Karnataka High Court
Gangya @ Gangadhar S/O. Santramshinde vs The State Of Karnataka on 18 January, 2023
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CRL.A.No.100241/2021
IN THE HIGH COURT OF KARNATAKA,
DHARWAD BENCH
DATED THIS THE 18TH DAY OF JANUARY, 2023
BEFORE
THE HON'BLE MR JUSTICE S.RACHAIAH
CRIMINAL APPEAL NO.100241/2021
BETWEEN
1. GANGYA @ GANGADHAR
S/O. SANTRAMSHINDE
AGED ABOUT 26 YEARS
R/O MARATHA GALLI
GOKAK, TQ.GOKAK
DIST. BELAGAVI-591 218.
2. VINAYAK
S/O. BASAVARAJHADIGINAL
AGED ABOUT 22 YEARS
R/O MOKASHIGALLI
GOKAK, TQ.GOKAK
DIST. BELAGAVI-591 218.
3. VITTAL
S/O. PARASHURAMPAWAR
AGED ABOUT 23 YEARS
R/O MOKASHIGALLI
GOKAK, TQ.GOKAK
DIST. BELAGAVI-591 218.
4. VINOD
S/O. CHANDRUHOSAMANI
AGED ABOUT 22 YEARS
R/O SOMAWARPET
GOKAK TQ.GOKAK
DIST. BELAGAVI-591 218.
5. KIRAN
S/O. VIJAY DODDANNAVAR
AGED ABOUT 22 YEARS
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CRL.A.No.100241/2021
R/O AMBIGERGALLI
GOKAK TQ.GOKAK
DIST. BELAGAVI-591 218.
6. RAVI
S/O. BHIMASHI CHUNNAVAR
AGED ABOUT 22 YEARS
R/O SIDDESHWAR NAGAR
GOKAK TQ.GOKAK
DIST. BELAGAVI-591 218.
7. KEDARI BASAVANNI JADHAV
AGED ABOUT 36 YEARS
R/O MARATHA GALLI
GOKAK TQ.GOKAK
DIST. BELAGAVI-591 218.
8. SUNIL
S/O. MALLIKARJUNMURKIBHAVI
AGED ABOUT 43 YEARS
OCC. BUSINESS
R/O. BASAVA NAGAR
GOKAK, TQ.GOKAK
DIST. BELAGAVI-591 218.
9. SANTOSH @ SANTU
S/O. PANDURANGCHIGADOLLI
AGED ABOUT 21 YEARS
R/O MARATHA GALLI
GOKAK TQ.GOKAK
DIST. BELAGAVI-591 218.
.....APPELLANTS
(BY SRI Z.M. HATTARKI, ADVOCATE)
AND
1. THE STATE OF KARNATAKA
BY GOKAK TOWN POLICE STATION
R/BY THE ADDL.
STATE PUBLIC PROSECUTOR
HIGH COURT OF KARNATAKA
DHARWAD BENCH
DHARWAD.
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CRL.A.No.100241/2021
2. DEEPAK
S/O SHRIKANTH INGALGI
AGED ABOUT 24 YEARS
OCC. COOLIE
R/O. ADIJAMBAV NAGAR
GOKAK-591 307.
.....RESPONDENTS
(BY SRI PRAVEEN UPPAR, HCGP FOR R1
SRI AVINASH ANGADI, ADVOCATE FOR R2 )
---
THIS CRIMINAL APPEAL IS FILED U/S 12 OF THE
KARNATAKA CONTROL OF ORGANIZED CRIMES ACT,
SEEKING TO SET ASIDE THE ORDER PASSED BY THE
LEARNED PRL. SESSIONS JUDGE, (KCOCA SPL. JUDGE),
BELAGAVI IN GOKAK TOWN P.S. CRIME NO.72/2020
DATED 02/09/2020 VIDE ANNEXURE-A, UNDER
SECTIONS 143, 147, 148, 302, 504, 506, R/W 149 OF
IPC, UNDER SECTION 3(2)(v) OF SC/ST ACT, UNDER
SECTIONS 3 AND 4 OF KCOC ACT 2000, AND ETC.
THIS APPEAL HAVING BEEN HEARD THROUGH
PHYSICAL HEARING / VIDEO CONFERENCING HEARING
AND RESERVED ON 08.12.2022 AT DHARWAD BENCH,
COMING ON FOR PRONOUNCEMENT OF JUDGMENT,
BEFORE THE PRINCIPAL BENCH AT BENGALURU,
THROUGH VIDEO CONFERENCING, THIS DAY, THE
COURT DELIVERED THE FOLLOWING:
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CRL.A.No.100241/2021
JUDGMENT
The appellants preferred this appeal under Section 12 of the Karnataka Control of Organised Crimes Act, 2000 (for short 'KCOC Act'), being aggrieved by the order passed by learned Principal Sessions Judge (KCOCA Special Judge) Belagavi dated 02.09.2020 and thereby remanding the accused Nos.1 to 9 to the custody.
