Rajasthan High Court - Jodhpur
Indira Vishnoi vs The Dir. Cbi & Anr on 9 June, 2017
Author: P.K. Lohra
Bench: P.K. Lohra
HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
S.B. Criminal Misc.(Pet.) No. 1859 / 2017
Indira Vishnoi W/o Shri Mohan Lal Vishnoi, Aged About 40 Years,
343, Saraswati Nagar, Jodhpur Through Her Husband Mohan Lal
Bishnoi S/o Late Daularam Bishnoi, Aged About 42 Years by Caste
Bishnoi, Resident of A-343 Saraswati Nagar, Jodhpur.
----Petitioner
Versus
1. The Director, Central Bureau of Investigation, Lodhi Institutional
Area, New Delhi.
2. State of Rajasthan Through Additional Chief Secretary, Home
Affairs, Government of Rajasthan, Jaipur.
----Respondents
_____________________________________________________
For Petitioner(s) : Mr. Hemant Nahta, Mr. Farzand Ali and Mr.
Sanjay Bishnoi
_____________________________________________________
HON'BLE MR. JUSTICE P.K. LOHRA
Order Reportable 09/06/2017 Petitioner, Indra Vishnoi, has laid this misc. petition, under Section 482 read with Section 483 of the Code of Criminal Procedure 1973 (Cr.P.C.), to assail impugned order dated 3 rd of June 2017, passed by Metropolitan Magistrate No.1, Jodhpur Metropolitan, remanding her to police custody for 7 days.
2. Succinctly stated, facts of the case are that in CBI Case No.RC/7/CBI/SC-1, which was re-registered with the investigating agency on the request of State Government, further investigation into FIR No.383/2011 of Police Station Bilara commenced and (2 of 23) [CRLMP-1859/2017] charge-sheets against accused persons were filed on 2 nd of December 2011, 29th of February 2012 and 21st of April 2012 respectively. It appears that during investigation, complicity of the petitioner came to the fore in conspiracy to abduct and murder Ms. Bhanwari Devi. Foreseeing coercive action by the investigating agency, petitioner applied for pre-arrest bail under Section 438 Cr.P.C. before Sessions Court, but the said application was dismissed on 7th of January 2012, precisely, for the reason that charge-sheet disclosed offence under Section 3(2)(v) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 (for short, 'Act') and there is embargo for grant of anticipatory bail under Section 18 of the Act. Subsequent to that, CBI made endeavor to initiate proceedings against the petitioner under Section 82 Cr.P.C. and the learned Magistrate issued directives on 11th of January 2012 for issuance of proclamation, which was published on 20th of January 2012 directing her to appear before the Court on 10 th of February 2012. In the interregnum, the petitioner invoked inherent jurisdiction of this Court for annulment of arrest warrant dated 23 rd of December 2011. When the petition came up before the Court, the petitioner was directed to appear before investigating agency on 5 th of February 2012, which did not happen for some reason and CBI filed charge-sheet on 29th of February 2012 showing her as a suspect.
3. Yet again, this sort of situation prompted the petitioner to avail remedy under Section 482 Cr.P.C. and Criminal Misc. Petition No.163 of 2012 was filed on her behalf before this Court. The said (3 of 23) [CRLMP-1859/2017] attempt of the petitioner also proved abortive and the Court directed her to avail remedy under Section 438 Cr.P.C. As investigation in the matter was going on, CBI submitted supplementary charge-sheet in the matter on 21 st of April 2012, wherein petitioner was arrayed as an accused of offences punishable under Section 120B read with Sections 302, 364 and 201 IPC and Section 3(2) (v) of the Act with 16 other accused persons. The learned trial Court, thereupon, took cognizance of the offences for the aforesaid Sections and proceeded to frame charges. At the time of submission of charge-sheets, referred to supra, the petitioner was not apprehended, therefore, the charge- sheet against her was filed in absentia. Considering the absence of petitioner, an accused in the case, CBI submitted an application under Section 299 Cr.P.C. before learned trial Court. The said application was decided on 23rd of June 2014 by issuing directions that statements of witnesses recorded during trial shall be read under Section 299 Cr.P.C. and are binding on the petitioner.
4. The petitioner, instead of surrendering before the Court, made yet another attempt to seek quashment of charge-sheet by filing criminal writ petition No.1/2013. Although the petitioner availed remedy under Section 482 Cr.P.C. against the charge- sheet, at her behest, an attempt was also made to castigate the investigation carried out so far by Inspector of the CBI by taking shelter of Rule 7 of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Rules, 1995. It was urged before the learned trial Court that investigation by an officer below the rank of Deputy Superintendent of Police has vitiated the charge-sheet.
