicial custody which is termed as "remand".
56. The issue of deemed remand cannot be said to be a correct conception otherwise even if the police will take into custody and if the police, in course of interrogation, has not found any incriminating material, then how can it be treated to be deemed remand and if treated then what would be its effect.
57. Further, if taking a person in police custody will be treated to be deemed remand, then will it not be said to be unhindered power conferred to the police then what will happen to the safeguard and protection of the concerned accused person and how the object and spirit of Section 167(2) of the Cr.P.C. will be achieved which provides for completion of investigation within 60 or 90 days, as the case may be.
58. The further question would be that the police is having no power to take decision or pass order for remand, rather, the order of remand being a judicial exercise of the concerned local Magistrate and, as such, as per the settled law, while exercising the judicial power, the local Magistrate Cr. Appeal (D.B.) No.1305 of 2022 26 is to exercise its judicial mind by taking active consideration of the evidence collected by the police in course of investigation which can be said to be the cogent material for taking decision of remand by the concerned local Magistrate.
59. The order of remand cannot be said to be a mechanical order, rather, the order of remand being a judicial order is to be passed by applying the judicial mind as has been held by Hon'ble Apex Court in the case of Manubhai Ratilal Patel through Ushaben v. State of Gujarat and others, (2013) 1 SCC 314 at paragraphs 24 and 25 which are being quoted hereunder as:-
"24. The act of directing remand of an accused is fundamentally a judicial function. The Magistrate does not act in executive capacity while ordering the detention of an accused. While exercising this judicial act, it is obligatory on the part of the Magistrate to satisfy himself whether the materials placed before him justify such a remand or, to put it differently, whether there exist reasonable grounds to commit the accused to custody and extend his remand. The purpose of remand as postulated under Section 167 is that investigation cannot be completed within 24 hours. It enables the Magistrate to see that the remand is really necessary. This requires the investigating agency to send the case diary along with the remand report so that the Magistrate can appreciate the factual scenario and apply his mind whether there is a warrant for police remand or justification for judicial remand or there is no need for any remand at all. It is obligatory on the part of the Magistrate to apply his mind and not to pass an Cr. Appeal (D.B.) No.1305 of 2022 27 order of remand automatically or in a mechanical manner.
25. It is apt to note that in Madhu Limaye, In re [(1969) 1 SCC 292 : AIR 1969 SC 1014] it has been stated that: (SCC p. 299, para 12) "12. Once it is shown that the arrests made by the police officers were illegal, it was necessary for the State to establish that at the stage of remand the Magistrate directed detention in jail custody after applying his mind to all relevant matters."
60. The other reason would be that the police cannot be conferred with the power at par with the local Magistrate so as to exercise the power of remand.
61. The second question which has been raised by the appellant was having knowledge about the implication of the appellant in the instant case but intentionally no petition was filed for his remand before the local Magistrate. The National Investigation Agency has filed the counter affidavit wherein specific stand has been taken that although the appellant was in police custody, i.e., on 14.02.2022 and 17.05.2022 but no cogent material was found against him establishing the prima facie accusation, hence, no petition for his remand was filed. Therefore, the said action of NIA cannot be said to suffer from an error.
62. Further stand has been taken that the moment the accusation has been found, based upon the same, the appellant was sought for remand in the present case which was granted vide order dated 26.07.2022.
Cr. Appeal (D.B.) No.1305 of 2022 28
63. This Court, on appreciation of the rival submissions and in order to assess that any evidence prima facie establishing the accusation against the appellant was there or not, has thought it proper to consider the chargesheet filed against him copy of which has been appended with the counter affidavit which is being referred herein :-
"17.4.4: Seizure of incriminating documents from the house of accused persons Tarun Kumar (A-1) and Pradyuman Sharma @ Saket @ Kundan @ Sudhansu @ Kunal Nakul @ Laden (A-2):
During search on 12.02.2022 at the house of FIR named accused A-2 and arraigned accused A-1, incriminating documents / letters (diary) were seized. On 03.05.2022, the specimen hand writing of accused A-1 was obtained in presence of two independent witnesses and in this regard a proceeding has also been drawn. The specimen handwriting of accused A-1 and seized incriminating document (diary) was sent to Central Forensic Science Laboratory (CFSL), Kolkata (WB) for matching and obtaining expert opinion. 17.4.5: On 07.09.2022 searches at five locations were carried out by NIA including the house of A-1, A-2 & A-3. During the search, incriminating letters related to CPI(Maoist) were again seized and it is pertinent to mention here that, during that search arrested accused A - 3 was present at the house of A-1 & A-2.
