Madhya Pradesh High Court
The State Of Madhya Pradesh vs Vipin Goyal on 3 July, 2015
1 A.F.R.
M.Cr.C. No.10945/2015
State of Madhya Pradesh
Vs.
Vipin Goyal
03.07.2015
Shri P.K. Kaurav, Additional Advocate General, Shri
Piyush Dharmadhikari, Government Advocate and Shri
Prakash Gupta, Panel Lawyer for the applicant/State.
Shri Anil Khare, Senior Advocate with Shri Priyankush
Jain, Jasneet Hora, Renu Jain, Shantanu Saxena, Advocate
for the respondent-accused.
1. Heard counsel for the parties. By consent, matter is
taken up for final disposal. The respondent waives notice
through counsel for final disposal.
2. This application under Section 482 of the Code of
Criminal Procedure (for brevity "Code") takes exception to
the order passed by the Additional Sessions Judge, Bhopal
dated 30.06.2015 in Crime No.14/2013. By this order,
application preferred by the Investigating Officer for
granting police custody of the respondent has been disposed
of by allowing police custody only till 03.07.2015, on the
sole finding that the respondent having been taken in judicial
custody on 18.06.2015 in furtherance of the order passed by
this Court in M.Cr.C. No.8811/2015 on the same date, the 15
days period provided in Section 167 of the Code would start
running from that date; and by efflux of time, expire on
03.07.2015. The Court held that, beyond 03.07.2015, police
custody of the respondent cannot be permitted, in law. The
2 A.F.R.
M.Cr.C. No.10945/2015
State of Madhya Pradesh
Vs.
Vipin Goyal
Trial Court has relied on the decision of Central Bureau of
Investigation, Special Investigation Cell-1, New Delhi vs.
Anupam J. Kulkarni1 to answer the point in issue.
3. Before examining the correctness of the opinion
recorded by the Trial Court, we may deem it appropriate to
advert to some basic facts. The respondent has been named
as accused in Crime No.14/2013 for offences punishable
under Sections 409, 420, 120-B of I.P.C. and Section 3
(Gha), 1, 2/5 of M.P. Manyata Prapt Pariksha Adhiniyam,
1937. The respondent, however, could not be arrested
inspite of the efforts made by the Investigating Agency -
because of the processes adopted by him since November,
2014, to which, elaborate reference has been made by us
while deciding M.Cr.C. No.8811/2015 (application for bail
filed by the respondent in the same crime) vide order dated
29.06.2015. After exhausting all remedies, finally, in view of
the liberty given by the Supreme Court, the respondent was
required to approach the Sessions Court by way of bail
application. Without surrendering before the Trial Court, the
bail application filed under Section 439 of the Code was
heard and rejected by the Trial Court, because of the
protection given to the respondent by the Supreme Court.
Even this aspect has been referred to in the order dated
29.06.2015 passed in M.Cr.C. No.8811/2015.
1
(1992) 3 SCC 141
3 A.F.R.
M.Cr.C. No.10945/2015
State of Madhya Pradesh
Vs.
Vipin Goyal
4. The respondent then approached this Court by way of
application under Section 439 of the Code being M.Cr.C.
No.8811/2015. When the said bail application was listed for
consideration on 16.06.2015, it was made clear to the
respondent that prayer for bail of the respondent can be
entertained only if the respondent was already in jail or
police custody or at-least he surrenders before this Court, in
the first instance. The respondent, accordingly, agreed to
appear before the Court and surrendered on 18.06.2015. On
18.06.2015, however, the hearing of the bail application
could not proceed because of the circumstances already
recorded in the order passed on that date and the successive
dates till the bail application was closed for orders on
26.06.2015. That bail application was eventually disposed of
on 29.06.2015, by a speaking judgment. When the
respondent had appeared before this Court on 18.06.2015
and surrendered; and as the hearing of the bail application
was required to be deferred for reasons attributable to the
respondent himself and also for further adjournment, the
Court thought it appropriate to direct to keep the respondent
in judicial custody at Jabalpur. Indeed, the Investigating
Agency did not apply for grant of police custody of the
respondent for the purpose of investigation of the said crime,
either before this Court or any other Court until the bail
application was finally decided.
4 A.F.R.
M.Cr.C. No.10945/2015
State of Madhya Pradesh
Vs.
