Jammu & Kashmir High Court
Choudhary Nagar Singh vs Special Investigating Team on 28 September, 2017
Author: Sanjay Kumar Gupta
Bench: Sanjay Kumar Gupta
1
HIGH COURT OF JAMMU AND KASHMIR
AT JAMMU
561-A Cr.P.C. No. D-194/2009 & MP No. 202/2009
Date of order:-28.09.2017
Choudhary Nagar Singh vs. Special Investigation Team
Coram:
Hon'ble Mr. Justice Sanjay Kumar Gupta, Judge
Appearing counsel:
For the Petitioner/Appellant(s) : None.
For the Respondents(s) : None.
__________________________________________________________________________________________ i/ Whether to be reported in : Yes/No Press/Media ii/ Whether to be reported in : Yes/No Digest/Journal
1. This petition pertains to year 2009. Defects, as pointed out by the Registry, have not been removed till date. From the perusal of zimini orders, it reveals that on 03.07.2013, none had appeared for the petitioner. On 13.09.2017, when the matter came up for consideration, none has put in appearance on behalf of both the sides, so this Court has no option but to decide the petition on merits.
2. Petitioner has filed the instant petition for quashment of order dated 21st November, 2009 passed by the Principal Sessions Judge, Jammu, by which the Chief Judicial Magistrate, Jammu has been directed to remand the petitioner to police custody, as well as the order dated 21st November, 2009 passed by the learned Chief Judicial Magistrate, by which the petitioner has been remanded to police custody for seven days, i.e., upto 28th November, 2009. The petitioner also seeks quashment of remand granted to him by the learned Duty Magistrate on 28th November, 2009 and declares all the orders granting remand for police custody as illegal and unsustainable with a further prayer to uphold the order of learned Chief Judicial Magistrate, Jammu dated 17th November, 2009, by which the petitioner was remanded to judicial custody.
561-A Cr.P.C. No.D-194/2009 Page 1 of 11 23. It has been stated in this petition that, an FIR came to be registered in Police Station, Gandhi Nagar, Jammu on 29th August, 2009 being FIR No. 247/2009 against the son of the petitioner, namely, Jatinder Singh and one-Royal Singh for commission of offences under Sections 307/323/34 RPC read with Section 3/25 Arms Act. The investigation commenced and during the investigation, it came to surface that fudging of the weapon of offence and the bullet has taken place. A Special Investigation Team (For brevity, the SIT) was constituted and the investigation entrusted to the said team. The SIT in order to implicate falsely the petitioner herein alleged that the fudging has been taken at the behest of the petitioner and sought to arrest the petitioner and his two brothers, namely, Rakesh Singh and Jagar Singh. The petitioner alongwith his brothers, firstly, moved the anticipatory bail application before the Sessions Judge, which was declined by the learned 1 st Additional Sessions Judge, Jammu and thereafter, he filed another bail application before this Hon'ble Court seeking pre-arrest bail, but the same was also declined by this Hon'ble Court on 16th November, 2009.
4. During the pendency of the bail application before this Hon'ble Court, the learned Chief Judicial Magistrate had issued a proclamation order, declaring the petitioner and his above named two brothers proclaimed offenders on 20th October, 2009 and the challan was presented in the case FIR No. 247/2009 on 24th October, 2009. The petitioner and his brothers unsuccessfully challenged the order of proclamation before this Hon'ble Court and after this; the Hon'ble Court refused the grant anticipatory bail to the petitioner and his brothers or to set aside the proclamation order. The petitioner and his brothers finally surrendered before the Court of learned Munsiff (JMIC), R.S. Pura on 17th November, 2009, who forwarded the accused to the learned CJM, Jammu for further orders in pursuance to the proclamation order issued by him. The petitioner and 561-A Cr.P.C. No.D-194/2009 Page 2 of 11 3 his brothers were produced on the same day before the learned CJM, Jammu, who after hearing the counsel for the SIT, the petitioner and brothers on the question of custody, finally remanded the petitioner and his brothers to judicial custody upto 25th November, 2009 vide his order (Annexure-A) dated 17th November, 2009. The learned CJM vide his order directed the police to produce the accused on 25th November, 2009 before the learned Principal Sessions Judge, Jammu, before whom the challan is pending.