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5. In order to assail the impugned order, petitioner has pleaded in the petition that case set up against her by CBI is ill-founded inasmuch as there is no tangible evidence to slap charges against her of conspiracy for abduction and murder of the deceased in the case. Besides that, petitioner has also cited prosecution witness PW12 Pana Choudhary, who is declared hostile by CBI during trial. A fact pertaining to filing criminal writ petition bearing No.1/2013, on behalf of petitioner is also incorporated in the pleadings. As the aforesaid writ petition was filed by the husband of petitioner, issue of his locus standi cropped up in the matter. In the pleadings, petitioner has also stated some of the facts which are not significant to be given credence for appreciating her afflictions highlighted in the petition. As per version of the petitioner, trial in the matter is on the verge of completion and now only 8 witnesses are to be examined by the CBI. It so happened that umpteen legal remedies availed by the petitioner from time to time could not fructify to her advantage and members of Anti-Terrorist Squad of Rajasthan Police arrested her from Dewas (M.P.) on 2 nd of June 2017, brought her back to Jodhpur and handed over to the CBI.
6. The investigating agency CBI produced the petitioner before CBI Magistrate at her residence but she was reported to be on leave, therefore, the investigating agency made endeavor to locate the residence of link Magistrate, Metropolitan Magistrate No.1, but then eventually the petitioner was produced before learned trial Magistrate staying at Marwar Apartment, Chopasani Road, Jodhpur. The learned trial Magistrate, upon consideration of (5 of 23) [CRLMP-1859/2017] the request of CBI, remanded her to police custody for 7 days by the impugned order. The petitioner has essentially assailed the impugned order on the ground that she was not allowed access to her lawyer and the CBI while craving for remand has concealed material fact from the trial Magistrate.
7. Questioning the remand, it is pleaded by petitioner that after submission of charge-sheet and taking cognizance, remand order is per-se bad in law. A very significant fact is also mentioned in the petition that at the behest of petitioner her counsel submitted an application before the trial Magistrate to recall the order of remand but the learned Magistrate declined the said prayer by its order dated 4th of June 2017 (Annex.4). The learned Magistrate, while declining the prayer of petitioner to recall the order of remand, observed that in such matters provisions of Section 167 Cr.P.C. are applicable and not of Section 309 Cr.P.C. The impugned order is assailed by the petitioner on many grounds including the ground that same is in clear negation of the mandate of Section 167(1) Cr.P.C. In support of his various contentions, learned counsel for the petitioner has placed reliance on following precedents:
(1) Satyajit Ballubhai Desai & Ors. Vs. State of Gujarat [(2014) 14 SCC 434] (2) Manubhai Ratilal Patel Vs. State of Gujarat & Ors. [(2013) 1 SCC 314] (3) Vinay Tyagi Vs. Irshad Ali @ Deepak & Ors. [2013 Cr.L.R. (SC) 337].
(4) Jairajsinh Temubha Jadeja Vs. State of Gujarat [2002 (1) GLR 215].
(5) Shashibala Sharma, Trustee and Principal Vs. State of Gujarat [(2004) 2 GLR 1393].
(6 of 23) [CRLMP-1859/2017] (6) Mohammed Ajmal Mohammad Amir Kasab @ Abu Mujahid vs. State of Maharashtra [(2012) 9 SCC 1]. (7) Rahul Pareek Vs. State of Rajasthan & Ors. (2017 Cr.L.J. 721)
8. I have heard learned counsel for the petitioner at length and meticulously perused the materials available on record as well as the charge-sheets filed in the matter.
9. The pivotal question, which requires judicial scrutiny in the matter, although lies in a narrow compass but it is sought to be projected with embellished version by the petitioner. The whole thrust of the petitioner is that after filing of the charge-sheet and taking cognizance, remand order is nonest under Section 167(1) Cr.P.C. That apart, the petitioner has relied on sub-section (3) of Section 167 Cr.P.C. to assail the impugned order, which according to her is bereft of reasons and passed without allowing proper legal assistance. The trial, in the matter, is on the verge of completion and specific order passed by the learned trial Court under Section 299 Cr.P.C. have also been canvassed as plausible grounds for quashing the impugned order.
