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2001 DIGILAW 1634 (AP)

SHAIK BASHA v. State Of A. P.

2001-12-13

T.CH.SURYA RAO

body2001
T. SURYA RAO, J. ( 1 ) "delay defeats justice" squarely applies to the present case. What happened was that the accused were produced before the Court of Magistrate under Section 167 of the Code of Criminal procedure ( the Code for brevity) for remand on 10-10-2001 having arrested them on 9-10-2001. They were accordingly remanded to judicial custody on that day. On 19-10-2001 it appears that the investigating Officer filed a requisition before the Court of Magistrate seeking police custody of the accused for the purpose of obtaining blood samples for DNA test and interrogate them with reference to a lie detector. That application was dismissed by the learned Magistrate on the very same day. Having been aggrieved by the same, the Investigating Agency carried the matter in revision before the Sessions Court in Crl. R. P. No. 73 of 2001. The learned additional Sessions Judge, Krishna at machilipatnam, under the impugned order allowed the revision petition by granting police custody of the accused for 15 days with a direction to take the assistance of the respondents therein for investigation without resorting to any third decree methods. The impugned order came to be passed on 10-12-2001 oblivious of the fact that by 10-12-2001 more than the period of 15 days, as envisaged under sub-section (2) of Section 167 of the Code, had been elapsed. It is pertinent here to consider the provisions of Section 167 (2) of the Code which reads as under:"767. Procedure when investigation cannot be completed in twenty four hours : (1 ). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Procedure when investigation cannot be completed in twenty four hours : (1 ). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . (2) The Magistrate to whom an accused person is forwarded under this section may, whether he has or has not jurisdiction to try the case, from time to time to authorise the detention of the accused in such custody as such Magistrate thinks fit, for a term not exceeding fifteen days in the whole; and if he has no jurisdiction to try the case or commit it for trial, and considers further detention unnecessary, he may order the accused to be forwarded to a Magistrate having such jurisdiction: provided that (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 purpose of that Chapter; (b) no Magistrate shall authorise detention in any custody under this section unless the accused is produced before him; (c) no Magistrate of the second class, not specially empowered in this behalf by the High Court, shall authorise detention in the custody of the police. Explanation I. For the avoidance of doubts it is hereby declared that, notwithstanding the expiry or the period specified in paragraph (a), the accused shall be detained in custody so long as he does not furnish bail. Explanation II. Explanation I. For the avoidance of doubts it is hereby declared that, notwithstanding the expiry or the period specified in paragraph (a), the accused shall be detained in custody so long as he does not furnish bail. Explanation II. If any question arises whether an accused person was produced before the Magistrate as required under paragraph (b), the production of the accused person may be proved by his signature on the order authorising detention. (2-A) Notwithstanding anything contained in sub-section (1) or sub-section (2), the officer-in-charge of the Police Station or the police officer making the investigation, if he is not below the rank of a Sub-inspector, may, where a Judicial Magistrate is not available, transmit to the nearest Executive magistrate, on whom, the powers of a Judicial magistrate or Metropolitan Magistrate have been conferred, a copy of the entry in the diary hereinafter prescribed relating to the case, and shall, at the same time, forward the accused to such Executive Magistrate, and thereupon such Executive Magistrate, may, for reasons to be recorded in within, authorise the detentions of the accused person in such custody as he may think fit for a term not exceeding seven days in the aggregate; and on the expiry of the period of detention so authorised, the accused person shall be released on bail except where an order for further detention of the accused person has been made by Magistrate competent to make such order; and, where an order for such further detention is made, Che period during which the accused person was detained in custody under the orders made by an Executive Magistrate under this sub-section, shall be taken into accounting in computing the period specified in paragraph (a) of the proviso to sub-section (2): provided that before the expiry of the period aforesaid, the Executive, Magistrate shall tansmit to the nearest Judicial magistrates the records of the case together with a copy of the entries in the diary relating to the case which was transmitted to him by the officer-in-charge of the Police station or the police officer making the investigation, as the case may be. " ( 2 ) A perusal of the said provisions itself shows that on the production of the accused before the Court under Section 167 of the Code the Court can remand the accused to the custody for the first period of 15 days and that custody may be either judicial custody or police custody. The position is no more res Integra and has been squarely covered by a judgment of the Apex court in CBL, Special Investigation Cell-I, new Delhi v. Anupam J. Kulkarni, AIR 1992 SC 1768 . In that case, in para 8 at page 1776 it was held by the Apex Court thus:"8. Having regard to the words "in such custody as such Magistrate thinks fit for a term not exceeding fifteen days in the whole" occurring in sub-section (2) of Section 167 now the question is whether it can be construed that the police custody, if any, should be within this period of first fifteen days and not later or alternatively in a case if such remand had not been obtained or the number of days of police custody in the first fifteen days are less whether the police can ask subsequently for police custody for full period of fifteen days not availed earlier or for the remaining days during the rest of the periods of ninety days or sixty days covered by the proviso. The decision mentioned above do not deal with this question precisely except the judgment of the Delhi High Court in Dharma Pal s case, (1982 Cri LJ 1103 ). Taking the plain language into consideration particularly the words "otherwise than in the custody of the police beyond the period of fifteen days" in the proviso it has to be held that the custody after the expiry of the first fifteen days can only be judicial custody during the rest of the periods of ninety days or sixty days and that police custody if found necessary can be ordered only during the first period of fifteen days. To this extent the view taken in Dharam Pal s case is correct. To this extent the view taken in Dharam Pal s case is correct. " ( 3 ) IN fact, in the instant, case, the revision petition itself was filed long after the period of 15 days and therefore by that time even the request of the police seeking police custody of the accused could not have been considered in view of the legislative mandate engrafted under sub-section (2) of Section 167 of the Code. Even after filing of the revision petition two months period has been elapsed for passing the impugned order. Therefore, the learned judge ought to have dismissed the revision petition. ( 4 ) ON a perusal of the facts set forth by the prosecution and having regard to the ghastly nature of the crime, one might be swayed away to pass appropriate orders, but the orders shall be passed always in accordance with law. All this controversy could have been avoided if an application was filed before the Court seeking assistance of the Court for sending the blood samples for DNA test. Such a course is not against the established procedure under law and it is always open to the investigating agency to seek the assistance of the Court. A fortiori on account of the fact that the police cannot collect the blood samples during the course of investigation and send it to the expert for his opinion, which is deprecated by the apex Court in more than one judgment. If such an application is filed, needless to say that notice in regard thereto shall be given to the accused and after hearing on either side, appropriate orders may be passed. ( 5 ) WITH these observations, the criminal revision case is allowed at the threshold and the order impugned is hereby set aside.