MADRAS HIGH COURT
SINGLE BENCH
( Before : P. Devadass, J )
G. PRIYADARSHINI Vs. STATE
Crl. R.C. No. 491 of 2014
Decided on : 20-06-2014
Criminal Procedure Code, 1973 (CrPC) – Section 156, Section 157, Section 167, Section 167(1), Section 167(2), Section 167(3), Section 2(h), Section 397, Section 397(1), Section 397(2), Section 401, Section 482, Section 57
Grant of anticipatory bail. — Magistrate turned down the request of the InvestigationInvestigation Purpose of all investigation is to reveal the unvarnished truth. The constitutional courts are duty bound to ensure that the truth is revealed. Officer on the ground that it is belated, A-1 is not willing to go to police custody and for the non-production of cellCell The smallest unit that can live on its own and that makes up all living organisms and the tissues of the body. A cell has three main parts: the cell membrane, the nucleus, and the cytoplasm. The cell membrane surrounds the cell and controls the substances that go into and out of the cell. The nucleus is a structure inside the cell that contains the nucleolus and most of the cell’s DNA. It is also where most RNA is made. The cytoplasm is the fluid inside the cell. It contains other tiny cell parts that have specific functions, including the Golgi complex, the mitochondria, and the endoplasmic reticulum. The cytoplasm is where most chemical reactions take place and where most proteins are made. The human body has more than 30 trillion cells. phones police custody could not be given. — Whenever police remand beyond the expiry of first 15 days. — It is incumbent upon the party approaching this court by taking necessary steps for the disposal of the revision before the expiry of the first 15 days period of remand. This has not been done in this case. On account of that the court cannot overstep the mandate prescribed in section 167(2) Cr.P.C.
ORDER
P. Devadass, J.—This revision has been directed by the defacto complainant in Cr. No. 246 of 2012 registered as against the order of the learned XI Metropolitan Magistrate, Saidapet, Chennai rejecting C.M.P. No. 2097 of 2014 filed by the police (first respondent) seeking police custody of A-1 (2nd respondent) for 7 days.
2. Noticing the following factual matrix is suffice for the disposal of this revision.
(1) A-1 Varun Kumar(second respondent) is the son of A-2 and A-3 viz., Prof. Veerasekaran and Kalpana. A-1 was preparing for Civil Service examination. So also Priyadarshini (defacto complainant). They met at a Training Institute. Friendship developed between them. They become very close. They become lovers. It is expected that A-1 will marry her. A-1 alone became successful in the Civil Service examination. He was selected for I.P.S. (Indian Police Service) and was allotted to Tamilnadu cadre. He became a trainee I.P.S. Officer. There are allegations that he and his parents demanded dowry and harassed the defacto complainant. Thereafter, no love last between A-1 and Priyadarshini. She lodged complaint against A-1 and his parents. A case in Cr. No. 246 of 2012 for the offences u/s 406, 417, 420, 506(i) of I.P.C. and u/s 4 of the Tamil Nadu Prevention of Women Harassment Act and Section 66 of Information Technology Act has been registered. It is being investigated into.
(2) In this Court, in Crl. O.P. No. 11387 & 11108 of 2012, A-1 to A-3 have sought for anticipatory bail. On 4.6.2012, this Court directed A-1 to produce his cell phones and laptop to the Investigation Officer and the Investigation Officer to file his report and also directed the police not to arrest A1 to A3. On 20.7.2012, the Investigation Officer filed status report to the effect that A-2 produced two Cell phones, they did not tally with the I.M.E. number obtained from the service provider and thus, A-1 not obeyed the Court order. On 21.9.2012, after hearing both sides, this Court granted them anticipatory bail.
(3) The said order, dated 21.9.2012 was challenged by the defacto complainant before the Hon’ble Supreme Court in Crl. A. No. 416-417 of 2014. The Investigation Officer filed counter and additional counter before the Hon’ble Supreme Court reiterating the substance of her status report already filed before this Court and also stated that A-1 has not cooperated with the Investigation Officer.
(4) In the circumstances, on 14.2.2014, the Hon’ble Supreme Court set aside the anticipatory bail granted to A-1 and gave him liberty to approach the appropriate Court for regular bail.
(5) Under these circumstances, on 28.4.2014, A-1 surrendered before the learned XI Metropolitan Magistrate, Saidapet, Chennai. On the same day, the Investigation Officer filed C.M.P. No. 2097 of 2014 u/s 167(2) of Cr.P.C. seeking his police custody for 7 days. In the affidavitAffidavit An ex parte statement in writing made under oath before a notary public or other officer authorized to administer oaths, about facts which the affiant either knows of his own personal knowledge or is aware of to the best of his knowledge., the Investigation Officer stated that A-1 has not produced the case properties, namely cell phones, in view of its non-production investigation could not be completed and his custodial interrogation is very much required to complete the investigation. When enquired, A-1 told the Magistrate that as he had already appeared before the Investigation Officer for 45 days he is not willing to go to police custody.
