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1989 DIGILAW 575 (ALL)

NARAIN PASI v. STATE OF U. P

1989-07-26

A.N.VERMA, G.MALVIYA

body1989
A. N. VARMA, J. ( 1 ) THIS application under S. 482, Cr. P. C. has been referred to a larger Bench by a learned single Judge at the stage of admission on the ground that there was an apparent conflict of views in regard to the question which shall be elaborated presently. The two decisions which have led to the reference are reported in 1982 UP Cri R 259 : 1981 Lucknow LJ III Tej Babu Singh v. State and 1983 All Cri C 9, (Bhole v. State ). ( 2 ) THE application is directed against the order dated 6-4-1989 passed by the Chief Judicial Magistrate, Mirzapur remanding the applicants to the custody of the police under S. 167 (2), Cr. P. C. subject to the following safeguards :i) The applicants shall be medically examined before being remanded to the police custody and immediately after their return from such custody to judicial custody. (ii) During their custody the police shall not adopt any third degree methods, whether physical or mental, nor shall the police inflict any injury or treat the applicants inhumanly during their custody with the police, and (iii) The Senior Superintendent of Police shall ensure that these safeguards are duly carried out by the police. ( 3 ) THE relevant facts are that the applicants are accused in Crime No. 14 of 1989 under S. 302, I. P. C. The incident is said to have taken place on 9-1-1989. An F. I. R. was lodged in connection therewith and the applicants were named therein. In connection with a case under S. 60 Excise Act the applicants were arrested on 17-1-1989 and lodged in the District Jail, Ghazipur. In pursuance of a b warrant issued by the Chief Judicial Magistrate, Mirzapur on 7-2-89 to the District Jail, Ghazipur, the applicants were forwarded to Jail at Mirzapur where they are lodged since. On 5-4-1989 the Station Officer, Kotwali (Dehat), Mirzapur, made an application before the Chief Judicial Magistrate, Mirzapur for granting three days remand in police custody to facilitate the recovery of a gun and a katta stated to have been used in the commission of the offence under S. 302, I. P. C. The applicants filed an objection against that application stating that they were not willing to furnish any evidence of recovery or discovery of any gun or katta. The Chief Judicial Magistrate considered the application as well as the entries in the case diary and thereupon passed the impugned order remanding the applicants to the police custody. The court observed that from a perusal of the case diary it was established that the applicants had clearly admitted before the investigating officer that they could help in the recovery of the katta and the gun used in the commission of the offence. The katta and the gun constitute a vital piece of evidence in the case and there appeared to be a strong possibility of the recovery of the same. On these findings the Chief Judicial Magistrate passed the impugned order. ( 4 ) CHALLENGING the impugned order, Sri Virendra Saran, learned counsel for the applicants, submitted on the authority of the case of Tej Babu Singh (1982 Cri LJ NOC 43) (All) (supra) that once the accused takes the stand that he does not want to point out any material allegedly used in the commission of the crime the Magistrate cannot remand the accused to the police custody. ( 5 ) THE contention stands fully answered against the applicants by a Division Bench decision of this court in the case of Suresh v. The State reported in 1984 Lucknow LJ 105 which is directly in point. In the case of Suresh and others also, the applicant accused of an offence under Sections 302/394, I. P. C. had been arrested and they had, in the course of investigation and interrogation, volunteered to point out the incrimining articles consisting of gun, cartridge licence and a coat, but subsequently they changed their mind and took the stand before the Magistrate that they were not going to make any disclosures about the looted property. ( 6 ) THE Division Bench considered the case of Tej Babu Singh, (1982 Cri LJ NOC 43) (All) as well as Bhole v. State (1982 All LJ 1520) (supra) and, on an analysis of the law on the subject, ruled that if the applicants had volunteered to point out certain incrimining articles during the investigation and interrogation the police while in their custody, the investigation should be given a fair chance to see if what they had stated materializes. The case of Tej Babu Singh (supra) was distinguished because besides the statement made in the court indicating that they were not prepared to make any statement regarding the incriminating articles, there was no material to indicate if they were prepared to help the recovery of the incriminating articles before the investigating officer. It is apparent that the Division Bench was not prepared to accept the proposition enunciated in Tej Babu Singhs case, namely, that once the accused states before the Magistrate upon being forwarded before him under S. 167 (1), Cr. P. C. that he does not propose to point out to the police any article stated to have been used in the commission of the offence, that Magistrate automatically stands stripped of the power expressly vested in him under Sub-Sec. (2) of S. 167 authorising the detention of the accused for a period not exceeding 15 days. The learned Judges expressed the view that in considering the legality of the orders passed by