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2004 DIGILAW 1048 (PAT)

Lala Thakur v. State Of Bihar

2004-09-29

R.S.GARG

body2004
Judgment R.S.Garg, J. 1. Heard learned counsel for the parties. 2. The applicant is in jail in connection with Piparahi P.S. Case No. 13 of 2004, dated 26.2.2004 under Secs. 395, 397, 412 Indian Penal Code, 1860 and 25 (1-B) A, and 26 of the Arms Act. 3. It appears from the report dated 26.2.2004 sent by the Officer Incharge, Piparahi Police Station that while committing dacoity in a jewelry shop, the accused persons opened fire and one of the bullets hit the co-accused/present applicant. The public apprehended him on the spot and gave him a good beating. The police after receiving information, brought the accused and thereafter admitted him in the Government hospital, Sheohar. The report also says that right from 26.2.2004, the movements of the accused were restricted by placing a guard of 1+ 4. 4. It is not in dispute before me that on 26.2.2004 the accused was lodged in the hospital, his movements were restricted and he was not produced in any court within 24 hours, as required u/s. 57 of the Code of Criminal Procedure (in short "the Code"). 5. According to sec. 57 of the Code, no police officer shall detain in custody a person arrested without warrant for a longer period than under all the circumstances of the case is reasonable, and such period shall not, in the absence of a special order of a Magistrate u/s. 167, exceed twenty-four hours exclusive of the time necessary for the journey from the place of arrest to the Magistrates Court. The mandate u/s. 57 of the Code is that within 24 hours of the arrest, the accused must be produced before a Magistrate competent or even otherwise he is available at the nearest distance. The time required for journey from the place of the arrest to the Magistrates Court is to be excluded from computation. 6. A catena of decisions of the Supreme Court says that if a person is arrested by a Police Officer without any warrant in connection with a cognizable and non-bailable case, then the Police Officer shall be obliged to produce him before the nearest Magistrate within 24 hours exclusive of the time necessary for the journey from the place of arrest to the Magistrates court and if he does not do so, the custody would become illegal. 7. 7. In the present matter, the accused was taken into custody on 26.2.2004 and his movements were restricted. The Supreme Court in the matter of Niranjan Singh and Anr. V/s. Prabhakar Rajaram Kharote and Ors., (1980) Cri LJ 426), has clearly observed that preparation of formal arrest some times is not necessary and if the facts show that movements of the accused were restricted, then he would be deemed to be in custody. 8. After the accused healed up, he was produced in the Court for the first time on 27.6.2004 and the competent Magistrate granted remand for 15 days. Thereafter, charge-sheet was filed on 15.7.2004. Thereafter, the applicant made an application before the learned Magistrate for his release u/s. 167 (2) of the Code and on rejection of the same, he took up the matter before the Sessions Judge, Sitamarhi in B.P. Case No. 13 of 2004. The submissions of the applicant before the Sessions Judge were that as the custody of the applicant was illegal and he would be deemed to be in custody right from 26.2.2004, and even if there is no order of remand by a competent Magistrate, the applicant would be entitled to be released on bail u/s. 167(2) of the Code. 9. The learned court below after hearing the parties observed that provisions of contained in sec. 167(2) of the Code, would apply only if an order of remand has been issued by the concerned Magistrate and within 90/60 days from the date of first order of remand, charge-sheet is not filed. He observed that the accused was produced before the competent Magistrate on 27.6.2004 and as the charge-sheet was filed 15.7.2004 within the period of 90 days, the alleged indefeasible right of the accused was defeated, rather it never accrued in favour of the petitioner. 10. Learned counsel for the petitioner placing strong reliance upon a judgment of the Supreme Court in the matter of Manoj V/s. State of M.P., (1999) 3 SCC 715 , submitted that in almost identical situation, the said accused was ordered to be released on bail, therefore, the applicant deserves to be released on bail. 11. Contending contrary to the above-referred submission, learned counsel for the State placing his reliance upon yet another judgment of the Supreme Court in the matter of Chaganti Satyanarayana and Ors. 11. Contending contrary to the above-referred submission, learned counsel for the State placing his reliance upon yet another judgment of the Supreme Court in the matter of Chaganti Satyanarayana and Ors. V/s. State of Andhra Pradesh, AIR 1986 SC 2130 , submitted that the custody of the accused from 26.2.2004 till 27.6.2004 cannot be included in the period of remand and the applicant would not be entitled to an order in his favour u/s. 167 (2) of the Code. 12. I have heard both the parties. 13. sec. 167 (1) and (2) of the Code reads thus : "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 twentyfour hours fixed by sec. 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-sec. shall be deemed to be so released under the provisions of Chapter XXXIII for the purposes of that Chapter." 14. According to sec. 167 (1) of the Code, when any person is arrested and detained in custody and it appears that the investigation cannot be completed within 24 hours as provided u/s. 57 of the Code, and there are grounds for believing that the accusation or information is well founded, the Police Officer making the arrest or proceeding with 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 as prescribed and shall at the same time forward the accused to such Magistrate. 15. 15. It would be mandatory for a Police Officer arresting or detaining a person in custody to produce the arrested person before the nearest competent/Magistrate within a period of 24 hours excluding the period spent in travelling or bringing the accused from the place of arrest to the Court of Magistrate. sec. 167 (1) of the Code, does not say anything beyond that. However, Courts have observed that if the provisions contained in sec. 57 read with sec. 167 (1) of the Code, are not observed, that is, the accused is not produced within 24 hours in the court of the nearest Judicial Magistrate, then his custody may be deemed to be illegal. 