(6) On 29.4.2014, the learned Magistrate turned down the request of the Investigation Officer on the ground that it is belated, A-1 is not willing to go to police custody and for the non-production of cell phones police custody could not be given.
(7) The said order was not challenged by the State. It was challenged by the defacto complainant in this revision.
3. According to the learned counsel for the revision petitioner, the revision petitioner is the defacto complainant in this case. She is interested in the collection of required evidenceEvidence All the means by which a matter of fact, the truth of which is submitted for investigation, is established or disproved. Bharatiya Sakshya (Second) Adhiniyam 2023 (investigation). A-1 is in possession of certain vital physical evidence. He knows very many things connected with this case. Thus, his custodial interrogation is very much essential. The Investigation officer filed police custody petition before the learned Magistrate well before the expiry of the first 15 days remand. However, it was misunderstood by the learned Magistrate as belated. Custodial interrogation is elicitation oriented. In the interest of investigation, it becomes necessary. Disinclination of the accused to go to police custody is not a ground to deny the genuine request of the police.
4. The learned Public Prosecutor supported the views of the revision petitioner.
5. The learned Public Prosecutor also submitted that the impugned order of the learned Magistrate, dated 29.4.2014 is not in accordance with law. It requires to be set aside. The need for custodial interrogation also has been stated by the Investigation Officer in the counter and additional counter filed before the Hon’ble Supreme Court in the SLP filed by the defacto complainant.
6. According to the learned Senior counsel for A-1 (second respondent), by the impugned order passed by the learned Magistrate, State is the aggrieved party. The defacto complainant has no locus standi to challenge the impugned order. Further, the impugned order is an interlocutory order. Section 397(2) of Cr.P.C. is a bar to prefer a revision as against such an order. When there is express bar in section 397(2) Cr.P.C., the defacto complainant cannot also invoke the inherent jurisdictionJurisdiction Authority by which courts receive and decide cases. Limited Jurisdiction: the authority over only particular types of cases, or cases under a prescribed amount in controversy, or seeking only certain types of relief, the District Court is a court of limited jurisdiction. Original Jurisdiction: Jurisdiction of the first court to hear a case. of this Court u/s 482 Cr.P.C.
7. The learned Senior Counsel for A-1 further contended that A-1 has nothing to offer. A-1 has nothing to say. He cannot be compelled to incriminate himself. He has fundamental to right keep silence. He cannot be compelled to break his silence. Otherwise, it would be testimonial compulsion. It will militate against his fundamental right. (See Article 20(3) Constitution of IndiaIndia Bharat Varsha (Jambu Dvipa) is the name of this land mass. The people of this land are Sanatan Dharmin and they always defeated invaders. Indra (10000 yrs) was the oldest deified King of this land. Manu's jurisprudence enlitened this land. Vedas have been the civilizational literature of this land. Guiding principles of this land are : सत्यं वद । धर्मं चर । स्वाध्यायान्मा प्रमदः । Read more).
8. The learned Senior Counsel for A-1 further contended that as per Section 167(2) Cr.P.C., there is an outer limit of first 15 days remand period within which police custody has to be asked for. Once that period is over, no Court including this Court can go against the said express provision of law and grant police custody. Now, that the said outer period of 15 days prescribed is over, it cannot be extended by the Court.
9. The learned Senior Counsel for A-1 further contended that police custody for recovery of incriminating materials cannot be given. It is against law. In this case, it is nothing but an attempt to humiliate A-1. Whatever he had, had already been produced by him to the Investigation Officer.
10. In support of his submissions, the learned Senior Counsel appearing A-1 cited the following decisions:
(i) Nandini Satpathy Vs. P.L. Dani and Another,
(ii) State Rep. by Inspector of Police and Others Vs. N.M.T. Joy Immaculate,
(iii) State by Deputy Supdt. of Police, ‘Q’ Branch CID Vs. Sundaramoorthy,
(iv) Devender Kumar and Another etc. Vs. State of Haryana and Others etc.,
(v) The Inspector of Police, D.C.B., Madurai Dist. vs. Thalapathy and 3 Others (2011(2) L.W. (Crl.) 603)
(vi) State Vs. B. Ranganathan and Another,
(vii) K.S. Palanichamy vs. Inspector of Police, Eow II, Dindigul (2012(2) MWN (Cr.) 395)
(viii) Inspector of Police, Town Police Station, Karaikkal vs. R. Vaithyanathan Iyappan Govindaraj (2013(3) MWN (Cr.) 473)
(ix) Kanagaraj vs. Inspector of Police, Kaliyakkavilai Police Station, K.K. Dist. (2013(2) MWN (Cr.) 296 (DB)
11. In reply, the learned counsel for the revision petitioner would submit that it is not that only police can go against the order rejecting police custody. The defacto complainant is victim as well affected in this case. As such she can also file revision as against the impugned order. She is very much interested in the successful prosecution of the accused. She is interested in police pursuing all tools of investigation including custodial interrogation. On the rejection of the police custody petition, she cannot be asked to keep mum. Since she felt that police custody petition has not been properly dealt with, she took up the matter to this Court. She cannot be estopped from doing so.