the Magistrate under S. 167 (2), each case shall have to be decided on its own facts and merits, the basic enquiry to be undertaken under that provision would be whether there are sufficient grounds justifying remanding the accused to the custody of the police. The Bench considered the statement made by the accused in the course of investigation while in custody of the police and the fact that they were willing to help the police in the recovery of the incriminating articles stated to have been used in the commission of the offence as sufficient ground for justifying the grant of remand prayed for by the investigating officer. ( 7 ) WITH respect, we entirely agree with the dictum of the Division Bench in the case of Suresh (1984 Lucknow LJ 105) (supra ). The Division Bench rightly observed that each case will have to be decided on its own facts and merits. In our opinion, no straight jacket formula can be laid down for determining whether there exists sufficient ground for authorising the detention of the accused beyond 24 hours. If the applicants volunteer to point out the incriminating articles stated to have been used in the commission of the crime before the investigating officer and, if such statements exist in the case diary, the same can be taken into consideration by the Magistrate while exercising powers under S. 167 (2), Cr. If the applicants volunteer to point out the incriminating articles stated to have been used in the commission of the crime before the investigating officer and, if such statements exist in the case diary, the same can be taken into consideration by the Magistrate while exercising powers under S. 167 (2), Cr. P. C. of Course, while granting the request for remanding the applicants to the police custody, the Magistrate may make the remand subject to certain safeguards such as have been prescribed in the present case so that the power of investigation is not misused by the police by exercising third degree methods against the applicants. ( 8 ) WE are fortified in the view that we are taking, namely, that the entries in the case diary can constitute relevant material for the exercise of power by Magistrate by the provisions of Sub-Sec. (1) of Section 167, Cr. P. C. which obliges the investigating officer to transmit forthwith to the nearest Judicial Magistrate a copy of the entries in the Case Diary. The mere fact, therefore, that the accused upon being forwarded to the Magistrate under Sub-Sec. (2) of S. 167, Cr. P. C. choose to take the stand that they do not desire to point out any incriminating article or are not willing to help the police in the recovery of such articles does not ipso facto deprive the Magistrate of his power to consider the propriety of granting remand of the accused to the police custody. For, there may be a whole range of facts existing on the record to justify granting the request of the investigating officer for police custody under S. 167 (2), Cr. P. C. where such an order seems necessary for proper and effective investigation of the crime. In Tej Babu Singhs case (1982 Cri LJ NOC 43) (All) (supra) learned single Judge himself conceded :"+there is no specific provision in the Code of Criminal Procedure laying down that once an accused person has been remanded to judicial custody he cannot thereafter be transferred to police custody. In Tej Babu Singhs case (1982 Cri LJ NOC 43) (All) (supra) learned single Judge himself conceded :"+there is no specific provision in the Code of Criminal Procedure laying down that once an accused person has been remanded to judicial custody he cannot thereafter be transferred to police custody. There is also no specific provision to the effect that once an accused person has made a statement that he is not connected with the crime in question and that he has no knowledge of the weapon or weapons used in the commission of the crime or that he does not want to make any statement with regard to the alleged weapon he cannot be remanded to police custody. "the learned single Judge also conceded that the Magistrate is authorised under S. 167 (2) to grant remand for a limited purpose such as the necessity of the case might require. He, however, placed reliance on Cl. (3) of Art. 20 of the Constitution in support of the view that once the accused indicates that he does not want to point out or identify any weapon allegedly used in the commission of the offence, the power of the Magistrate under Sub-Sec. (2) of S. 167 is lost. The learned Judge was of the opinion that where the accused takes such a stand before the Magistrate, the grant of remand to the custody of police under S. 167 (2) shall amount to the accused being compelled to be a witness against himself within the meaning of Cl. (3) of Art. 20 of the Constitution of India. ( 9 ) WE do not think the learned Judge is right there. Clause (3) of Art. 20 shall be attracted only where a person accused of an offence is compelled to be a witness against himself. Where, however, the accused volunteers without being subjected to duress, to point out incriminating articles, there would be, in our opinion, no breach of Cl. (3) of Art. 20, if the investigating officer is given a chance to recover such articles as a result of investigation carried out on the basis of information so supplied by the accused. Where, however, the accused volunteers without being subjected to duress, to point out incriminating articles, there would be, in our opinion, no breach of Cl. (3) of Art. 20, if