Vipin Goyal
5. Suffice it to note that the respondent surrendered
before this Court on 18.06.2015 and was sent to judicial
custody until further order and final decision on his bail
application No.8811/2015, which was eventually disposed of
as rejected on 29.06.2015. In that order, this Court issued
consequential directions whilst rejecting the prayer for bail,
to the Investigating Agency to take custody of the
respondent in accordance with law. Only thereafter, the
Investigating Agency took custody of the respondent on
30.06.2015 at around 7.00 a.m. from the Central Jail at
Jabalpur and took him to Bhopal by road; and produced him
before the Designated Court at Bhopal between 1.30 to 2.30
p.m. On so producing, the Designated Court by the
impugned order limited the police custody period only till
03.07.2015 for the reasons as noted earlier. In substance, the
conclusion reached by the Designated Court is on the
premise that the 15 days period referred to in Section 167(2)
of the Code must be reckoned from the date of surrender of
the respondent before this Court, which happened on
18.06.2015.
6. In this backdrop, the core issue that arises for
consideration and which also has been adverted to by the
Designated Court is: whether 15 days period specified in
Section 167(2) of the Code should be reckoned from the date
of surrender before this Court on 18.06.2015 or when the
5 A.F.R.
M.Cr.C. No.10945/2015
State of Madhya Pradesh
Vs.
Vipin Goyal
accused was first produced by the police before the
Designated Court on 30.06.2015 for police remand?
7. On a bare reading of Section 167 of the Code, firstly it
envisages about the obligation of the Police, who has
arrested the accused by exercising police powers without
arrest warrant, to produce him before the Magistrate within
the time specified. The second part of Section 167 of the
Code refers to the maximum time during which such accused
can be allowed to remain in police custody for the purpose of
investigation of the concerned crime, which has been
specified as 15 days in the whole from the date on which the
accused was produced before the Court for the first time by
the police for giving police custody. The third facet of
Section 167 is of giving discretion to the concerned
Magistrate either to send the accused to police custody or
judicial custody as may be warranted during the relevant
period and before filing of the charge-sheet. The fourth facet
is about the outer limit, within which, the charge-sheet/police
report must be filed by the Investigating Agency and the date
from which the said period should be reckoned as also the
effect of failure to do so. Besides this, we need not dilate on
the scope of Section 167 further.
8. In the case of Central Bureau of Investigation,
Special Investigation Cell-1, New Delhi (supra), of the
Supreme Court relied upon by the Designated Court, the
6 A.F.R.
M.Cr.C. No.10945/2015
State of Madhya Pradesh
Vs.
Vipin Goyal
Court was called upon to consider the question in the context
of the accused, who was arrested by the police without arrest
warrant on 04.10.1991 and produced before the Magistrate
on 05.10.1991. On the request of CBI, the accused was
remanded to judicial custody till October 11th 1991. On
October 11th 1991 an application was moved by the
Investigating Officer asking for police custody of the
accused. When the accused was being taken, on his way, he
pretended to be indisposed and was thus admitted in hospital
where he remained confined till October, 21st, 1991, when he
was referred to Cardiac Out-patient Department of G.B. Pant
Hospital. Until 29.10.1991, the accused was again remanded
to judicial custody by the Magistrate and thereafter sent to
jail. The police could not take him in police custody during
this period even after his first remand order passed on
05.10.1991; and for which reason applied for police custody
of the accused in connection with investigation of the crime
registered against him. The issue considered in this judgment
was in the context of the fact situation of that case. The
question, answered by the Court was whether or not after
expiry of initial period of 15 days from the date of
production of the accused by the police after his arrest
without arrest warrant, before the Magistrate (i.e. on
05.10.1991), request for police custody can be entertained in
law. The observations in this judgment, therefore, will have
7 A.F.R.
M.Cr.C. No.10945/2015
State of Madhya Pradesh
Vs.
Vipin Goyal
to be considered in the context of those facts and binding
precedent for cases where the police has arrested the accused
without arrest warrant in connection with alleged crime and
produced for the first time before the Court within statutory
time for obtaining police remand for investigation of that
crime.
9. In the present case, however, admittedly, the police
custody of respondent could not be taken by the police in
connection with crime No.14/2013, till 30.06.2015. For the
first time, police took custody of the respondent on
30.06.2015 and produced him before the Designated Court
the same day, pursuant to the liberty given by this Court in
its order dated 29.06.2015. The fact that respondent was
ordered to be kept in judicial custody from 18.06.2015 in
connection with the crime did not provide his access to the
Investigating Agency to question the respondent nor such
access was availed during that period. Further, no formal
arrest of the respondent was effected by the police in
connection with the said crime until 30.06.2015. This
position is not in dispute.
10. The material fact in the context of Section 167 of the
Code is when the accused (respondent) was taken in custody
by the police and produced before the Designated Court soon
thereafter. No more and no less.