12. The learned counsel for the revision petitioner further contended that in the interest of justice, if the Court finds that the impugned order suffers from any illegality suo moto in exercise of its power of revision u/s 401 Cr.P.C., this court can deal with the matter. Besides that, u/s 482 Cr.P.C. this Court has inherent power to set right any illegality committed by a Subordinate Court. Further, in the interest of justice, at any timeTime Where any expression of it occurs in any Rules, or any judgment, order or direction, and whenever the doing or not doing of anything at a certain time of the day or night or during a certain part of the day or night has an effect in law, that time is, unless it is otherwise specifically stated, held to be standard time as used in a particular country or state. (In Physics, time and Space never exist actually-“quantum entanglement”), this Court can direct the police to take steps for custodial interrogation of the accused.
13. The learned counsel for the revision petitioner further submitted that immediately, after the dismissal of the police custody petition, she has preferred the revision before this Court. Thereafter, the matter is subjudiced in this court. On account of delay, if any caused in the disposal of the petition, the revision petitioner cannot be penalised, blamed.
14. In support of his submissions, the learned counsel for the revision petitioner cited the following decisions:
(i) Nadir Khan Vs. The State (Delhi Administration),
(ii) Lingala Vijay Kumar and Others Vs. The Public Prosecutor,
(iii) Japani Sahoo Vs. Chandra Sekhar Mohanty,
(iv) Ram Jethmalani and Others Vs. Union of India (UOI) and Others,
(v) Dinubhai Boghabhai Solanki Vs. State of Gujarat and Others,
15. The learned Public Prosecutor submitted that on the dismissal of the police custody petition, a valuable tool of investigation available to police has been sealed. The request for police custody has been dealt with once for all. So far as the subject matter (police custody) is concerned, it has become final. So revision will lie. Further, by the effect of the impugned order, namely, refusing police custody, the ultimate sufferer is defacto complainant. She can also seek redress by filing a revision. Further, u/s 482 of Cr.P.C. this Court has got inherent power to set right any illegality. It can secure justice to parties.
16. The learned Public Prosecutor further submitted that the police custody petition has been filed in time and when it was not properly dealt with by the learned Magistrate, the revision petitioner approached this Court by way of revision. By the time when the 15 days outer limit u/s 167(2) Cr.P.C. is expired. The prosecution cannot be deprived of its opportunity to get police custody. In the facts and circumstances, prosecution cannot be blamed. By the act of a Court, a party should not be made to suffer.
17. The learned Public Prosecutor further submitted that in this case, before the Hon’ble Supreme Court, in the bail cancellation petition, prosecution submitted the need for custodial interrogation of A-1. A-1 has not produced the case-properties, namely, Cell phone as directed by this Court. Custodial interrogation will not be restricted to seizure of the case-properties alone. It will also be for eliciting answers from the accused on certain vital aspects of the case. Such an opportunity cannot be denied to the prosecution.
18. In support of his submissions, the learned Public Prosecutor cited the following decisions:
(i) Amar Nath and Others Vs. State of Haryana and Another,
(ii) Madhu Limaye Vs. The State of Maharashtra,
(iii) Raj Kapoor and Others Vs. State and Others,
(iv) Miss R. Shakuntala Vs. Roshanlal Agarwal and others
(v) Ambarish Rangshahi Patnigere and Others Vs. The State of Maharashtra,
(vi) State of Maharashtra vs. Miteshmajilal Lodhiya ( CDJ 2010 BHC 1056)
(vii) Kandhal Sarman Jadeja Vs. State of Gujarat,
19. I have given my anxious consideration to the rival submissions, perused the impugned order, dated 29.4.2014, materials on record and also the various decisions cited at the bar.
20. This revision has been filed u/s 397(1) Cr.P.C. as against the order of the learned XI Metropolitan Magistrate, Saidapet, Chennai, dated 29.4.2014 dismissing the police custody petition filed by the Investigation officer. Request for police custody has been turned down.
21. The revisional power u/s 397(1) Cr.P.C. is concurrent. This power can be exercised both by the High Court and by the Sessions Court. There is a bar u/s 397(2) Cr.P.C. to entertain revision as against interlocutory orders passed in any Appeal, inquiry, trial and other proceedings.
22. Referring to this bar in Section 397(2) Cr.P.C. lot of arguments has been advanced on behalf of A-1. It was contended that it is not maintainable, because it is an interlocutory order. However, it was repelled. It was contended that it is a final order.
23. Besides, the revision u/s 397 Cr.P.C., this Court also has extraordinary power to do justice and undo injustice and pass any orders to meet the ends of justice. Such a power of this Court has been saved in the New Code in Section 482 Cr.P.C. Further u/s 401 Cr.P.C., this Court has suo-moto power to set right any order which appears to be not in accordance with law. High Court is endowed with constitutional and statutory power to render justice.