5. The SIT filed an application (Annexure-B) before the Principal Sessions Judge, Jammu seeking police custody of the petitioner and his brothers and permission to further investigate the case. The petitioner and his brothers also through the counsel filed the objections to the said application in the form of an application (Annexure-C), praying therein that no police remand may be granted to the SIT in the given circumstances. The arguments were heard by the learned Principal Sessions Judge, Jammu and the matter was reserved for orders on 21st November, 2009, when the learned Court below while allowing the application of the SIT, directed the Chief Judicial Magistrate, Jammu to remand the accused to police custody for the period, which he deemed fit in the circumstances of the case.
6. Pursuant to the order of learned Principal Sessions Judge, Jammu (Annexure-D), the petitioner and his brothers were produced before the learned CJM, Jammu on 21st November, 2009 itself and the learned Chief Judicial Magistrate, Jammu under the directions of the learned Principal Sessions Judge, Jammu was pleased to remand the petitioner and his brothers to police custody for seven days, i.e., upto 28th November, 2009. The petitioner moved an application for medical examination before being sent to police custody and also for allowing the advocate/s for the petitioner and his brothers to remain present during the 561-A Cr.P.C. No.D-194/2009 Page 3 of 11 4 interrogation of the accused by highlighting the apprehension that the false disclosures and recoveries may be attributed to the petitioner and his brothers during the custodial interrogation by using torture and third degree methods. This prayer of the applicant/petitioner and his brothers was allowed by the learned Chief Judicial Magistrate, Jammu.
7. The SIT moved another application before the learned Chief Judicial Magistrate, Jammu on 24th November, 2009, seeking review of the order of learned CJM dated 21st November, 2009 in the form of clarification, whereby seeking exclusion of the advocates from presence during the interrogation. This application was moved by the SIT with an only aim to get an opportunity to attribute disclosure and recovery of alleged weapon of offence from the petitioner in absence of his counsel, as in their presence, they were not able to do the same. The learned Chief Judicial Magistrate, Jammu on 25th November, 2009 allowed the application of the SIT by passing an order, which is totally illegal and against the provisions of Criminal Procedure Code and excluded the presence of the advocates during the interrogation. The SIT grabbed the opportunity and on the next very day, the SIT circulated a news item that the weapon of offence has been recovered at the disclosure of the petitioner from some place near Narwal Bye-Pass.; that the petitioner has never made any such disclosure statement nor has he ever been taken out of the Police Station during the intervening period of 25 th November, 2009 after noon to 27th November, 2009 evening. No videography or photography has taken place in presence of the petitioner in the Police Station and there is no question of such process outside the Police Station because the petitioner has never been taken out of the Police Station during the period mentioned above. It seems that the SIT in order to give a happy ending to their drama of investigation, have prepared a plot of dramatized the whole scene in absence of the petitioner. However, it is 561-A Cr.P.C. No.D-194/2009 Page 4 of 11 5 submitted that the petitioner on 25th November, 2009 evening at about 5 P.M after subjecting him to severe torture made to sign some blank papers per force and nothing more. Every method of third degree torture was tried upon the petitioner to force the petitioner to confess the commission of alleged offences, but the petitioner refused to budge and bow before the Investigating Agency.
8. The petitioner is aggrieved of the orders of Principal Sessions Judge, Jammu and the learned CJM, Jammu passed on 21st November, 2009 because certain important questions of law emerge out of these orders, which are required to be dealt with by this Hon'ble Court in the present petition. The questions are:-
(a) Whether any of the provisions of the Criminal Procedure Code except the provisions of Sections 167(2), 205-D and 344 empower the Courts to grant police remand of the accused to the Investigating Agency when the challan already stands presented against the accused ?
(b) Whether or not the Chief Judicial Magistrate has exercised his powers granting remand under Section 205-D correctly and to what extent, learned CJM was justified in refusing to remand the accused/petitioner to police custody under Section 167(2)?
(c) Whether the provisions of Section 167(2) can be pressed into service by the Investigating Agency while making further investigation or seeking permission to further investigate under Section 173(8) of the Code?
(d) Whether under the scheme of the Code, it is a case, which is committed by the Judicial Magistrate for trial or the accused?
