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2003 DIGILAW 112 (HP)

STATE OF H. P. v. VIDYA SAGAR

2003-05-19

M.R.VERMA

body2003
JUDGMENT Mr. M.R. Verma, Judge (Oral): This revision petition under Section 397, 401 read with section 482 of the Code of Criminal Procedure (hereafter referred to as the Code) is directed against two orders dated 21.11.2002 passed by the learned Sessions Judge, Shimla. 2. Brief facts, relevant and material for the purpose of the present petition, are that the respondents were arrested in a case under Section 20 of the NDPS Act and were detained in judicial custody. The authorised period of their detention was to expire on 21.11.2002. On the said day respondent Dharampal was produced before the learned Sessions Judge, Shimla and was remanded by the learned Sessions Judge to judicial custody till 5.12.2002. The other respondent, namely, Vidya Sagar (hereafter referred to as "the accused") was, however, not so produced with the result that the learned Sessions Judge did not pass orders authorising his further detention for want of his production. It appears that at a later stage, the accused was produced in the court along with an application from the Jail Superintendent with the prayer to extend the period of his judicial custody. However, there was no prayer for his remand from the Station House Officer or the Police Officer competent to make such a prayer under Section 167 of the Code nor copies of the case diaries were produced on the basis of which the learned Sessions Judge could take a decision regarding further remand of the accused. In the absence of any prayer from the S.H.O. / other competent Officer for remand of the accused and in the absence of production of case claries, the (earned Sessions Judge declined to remand the accused to custody. The accused was produced before the learned Additional Sessions Judge on 23.11.2002 who remanded him to judicial custody. Feeling aggrieved by the orders dated 21.11.2002, passed by the learned Sessions Judge declining to remand the accused to judicial custody, the State has preferred the present petition. 3. I have heard the learned Additional Advocate General for the State and the accused and have also perused the records. 4. Feeling aggrieved by the orders dated 21.11.2002, passed by the learned Sessions Judge declining to remand the accused to judicial custody, the State has preferred the present petition. 3. I have heard the learned Additional Advocate General for the State and the accused and have also perused the records. 4. It was contended by the learned Additional Advocate General that in the earlier hours of 21.11.2002 the accused could not be produced in the Court as he was undergoing treatment in the I.G.M.C., Shimla and in the later part of the day when the accused was produced in the Court, the case diaries could not be produced for the reason that the Investigating Officer alongwith the records of the case had left Shimla for Mandi and an application for further remand of the accused had been submitted to the court by the Jail Superintendent, therefore, the impugned orders declining judicial remand of the accused are illegal and liable to be set aside. 5. It may be pointed out at the very outset that the powers exercisable by a judicial Magistrate under Section 167 of the Code can be exercised by a Sessions Judge by virtue of the provisions contained in clause (e) of sub section (1) of Section 36-A of the NDPS Act. 6. The relevant provisions of Section 167 of the Code, which deals with the police/judicial remand of an accused, reads as under- "167. Procedure when investigation cannot be completed in twenty-four hours.-(1) Whenever any person is arrested and detained in custody, and it appears that the investigation cannot be completed within the period of twenty-four hours fixed by Section 57, and there are grounds for believing that the accusation or information is well-founded, the officer in charge of the police station or the police officer making the investigation, if he is not below the rank of sub-inspector, shall forthwith transmit to the nearest judicial Magistrate a copy of the entries in the diary hereinafter prescribed relating to the case, and shall at the same time forward the accused to such Magistrate. (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, 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 XXX111 for the purposes 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 1.- For the avoidance of doubts, it is, hereby declared that, notwithstanding the expiry of the period specified in paragraph (a), the accused shall be detained in custody so long as he does not furnish bail. Explanation 11.- 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 authorizing detention." 7. Explanation 11.- 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 authorizing detention." 7. It is clear on a bare reading of the aforesaid provisions that when the investigation Is not complete within twenty-four hours of the arrest of the accused, the officer in charge of the police station or the investigating officer, if he is not below the rank of sub-inspector, shall forward the accused and copies of the case diaries to the nearest judicial Magistrate. The judicial Magistrate to whom the accused and the copies of the case diaries are so forwarded, will authorise further detention of the accused in such custody, i.e. police or judicial as he thinks fit for a term not exceeding 15 days at a time. If such judicial Magistrate has no jurisdiction to try or commit the case and considers further detention of the accused unnecessary, he will forward the accused to the Magistrate having such jurisdiction and if he feels that remanded order is required, he will authorise the detention as aforesaid. It is further evident that the Magistrate shall not authorise detention in custody under section 167 of the Code unless the accused is produced before him. Thus, what clearly emerges from the aforesaid provisions is that the accused, against whom the investigation could not be completed within twenty-four hours, has to be forwarded alongwith copies of the case diaries by the officer in charge of the police station or by the investigating officer, if he is not below the rank of sub-inspector to the nearest judicial Magistrate for orders regarding remand. The copies of the case diaries have to be made available to the Magistrate for deciding as to whether the accused must be remanded to the police custody for custodial interrogation or he should be remanded to judicial custody, or if the Magistrate has no jurisdiction to try or commit the accused, whether to forward the accused to the Magistrate having jurisdiction to try or commit the accused. It is also clear that the Magistrate shall not authorise detention of the accused in custody unless the accused is produced before him. It is also clear that the Magistrate shall not authorise detention of the accused in custody unless the accused is produced before him. It may be pointed out that in case the judicial Magistrate to whom the accused is forwarded, has jurisdiction to try or commit the accused, he may even entertain a request for bail and deal with the same as per the provisions of Section 437 of the Code. 8. In the case in hand, at the first instance the accused was not produced before the learned Sessions Judge, who was exercising the powers under Section 167 of the Code. Therefore, in the absence of the accused, the learned Sessions Judge was fully justified in not authorizing further detention of the accused in custody. When at a later stage the accused was produced before him copies of the case diaries were not forwarded to him as required under the law. There was no report form the officer in charge of the police station or the investigating officer about the progress and stage of the investigation nor there was any request for further remand of the accused. In case the accused was under treatment and could not be produced in the Court, it was for the S.H.O. or the Investigating officer to inform the learned Sessions Judge accordingly and to request him to visit the place where the accused was and then to pass appropriate orders under Section 167 Cr. PC. It appears from the record that the investigating agency did not perform this part of its duty. It further failed to comply with the provisions of Section 167 Cr. P.C. and the concerned police officials prima facie failed to discharge their official duties enjoined on them by law. 9. As is evident from the provisions of section 167 supra, that a request for remand of the accused from the Jail Superintendent deserved no consideration because he was not competent and legally authorised to make such a request. 10. In the absence of any material, it was not possible for the learned Sessions Judge to decide whether further detention of the accused was to be authorised or not. Therefore, both the aforesaid orders passed by the learned Sessions Judge declining further remand of the accused cannot be said to be illegal and do not call for interference by this Court in exercise of its revisional jurisdiction or inherent powers. Therefore, both the aforesaid orders passed by the learned Sessions Judge declining further remand of the accused cannot be said to be illegal and do not call for interference by this Court in exercise of its revisional jurisdiction or inherent powers. 11. As a result, this revision petition merits dismissal and is accordingly dismissed.