2. For the sake of convenience, the parties would be referred to as per their rankings before the trial Court.
3. The facts of the case are as under:
It is the case of the prosecution that, the accused Nos.1 to 9 were involved in the offences punishable under Sections 143, 147, 148, 302, 504, 506, 120(B) R/w. Section 14(A) of IPC and Sections 3(2)(v) of The Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989 (for short 'SC/ST POA Act') and Section 25(1A) of Arms Act. It is further stated that, the accused Nos.1, 2 and 3 were arrested on 08.05.2020, accused Nos. 4 to 6 were arrested on 11.05.2020, accused No.7 was arrested on 12.05.2020, accused No.8 -5- CRL.A.No.100241/2021 was arrested on 13.05.2020 and accused No.9 was arrested on 18.05.2020 respectively. That, during the course of investigation the investigation officer invoked Section 120(B) of IPC and Sections 3 and 4 of the KCOC Act. On 29.07.2020, the investigating officer filed requisition through the public prosecutor stating about the progress of the investigation that the accused No.1 was arrested on 08.05.2020 and 90 days of custody would be completed on 05.08.2020. Since the investigation was not over and it is in progress, the investigating officer sought for extension of time for another period of 90 days to complete the investigation and to submit the final report. The said application was allowed on 30.07.2020 and time was extended for another 90 days to conduct investigation and submit the final report.
4. In the mean time, the investigating officer filed an application on 02.09.2020 and sought for the police custody of accused Nos.1 to 9 for a period of 15 days. The Trial Court passed an order and handed over the accused to the police custody for 7 days. Being aggrieved by the order passed by the Trial Court, the -6- CRL.A.No.100241/2021 appellants are before this Court seeking to set aside the order dated 02.09.2020.
5. Heard Sri.Z.M.Hattarki, learned counsel for the appellants, Sri.Praveen Uppar, learned High Court Government Pleader for respondent No.1-State and Sri.Avinash Angadi, learned counsel for respondent No.2.
6. Sri.Z.M.Hattarki, learned counsel for the appellants submits that the order dated 02.09.2020 and 19.10.2020 passed by the Trial Court are against the established provisions under the Code of Criminal Procedure and also the KCOC Act. Hence, the same is liable to be set aside.
7. It is further submitted that the Trial Court has no authority to entrust the accused persons to the police custody beyond 15 days after the first remand. It is further submitted that, the Special Act provides 30 days as a period for entrusting the accused to police custody in view of Section 22(2)(a) of the KCOC Act. It is not permissible to hand over the accused to the police custody beyond 30 days.
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8. It is further submitted that the appellants were arrested in between 08.05.2020 and 18.05.2020. The investigation officer sought for the police custody on 02.09.2020 i.e., after lapse of nearly three months which is not permissible under law. Hence, the order of handing over the appellants to police custody is unreasonable and unsustainable and the same has to be set aside. As such, the learned counsel for the appellants prays to allow the appeal.
9. In support of the contention of the learned counsel for the appellants, he relied on the judgments as follows:
1. Central Bureau of Investigation Vs Anupam J. Kulkarni 1
2. Devender Kumar and Another Vs State of Haryana and others2
3. S. Manikanta @ Mani and other Vs State of Karnataka, Criminal Appeal No.223/2015 dated 10/04/2015
4. Sunil Kumar @ Silent Sunil and Others Vs State, 3."
1
(1992) 3 SCC 141 2 (2010) 6 SCC 753 3 2018 (1) Crimes 253 (KARN) -8- CRL.A.No.100241/2021
10. Sri.Praveen Uppar, learned High Court Government Pleader for the State submits that, the order passed by the Trial Court is appropriate and this is under the KCOC Act, which is a Special Act, wherein, the general principles are not applicable to the case. Further, it is submitted that all the accused are involved in many cases which are stated in the objection filed to the appeal. The custodial interrogation is very much necessary, therefore, the Trial Court after considering the submissions and also the objections of the investigating officer passed suitable order and handed over the custody of the appellants to the police for 7 days which is sustainable.
11. It is further submitted by the learned HCGP that in view of Section 22(7) of the KCOC Act, the investigating officer can seek police custody of the accused before completing the trial by submitting the written statement before the Magistrate or a Judge with whom the case is pending for consideration. If the Court feels it appropriate, can hand over the accused to police custody. Such being the fact, the application is filed only -9- CRL.A.No.100241/2021 in order to delay the trial. Therefore, the appeal deserves to be dismissed.
12. The learned counsel for respondent No.2 adopted the arguments of the learned HCGP and submits that the handing over the appellants to police custody is appropriate and it is in accordance with law.
13. After having heard the learned counsel for the respective parties, the points which would arise for my consideration are,
i) Whether the order dated 02.09.2020 passed by the Trial Court is sustainable?
ii) Whether the appellants have made out a ground to set aside the order passed by the Trial Court?
