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2001 DIGILAW 1605 (AP)

TUPAKULA APPA RAO v. State Of A. P.

2001-12-10

T.CH.SURYA RAO

body2001
T. SURYA RAO, J. ( 1 ) IN as much as the petitioner is the same and as common questions of law are involved, all these petitions can be disposed of together. ( 2 ) THE factual matrix may be set forth thus: The petitioner has been working as the Secretary in Primary Agricultural co-operative Credit Society of Nidamanuru. The said Society falls within the jurisdiction of Kumool District Central Co-operative bank, Suryaraopet Branch. The Circle supervisor of the said Bank reported misappropriation of the Bank funds in primary Agricultural Co-operative Credit society of Nidamanuru. Basing on his report, the Branch Manager of Suryaraopet branch of the Kurnool District Central co-operative Bank lodged a report with the Police alleging misappropriation of funds of the Society to the tune of Rs. 14 lakhs, whereon, as many as four crimes have been registered against the petitioner and others by Patamata Law and Order Police Station, vijayawada in Crime Nos. 434 to 437 of 2001 under Sections 408, 468, 476 and 420 of the Indian Penal Code and under section 3 of APP DFE Act of 1999. The investigation has been in progress. The petitioner was arrested on 30. 10. 2001 in connection with the Crime No. 436 of 2001 and was remanded to judicial custody. He filed Crl. M. P. No. 1266 of 2000 seeking bail and he was granted bail in that case. The petitioner apprehending arrest in other three crimes has not produced the sureties although bail has been granted to him. The petitioner, therefore, filed these petitions seeking anticipatory bail in connection with the remaining crimes. He pleads that he is innocent and has been falsely implicated although the receipts in these cases have been given by the President of the Society. ( 3 ) IT has been contended before me that the petitioner has not been arrested in connection with the left out three crimes purposefully with an intention to see that he is arrested again the moment he is released pursuant to the bail granted to him in Crime No. 436 of 2001 and likewise one after another in the other crimes so as to see that the petitioner continues to be in jail. ( 4 ) A question has arisen during the course of the arguments in these petitions as to whether the petitioner is deemed to have been in custody in other crimes also although there has been no formal arrest in connection with those crimes. ( 5 ) THE problem might arise time and again where series of crimes are registered against a person and he is arrested only in connection with one of those crimes without showing any formal arrest in connection with the other crimes. In view of the importance of the question that has arisen in these cases, Sri C. Padamanabha Reddy, learned senior Counsel, has been requested to assist the Court and on his consent he has been appointed as amicus curiae. While expressing grateful thanks to him this Court records with appreciation the able assistance rendered by the learned senior Counsel. ( 6 ) THE learned senior Counsel contends that inasmuch as the petitioner is the accused in all the four crimes arising out of the same Police Station and pertains to the same Bank whereat he has been working, the custody of the petitioner in connection with one case can be construed as having been in custody in connection with the remaining cases. In this connection, the learned senior Counsel invited my attention to Sections 437 and 439 of the code of Criminal Procedure ( the Code for brevity ). While in sub-section (1) of section 437 of the Code it is said that when any person accused of, or suspected of the commission of any non-bailable offence is arrested or detained without warrant by the an officer in charge of a police station or appears or is brought before a Court he may be released on bail; in sub-section (1) Section 439 of the Code it is said that any person accused of an offence and in custody be released on bail. The conspicuous absence of the expression "is arrested or detained without warrant or appears or is brought before a Court" in section 439 and specific mention of the word "custody" are indicative, according to the learned senior counsel, that one need not be arrested and produced before the Court to be in custody. The conspicuous absence of the expression "is arrested or detained without warrant or appears or is brought before a Court" in section 439 and specific mention of the word "custody" are indicative, according to the learned senior counsel, that one need not be arrested and produced before the Court to be in custody. Even otherwise, the learned senior Counsel while seeking to place reliance upon a Judgement of the Apex court in AMMAVASI AND ANOTHER v. INSPECTOR OF POLICE, VALLIYANUR and OTHERS, 2000 (4) Crimes 71 (SC), contends that such a construction can be made in the interests of administration of justice. In the above referred case, the first appellant was convicted in four different cases under Section 395 of the Indian Penal Code and in each case he was sentenced to undergo rigorous imprisomnent for seven years; and the second appellant was