10. Exercising power of judicial review of the impugned order pre-supposes that the Court is required to see as to whether learned trial Court has abused the process of the Court or otherwise it is necessary to annul the same for securing the ends of justice. There is no dichotomy that inherent powers of the Court are wide in amplitude and can be resorted to for passing appropriate orders to secure ends of justice but then a Court clothed with wide power is also supposed to exercise such powers (7 of 23) [CRLMP-1859/2017] very sparingly to render real and substantial justice to the parties. As such, the inherent powers are to be exercised with due care, caution and circumspection and in rarest of rare cases. Thus, the inherent powers, being discretionary in nature, cannot be exercised by over-looking conduct of an individual.
11. It is really a matter of serious concern that petitioner remained out of the reach of CBI despite allegedly involved in grave and serious offences. A very significant fact that since 2011 petitioner is absconding and now she has been apprehended after almost five and half years by the ATS, how and in what manner she successfully evaded her arrest for such a longer duration may not be a subject matter of judicial scrutiny in the instant case, but nevertheless it clearly reflects her conduct of deliberately abusing the process of law. Due to absence of the petitioner, requisite charge-sheets were filed against her in absentia. Therefore, in my considered opinion, this sort of conduct of the petitioner is having direct ramification on the instant petition. Unsuccessful utilization of judicial forums on many occasions by the petitioner to thwart arrest or stall trial of the case is a glaring example of her dubious conduct. A litigant having tendency of litiguous perseverance cannot be encouraged by this Court in exercise of discretionary inherent jurisdiction sans concrete proof about abuse of the process of the Court or foreseeing gross miscarriage of justice.
12. Orders passed by this Court in some of the petitions, which are either not complied with by the petitioner or circumvented otherwise, are quoted as infra:
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(i) Operative part of order dated 23.02.2012 in S.B. Cr. Misc.
Petition No.445/2012:
"Therefore, this Court directs the petitioner to appear before the CBI on 5th March, 2012 at 10:30 AM. Meanwhile the arrest warrant issued against the petitioner shall not be executed.
With these observations, the petition is, hereby, disposed off."
(ii) Similarly, operative part of order dated 03.03.2012 in S.B. Criminal Second Misc. Petition No.613/2012:
"Undoubtedly, the jurisdiction under Section 482 Cr.P.C. cannot be converted into a jurisdiction under Section 438 Cr.P.C. In case, the petitioner has an apprehension that she is likely to be arrested, she has the availability of alternative remedy under Section 438 Cr.P.C. Therefore, this Court is not inclined to modify the order dated 23.02.2012.
This petition being devoid of any merit; it is, hereby, dismissed."
Therefore, solely on the basis of conduct, the petitioner is liable to be non-suited.
13. Now, I propose to examine impugned order on merits. In this connection, at the threshold, it is desirable to appreciate various contentions of the petitioner on the anvil of legal precedents.
In Satyajit Ballubhai Desai & Ors. (supra), Supreme Court has considered sub-sec.(2) & (3) of Section 167 Cr.P.C. and reiterated the principle that police remand should be an exception (9 of 23) [CRLMP-1859/2017] and not the rule. The Court further observed that a Magistrate while permitting police remand is expected to scrutinize the reasons. The Court held:
"Having considered and deliberated over the issue involved herein in the light of the legal position and existing facts of the case, we find substance in the plea raised on behalf of the appellants that the grant of order for police remand should be an exception and not a rule and for that the investigating agency is required to make out a strong case and must satisfy the learned Magistrate that without the police custody it would be impossible for the police authorities to undertake further investigation and only in that event police custody would be justified as the authorities specially at the magisterial level would do well to remind themselves that detention in police custody is generally disfavoured by law. The provisions of law lay down that such detention/police remand can be allowed only in special circumstances granted by a magistrate for reasons judicially scrutinised and for such limited purposes only as the necessities of the case may require. The scheme of Section 167 of the Criminal Procedure Code, 1973 is unambiguous in this regard and is intended to protect the accused from the methods which may be adopted by some overzealous and unscrupulous police officers which at times may be at the instance of an interested party also. But it is also equally true that the police custody although is not the be-all and end- all of the whole investigation, yet it is one of its primary requisites particularly in the investigation of serious and heinous crimes. The Legislature also noticed this and, has therefore, permitted limited police custody.