24. Police custody is intended for custodial interrogation. It is provided in Section 167(2) Cr.P.C. Such a request has to be made by the Investigation Officer in the interest of investigation. Custodial interrogation is a tool of investigation. It is elicitation oriented. It is a method of investigation. It has been statutorily recognised. (See Sections 2(h), 156, 157 and 167(2) Cr.P.C., Assistant Director, Direct of Enforcement Vs. Hassan Ali Khan, and State Rep. by the C.B.I. Vs. Anil Sharma, .
25. If the request for police custody is turned down, it will affect a party, namely, prosecution. The subject matter covered under the present petition, namely, police custody by the dismissal of the petition is closed. It is over before the Magistrate.
26. Time and again, there was lot of discussion as to whether a particular type of order is a final order or interlocutory order for the purpose of Section 397(2) Cr.P.C. Generally, an interlocutory order is an order, which is not a final order and vice versa. This generalisation is not suffice. It will not serve the purpose. It cannot be an useful formula to decide the matter with regard to Section 397(1) and 397(2) of Cr.P.C.
27. Therefore, certain approach based on content, effect of the order also has been advocated in several cases. Notable among them are Amarnath and Others vs. State of Haryana and Others [(AIR 1997 SC 2185] and [ Madhu Limaye Vs. The State of Maharashtra, . An order which is in the nature of affecting a party to the proceedings is considered to be a final order. When the request for police custody is rejected that will affect the prosecution side. Thus, it becomes final for the purpose of exercise of revisional power u/s 397(1) Cr.P.C.
28. In State Rep. by Inspector of Police and Others Vs. N.M.T. Joy Immaculate, , question of filing a revision as against granting of police custody u/s 167(2) Cr.P.C. arose before the Hon’ble Apex Court. The Hon’ble Apex Court ruled that such an order is only interlocutory order and not a final order. JOY Immaculate (supra) laid down that there cannot be revision as against an order granting police custody. Because, the bar u/s 397(2) Cr.P.C. will bar filing a revision as against such orders. It is pertinent to note that in Joy Immaculate (supra) whether an order rejecting police remand is a final order or interlocutory order and whether the bar u/s 397(2) Cr.P.C. will operate as against such an order has not been considered. In fact, it did not arose and the Hon’ble Apex Court had no occasion to consider such a question.
29. In Miss R. Shakuntala Vs. Roshanlal Agarwal and others , a learned Single Judge of the Bombay High Court termed the order of the Magistrate rejecting the remand request made by the prosecution as a final order since in that order nothing survives. The learned Single Judge in arriving at such a conclusion based reliance on Amarnath (supra) and Madhu Limaye (supra).
30. In Ambarish Rangshahi Patnigere and Others Vs. The State of Maharashtra, , a learned Single Judge of the Bombay High Court while dealing with a revision filed against the rejection of the application for police custody reviewed the entire case law on the point and noted that once police remand petition has been dismissed by the Magistrate, again and again it cannot be repeated before the learned Magistrate. Thus, the order rejecting police remand becomes final. Thus, it is a final order and not an interlocutory order.
31. A Division Bench of the Gujarat High Court in Kandhal Sarman Jadeja Vs. State of Gujarat, , specifically gone into the question whether an order refusing to grant police remand is an interlocutory order or intermediate order or a final order. The Division Bench referred to all the prior decisions on the subject. The Division Bench was also of the view that once police remand request is rejected, that subject matter before the Magistrate, namely, police custody is finally disposed of. The Division Bench ruled that an order rejecting request for police custody is a final order, so a revision will lie. We are not to deviate from the Bombay and Gujarat view, because, they are also based on Hon’ble Apex Court’s view. (See Amarnath (supra) and Madhu Limaye (supra).
32. There is one more aspect of the matter. Apart from the revisional power, this Court has got inherent power u/s 482 Cr.P.C. to do justice. It is ‘ex debito justitiae’. In the said decisions, the Hon’ble Apex Court also held that the inherent power u/s 482 Cr.P.C. can also be invoked to challenge the order of the Subordinate Court rejecting police remand.
33. Looking from any angle, I am not accepting the view of the learned Senior Counsel for A-1 that the revision as against the order of the learned Magistrate refusing police custody will not lie.
34. This revision has been preferred not by the State, but by the defacto complainant. A criminal act is a reprehensible act. An offence is committed against a member of the society. The society takes up the case. Society is the State. The actual sufferer is individual. He is the victim of the offence. In fact, he is the aggrieved person (defacto complainant). State launches prosecution as against the wrong doers (de jure complainant) on behalf of the victim. Victim is in the rear side. The State is in the forefront. It is not that the real victim is a forgotten element in the administration of criminal justice. The victim is interested in appropriately punishing the wrong doer. The victim cannot be a silent spectator. He is interested in full fledged, unbiased and fair investigation. Investigation is nothing but collection of evidence. (See Section 2(h) Cr.P.C.). Prosecution employs many tools to collect evidence. There are several methods of investigation. One of them is custodial interrogation. It can be done by obtaining police custody of the accused. In a case, effective investigation may demand custodial interrogation and police has to resort to it by invoking Section 167(2) Cr.P.C.