(e) Whether or not the accused petitioner stands committed to the Court of Sessions pursuant to the committal order passed by the learned CJM vide his order dated 24th October, 2009, when the Challan was produced by the Investigating Agency before him?
(f) Whether or not cognizance was taken by the Sessions Judge against the petitioner after the Challan was committed to him and he having issued non-bailable warrants against the petitioner and his brothers for securing their presence to face trial?
(g) Whether or not the proclamation order passed by the learned CJM on 20th October, 2009 had automatically come to an end when the accused surrendered before the Court?
(h) Whether or not the CJM could exercise powers under Section 167(2) granting police remand for custodial interrogation after 561-A Cr.P.C. No.D-194/2009 Page 5 of 11 6 he had already committed the accused to the Sessions Court pursuant to his order dated 17th November, 2009 under Section 205-D Cr. P.C?
(i) Whether or not the order of Principal Sessions Judge, directing the learned CJM to remand the accused to police custody from judicial custody is legally sustainable?
(j) Whether under the facts and circumstance of the case, the order of learned CJM is sustainable on the touchstone of the law governing remands?
9. I have considered the contentions of petitioners.
10. In order to appreciate the contentions raised by the petitioner in this petition, it will be profitable to narrate section 167 of Cr.P.C., it reads as under:
"Section 167:-Procedure when investigation cannot be completed in twenty four hours:
(1) Whenever any person is arrested and detained in custody and it appears that the investigation cannot be completed within the period of twenty four hours fixed by Section 61 and there are grounds for believing that the accusation or information is well founded, the officer-incharge 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 executive or Judicial Magistrate a copy of the entries in the dairy hereinafter prescribed relating to the case and shall at the same time, forward the accused to such Magistrate.
(2) The Magistrate, to whom an accused person is forwarded under the Section may whether has or has no jurisdiction to try the case from time to time authorized the detention of the accused in such custody, as such Magistrate thinks fit for a term not exceeding fifteen days in the whole. If he has no jurisdiction to try the case or commit it for the trial and considers further detention unnecessarily, he may order the accused to be forwarded to a Magistrate having such jurisdiction.
Provided that:-
(a) The Magistrate may authorize detention of the accused person otherwise than in custody of the police beyond the period of fifteen days, if he is satisfied that the adequate grounds exist for doing so, but no Magistrate shall authorize the detention of the accused person in custody under this Section for a total period exceeding sixty days and on the expiry of the said period of sixty days, the accused person shall be released on bail, if he is prepared to and does furnish bail and every person released on bail under this Section 561-A Cr.P.C. No.D-194/2009 Page 6 of 11 7 shall be deemed to be so released under the provisions of Chapter XXXIX for the purpose of that chapte;.
(b) No Magistrate shall authorize detention in any custody under this Section, unless the accused is produced before him;
(c) No Magistrate of second class not specially empowered in this behalf by the Government or the High Court, as the case may be, shall authorize detention in the custody of the police.
11. Bare perusal of Section 167 Cr.P.C., it is evident that whenever any person is detained or arrested under substantive office, he can be detained by the police for a period of 24 hrs only and if his further detention is considered essential he is to be produced before the nearest Magistrate who can authorize detention in police custody up to 15 days as a whole and total period of remand has been restricted to 60 days. In case investigation is not completed within the stipulated period of 60 days, he is entitled for bail. Remand is a sort of permission/ legal authority to keep a person in custody and is also a sort of check on investigating agency to ensure that no person can be kept in custody otherwise in accordance with law. Accused has to be produced physically before the Magistrate at the time of remand; the period of remand starts from the date of first remand and period of 24 hrs, is not counted for the purpose of 60 days.
12. In present case, accused/petitioner along with other co-accused, who were required in FIR 247/2009 U/S 302/34/201/109/120-B RPC and 3/25 A. Act, absconded and after sometimes surrendered before Court of JMIC R. S. Pura; the charge sheet was already committed to Pr. Sessions Judge Jammu against other accused; they were produced before CJM, Jammu on 17/11/2009; SIT constituted for investigation also made application before CJM for permission for police remand; CJM has held that since charge-sheet has been committed to Court of Pr. Sessions Judge, Jammu so he remanded the accused to judicial custody with direction to police to produce the accused before Pr. Sessions Judge Jammu on 25th of November 2009 in terms of Section 205 Cr.P.C.