It may, therefore, be noted that Article 22(2) of the Constitution of India and Section 57 CrPC gives a mandate that every person who is arrested and detained in police custody shall be produced before the nearest magistrate within a period of 24 hours of such arrest excluding the time necessary for the journey from the place of arrest to the court of the magistrate and no such person can be detained in the police custody beyond the said period without the authority of a magistrate. These two provisions clearly manifest the intention of the law in this regard and therefore it is the magistrate who has to judicially scrutinise circumstances and if satisfied can order detention of the accused in police custody. The resultant position is that the initial period of custody of an arrested person till he is produced before a (10 of 23) [CRLMP-1859/2017] Magistrate is neither referable to nor in pursuance of an order of remand passed by a Magistrate. In fact, the powers of remand given to a Magistrate becomes exercisable only after an accused is produced before him in terms of sub-section (1) of Section 167 CrPC.
xxx xxx xxx Be that as it may, the fact remains that the learned Magistrate as also the High Court appears to have adopted a casual or a mechanical approach permitting police remand of the appellants without scrutinizing the reasons, ignoring the fact that the appellants had already been enlarged on bail by the High Court and the dispute with the complainant Surjaben who had lodged the complaint had already been settled. Thus, the existing facts and circumstance prima facie were clearly not so grave or extraordinary justifying police remand which could have been overlooked by the High Court even though it was for three days only as it was bound to have ramifications not only affecting the liberty of the person who was already granted bail but also the magistrate nullifying the order of the High Court granting bail, even if it was for a period of three days only."
In Manubhai Ratilal Patel (supra), Supreme Court observed that remand of an accused is fundamentally a judicial function and therefore a Magistrate while ordering the detention of an accused is obliged to record satisfaction for the same on the basis of materials placed before him. The Court held:
"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 (11 of 23) [CRLMP-1859/2017] 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 order of remand automatically or in a mechanical manner. It is apt to note that in Madhu Limaye (supra), it has been stated that 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."
In Vinay Tyagi (supra), Supreme Court had occasion to examine power of the investigating officer for further investigation in terms of Section 173(8) Cr.P.C. after filing of the final report. The Court held:
"'Further investigation' is where the Investigating Officer obtains further oral or documentary evidence after the final report has been filed before the Court in terms of Section 173. This power is vested with the Executive. It is the continuation of a previous investigation and, therefore, is understood and described as a 'further investigation'. Scope of such investigation is restricted to the discovery of further oral and documentary evidence. Its purpose is to bring the true facts before the Court even if they are discovered at a subsequent stage to the primary investigation. It is commonly described as 'supplementary report'. 'Supplementary report' would be the correct expression as the subsequent investigation is meant and intended to supplement the primary investigation conducted by the empowered Police Officer. Another significant feature of further investigation is that it does not have the effect of wiping out directly or impliedly the initial investigation conducted by the investigating agency. This is a kind of continuation of the previous investigation. The basis is discovery of fresh evidence and in continuation of the same offence and chain of events relating to the same occurrence incidental thereto. In other words, it has to be understood in complete contradistinction to a 'reinvestigation', 'fresh' or 'de novo' investigation."