35. As stated already the victim is not a disinterested person for a successful investigation. When the request for police remand/custodial interrogation is rejected, naturally the victim of the offence will be aggrieved. He will be unhappy. Unhappy person can seek redress. Therefore, when the Magistrate rejects the request for police custody, as an aggrieved person, the victim of the offence, who is the defacto complainant in the case can take next step in the higher forum. Thus, the arguments of the learned Senior Counsel appearing for A-1 that this revision by the defacto complainant cannot be sustained is unsustainable.
36. A-1 took up a stand before the learned Magistrate that he has nothing to offer, he is willing to keep silent, he is constitutionally entitled to do so. (See Article 20(3), Constitution of India) and he is disinterested in going to police custody and already 45 times he has appeared before the Investigation Officer. This was accepted by the learned Magistrate. Again, the above views were projected before us by the learned Senior Counsel appearing for A-1.
37. Any enquiry, investigation conducted prior to the arrest/custody of the accused is not custodial interrogation. Custodial interrogation is a technic. It is intended to elicit certain information, explanation, clarification as to certain grey areas in the case from the accused. Sometimes it is also beneficial to the accused to clear the doubts. It will be more useful to the investigation officer to pursue correct line of investigation and avoid wrong tips, clues obtained in the course of investigation.
38. Article 20(3), Constitution of India incorporates ‘Rule Against Testimonial Compulsion’. Every person including an accused has been guaranteed freedom of speech and expression under Article 19(i)(a) of the Constitution of India. Accused is entitled to keep mum. The said constitutional right is subject to custodial interrogation permitted u/s 167(2) Cr.P.C. But the right guaranteed under Article 20(3) of Constitution of India is subject to Section 167 Cr.P.C. Wilfull refusal to the question posed by the investigation officer is punishable. Mere questioning of an accused by an investigation officer during investigation will not amount to testimonial compulsion. (See Nandini Satpathy Vs. P.L. Dani and Another, . Accused cannot claimA Claim A claim is “factually unsustainable” where it could be said with confidence before trial that the factual basis for the claim is entirely without substance, which can be the case if it were clear beyond question that the facts pleaded are contradicted by all the documents or other material on which it is based. absolute right to keep silence. He is bound to truly answer all the relevant questions put to him. But, he can refuse to answer the questions if answering them is likely to incriminate him, because, there cannot be testimonial compulsion. [ The State of Bombay Vs. Kathi Kalu Oghad and Others, and The Inspector of Police, P. Saravanan, Inspector of Police, Vangal Police Station, Karur District Vs. K.C. Palanisamy Chettiar . Therefore, the refusal of accused to go to police custody cannot be a ground to refuse police remand.
39. As per Section 167(1) Cr.P.C. when the investigation officer could not complete the investigation within 24 hours, he has to seek remand of the accused by producing him before the nearest Magistrate. (See Section 57 of Cr.P.C.). As per Section 167(2) Cr.P.C., initially the Magistrate can remand the accused upto 15 days. It is not necessary that he should remand him for the whole 15 days. As per Section 167(2) Cr.P.C., the Magistrate can also remand the accused to police custody for custodial interrogation. As per Section 167(3) Cr.P.C., while granting police custody, the learned Magistrate should record his reasons for so doing. Police custody should have been asked for or granted within first 15 days period of remand. After the expiry of the said period, namely, first 15 days, there cannot be police remand/custody. Thereafter, only judicial remand/judicial custody.
40. On this aspect, Central Bureau of Investigation, Special Investigation Cell-I, New Delhi Vs. Anupam J. Kulkarni, , is a leading authority. The Hon’ble Apex Court ruled that after the expiry of 15 days initial period of remand, police custody cannot be granted for any reason and if it is for a distinct offence, it would be different. The Hon’ble Apex Court declared the law as it contained in Section 167(2) Cr.P.C.
41. Whenever police remand beyond the expiry of first 15 days was sought for by the police, Courts have negatived it. (See State by Deputy Supdt. of Police, ‘Q’ Branch CID Vs. Sundaramoorthy, ]., K.S. Palanichamy vs. Inspector of Police, Eow-II, Dindigul ( 2012(2) MWN (Cr.) 395) and Kanagaraj vs. Inspector of Police, Kaliyakkavilai Police Station, K.K. Dist. [2013(2) MWN (Cr.) 296 (DB)].