convicted in five different cases under Section 395 of the Indian Penal code and he too was sentenced to undergo rigorous imprisonment for a period of seven years in each case. If the benefit under Section 427 of the Code is not given, the first appeal may have to undergo 28 years of jail term and the, second appellant may have to undergo 35 years of jail term. On the other hand, if the benefit under section 427 is extended to them, they would come out of the jail after serving only seven years of jail term awarded in one case each. Under such circumstances, the Supreme Court adopted a via media procedure and directed the appeal to undergo a total period of 14 years each in respect of all the convictions, which course according to the Supreme Court is consistent with the administration of justice. The above judgment of the Apex Court cannot buttress the view that the custody of the petitioner in connection with one case can be treated as custody in connection with the remaining three cases. ( 7 ) IT is pertinent at the outset to note the connotation of the expression custody for an effective adjudication of the matter. The Apex Court in NIRANJAN SINGH v. PRABHAKAR, AIR 1980 SC 785 , had an occasion to consider the meaning of the term "custody" appearing in Section 439 of the Code. In paras 8 and 9 of its Judgement, the Apex Court held thus:"8. The Apex Court in NIRANJAN SINGH v. PRABHAKAR, AIR 1980 SC 785 , had an occasion to consider the meaning of the term "custody" appearing in Section 439 of the Code. In paras 8 and 9 of its Judgement, the Apex Court held thus:"8. Custody, in the context of Section 439, (we are not, be it noted, dealing with anticipatory bail under Section 438) is physical control or at least physical presence of the accused in court coupled with submission to the jurisdiction and orders of the Court. 9. He can be in custody not merely when the police arrests him, produces him before a magistrate and gets a remand to judicial or other custody. He can be stated to be in judicial custody when he surrenders before the court and submits to its directions. "the Apex Court further held that no person accused of an offence could move the Court for bail under Section 439 of the Code unless he is in custody. ( 8 ) IN STATE v. DAWOOD IBRAHIM KASKAR, AIR 1997 SC 2494 , the Apex Court considered the meaning of the words "accused if in custody" appearing in Section 309 (2) and Section 167 of Code. In para 10 of its Judgement, the Apex Court held thus:"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 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. " ( 9 ) IT is obvious from the above Judgements of the Apex Court that one need not be arrested and produced before the Court for the purpose of remand to the judicial custody of the Court. " ( 9 ) IT is obvious from the above Judgements of the Apex Court that one need not be arrested and produced before the Court for the purpose of remand to the judicial custody of the Court. He can be stated to be in judicial custody when he surrenders before the Court and submits to its directions. However his physical control or at least physical presence coupled with submission to the jurisdiction and orders of the Court is a sine qua non. Be it on the production by the investigating agency or on the own volition of the accused surrendering himself to the custody of the Court, unless one is in the custody, his request for bail cannot be considered in terms of Section 439 of the Code. ( 10 ) IN the instant cases the petitioner had been arrested in connection with only one crime and sent to judicial remand. His arrest has not been shown in the other crimes either purposefully or negligently or otherwise. Therefore he cannot surrender himself before the Court; inasmuch as his physical presence is necessary, unless he is produced before the Court. In such circumstances can his custody in one crime be deemed to be in custody in other crimes also is the moot question? ( 11 ) THE Apex Court in GOVERNMENT OF ANDHRA PRADESH v. A. V. RAO, AIR 1977 SC 1096 , held in para 8 thus:"in A. V. Rao s case (W. P. 1865/76), he was already in detention under the Preventive detention Act when the First Information report was lodged on December 18, 1969 in connection with the sessions cases. Some of the co-accused in these cases were arrested and produced before the Magistrate for remand on December 19, 1969, but Rao was produced before the Magistrate sometime in April, 1970 after he was released from preventive detention. It was argued that he also could have been produced before the Magistrate for remand on december 19, 1970. On behalf of the respondent, State of Andhra Pradesh, it was contended that as Rao was already in detention under the Preventive Detention act, it was not possible to produce him before the Magistrate for remand until the period of preventive detention was over. We do not find any justification in law for the position taken up by the State. On behalf of the respondent, State of Andhra Pradesh, it was contended that as Rao was already in detention under the Preventive Detention act, it was not possible to produce him before the Magistrate for remand until the period of