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14. The law governing the province of police remand as per Section 167(1) Cr.P.C. and power to make further investigation as per Section 173(8) Cr.P.C. adumbrated in the above referred three Supreme Court judgments; viz.,(1) Satyajit Ballubhai Desai & Ors. (2) Manubhai Ratilal Patel Vs. State of Gujarat & Ors., and (3) Vinay Tyagi, is unquestionably trite but in the peculiar facts of the instant case it cannot be said that learned trial Magistrate has not followed it. It is not in dispute that charge-sheet against the petitioner is filed under Section 299 Cr.P.C. and cognizance for serious offences was taken in her absence. While passing the order of cognizance dated 23.04.2012, learned trial Court has taken note of a vital fact that petitioner is absconding, therefore, further investigation under Section 173(8) Cr.P.C. was also kept pending. Order dated 23.12.2012 reads in vernacular as under:
^^23@04@12 lh ch vkbZ ds flfu;j yksd vfHk;kstd mifLFkr A eqfYteku fnus'k] iq[kjkt ,oa js'ekjke ts@lh ls mifLFkrA lh ch vkbZ dh vksj ls izLrqr vkjksi i= dk;kZy; fjiksVZ gksdj izkIr gqvk A lh ch vkbZ dh vksj ls eqfYteku fnus'k]iq[kjkt ,oa js'ekjke ds fo:) Hkk0na0la0 dh /kkjk 364]302]201 lifB~r /kkjk 120ch] ,oa /kkjk 3¼2½¼ V½ vuqlwfpr tkfr ,oa tutkfr ¼vR;kpkj fuokj.k½ vf/kfu;e ds vUrxZr izLrqr fd;k gSa vfHk;qDrk bZUnzk fo'uksbZ ds fo:) Hkh eQ:jh esa Hkk0 na0 la0 dh /kkjk 364]302]201 lifB~r /kkjk 120ch] ,oa /kkjk 3¼2½¼ V½ vuqlwfpr tkfr ,oa tutkfr ¼vR;kpkj fuokj.k½ vf/kfu;e ds rgr vkjksi i= izLrqr fd;k gSa A lkFk gh dsUnzh; vUos"k.k C;wjks }kjk /kkjk 173¼8½ na0 iz0 la0 ds rgr vfrfjDr lk{; ladyu ds fy, vUos"k.k yafcr Hkh j[kk gSa A pkyku dkxtkr dk voyksdu fd;k x;k A vfHk;qDrx.k ds fo:) Hkk0na0la0 (13 of 23) [CRLMP-1859/2017] dh /kkjk 364]302]201 lifB~r /kkjk 120ch] ,oa /kkjk 3¼2½¼ V½ vuqlwfpr tkfr ,oa tutkfr ¼vR;kpkj fuokj.k½ vf/kfu;e ds vijk/k dk izlaKku fy;k tkrk gS A izdj.k ntZ jftLVj gks A cgl dfeVy lquh xbZ A vU; lgvfHk;qDrx.k dk izdj.k la- 628@11 iwoZ esa fnukad 03@12@11 o izdj.k la-194@12 fnukad 13-03- 2012 dks ekuuh; fof'k"B U;k;k/kh'k vuqlwfpr tkfr ,oa tutkfr ¼vR;kpkj fuokj.k½ izdj.k] tks/kiqj ds U;k;ky; esa dfeV fd;k tk pqdk gS A i=koyh dk voyksdu fd;k x;k A vfHk;qDrx.k ds fo:) Hkk0na0la0 dh /kkjk 364]302]201 lifB~r /kkjk 120ch] ,oa /kkjk 3¼2½¼V½ vuqlwfpr tkfr ,oa tutkfr ¼vR;kpkj fuokj.k½ vf/kfu;e ds vijk/k dk vkjksi gS A tks fd ekuuh; fof'k"B U;k;k/kh'k vuqlwfpr tkfr ,oa tutkfr ¼vR;kpkj fuokj.k izdj.k½] tks/kiqj ds U;k;ky; }kjk fopkj.kh; gS A blfy, izdj.k fopkj.k gsrq ekuuh; fof'k"B U;k;k/kh'k vuqlwfpr tkfr ,oa tutkfr ¼vR;kpkj fuokj.k½ izdj.k] tks/kiqj ds U;k;ky; esa dfeV fd;k tkrk gS A vfHk;qDrx.k fnus'k] iq[kjkt o js'ekjke ds ts@lh okjUV ij uksV yxk;k tkos fd izdj.k fof'k"B U;k;k/kh'k vuqlwfpr tkfr ,oa tutkfr ¼vR;kpkj fuokj.k½ izdj.k] tks/kiqj ds U;k;ky; esa dfeV dj fn;k x;k gS blfy, vkxkeh rkjh[k is'kh fnukad 02@05@12 dks vfHk;qDrx.k dks U;k;ky; fof'k"B U;k;k/kh'k vuqlwfpr tkfr ,oa tutkfr ¼vR;kpkj fuokj.k½ izdj.k] tks/kiqj ds U;k;ky; esa is'k djsaz A ekeys dh i=koyh e; dfeVy dys.Mj fnukad 02@05@12 ls iwoZ ekuuh; dfeVy U;k;ky; esa Hksth tkosa A bl izdj.k esa ;fn dksbZ eky[kkuk tek gqvk gks rks mls fof'k"B U;k;k/kh'k vuqlwfpr tkfr ,oa tutkfr ¼vR;kpkj fuokj.k½ izdj.k] tks/kiqj ds U;k;ky; esa Hkstk tkos A ;fn eky[kkuk tek ugha gqvk gks rks dsUnzh; vUos"k.k C;wjks eky[kkuk lh/ks gh mDr U;k;ky; esa tek djkosa A yksd vfHk;kstd dks lwpuk vyx ls Hksth tkosa A i=koyh bl U;k;ky; ds jftLVj Øekad ls de dh tkdj (14 of 23) [CRLMP-1859/2017] rkjh[k is'kh ls iwoZ ekuuh; fof'k"B U;k;k/kh'k vuqlwfpr tkfr ,oa tutkfr ¼vR;kpkj fuokj.k½ izdj.k] tks/kiqj ds U;k;ky; esa Hksth tkosa A lgh@ vfrfjDr eq[; egkuxj eftLVªsV ¼lh-ch-vkbZ-dslst½ tks/kiqj egkuxj^^ Thus, these judgments cannot offer any assistance to the petitioner.