42. Article 21, Constitution of India guarantees that no one shall be deprived of his life and liberty except by procedure established by law. It guarantees personal freedom. It is the darling of the Indian Constitution. It is the bedrock of the civil liberties. It is more than British ‘Magna Carta’ and American ‘Due Process of LawLaw Positive command of sovereign or divine. One can be ruled either by a Statute, a Statue, or a Statement. Legislation is the rule-making process by a political or religious organisation. Physics governs natural law. Logical thinking is a sign of a healthy brain function. Dharma is eternal for Sanatanis.’. The valuable fundamental right guaranteed in Article 21, Constitution of India cannot be allowed to be abridged. If it is to be done, it must be only by a procedure established by law. But, the procedure must be ‘fair, reasonable and equitable’. (See Mrs. Maneka Gandhi Vs. Union of India (UOI) and Another, .
43. Police custody amounts to infringement of right of an individual, more particularly fundamental right guaranteed under Article 21, Constitution of India. (See State Vs. B. Ranganathan and Another, .
44. In D.S.P. ‘Q’ Branch CID, Dharmapuri vs. Sundaramorrthy, [2007(2) MWN (Cr) 414], a Division Bench of this Court held that any application for grant of police custody must be strictly considered on materials as it involves the fundamental right and personal liberty of an individual and the provisions are to be strictly understood and complied with.
45. Thus, there can be police remand only if it is necessary. The Magistrate should be satisfied with the need and necessity for the same by looking into the materials produced, affidavit of the investigation officer and also referring to the case-diary. There shall be no mechanical police remand. No police custody for the mere asking of the police or for their record purpose or for any stage managed show or for giving any legal sanctity or authorisation to any planted recovery.’ (See Section 27 Evidence Act).
46. Police custody must be strictly in accordance with law. There is inbuilt limitation in Section 167(2) Cr.P.C. itself. The Magistrate can exercise his power to grant police remand only before the expiry of the first 15 days of remand. In other words, from the first date of remand before the expiry of 15 days, police custody can be asked for.
47. In this case, A-1 surrendered before the learned XI Metropolitan Magistrate, Saidapet, Chennai on 28.4.2014. On the same day, the investigation Officer filed petition u/s 167(2) of Cr.P.C. seeking 7 days police custody. On the next day, after hearing both sides, the learned Magistrate refused to grant police custody. The State did not take any further action. The defacto complainant filed revision before this Court on 30.4.2014. It was pending before a learned Single Judge. On 3.6.2014, on the orders of the Hon’ble Acting Chief Justice, this revision was allotted to this Court for disposal. By this time, the 15 days period calculated from 28.4.2014 expired on 12.5.2014.
48. The learned Senior Counsel for A-1 submitted that once the said outer limit of 15 days is over, no Court can grant police custody. It is a valuable safety, safeguard provided to the accused u/s 167(2) Cr.P.C. Going beyond the said 15 days will militate against the constitutional guarantee contained in Article 21, Constitution of India.
49. But the learned counsel for the revision petitioner as well as the learned Public Prosecutor would submit that the revision has been filed well before the expiry of the first 15 days of remand, all these days, the revision is pending in this Court and thus the matter is subjudiced. By the act of Court, a party should not suffer. In such circumstances, expiry of 15 days period for grant of police custody prescribed in section 167(2) Cr.P.C. will not apply.
50. In reply, the learned Senior counsel for A-1 submitted that for any reason whatsoever, a Court cannot extend the period prescribed in section 167(2) Cr.P.C. It is the look out of the revision petitioner to see that the matter has been taken up before the expiry of the first 15 days of remand. She should have taken necessary steps. She cannot blame the court. She cannot ask the Court to break the law. There cannot be judicial legislation. Justice should be administered only as provided, prescribed in the statute.
51. In Union of India and others, Vs. Chowgule and Co. Pvt. Ltd., etc. etc., the Hon’ble Supreme Court in clear cut terms declared the law relating to section 167(2) Cr.P.C. specifically with reference to the period within which the Court can grant police remand, namely, before the expiry of the first 15 days of remand. Thereafter, with reference to the same offence, the learned Magistrate has no power to grant police custody. This will be the law applicable to all the courts.
52. In Budh Singh Vs. State of Punjab, accused surrendered before the learned Magistrate on 20.01.1999 and on 2.1.2000, police custody of the accused was sought for. He was remanded. On 4.1.2000, the investigation officer asked for further police remand. The learned Magistrate rejected it. Because by that time, the first 15 days of remand period was over. The State filed revision as against the refusal to grant police custody. It was dismissed on 17.1.2000 by the learned Sessions Judge, Ludhiana. However, a learned Judge of the Punjab & Haryana High Court set aside the order of dismissal passed by the learned Sessions Judge and directed the Magistrate to grant 7 days police custody. This was challenged by the accused before the Hon’ble Supreme Court.