16. According to sec. 167 (2) of the Code, the Magistrate to whom an accused person is forwarded whether he has or has not jurisdiction to try the case, may from time to time authorize 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, then he has to issue the orders of remand in accordance with the provisions as provided under Sec. 167 (2) of the Code. It would be clear that if the accused is produced before the nearest Magistrate, who does not have jurisdiction either to try the case or to commit the case to the Court of Session for its trial then in the whole he can grant a remand for a period not exceeding 15 days but if a Magistrate is competent either to try the case or commit the case for trial to the competent Court then he can grant remand for 15 days in the whole but not exceeding 90 days in the whole where the investigation relates to an offence punishable with death, imprisonment for life or imprisonment for a term not less than 10 years; 60 days when the investigation relates to any other offence. The law further says that on expriy of the said period of 90/60 days the accused person shall be released on bail if he is prepared to and does furnish bail. 17. The law further says that on expriy of the said period of 90/60 days the accused person shall be released on bail if he is prepared to and does furnish bail. 17. Learned counsel for the petitioner submits that in the matter of Manoj (supra) the accused was released on bail as the charge-sheet was not filed under Sec. 167 (2) of the Code, within the period prescribed under the law. In the said matter, the accused was arrested in Rajasthan on 22.6.1998, on 7.8.1998, while still in custody he was shown to have been arrested in another case under the NDPS Act, in Mathya Pradesh. In Rajasthan case, the High Court directed him to be released on bail but in M.P. Case he was not granted bail. He remained in jail and the charge-sheet was not filed within 90 days of the appellants arrest. He made an application u/s. 167 (2) of the Code. The application was rejected and the High court affirmed the said order. Setting aside both the orders, the Supreme Court observed that since after arrest in the MP case, the appellant was not produced before the nearest Magistrate, his detention made as a sequel to the arrest became unlawful beyond the said period of 24 hours. The Supreme Court further observed that excuses advanced by the respondent State for their inability to produce the accused before the nearest Magistrate within the required period would not be recognised by law. 18. The Supreme Court also observed that only time permitted to be excluded from the period of 24 hours since after arrest is "the time necessary for communication from the place of arrest to the Court of the Magistrate." The Supreme Court also observed that the provisions contained u/s. 167(2) of the Code, shall apply only to an accused who was forwarded to a Magistrate under sec. 167 (1) of the Code, because further detention of the accused can be made only if it is authorised by the said Magistrate. The Supreme Court observed that if the accused is not produced before the. Magistrate, as required under sec. 57 of the Code, his detention would be invalid. 19. In the ease of Chaganti Satyanarayana and others, (supra), the Supreme Court was interpreting the provisions of sec. 167 of the Code, it was observed by the Supreme Court that when Sub-sec. (1) of sec. Magistrate, as required under sec. 57 of the Code, his detention would be invalid. 19. In the ease of Chaganti Satyanarayana and others, (supra), the Supreme Court was interpreting the provisions of sec. 167 of the Code, it was observed by the Supreme Court that when Sub-sec. (1) of sec. 167 of the Code, is read with sec. 57 the resultant position is that the initial period of custody of an arrested persons till he is produced before a Magistrate is neither referable to nor in pursuance of an order of remand passed by a Magistrate. In fact the powers of remand given to a Magistrate becomes exercisable only after an accused is produced before him in terms of Sub-sec. (1) of sec. 167 of the Code. It was further observed that unless order of remand is issued by a competent Magistrate, provisions contained in sec. 167 (2) of the Code, would not come into play. The Supreme Court had observed that construing proviso (a) either in conjunction with Sub-sec. (2) of sec. 167, or as an independent paragraph, it is clear that the total period of 90 days/60 days has to be calculated only from the date of remand and not from the date of arrest. In both the judgments, the Supreme Court has observed that provisions as contained in sec. 167 (2) of the Code, would come into play from the date order of remand is passed. 20. In the present matter, the accused was produced before the Magistrate on 27.6.2004 and on that day only the order of remand was issued. If that be so, period of 90 days has to be counted, from 27.6.2004. In the present matter, though the accused was taken into custody or his movements were restricted on 26.2.2004, this Court may observe that his custody for the period between 26.2.2004 to 26.6.2004 may be illegal but for the purpose of sec. 167(2) no right accrued in his favour because the charge-sheet had been filed on 15.7.2004. 21. The application before the two courts below was pressed only on the ground of sec. 167 (2) and not on merit of the matter, therefore, I refrain from making any observation on the merit of the matter. 22. The application in view of the above referred discussions is dismissed. 21. The application before the two courts below was pressed only on the ground of sec. 167 (2) and not on merit of the matter, therefore, I refrain from making any observation on the merit of the matter. 22. The application in view of the above referred discussions is dismissed. However, the applicant would be entitled to make an application before the competent Court for his release on merits of the case.