561-A Cr.P.C. No.D-194/2009 Page 7 of 11 813. The order dated 17/11/2009 of CJM is, thus, legal and does not suffer from any illegality.
14. Prosecution thereafter moved an application before Pr. Sessions judge, Jammu on 18.11.2009 for seeking police custody/remand of petitioner and other accused for further investigation of case ; because accused were never arrested during investigation of case. Accused also filed objections through their advocate and Pr. Sessions Judge, Jammu on 21.11.2009 directed the CJM Jammu to grant the police remand for period he deems fit and proper.
15. The ground taken in petition that order of Sessions Judge directing the CJM, Jammu to allow police remand of accused, is illegal and not according law is not sustainable. Because, it is admitted fact, that accused/petitioner was never arrested in the case during previous investigation and after they surrendered before JMIC, his custodial investigation was required under law for further investigation of case and supplementary challan was required to be filed before trial court, where challan was pending against other accused. In terms of section 173(8) Cr.P.C., police has always power to conduct further investigation even after filing of charge sheet. It is statutory right of police to conduct further investigation in order to verify truthfulness of allegations. So there is also no illegality in this order.
16. CJM Jammu on 21.11.2009 after hearing the prosecution and counsel for accused, granted 7 days police remand to investigating agency from 21.11.2009 to 27.11.2009. Even counsel for accused was allowed to assist the accused during custodial interrogation. Thereafter, it further appears that SIT moved an application stating that the order of court in allowing the counsel to assist the accused during investigation, has made impossible for interrogation of accused. CJM Jammu on 25.11.2009 made it clear that Advocate has only been allowed to provide legal assistance to 561-A Cr.P.C. No.D-194/2009 Page 8 of 11 9 accused and not to participate and monitor whole interrogation. So court clarified that Advocate can meet the accused at once in 24 hrs.
17. The detailed judgment with regard to remand of absconding accused and arrested after presentation of challan has been enumerated in recent judgment of Apex Court in case titled ( CRIMINAL APPEAL NO.1081 OF 2015 (Arising out of S.L.P. (Crl.) No. 3611 of 2015) 'Central Bureau of Investigation Versus Rathin Dandapat and others' read with CRIMINAL APPEAL NO.1082 OF 2015 (Arising out of S.L.P. (Crl.) No. 3612 of 2015) Central Bureau of Investigation Versus Chandi Karan read with CRIMINAL APPEAL NO.1083 OF 2015 (Arising out of S.L.P. (Crl.) No. 4241 of 2015) Central Bureau of Investigation Versus Anuj Pandey, decided on 21.8.2015, wherein it is held as under:-
9. Sub-section (8) of Section 173, under which investigating agency has power to further investigate the matter in which the report/charge sheet has already been filed, is reproduced hereunder: -
"(8) Nothing in this section shall be deemed to preclude further investigation in respect of an offence after a report under sub-
section (2) has been forwarded to the Magistrate and, where upon such investigation, the officer in charge of the police station obtains further evidence, oral or documentary, he shall forward to the Magistrate a further report or reports regarding such evidence in the form prescribed; and the provisions of sub-sections (2) to (6) shall, as far as may be, apply in relation to such report or reports as they apply in relation to a report forwarded under sub-section (2)."
10. Relevant provision of sub-section (2) of Section 309 CrPC, empowering remand of an accused, provides as under: - "(2) If the Court after taking cognizance of an offence, or commencement of trial, finds it necessary or advisable to postpone the commencement of, or adjourn, any inquiry or trial, it may, from time to time, for reasons to be recorded, postpone or adjourn the same on such terms as it thinks fit, for such time as it considers reasonable, and may by a warrant remand the accused if in custody: xxx xxx xxx Explanation 1. - If sufficient evidence has been obtained to raise a suspicion that the accused may have committed an offence, and it appears likely that further evidence may be obtained by a remand, this is a reasonable cause for a remand."