8 A.F.R.
M.Cr.C. No.10945/2015
State of Madhya Pradesh
Vs.
Vipin Goyal
11. On plain reading of Section 167 of the Code in
particular sub-section (2), it is amply clear that the maximum
period of police custody/police remand specified is 15 days
in the whole. That is with reference to the production of the
accused arrested by the police without arrest warrant, before
the Magistrate for the first time for the purpose of police
custody/police remand in connection with the Crime in
question. The question of producing the accused before the
Magistrate by the police will arise, only after the police were
to get custody of the accused or his arrest without arrest
warrant by invoking police powers under the Code. For,
Section 167 of the Code makes reference to the situation
arising after the arrest of the accused "by the police" without
arrest warrant and corresponding obligation on police to
produce that accused before that Magistrate within 24 hours
from the time of his arrest. On such production the
Magistrate can exercise his discretion to send the accused to
judicial custody or allow the police to keep him in police
custody till further orders but in any case not exceeding 15
days in the whole from the "first remand" order passed by it
- be it of police custody or judicial custody. This legal
position is expounded by the Supreme Court in the case of
Chaganti Satyanarayana and others vs. State of Andhra
Pradesh2, in the following words :-
2
AIR 1986 SC 2130
9 A.F.R.
M.Cr.C. No.10945/2015
State of Madhya Pradesh
Vs.
Vipin Goyal
"12. Keeping proviso (a) out of mind for some
time let us look at the wording of sub-section (2)
of Section 167. This sub-section empowers the
Magistrate before whom an accused is produced
for purpose of remand, whether he has
jurisdiction or not to try the case, to order the
detention of the accused, either in police custody
or in judicial custody, for a term not exceeding
15 days in the whole. It was argued by Mr. Rao
that the words "in the whole" would govern the
words "for a term not exceeding 15 days" and,
therefore, the only interpretation that can be
made is that the detention period would
commence from the date of arrest itself and not
from the date of production of the accused before
the Magistrate. Attractive as the contention may
be, we find that it cannot stand the test of
scrutiny. In the first place, if the initial order of
remand is to be made with reference to the date
of arrest then the order will have retrospective
coverage for the period of custody prior to the
production of the accused before the Magistrate,
i.e. the period of 24 hours' custody which a
police officer is entitled to have under Section 57
besides the time taken for the journey. Such a
construction will not only be in discord with the
terms of Section 57 but will also be at variance
with the terms of sub-section (2) itself. The
operative words in sub-section (2) viz. "authorize
the detention of the accused........ for a term not
exceeding 15 days in the whole" will have to be
read differently in so far as the first order of
remand is concerned so as to read as "for a term
not exceeding 15 days in the whole from the date
of arrest". This would necessitate the adding of
more words to the Section than what the
Legislature has provided. Another anomaly that
would occur is that while sub-section (2)
empowers the Magistrate to order the detention
of an accused "in such custody as such
Magistrate thinks fit, for a term not exceeding 15
days in the whole" the Magistrate will be
disentitled to placing an accused in police
custody for a full period of 15 days if the period
of custody is to be reckoned from the date of
arrest because the period of custody prior to the
production of the accused will have to be
excluded from the total period of 15 days.
10 A.F.R.
M.Cr.C. No.10945/2015
State of Madhya Pradesh
Vs.
Vipin Goyal
13. Apart from these anomalous features, if
an accused were to contend that he was taken
into custody more than 24 hours before his
production before the Magistrate and the police
officer refutes the statement, the Magistrate will
have to indulge in a fact finding inquiry to
determine when exactly the accused was arrested
and from what point of time the remand period
of 15 days is to be reckoned. Such an exercise by
a Magistrate ordering remand is not
contemplated or provided for in the Code. It
would, therefore, be proper to give the plain
meaning of the words occurring in sub-section
(2) and holding that a Magistrate is empowered
to authorize the detention of an accused
produced before him for a full period of 15 days
from the date of production of the accused."
(emphasis supplied)
12. Notably, even in this reported case, the accused was
arrested by the police without arrest warrant and produced
before the concerned Magistrate on the next day within 24
hours and initial judicial custody for a period of 15 days was
ordered, which was extended from time to time.
13. In the case of Central Bureau of Investigation,
Special Investigation Cell-1, New Delhi (supra), in
paragraph 7 of this decision, the Supreme Court has
reproduced the relevant extract from paragraph 15 of the
decision in the case of Chaganti Satyanarayana (supra) as
reported in (1986) 3 SCC 141 (equivalent paragraph 16 of
the report in AIR 1986 SC 2130). The said observations
must be understood in the context of the argument canvassed
before the Supreme Court by the Counsel for accused in that
11 A.F.R.
M.Cr.C. No.10945/2015
State of Madhya Pradesh
Vs.