15. In Jairajsinh Temubha Jadeja (supra), Gujarat High Court has dilated on the principle of granting or non-granting remand in exercise of power under Section 167 Cr.P.C. The Court held:
"Having heard the rival contentions and gone through the record, the question which is raised is whether in the facts and circumstances of the case, the accused are required to be delivered to the police custody, i.e. on police remand. It may be noted herein that it is a clear case of prosecution that during the investigation it transpired that there were two assailants at the scene of offence and they were (i) Hanif and (2) Iqbal. One of them was identified by the victim through the photograph. It is not a case of the prosecution that any of the petitioners was present at the time when the incident occurred, but the present petitioners are being investigated by aid of Sec.120-B of the Indian Penal Code. This court, therefore, would be required to go into the principles that when the remand to the police custody can be ordered. The principle of granting or not granting remand is always depending upon the facts and circumstances of the case and collection of evidence by Investigating Agency. On that evidence, the Investigating Agency may ask for the remand of the accused persons for further investigation, i.e. to say that the Investigating Agency has to make out a case that certain evidence is collected against the accused and without the custodial investigation, no further investigation is possible and if the remand is not granted, the investigation would be throttled. These are the (15 of 23) [CRLMP-1859/2017] ordinary principle of granting or not granting the remand and it depends upon the facts of each case to grant or not to grant the remand. After keeping in mind the legal principles established by the Court, it will be useful to refer to a decision of this Court on which reliance has been placed by both the side in the matter of Siyaram Gopichand Gupta and Ors. v. State of Gujaral, reported in 1990(2) GLR 905 wherein after referring many decisions of the Apex Court, this Court quoted in Para 23 the words of Lewis Mayers as under
:
"To strike the balance between the needs of law enforcement on the one hand and the protection of the citizen from oppression and injustice at the hands of the law enforcement machinery on the other hand, is a perennial problem of statecraft."
It was observed by this Court in the above said decision that the Courts have to strike balance between the propositions above. Meaning thereby that Courts will have to see that is there a case made out by Investigating Agency to hand over the accused on remand or on the pretext of remand, the liberty of a citizen is likely to be affected. Therefore, the remand under Section 167(2) of the Criminal Procedure Code is an exception and not the rule. The law does not fasten judicial duty on Magistrate to record reasons for not granting remand to police custody, but it is imperative that Magistrate must record reasons for granting remand to the police custody. Sec.167 of the Criminal Procedure Code makes its obligatory on Police Authority to transmit a copy of the entries in the diaries relating to case along with the forwarding of the accused. Passing of the mechanical orders of remand by the Magistrate has been deprecated by law, because Sec.167(3) of the Code casts duty on the Magistrate to apply judicial mind to the issue. At this juncture Magistrate is bound to satisfy himself firstly that the accusation is whether well founded. The Magistrate will have to satisfy himself that the presence of the accused in police custody is whether absolutely necessary. The Magistrate shall look into the evidence and material collected by the Investigating Agency, and therefore, it is imperative for the Police Officer to transmit case diary to the (16 of 23) [CRLMP-1859/2017] Magistrate. Remand to police custody should not be granted to collect the material and evidence, when there is no prima facie or at least sufficient material collected by the investigating Officer. That is exactly making out a case by the Investigating Agency and at that crucial point of time the Magistrate must satisfy himself upon the material collected that without the police custody, it would be impossible for Police Authorities to go further in the investigation and in those cases only remand to the police custody is justified by the law.
It is again useful to refer to the observations of the Apex Court in the matter of C.B.I., Special Investigation Cell-I, New Delhi v. Anupam J. Kulkarni, reported in AIR 1992 SC 1978. This decision is relied upon by the respondent-State. In Para 10, the Apex Court observed that "the proviso to Sec.167 is explicit on this aspect. The detention in police custody is generally disfavoured by law, the provisions of law lay down that such detention can be allowed only in special circumstances and that can be only by a remand granted by a Magistrate for reasons judicially scrutinised and for such limited purpose as the necessities of the case may require. The scheme of Sec.167 is obvious and is intended to protect the accused from the methods which may be adopted by some overzealous and unscrupulous police officers. Art.22(2) of the Constitution of India and Sec.57 of Criminal Procedure Code, give a mandate that every person who is arrested and detained in police custody shall be produced before the nearest Magistrate within a period of 24 hours of such arrest". The Apex Court further observed that "these two provisions clearly manifest the intention of the law in this regard, and therefore, it is the Magistrate who has to judicially scrutinise circumstances and if satisfied can order the detention of the accused in police custody. Sec.167(3) requires that the Magistrate should give reasons for authorising the detention in the custody of the police. It can be thus seen that the whole scheme underlying the Section is intended to limit the period of police custody." From the above, it is clear that the granting of the remand is an exception and not the rule and for that the Investigating Agency is required to make out a case."