14. Admittedly, the accused/appellants are in judicial custody in respect of crime No.72/2020. It is stated that the provisions of KCOC Act was invoked by the investigating officer on 31.08.2020 against all the appellants and an application was moved before the Trial Court for seeking police custody of all the appellants on 02.09.2020. The Trial Court granted 7 days police
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CRL.A.No.100241/2021custody inspite of the request having been made by the investigating officer to hand over the appellants for 15 days police custody.
15. The moot question that would arise for my consideration is, whether the Special Act prevails over the General Act in remanding the accused to the police custody? It is the submission of the learned counsel for the appellants that the provision under Section 167 of The Code of Criminal Procedure, 1973 (for short 'Cr.P.C') is applicable even in the case of KCOCA offences. Therefore, remanding the accused persons after completion of 30 days is contrary to the provisions of Section 167 of Cr.P.C. Now it is relevant to refer Section 167 (1)(a) (b) of Cr.P.C which reads thus:
"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 57, and there are grounds for believing that the accusation or information is well- founded, the officer in charge of the police station or the police officer making the investigation, if he is not below the rank of sub- inspector, shall forthwith transmit to the nearest Judicial Magistrate a copy of the entries in the diary hereinafter prescribed relating to the case, and shall at the same time forward the accused to such Magistrate. Provided that,-
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(a) the Magistrate may authorise the detention of the accused person, otherwise than in the custody of the police, beyond the period of fifteen days; if he is satisfied that adequate grounds exist for doing so, but no Magistrate shall authorise the detention of the accused person in custody under this paragraph for a total period exceeding,-
(i) ninety days, where the investigation relates to an offence punishable with death, imprisonment for life or imprisonment for a term of not less than ten years;
(ii) sixty days, where the investigation relates to any other offence, and, on the expiry of the said period of ninety days, or sixty days, as the case may be, 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 sub-
section shall be deemed to be so released under the provisions of Chapter XXXIII for the purposes of that Chapter;] [(b) no Magistrate shall authorise detention in any custody under this section unless the accused is produced before him in person for the first time and subsequently every time till the accused remains in the custody of the police, but the Magistrate may extend further detention in judicial custody on production of the accused either in person or through the medium of electronic video linkage;]"
16. On careful reading of the above provision, it is understood that the remand of the arrested person to the judicial custody should not be extended beyond 15 days. In case, if the arrestee is not produced before the Court either physically or though electronic media for extension of detention period, the said detention shall not be considered as legal. However, nowhere in the provision it is stated that when the accused shall be taken to police
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custody what is the maximum period prescribed for taking such accused to the police custody. However, if the accused is in judicial custody, investigation relating to the offence punishable with death, imprisonment for life or imprisonment for a term not less than 10 years, ninety days time is prescribed to complete the investigation and submit the final report. Similarly, sixty days time is stipulated where the investigation relates to any other offence. If the investigation is not completed within the stipulated as stated supra, the accused shall be entitled to be released on bail.
17. It is further stated that, where the Special Act like the Narcotic Drugs and Psychotropic Substances Act, MCOCA and KCOC Act etc., statute provided special privilege to the investigating authority to conduct the investigation even beyond ninety days with permission of the Court even upto 180 days. During the investigation before submitting the final report, if the investigation authority feels it appropriate to take the accused to the police custody for securing the information, if such accused is in judicial custody, the investigating officer shall in writing make request to the Magistrate regarding
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the requirement of the accused to the police custody and can avail such benefit. On the request being made by the investigating officer for police custody of the accused before the Magistrate, the Magistrate, shall exercise discretion judiciously and pass an order to remand the accused to the police custody for investigation. Such being the fact, the Special Act like KCOC Act provided a provision under Section 22(7) of the Act which reads thus:
"Section 22. Modified application for certain provision of this Code-(1) Notwithstanding anything contained in the Code of in any other law, every offence punishable under law, every offence punishable under this Act, shall be deemed to be cognizable offence within the meaning of clause (c) of Section 2 of the Code and "Cognizable case" as defined in that clause shall be constructed accordingly.
(7) The police officer seeks the custody of any person for pre-indictment or pretrial interrogation from the judicial custody shall file a written statement explaining the reason for seeking such custody and also for the delay if any, seeking the police custody."
18. On careful reading of the above provision of the Act, it makes clear that, the investigation officer seeking police custody of the accused during pre-trial
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CRL.A.No.100241/2021interrogation from judicial custody, shall file a written statement explaining the reason for seeking such custody. It means the police /investigating officer can file application before commencement of trial, may at any time can seek custody of the accused for interrogation, provided, if such accused is in judicial custody. Hence, the contention of the learned counsel for the appellants that the police cannot seek police custody of the accused beyond 30 days of the judicial custody of such accused is unsustainable and required to be rejected. Needless to say that, the Special Act prevails over the General Act. Thus, the points which arose for my consideration are answered as, Point No.(i) in the "affirmative"
Point No.(ii) in the "negative"
19. In the light of the observation made above, I proceed to pass the following:
ORDER The appeal filed by the appellants stands dismissed.
Sd/-
JUDGE UN