The Hon’ble Apex Court set aside the High Court’s order as under:-
5. In the face of facts, as noticed above, the order of the learned Judicial Magistrate, dated 4.1.2000, in our opinionOpinion A judge's written explanation of a decision of the court. In an appeal, multiple opinions may be written. The court’s ruling comes from a majority of judges and forms the majority opinion. A dissenting opinion disagrees with the majority because of the reasoning and/or the principles of law on which the decision is based. A concurring opinion agrees with the end result of the court but offers further comment possibly because they disagree with how the court reached its conclusion., did not require any interference. The man date of Section 167 Criminal Procedure Code, 1973 postulates that there cannot be any detention in police custody, after the expiry of the first 15 days, so far as an accused is concerned. That period of 15 days had in this case admittedly expired on 4.1.2000. The impugned order of the High Court violates the statutory provisions contained in Section 167 Cr.P.C. Since it authorises police remand for a period of seven days after the expiry of the first fifteen days period. In Central Bureau of Investigation, Special Investigation Cell-I, New Delhi Vs. Anupam J. Kulkarni, this Court considered the ambit and scope of Section 167 Cr.P.C. and held that there cannot be any detention in police custody after the expiry of the first 15 days even in a case where some more offences, either serious or other wise committed by an accused in the same transaction come to light at a later stage. The Bench, however clarified that the bar did not apply if the same arrested accused was involved in some other or different case arising out of a different transaction, in which event the period of remand needs to be considered in respect to each of such cases. The impugned order of the High Court under the circumstances, cannot be sustained. The direction to grant police remand for a period of seven days by the High Court is, accordingly, set aside. The appeal, therefore, succeeds and is allowed to the extent indicated above.’
53. In Devender Kumar and Another etc. Vs. State of Haryana and Others etc., the accused was produced before the learned Judicial Magistrate, Palwal on 8.10.2008. The application for police custody filed by the Assistant Sub Inspector was rejected on 8.10.2008 as it was not filed by the S.I. of Police and the accused was remanded to judicial custody till 22.10.2008. On 9.10.2008, police custody petition filed by the Station House Officer, Hodal was dismissed on 10.10.2008 and the accused was granted bail on the same day. The defacto complainant filed petition in the High Court of Punjab & Haryana for cancellation of the bail and also quash the order dated 10.10.2008 whereunder the request of police remand has been rejected. On 19.3.2010, the High Court set aside the order of the Magistrate and also granted police custody. The accused aggrieved by the said order, appealed to the Hon’ble Supreme Court. It was argued before the Hon’ble Supreme Court that the order of the High Court as against the provisions of Section 167(1) Cr.P.C.
The Hon’ble Apex Court accepted the arguments and held as under:
15. With regard to the second point which was urged by Mr. Luthra, the same was considered in depth and was settled in Union of India and others, Vs. Chowgule and Co. Pvt. Ltd., etc. etc., referred to hereinabove. What is clear is the fact that police remand can only be made during the first period of remand after arrest and production before the Magistrate, but not after the expiry of the said period.
54. In Inspector of Police, Town Police Station, Karaikkal vs. R. Vaithyanathan Iyappan Govindaraj (2013(3) MWN (Cr.) 473), it was held that police custody cannot be granted under any circumstances beyond the first remand period of 15 days.
55. It is incumbent upon the party approaching this court by taking necessary steps for the disposal of the revision before the expiry of the first 15 days period of remand. This has not been done in this case. On account of that the court cannot overstep the mandate prescribed in section 167(2) Cr.P.C.
56. It has been contended by the learned counsel for the petitioner that in the interest of investigation as and when required, custodial interrogation could be considered and for doing justice section 167(2) Cr.P.C. cannot stand in the way.
57. In the presence of Article 21, Constitution of India guaranteeing personal freedom and deprivation of a person’s personal liberty only by a procedure established by law, namely, section 167(2) Cr.P.C. prescribing first 15 days period this argument of the learned counsel for the revision petitioner cannot be accepted and it will also be an affront to constitutional mandate, statutory prohibition and human right of the accused.
58. Now, in this case, A-1 has surrendered before the learned XI Metropolitan Magistrate, Saidapet, Chennai on 28.4.2014. The police custody petition was filed on the same day. It was dismissed by the learned Magistrate on 29.4.2014. Thereafter, revision has been filed before this court on 30.4.2014. The 15 days initial period prescribed in Section 167(2) Cr.P.C. was already over. In the circumstances, question of granting police custody will not arise. In such view of the matter, consideration of the merit aspect as to whether police custody could be granted has become unnecessary.