preventive detention was over. We do not find any justification in law for the position taken up by the State. Rao being already in custody, the authorities could have easily produced him before the Magistrate when the First Information Report was lodged. Nothing has been pointed out to us either in the preventive detention law or the code of Criminal Procedure, which can be said to be a bar to such a course. That being so we think that the claim that the entire period from December 19, 1969, when many of the co-accused were produced before the Magistrate to April 18, 1970 should be treated as part of the period during which rao was under detention as an under trial prisoner, must be accepted as valid. A. V. Rao s appeal No. 484 of 1976 is allowed to this extent. "it was argued on behalf of the respondent therein that had he been free at the time when the First Information Report was lodged on 18. 12. 1969 he would have surrendered immediately and would have been produced before the Court for remand on the next day as some of the accused had been. It was submitted that if the concerned authority who could but did not take immediate and necessary steps to produce the petitioner before the Magistrate, the petitioner should not be made to suffer. This contention was upheld by the Apex court. ( 12 ) FOLLOWING the said Judgement, a Full Bench of the Allahabad High Court in shabbu v. STATE OF U. P, 1982 Crl. LJ 1757, held thus:"whether or not the detention of a person in one case should also be treated to tie his detention for the purpose of any other case, wherein he is wanted, is a question to be decided upon the facts and circumstances of each case. LJ 1757, held thus:"whether or not the detention of a person in one case should also be treated to tie his detention for the purpose of any other case, wherein he is wanted, is a question to be decided upon the facts and circumstances of each case. No set formula can be laid down in that behalf If the facts and circumstances of a particular case indicate that a person already detained in one case was also subsequently wanted in another case and he was not formally detained in that other case on account of the negligence of the concerned authorities, and for no fault of his, he can, with all justification, claim that his detention in the earlier case should also be deemed to be his detention for the purposes of the second case. In that event the benefit of Section 428 Cr. PC, can be extended to him. " ( 13 ) VERY recently the Apex Court in STATE OF MAHARASHTRA v. NAJAKAT ALIA MUBARAK ALI, (2001) 6 SCC 311 , dealing with the provisions of section 428 of the Code and while dissenting from the view expressed by that Court in raghb1r SINGH v. STATE OF haryana, (1984) 4 SCC 348 , held in para 18 thus:"reading Section 428 of the Code in the above perspective, the words "of the same case" are not to be understood as suggesting that the set-off is allowable only if the earlier jail life was undergone by him exclusively for the case in which the sentence is imposed. The period during which the accused in prison subsequent to the inception of particular case, should be credited towards the period of imprisonment awarded as sentence in that particular case. It is immaterial that the prisoner was undergoing sentence of imprisonment in another case also during the said period. The words " of the same case" were used to refer to the presentence period of detention undergone by him. Nothing more can be made out of the collocation of those words. "that was a case where the accused was arrested on 21. 09. 1995 in connection with sc Nos. 230 of 1995 and 313 of 1996. The former case ended in conviction on 03. 04. 1998 and the latter case ended in conviction on 23. 07. 1998 by which time he was serving a substantive sentence from 03. 04. 1998 onwards. "that was a case where the accused was arrested on 21. 09. 1995 in connection with sc Nos. 230 of 1995 and 313 of 1996. The former case ended in conviction on 03. 04. 1998 and the latter case ended in conviction on 23. 07. 1998 by which time he was serving a substantive sentence from 03. 04. 1998 onwards. By a majority it was held that he is entitled to set-off in the second case also. In the dissenting judgment it was held that the Section does not contemplate the benefit of set- off of the period of detention during investigation, enquiry or trial in any other case. ( 14 ) IN the dissenting judgment in para 40 it was held thus:"the fallout of the interpretation giving the benefit of detention during investigation, enquiry and trial in one case, in the other case, may also tempt the investigating agencies not to arrest the accused for the commission of the second offence pending conclusion of the trial and passing of sentence in the first case. "therefore the benefit under Section 428 of the Code cannot be extended to the second case as it amounts to double benefit is the dissenting view. Obviously, in that case the respondent was arrested in connection with both the cases on the same day. What happens when the accused have been involved in series of offences and have been arrested only in connection with one case and not in the other cases in the