Vipin Goyal
case as noted in paragraph 3 of the reported decision - that
the police custody, if at all, be granted by the Magistrate
should be only during the period of first 15 days "from the
date of production of the accused before the Magistrate" and
not later and that subsequent custody, if any should only be
judicial custody and the question of granting police custody
after the expiry of first 15 days remand does not arise.
14. As is noted earlier, the 15 days period specified in
Section 167 is ascribable to the action taken by the police in
compliance of its obligation under Section 57; and as a
consequence of production of the accused before the
Magistrate, the period specified in Section 167, would start
running from the date of first remand order passed by the
Magistrate and not otherwise. Further, the outer limit of 15
days provided by Section 167 of the Code is from the date of
production of accused arrested by the police without arrest
warrant, before the Magistrate and not the earlier period at
all. That was the restriction to be borne in mind by the
Designated Court, while considering the prayer made by the
Investigating Agency for further police remand.
15. Counsel for the respondent was at pains to persuade us
to take the view that the order dated 18.06.2015 must be
construed as an order of remand for the purpose of Section
167 (2) of the Code and if so read, the 15 days period would
expire on 03.07.2015. We are not impressed by this
12 A.F.R.
M.Cr.C. No.10945/2015
State of Madhya Pradesh
Vs.
Vipin Goyal
submission. For, the power of remand can be exercised by
the Magistrate only after the accused is produced before him
by the police after his arrest without arrest warrant, in terms
of Section 167 of the Code before filing of the charge-sheet.
Whereas, the High Court whilst hearing bail application
under Section 439 of the Code, exercises special powers
when the person is already in custody - police custody,
judicial custody or surrenders before the Court for
consideration of his prayer for bail. Further, Section 167 of
the Code is a provision stipulating limitation of maximum
period of 15 days in the whole for police custody of the
accused for facilitating investigation of a given crime. That
time starts from the "first remand" order passed by the
Magistrate after production of the accused arrested by the
police without arrest warrant. The necessity of obtaining
order of remand arises because of the arrest made by the
police without arrest warrant. However, when it is a case of
accused taken in judicial custody as in the present case,
being condition precedent for consideration of his prayer for
bail, by no stretch of imagination it can be ascribable to an
arrest by the police without arrest warrant as such. As it
cannot be termed as a case of arrest by the police without
arrest warrant, the limitation provided under Section 167 of
the Code will not get ignited. The provision such as Section
167 is to ensure that if a person is arrested by the police
13 A.F.R.
M.Cr.C. No.10945/2015
State of Madhya Pradesh
Vs.
Vipin Goyal
without arrest warrant or the custody given to the police of
the accused pursuant to the order passed by the Court, police
is obliged to produce that person before the Magistrate
within 24 hours soon thereafter and abide by the directions
issued by the Magistrate from time to time - be it in respect
of judicial custody or police custody, as the case may be. It is
only in that situation the rigours of Section 167(2) of outer
limit of police custody of 15 days in the whole would come
into play.
16. The question whether the person should be released on
bail by the High Court without his arrest by the police is
completely independent of the question whether the person
should be sent to judicial custody or police custody during
the relevant period. Indeed, during the pendency of the bail
application before the High Court, the accused surrenders
and is ordered to be sent to police custody. The situation may
attract the rigours of Section 167 of the Code - of producing
the accused before the Magistrate and to which the limitation
of 15 days in the whole may be attracted. Further, if upon
such production of the accused, the Magistrate directs
judicial custody, before the High Court finally decides the
prayer for bail and if the High Court finally rejects the prayer
for bail of that accused with the finding that custody of the
accused deserves to be given to police for the purpose of
investigation of the same crime, the High Court being a
14 A.F.R.
M.Cr.C. No.10945/2015
State of Madhya Pradesh
Vs.
Vipin Goyal
Court of superior jurisdiction may also overturn the order of
Magistrate of refusing to give police custody, subject to the
limitation specified in Section 167 of the Code. However, we
need not dilate on this aspect further as the same does not
arise for consideration in the present case and leave it open
to be considered in an appropriate case.
17. Suffice it to observe that the Trial Court in the
impugned judgment has misread and misapplied the dictum
of the Supreme Court in the case of Central Bureau of
Investigation, Special Investigation Cell-1, New Delhi
(supra) to the fact situation of the present case.