59. In view of the foregoings, this revision petition is dismissed.
(2014) 2 LW(Cri) 120 : (2014) 3 MLJ(Criminal) 108 : (2014) 21 RCR(Criminal) 50
Cases Referred
State Vs. B. Ranganathan and Another, (2012) MLJ(Cri) 567
The Inspector of Police, P. Saravanan, Inspector of Police, Vangal Police Station, Karur District Vs. K.C. Palanisamy Chettiar
State by Deputy Supdt. of Police, ‘Q’ Branch CID Vs. Sundaramoorthy, (2008) CriLJ 898
State Rep. by the C.B.I. Vs. Anil Sharma, AIR 1997 SC 3806 : (1997) CriLJ 4414 : (1997) 3 Crimes 252 : (1997) 3 CTC 60 : (1997) 7 JT 651 : (1997) 5 SCALE 689 : (1997) 7 SCC 187 : (1997) 3 SCR 737 Supp : (1997) AIRSCW 3722 : (1997) 7 Supreme 670
Budh Singh Vs. State of Punjab, (2001) CriLJ 2942 : (2000) 8 JT 511 : (2000) 9 SCC 266
Japani Sahoo Vs. Chandra Sekhar Mohanty, AIR 2007 SC 2762 : (2007) CriLJ 4068 : (2007) 4 CTC 740 : (2007) 9 JT 471 : (2007) 9 SCALE 400 : (2007) 8 SCR 582 : (2007) 2 UJ 941 : (2007) AIRSCW 4998 : (2007) 5 Supreme 604
Ram Jethmalani and Others Vs. Union of India (UOI) and Others, (2011) 10 SCALE 753 : (2011) 9 SCC 751 : (2011) 11 SCR 63 : (2011) 202 TAXMAN 115
Union of India and others, Vs. Chowgule and Co. Pvt. Ltd., etc. etc., AIR 1992 SC 1376 : (1992) 3 JT 169 : (1992) 1 SCALE 989 : (1992) 3 SCC 141 Supp : (1992) 2 SCR 992 : (1992) 2 UJ 370
Lingala Vijay Kumar and Others Vs. The Public Prosecutor, AIR 1978 SC 1485 : (1978) CriLJ 1527 : (1978) 4 SCC 196 : (1978) SCC(Cri) 579 : (1979) 1 SCR 2 : (1978) 10 UJ 788
Assistant Director, Direct of Enforcement Vs. Hassan Ali Khan, (2011) 4 SCALE 53 : (2011) 12 SCC 682
Central Bureau of Investigation, Special Investigation Cell-I, New Delhi Vs. Anupam J. Kulkarni, AIR 1992 SC 1768 : (1992) CriLJ 2768 : (1992) 2 Crimes 310 : (1992) 3 JT 366 : (1992) 1 SCALE 1024 : (1992) 3 SCC 141 : (1992) 3 SCR 158
Nadir Khan Vs. The State (Delhi Administration), AIR 1976 SC 2205 : (1976) CriLJ 1721 : (1975) 2 SCC 406 : (1975) SCR 489 Supp : (1975) 7 UJ 549
Dinubhai Boghabhai Solanki Vs. State of Gujarat and Others, (2014) AIRSCW 1722 : (2014) CriLJ 1886 : (2014) 3 JT 313 : (2014) 2 RCR(Criminal) 19 : (2014) 2 SCALE 629 : (2014) 4 SCC 626
The State of Bombay Vs. Kathi Kalu Oghad and Others, AIR 1961 SC 1808 : (1961) CriLJ 856 : (1962) 3 SCR 10
Mrs. Maneka Gandhi Vs. Union of India (UOI) and Another, AIR 1978 SC 597 : (1978) 1 SCC 248 : (1978) 2 SCR 621
Madhu Limaye Vs. The State of Maharashtra, AIR 1978 SC 47 : (1978) CriLJ 165 : (1977) 4 SCC 551 : (1978) SCC(Cri) 10 : (1978) 1 SCR 749 : (1977) 9 UJ 733
Amar Nath and Others Vs. State of Haryana and Another, AIR 1977 SC 2185 : (1977) CriLJ 1891 : (1977) 79 PLR 695 : (1977) 4 SCC 137 : (1978) 1 SCR 222
Nandini Satpathy Vs. P.L. Dani and Another, AIR 1978 SC 1025 : (1978) CriLJ 968 : (1978) 2 SCC 424 : (1978) SCC(Cri) 236 : (1978) 3 SCR 608
State Rep. by Inspector of Police and Others Vs. N.M.T. Joy Immaculate, AIR 2004 SC 2282 : (2004) CriLJ 2515 : (2004) 3 CTC 138 : (2004) 5 SCALE 330 : (2004) 5 SCC 729 : (2004) 3 SCR 71 Supp : (2004) AIRSCW 2828 : (2004) 4 Supreme 460
Raj Kapoor and Others Vs. State and Others, AIR 1980 SC 258 : (1980) CriLJ 202 : (1980) 1 SCC 43 : (1980) SCC(Cri) 72 : (1980) 1 SCR 1081
Devender Kumar and Another etc. Vs. State of Haryana and Others etc., (2010) CriLJ 3849 : (2010) 2 DMC 224 : (2010) 4 JT 595 : (2010) 5 SCALE 325 : (2010) 6 SCC 753
Ambarish Rangshahi Patnigere and Others Vs. The State of Maharashtra, (2010) 112 BOMLR 3144 : (2011) CriLJ 515 : (2012) 1 MhLj 900
Miss R. Shakuntala Vs. Roshanlal Agarwal and others
Kandhal Sarman Jadeja Vs. State of Gujarat, (2012) CriLJ 4165 : (2012) 2 GLH 678 : (2012) 2 GLR 1656
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