561-A Cr.P.C. No.D-194/2009 Page 9 of 11 1011. In State through CBI v. Dawood Ibrahim Kaskar and others , a three judge bench of this Court has laid down the law on the issue relating to grant of police custody of a person arrested during further investigation. In paragraph 11 of said case, this Court has held as follows: - "11. There cannot be any manner of doubt that the remand and the custody referred to in the first proviso to the above sub-section are different from detention in custody under Section 167. While remand under the former relates to a stage after cognizance and can only be to judicial custody, 1 (2000) 10 SCC 438 Page 10 Page 10 of 13 detention under the latter relates to the stage of investigation and can initially be either in police custody or judicial custody. Since, however, even after cognizance is taken of an offence the police has a power to investigate into it further, which can be exercised only in accordance with Chapter XII, we see no reason whatsoever why the provisions of Section 167 thereof would not apply to a person who comes to be later arrested by the police in course of such investigation. If Section 309(2) is to be interpreted as has been interpreted by the Bombay High Court in Mohd. Ahmed Yasin Mansuri v. State of Maharashtra [1994 Cri LJ 1854 (Bom)], to mean that after the Court takes cognizance of an offence it cannot exercise its power of detention in police custody under Section 167 of the Code, the Investigating Agency would be deprived of an opportunity to interrogate a person arrested during further investigation, even if it can on production of sufficient materials, convince the Court that his detention in its (police) custody was essential for that purpose. We are, therefore, of the opinion that the words "accused if in custody" appearing in Section 309(2) refer and relate to an accused who was before the Court when cognizance was taken or when enquiry or trial was being held in respect of him and not to an accused who is subsequently arrested in course of further investigation. So far as the accused in the first category is concerned he can be remanded to judicial custody only in view of Section 309(2), but he who comes under the second category will be governed by Section 167 so long as further investigation continues. That necessarily means that in respect of the latter the Court which had taken cognizance of the offence may exercise its power to detain him in police custody, subject to the fulfilment of the requirements and the limitation of Section 167."
12. The case of Dinesh Dalmia v. CBI2 , which is relied upon by the High Court, relates to granting of bail under Section 167(2) CrPC. In said case, the accused/absconder (Dinesh Dalmia) after his arrest was produced before the Magistrate, and on the request of CBI police custody was granted on 14.2.2006 till 24.2.2006, where after on another application further police custody was granted till 8.3.2006. Said accused was remanded to judicial 561-A Cr.P.C. No.D-194/2009 Page 10 of 11 11 custody, and the accused sought statutory bail under sub-section (2) of Section 167 CrPC as no charge sheet was filed against him by CBI within sixty days of his arrest. The Magistrate rejected the application for statutory bail on the ground that it was a case of further investigation after filing of the charge sheet, and the remand of the accused to judicial custody was under Section 309 CrPC, after police remand came to an end, granted under Section 167(2) CrPC. The High Court upheld said order and this Court also affirmed the view taken by the High Court.
13. In view of the above facts, in the present case, in our opinion, the High Court is not justified on the basis of Dinesh 2 (2007) 8 SCC 770 Page 12 Page 12 of 13 Dalmia (supra) in upholding refusal of remand in police custody by the Magistrate, on the ground that accused stood in custody after his arrest under Section 309 CrPC. We have already noted above the principle of law laid down by the three judge bench of this Court in State v. Dawood Ibrahim Kaskar (supra) that police remand can be sought under Section 167(2) CrPC in respect of an accused arrested at the stage of further investigation, if the interrogation is needed by the investigating agency. This Court has further clarified in said case that expression 'accused if in custody' in Section 309(2) CrPC does not include the accused who is arrested on further investigation before supplementary charge sheet is filed.
14. For the reasons, as discussed above, we find that the refusal of police remand in the present case is against the settled principle of law laid down by this Court. Therefore, the impugned orders passed by the High Court, affirming the orders of the Additional Chief Judicial Magistrate, Jhargram, are liable to be set aside. Accordingly, the impugned orders passed by the High Court and the orders passed by the Magistrate, declining the police remand, are set aside. The Magistrate is directed to pass fresh orders on the applications made by the appellant before it relating to granting of police remand of the respondents in accordance with law. 15. All the three appeals stand allowed.
18. Therefore, in view of above law, there is no infirmity of law in the impugned orders. Hence, there is no merit in this petition, the same is dismissed.
( Sanjay Kumar Gupta ) Judge Jammu, 28.09.2017 Ram Krishan 561-A Cr.P.C. No.D-194/2009 Page 11 of 11