(17 of 23) [CRLMP-1859/2017] In Shashibala Sharma (supra), learned Single Judge of Gujarat High Court found 7 days' police remand laconic and harsh on the anvil of non-application of mind. The Court held:
"This Court, as observed hereinabove, is clear in opinion that the order of remand suffers from element of non-application of mind and the grant of police remand for seven days is apparently harsh and unwarranted and there was scope to grant police remand for a short or limited period, the Revision is partly allowed holding that the order to grant police remand for more than 72 hours is found bad in the present case. So, on completion of 72 hours, the Investigating Agency, therefore, shall have been directed to produce her before the concerned learned Magistrate so that she can be sent to the judicial custody, considering the time of arrest."
17. While it is true that a Magistrate while granting remand to police custody must record reasons and remand under Section 167(2) Cr.P.C. is to be resorted sparingly but then there is no bar when considering exceptional circumstances, a Magistrate may pass an order of remand under sub-section (2) of Section 167 Cr.P.C. In both these judgments, Gujarat High Court has embarked on the ordinary principles of granting or not granting the remand, which obviously cannot be doubted. However, in the instant case, the circumstances were exceptional inasmuch as petitioner is absconding since last about half a decade and chargesheet against her was filed in absentia under Section 299 Cr.P.C. Moreover, the learned trial Court while taking cognizance has also kept further investigation pending under Section 173(8) Cr.P.C. The learned trial Magistrate, in the order impugned, has recorded reasons that petitioner is accused of serious offences, (18 of 23) [CRLMP-1859/2017] further the order unfurls that while passing the order the concerned Magistrate has gone through the remand papers. The remand order also bears signature of the petitioner and as per her desire the learned Magistrate, in all fairness, has also issued a direction for subjecting her to medical examination. Therefore, these judgments are also of no avail and consequence to the cause of the petitioner.
18. In Mohammed Ajmal Mohammad Amir Kasab (supra), Supreme Court, while examining right of an accused under Article 21 & 22(1) of the Constitution, observed that right to access legal aid, to consult and to be defended by the legal practitioner arises when a person is arrested in connection with cognizable offence is first produced before the trial Court. The Court held:
"We, therefore, have no hesitation in holding that the right to access to legal aid, to consult and to be defended by a legal practitioner, arises when a person arrested in connection with a cognizable offence is first produced before a magistrate. We, accordingly, hold that it is the duty and obligation of the magistrate before whom a person accused of committing a cognizable offence is first produced to make him fully aware that it is his right to consult and be defended by a legal practitioner and, in case he has no means to engage a lawyer of his choice, that one would be provided to him from legal aid at the expense of the State. The right flows from Articles 21 and 22(1) of the Constitution and needs to be strictly enforced. We, accordingly, direct all the magistrates in the country to faithfully discharge the aforesaid duty and obligation and further make it clear that any failure to fully discharge the duty would amount to dereliction in duty and would make the concerned magistrate liable to departmental proceedings."
(19 of 23) [CRLMP-1859/2017] As regards providing access to the lawyer, suffice it to observe that generally a trial Magistrate is expected to adhere such procedure in conformity with Articles 21 & 22(1) of the Constitution but then in the instant case petitioner herself was granted right of audience which is clearly discernible from impugned order. Moreover, the alleged omission by the learned Magistrate in backdrop of glaring facts of the instant case is to be viewed munificently which obviously cannot entail vitiation of the impugned order.
19. In Rahul Pareek (supra), Division Bench of this Court dismissed the Habeas Corpus petition against the alleged illegal detention of the accused for offences punishable under Sections 7, 13(1)(d), 13(2) of the Prevention of Corruption Act, 1988 and Section 120B IPC. The Division Bench, however, observed that after filing of challan, custody of the accused is not governed by Section 167 but different provisions of Cr.P.C. The Court held:
". . The custody of the accused after the challan has been filed is not governed by Section 167 but different provisions of the Cr.P.C. If that right had accrued to the accused but it remained unenforced till the filing of the challan, then there is no question of its enforcement thereafter since it is extinguished the moment challan is filed because Section 167 Cr.P.C. ceases to apply. . ."
Thus, verdict as such is of no assistance to the petitioner.
