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Andhra High Court · body

2000 DIGILAW 130 (AP)

Md. Jahangeer v. State of A. P.

2000-02-23

K.B.Siddappa

body2000
ORDER In this case, the accused surrendered on 31-1-2000. The learned Public Prosecutor states that the police was not aware of his surrender. They carne to know this fact only on 3-2-2000. Immediately, the first application for police custody was filed on 4-2-2000. The Court gave time to file counter till 5-2-2000. The order was passed on the very same day ordering the accused to police custody from 9-2-2000 to 12-2-2000. This order was challenged by way of lunch motion before this Court on 8-2-2000. 2. The proceedings were quashed with the observation that police can move the Court below, after giving reasons. And the same was communicated. According to the Public Prosecutor, this order was received on 14-2-2000. On the same day, the second application was filed seeking police custody. The Court, again gave time till 16-2-2000 for filing counter. After hearing both sides, the order was passed on 18-2-2000 giving the accused to police custody from 23-2-2000 to 25-2-2000. This order is challenged in this petition. 3. Learned Counsel appearing for the petitioner submitted that the accused surrendered on 31-1-2000 and the first 15 days expired by 14-2-2000. Now, on the second application, the order passed thereon is dated 18-2-2000 giving police custody from 23-2-2000. Therefore, the order was passed after expiry of the first 15 days from the date of surrender. Learned Counsel further submitted that even assuming that the police carne to know about the surrender on 3-2-2000, even then the second order is beyond the initial 15 days. It any view of the matter, the period of police custody from 23-2-2000 to 25-2-2000 is certainly beyond the initial 15 days. Such custody cannot be given and it is opposed to the provisions u/s 167, Cr. P.C. 4. In support of his contention, he relied upon a judgment of the Supreme Court reported in Central Bureau of Investigation, New Delhi vs. Anupam J. Kulkarni 1992 Crl. L.J. 2768. In this case, it was held that the police custody, after expiry of 15 days, cannot be permitted unless the accused was also involved in another independent case, where police could seek further police custody within the first initial days of the arrest or surrender in that case. L.J. 2768. In this case, it was held that the police custody, after expiry of 15 days, cannot be permitted unless the accused was also involved in another independent case, where police could seek further police custody within the first initial days of the arrest or surrender in that case. Relying upon this judgment of the Supreme Court, the single Judge of this Court in Public Prosecutor vs. J.C. Narayana Reddy and others 1995 (2) ALT (Crl.) 697 (A.P.) = 1996 (2) ALD 598 held that even in a case where the accused himself surrendered before the Magistrate, he cannot be given police custody after expiry of the first 15 days from the date of surrender. The Magistrate can give police custody only within the initial period of 15 days and that no distinction could be made in case where the accused surrendered or where he is arrested by police. In this case, it was specifically held with regard to the order passed beyond 15 days on an application filed within the initial 15 days, as follows: "In the present case, the respondent surrendered before the Court on 3-4-95. The police applied for their custody on - the same day by filing impugned application. For some reason or the other, no orders could be passed within fifteen days from the date of the surrender and the impugned order was passed on 21-4-95. It is thus, clear that the first fifteen days have been expired by the date of the order i.e., 21-4-95. The Magistrate, therefore, rightly held that the police custody could not be granted after expiry of the first fifteen days of the surrender of the respondents". 5. Reliance was also placed on the judgment of the Delhi High Court reported in State vs. Dharam Pal and others 1982 (1) Crl. L.J. 1103 in this case, it was held that during the 15 days mentioned in Section 167 (2), Cr. P.C., the Magistrate can alter judicial custody to police custody and vice versa and it is held that after the expiry of the first period of 15 days, the accused can only be kept in judicial custody or any other custody ordered by the Magistrate, but not in police custody. 6. That is the position of law on this aspect. 7. 6. That is the position of law on this aspect. 7. In this case, the second application was filed on 14-2-2000 and the order was passed on 18-2-2000 giving the police custody from 23-2-2000. Certainly, these dates are beyond the initial period of 15 days. No police custody can be given. The order is set aside and the revision is allowed.