the investigating officer is given a chance to recover such articles as a result of investigation carried out on the basis of information so supplied by the accused. We are fortified here by a decision of the Supreme Court in the Case of the State of Bombay v. Kathikalu Ogaih, AIR 1961 SC 1808 in which their Lordships have ruled that S. 27 of the Evidence Act does not infringe Art. 20 (3) if the self-incriminatory information is given by the accused without compulsion. The consistent view of the Supreme Court as expressed in numerous decisions right from the case of Kathikalu (supra) is that if so compulsion is used, a statement leading to the discovery of incriminating articles would be admissible under S. 27 of the Evidence Act. In the same case it has also been held that the mere fact that the accused was at the time in the custody of the police does not constitute duress so as to exclude the information from the evidence. ( 10 ) THAT being the legal position, the Magistrate can, in our opinion, legitimately rely in the entries in the Case Diary disclosing that the accused had volunteered to point out incriminating articles for considering the request of the police for remand of the accused to their custody to enable it to recover the articles, provided, of course, necessary safeguards such as have been laid down in the present case are incorporated in the order to guarantee that the police shall not use any threat or coercion or any other kind of duress, whether mental or physical, against the accused while he is in their custody. ( 11 ) WE think the learned single Judge has stated the law in Tej Babu Singhs case (1982 Cri LJ NOC 43) (All) (supra) much too broadly to persuade us to concur with him when he observed, as a matter of law, that once the accused takes up the stand before the Magistrate that he does not propose to point out the recovery of the incriminating articles, the Magistrate stands automatically deprived of his jurisdiction under S. 167 (2) to authorise the continued detention of the accused notwithstanding that the accused may have earlier in the course of investigation or interrogation volunteered to assist the police in the recovery of such articles, with respect, we fully endorse the opinion of the learned Judge deciding the case of Suresh (1984 Lucknow LJ 105) (supra) that each case shall have to be judged on its own facts and circumstances and consequently the incriminatory information already supplied by the accused in the course of investigation or interrogation cannot be totally ignored merely because the accused retracts before the Magistrate and takes up the stand that he does not desire to point out any incriminatory articles. In our considered view, there is no conflict between Cl. (3) of Art. 20 and. legitimate exercise of power under S. 167 (2), Cr. P. C. or S. 27 of the Evidence Act. The correct approach, in our opinion, is that recommended by the Division Bench in the case of Suresh (supra), namely, the facts of each case shall have to be examined for considering whether the request of the investigating officer should be granted under S. 167 (2), Cr. P. C. No cut and dry formula can, therefore, be prescribed in such cases. ( 12 ) IT is in the light of these legal premises that the correctness of the impugned order shall have to be examined. In the present case, it is not disputed that the Case Diary indicated that the applicants had volunteered to point out to the police the gun and the katta stated to have been used in the commission of the offence. The Magistrate had perused the Case Diary and rightly felt that it was a case in which the police should be given a fair chance to recover the articles which would constitute a vital piece of evidence in the case. The Magistrate had perused the Case Diary and rightly felt that it was a case in which the police should be given a fair chance to recover the articles which would constitute a vital piece of evidence in the case. The Magistrate was not unaware of the stand taken by the accused before him. However, in the totality of facts and circumstances the Magistrate concluded that the request of the police may be granted but subject to certain safeguards. The safeguards laid down in the impugned order are, in our opinion, for the present, sufficient to guarantee that the accused shall not be subjected to any kind of duress whatever, whether mental or physical, while they are in the custody of the police. The mandate of Cl. (3) of Art. 20 of the Constitution is thus fully taken care of by these safeguards. The impugned order is hence liable to be sustained. ( 13 ) BEFORE concluding, we may briefly notice a preliminary objection raised by Sri G. Bhatt, the learned Government Advocate, based on the Full Bench decision of this Court in the case of Ramlal Yadav v. State (Criminal Misc. Appln. No. 5939 of 1988 decided on February 1, 1989 : (reported in 1959 Cri LJ 1013 ). The objection was that S. 482 is not available as the reliefs claimed in the application, if granted, shall have the effect of interfering with the investigation. Upon this objection being raised, the learned counsel for the applicants, made an oral prayer for conversion of this application into a writ petition under Art. 226 of the Constitution of India and supplied the necessary Court fee. The prayer was granted. ( 14 ) IN the result, the petition fails and is dismissed. The interim orders granted by this Court are hereby discharged. Petition dismissed. .