17.4.8: Statement of Protected Witness "A"
(Hereinafter referred to as " PW -"A") : - PW "A" stated in his statement that, during the year 2019 his company had taken a construction project. During the initial period, he was regularly threatened by the arrested accused persons i.e., A-1, A-2 and A-3, who were demanding levy on Cr. Appeal (D.B.) No.1305 of 2022 29 behalf of CPI (Maoist), a proscribed terrorist organization. Accordingly, due to regular threats (over VOIP calls), he was forced to pay the extortion money. PW-"A" stated in his statement that, he was directed by the accused A-2 to pay the extortion amount in the bank account provided to him. The details of the bank account number xxxxxxxx59680 of Ms. Nitu Devi in IDBI bank account of Bihta, Patna, Bihar was shared by A-1 on his WhatsApp number. PW-"A" stated that when he had asked about the owner of the bank account, it was stated by the A-1 and A-3 that, the above bank account belongs to his close associate i.e., absconding accused Chandan Kumar (A-4). Accordingly, on 08.10.2020 a sum of three lakh rupees were transferred in the above bank account. The above facts have been corroborated by the statements of other important witnesses and from the bank account statements of Ms. Nitu Devi and construction company. After this transaction, PW-
"A" was not picking up the calls of A-1, A-2 and A-
3. During investigation, it has also surfaced that during the first week of February 2022, a letter was received on the WhatsApp number of PW-"A", which was later shared with PW-"B". The letter was written by "Saket". It is pertinent to mention here that, "Saket" is the alias name of the FIR named accused (A-2) Further, it is also important to mention and clarify that the letter was actually written by accused A-1 in the name of A-2. Thereafter, A-2 had sent the letter from his own mobile handset to PW-"A", which was also seized on 12.02.2022.
17.4.9: Examination of Protected Witness "B"
(Hereinafter referred as PW-"B"):- PW-B corroborated the statement of PW-"A". He also added few more facts and produced the copy of the demand letter, which was sent by accused A-1 on Cr. Appeal (D.B.) No.1305 of 2022 30 the WhatsApp number of PW- "A". The image of the letter was seized on production order on 04.04.2022. PW-B also produced few incriminating voice clips of arrested FIR named accused A-2 which were received by him in connection with demand of extortion money. During the investigation, the incriminating voice clips between A-2 and PW -"B" and was seized on production order. Further, during the police remand of arrested accused A-2, the specimen voice clip of the accused A-2 was obtained in the presence of two witnesses. Further, the voice in question (seized incriminating voice clips) and the specimen voice of the arrested accused A-2 was sent to CFSL, New Delhi for matching and obtaining expert opinion and the same was received.
17.4.10: Statement of Protected Witness "C" (Hereinafter referred as PW- "C"): - During investigation the name of PW- "C" has surfaced as a victim who had paid money to the accused persons A-1, A-2, A-3 and A-4, as levy to the CPI(Maoist), a proscribed terrorist organization. During investigation PW- "C" was examined and during his examination he stated that he was regularly receiving threatening calls from (A - 1) (A - 2) and (A - 3) maximum on his WhatsApp number for paying levy to the CPI(Maoist). In support of his claim, he had produced few incriminating voice clips of accused A-3. During investigation the specimen voice of A-3 was voluntarily obtained in the presence of two independent witnesses. Further, the voice in question and the specimen voice were forwarded to CFSL, New Delhi for matching and obtaining expert opinion. Investigation also revealed that, PW- "C" was directed by the accused persons A-1, A-2 and A-3 to pay the levy and for the said purpose transferred the funds in the bank account number Cr. Appeal (D.B.) No.1305 of 2022 31 xxxxxxxx59680, in IDBI bank account of Bihta, Patna, Bihar, which belonged to Ms. Nitu Devi. On the direction of accused A-2, the details of bank account were shared by accused persons A-1 and A-3 on the WhatsApp number of PW-"C".
Investigation has also revealed that the funds ie., approx. Six Lakhs Forty thousand rupees were transferred / deposited in the bank account of Ms. Nitu Devi. For transferring the funds, PW- "C" had used the assistance of his supervisor i.e., PW- "D" and approximately, two lakhs sixty-five thousand was transferred through the UPI number of PW-
"D". To minimize the risk of suspicion, the funds were transferred in small amounts from the IDBI Bank, Koderma, Jharkhand. The above facts also get corroborated with the deposit slips, bank account statements of Ms. Nitu Devi and from the statements of independent witnesses."
64. This Court, after discussing the facts and law hereinabove, is of the view that the police custody cannot be said to be the date of remand which is foreign to the Code of Criminal Procedure. Rather, as per the provision of Section 167(1) read with Sub-Section (2) thereof, the remand will be said to be the day when the accused has been produced before the Magistrate if the investigation has not been completed within 24 hours as per the provision of the Code.
65. Herein, the petition under Section 167(2) Cr.P.C. admittedly has been filed on 15.10.2022 by counting the period of 90 days from the date of police custody i.e. on 14.02.2022 while the actual date of remand is 26.07.2022.
Cr. Appeal (D.B.) No.1305 of 2022 32 Learned court while considering the aforesaid petition, has rejected the said contention by dismissing the petition by coming to the conclusion that it is not a case for compulsive bail since the petition under Section 167(2) Cr.P.C. was filed within the period of 90 days.
66. This Court since is sitting in appeal, as such, as per the position of law, the order is to be tested on the ground that whether the order suffers from an error which is apparent from its face.
67. We, on the basis of the aforesaid discussion, are of the view that the order passed by the learned court cannot be said to suffer from an error.
68. As such, we are of the view that the instant appeal lacks merit, hence, the same is hereby dismissed.
(Sujit Narayan Prasad, J.) (Pradeep Kumar Srivastava, J.) Birendra/A.F.R.