series, has not fallen for consideration in that case. ( 15 ) IN the cases referred to supra the provisions of the Section 428 of the code have come to be interpreted for the purpose of giving set-off. Nonetheless, the expression "custody" cannot, in my considered view, have a different connotation than what has been expressed by the apex Court and Allahabad High Court in the above judgments, when it falls for consideration for the purpose of Section 439 of the Code. There is no reason as to why it cannot be considered so for the purpose of Section 439 of the Code also. ( 16 ) IF the arrest is shown in all the cases, simultaneously there is no difficulty he can be said to be in custody in each of those cases. There is no reason as to why it cannot be considered so for the purpose of Section 439 of the Code also. ( 16 ) IF the arrest is shown in all the cases, simultaneously there is no difficulty he can be said to be in custody in each of those cases. If for any reason his arrest is limited to one case like in the instant cases it is not as though he is remedy less. The fall out of the above discussion is that whether or not the custody of a person in one case should also be treated as custody in other cases wherein he is wanted is a question of fact and is to be decided with reference to facts and circumstances of each case. If the facts indicate that a person already detained in custody in one case out of more than one case and his arrest is not formally shown on account of the negligence of the concerned authorities and for no fault of the accused he can with all justification claim that his custody in one case should also be deemed to be in custody for the purpose of other case or cases. ( 17 ) THE problem would arise only in cases where the accused is concerned in different cases pertaining to different Police stations and pending before the different courts where no negligence on the part of the authorities can legitimately be shown. Whether it is a case where the accused is involved in series of offences pertaining to the same Police Station or a case where he involved himself in different offences pertaining to different Police Stations, if he is arrested in one case and produced before the Court in connection with the other case, the period of detention would enure to the benefit of the accused in both the cases. In view of the judgment of the apex Court in NIRANJAN SINGH s case (supra), no person accused of an offence can move the Court for bail under section 439 of the Code unless he is in custody. In such cases, he cannot surrender himself before another Court on account of the fact that he has been in judicial custody in the former case. In such cases, he cannot surrender himself before another Court on account of the fact that he has been in judicial custody in the former case. this situation would not arise when he is involved himself in series of cases pertaining to the same Police station and within the territorial jurisdiction of the same Court where negligence on the part of the authorities can validly be attributed. Ever) if no negligence can be validly attributed to Police, the accused can himself offer to surrender before the Court on his production before the Court in connection with one case when he is remanded to judicial custody, and as a result whereof he can be in custody in all cases. To surmount such contingency, an application seeking his production in connection with the case before it can be mooted in the other Court in which case that court after issuing notice to the concerned police can pass appropriate orders. The investigation agency can also seek police custody of the accused for the purpose of interrogation in that case or cases as the case may be. That appears to be the possible solution, in my considered view, which can obviate the difficulty of the accused who has been involved in more than one case pertaining to different Police Station. The procedure suggested by me supra is consistent with administration of justice and would safe guard the interests of the accused as well as the investigating agency and would meet the ends of justice. ( 18 ) TURNING to the instant cases, having regard to the fact all the cases registered against the petitioner pertain to the same police station and the fact that his arrest could have been shown in other cases also simultaneously but not shown the facts warrant a conclusion that he is deemed to have been in custody in respect of other crimes also although formal arrest is not shown in the other cases also. However, it is needless to say whether the bail can be granted or not, depends upon the facts of each case and would be left to the discretion of the Court to exercise the same on merits in each case. However, it is needless to say whether the bail can be granted or not, depends upon the facts of each case and would be left to the discretion of the Court to exercise the same on merits in each case. ( 19 ) IN view of the above discussion, these Criminal Petitions filed for anticipatory bail cannot be sustained as the petitioner is deemed to be in custody in these cases also and are dismissed in the light of the observations made by this Court supra.