20. The Three-Judge Bench of Supreme Court in case of State through CBI Vs. Dawood Ibrahim Kaskar and Ors. [(2000) 10 SCC 438], had the occasion to consider the law governing the province of remand after cognizance is taken of an offence and duly (20 of 23) [CRLMP-1859/2017] recognized such power of the police under Section 167 Cr.P.C. The Court held:
"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, 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 Mansuri (supra) - 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."
21 High Court of Kerala in case of Karayi Chandrasekharan & Anr. Vs. Inspector of Police [2012 (5) RCR (Criminal) 857] followed the verdict of Supreme Court in Dawood Ibrahim (supra) (21 of 23) [CRLMP-1859/2017] and distinguished judgment of Mithabhai Pashabhai Patel & Ors. Vs. State of Gujarat [(2009) 6 SCC 332] on facts. The Court held:
"Petitioners remained at large when the investigation of the crime continued. A report was filed under Section 173(2) of the Code by the C.B.I., pointing out that further investigation in the crime to determine the identity of two assailants and also the role of conspirators in committing the heinous crime is in progress. Once cognizance of the offence was taken on the report, petitioners appeared and surrendered before the court and they were remanded to judicial custody. They have been remanded to judicial custody on such surrender. Does it confer on them impenetrable insulation from being asked for their police custody for the purpose of further investigation, is the question emerging for consideration in the case. In Dawood Ibrahim Kaskar's case, cited supra, the Apex Court has held that Section 309(2) of the Code does not stand in the way of a court, which has taken cognizance of an offence, to authorise detention of a person, who is subsequently brought before it by the police after arrest during further investigation, in police custody, in exercise of the power under Section 167 of the Code. Here, on the facts presented in the case, non-bailable warrant issued against the petitioners was pending execution. When such warrant was pending, after cognizance was taken on the report filed, they appeared and surrendered before the court. If the petitioners had been arrested by the C.B.I., in connection with the further investigation of the crime and produced before the court, there could be no doubt that the provisions of Section 167 of the Code would apply in their case. They have surrendered before the court and got themselves remanded to judicial custody, in the given facts of the case, would not insulate them from resisting the request made by the C.B.I., for police custody if it is found essential for further investigation of the crime. The decision rendered in Mithabhai Pashabhai Patel's case, cited supra, dealt with a case where police custody was granted while the accused persons had already been enlarged on bail, and that too, without passing any order for cancellation of the bail. In that decision, while stating that once cognizance is taken of the offence, there could be only a remand under Section 309(2) of the Code it is made clear that they could not be remanded again unless the bail is cancelled. The decision does not lay down the proposition that once cognizance of the offence is (22 of 23) [CRLMP-1859/2017] taken and there is a remand for judicial custody made under Section 309(2) of the Code, there could be no change of such custody to one of police custody if the facts and circumstances demand such custody for further investigation of the crime. Similarly, the decision rendered in Jeewan Kumar Raut's case, cited supra, which too canvassed by the learned senior counsel for the petitioners, do not assist them in any manner to contend that at a post-cognizance stage, under no circumstances judicial custody of an accused person cannot be changed to one of police custody. There could be cases even after taking cognizance and remand of the accused to judicial custody for allowing police custody."
22. Supreme Court in a later judgment of Central Bureau of Investigation Vs. Rathin Dandapat & Ors. [(2016) 1 SCC 507] reiterated the same principle vis-a-vis accused persons arrested after filing of chargesheet who were absconders. The Court held:
"In view of the above facts, in the present case, in our opinion, the High Court is not justified on the basis of Dinesh 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 Code of Criminal Procedure. 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) Code of Criminal Procedure in respect of an accused arrested at the stage of further investigation, if the interrogation is needed by the investigating agency."
23. Therefore, relying on authoritative pronouncements of the Supreme Court in case of Dawood Ibrahim (supra) and later judgment of Rathin Dandapat(supra), I am not impressed by the arguments of the learned counsel for the petitioner that her remand after cognizance is not permissible under Section 167 Cr.P.C. In the backdrop of peculiar facts and circumstances of the (23 of 23) [CRLMP-1859/2017] instant case, when at the time of taking cognizance right of CBI was kept intact by the trial Magistrate and petitioner remained absconding for almost 5½ years, impugned order cannot be faulted. On the other counts also petitioner has failed to make out a case for interference in exercise of inherent powers under Section 482 Cr.P.C. inasmuch as impugned order has not occasioned failure of justice.
In view of foregoing discussion, I see no reason to exercise inherent powers to make such orders as may be necessary to give effect to any order under the Code or to prevent the abuse of process of any Court or otherwise to secure the ends of justice.
Resultantly, the petition fails and the same is hereby dismissed.
(P.K. LOHRA), J.