18. Counsel for the respondent was at pains to persuade us
to take the view that recent decision of the Supreme Court in
the case of Sundeep Kumar Bafna v. State of
Maharashtra & Anr. (2014) 2 SCC Online SC 257
answers the issue under consideration. Our attention was
invited particularly to paragraphs 20 and 23 of the said
decision to persuade us to take the view that the order passed
on 18.06.2015 by this Court was nothing short of an order to
be passed in exercise of power under Section 167(2) of the
Code. We reject this submission atleast on two counts.
Firstly, because the observations found in the said decision
as pressed into service, are in the context of the question
answered by the Supreme Court as to whether the High
Court is competent to allow the accused to surrender directly
15 A.F.R.
M.Cr.C. No.10945/2015
State of Madhya Pradesh
Vs.
Vipin Goyal
before it while considering his prayer for bail under Section
439 of the Code. The observations must be read in that
context and would be binding precedent on the question
decided by the Supreme Court. It is not possible to suggest
that any observation made in paragraph 20 and 23 of this
decision, which has been pressed into service, can be said to
obiter dicta so as to have binding effect for considering the
question posed in the present case. In that, the direction
given by the High Court to send respondent to judicial
custody during the hearing of his bail application after he
had surrendered before the Court is ascribable to exercise of
powers under Section 167 (2) of the Code by the High Court
itself. On the other hand, the observation in paragraph 20 of
the this reported decision makes it amply clear that after the
bail application is rejected, the High Court may pass further
direction of sending the accused to judicial custody or police
custody. The question posed in the present application, as
aforesaid, however, is the time from when 15 days period
specified in Section 167 of the Code for police custody must
be reckoned, which as noted earlier and as is explicit from
Section 167 of the Code must commence from the date of
production of the accused for the first time by the police
before the concerned Magistrate in connection with same
crime consequent to his arrest by the police without arrest
warrant and as in the present case in furtherance of direction
16 A.F.R.
M.Cr.C. No.10945/2015
State of Madhya Pradesh
Vs.
Vipin Goyal
given by the High Court whilst rejecting the bail application.
Person who surrenders before the Court and is, therefore,
directed to be kept in judicial custody during the pendency of
his bail application can by no stretch of imagination be said
to be have been arrested by the police (without arrest warrant
in exercise of police powers) or to be in police custody as
such. Thus understood, the decisions pressed into service by
the respondents will be of no avail.
19. A priori, the opinion recorded by the Designated Court
in the impugned order of limiting the period of police
custody of the respondent only till 03.07.2015 is untenable.
ORDER
1) For the reasons dictated in open Court, we allow this application filed by the State and set aside the impugned order passed by the Trial Court dated 30.06.2015 to the extent of having given police custody of the respondent in respect of Crime No.14/2013 only upto 03.07.2015.
2) We hold that the Trial Court erroneously assumed that the maximum permissible period for police custody of respondent in the present case cannot exceed beyond 03.07.2015. Instead, we hold that in the facts of the present case, the Investigating Agency was entitled to ask for police custody of the respondent in connection with the above noted crime upto 15 days in the whole from 30.06.2015, being the date of "first remand" order passed by the Designated Court 17 A.F.R. M.Cr.C. No.10945/2015 State of Madhya Pradesh Vs. Vipin Goyal in exercise of powers under Section 167 of Cr.P.C. consequent to production of the respondent by the police before it for the first time, as per the liberty given by this Court vide order dated 29.6.2015 in M.Cr.C. No.8811/2015.
3) Further, keeping in mind the fact situation of the present case, as has been elaborately considered by us while deciding M.Cr.C. No.8811/2015 filed by the respondent for bail in the stated crime vide order dated 29.6.2015, for the time being, we extend the police custody of the respondent till 06.07.2015. The respondent shall remain in police custody till then and to be produced before the concerned Designated Court on or before 06.07.2015.
4) The Investigating Agency will be free to apply for further extension of police custody of the respondent in Crime No.14/2013, for part or for maximum period prescribed therefor, in terms of Section 167 of the Cr.P.C. The Designated Court may consider that request of the Investigating Agency on its own merits and in accordance with law.
5) All concerned to act on the basis of this operative order which is part of the entire order dictated in open Court in the presence of the counsel appearing for the respective parties beyond the Court hours till 5:10 p.m. Inasmuch as, transcription and release of the entire order is likely to take some time and also because of the urgency.
18 A.F.R. M.Cr.C. No.10945/2015 State of Madhya Pradesh Vs. Vipin Goyal
6) The operative part of this order be made available to the parties forthwith to enable them to produce the same before the Designated Court for information and compliance.
(A.M. Khanwilkar) (K.K. Trivedi)
Chief Justice Judge
shukla