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2006 DIGILAW 1677 (DEL)

PRADEEP MEHTA v. STATE

2006-09-18

P.K.BHASIN, R.S.SODHI

body2006
P. K. BHASIN, J, J. ( 1 ) IT is an old saying that "necessity is the mother of invention" and the same can be said to be applicable in these matters. Having failed to get an order of bail from two Courts the petitioner who is presently lodged in Tihar jail in connection with two criminal cases, has invented a novel way of seeking his release on bail by filing these two writ petitions under Article 226 of the constitution of India for a writ of habeas corpus instead of invoking Section 439 of the Code of Criminal Procedure. ( 2 ) FEW facts only need to be noticed by us for disposing of both the petitions which were heard together since common question of law is raised therein. The petitioner was arrested by the Crime Branch on 07-05-2006 in connection with a case under Sections 420/467/468/471/120-B IPC registered vide fir No. 162/06 dated 21-02-2006 at police station Dwarka. The investigation of that case was later on taken over by the Crime Branch. The complainant and the petitioner were at one time office bearers of a Housing Society in Dwarka. The complainant, inter-alia, alleged forging of his signatures on some documents of the Society by the petitioner and some other persons for wrongful gains. They are alleged to have grabbed many Housing Societies, inter-alia, by forging signatures of some members of the Society and selling their memberships. The petitioner claims that, in fact, the complainant has resorted to forgery of valuable documents of the Society and also committed criminal brach of trust while he was the treasurer of the Society and he also enrolled fake members. ( 3 ) PRIOR to the registration of the afore said FIR No. 162/06 another case on almost similar allegations had been registered on 26-09-2005 at police station Dwarka vide FIR No. 427/2005 against the present petitioner and other persons in respect of some other Housing Society in Dwarka. The complainant of that case was an office bearer of that Society and the present petitioner was its Project Manager. Allegations and counter allegations of forgery of Society records have been made in the said earlier case also. Investigation of that case was also taken over by the Crime Branch. The petitioner and his associates are allegedly involved in many criminal cases of different kinds of frauds pertaining to many Housing Societies. Allegations and counter allegations of forgery of Society records have been made in the said earlier case also. Investigation of that case was also taken over by the Crime Branch. The petitioner and his associates are allegedly involved in many criminal cases of different kinds of frauds pertaining to many Housing Societies. The petitioner who was arrested on 07-05-2006 in case of FIR No. 162/2006 was formally arrested in the case of fir No. 427/05 on 29-05-2006 by the Crime Branch after seeking permission from the Court concerned. ( 4 ) CHARGE-SHEET was filed in Court on 05-07-2006 in the case pertaining to fir No. 162/06 in which the petitioner had been arrested on 07-05-2006. On 11-07-2006 both these writ petitions were filed by the petitioner. In the writ petition (Crl.) No. 1568 of 2006 it was alleged that even though a charge-sheet had been filed in Court by the police on 05-07-2006 in the case of FIR No. 162/06 but the learned Magistrate did not take cognizance in the matter on that day and adjourned the case to 19th July, 2006 for filing of the report of the handwriting expert and while adjourning the case the petitioner was remanded to further judicial custody. It is the grievance of the petitioner that after the filing of the challan in Court the learned Magistrate could not have remanded the petitioner to judicial custody without first taking cognizance and since no cognizance was taken on 05-07-2006 the remand of the petitioner and his detention in jail thereafter was without the authority of law. It is also the case of the petitioner that the learned Magistrate had the power to remand the petitioner to judicial custody only upto a period of sixty days from the date of his arrest as provided under Section 167 (2) Cr. P. C. and after the filing of the challan the only provision under which the petitioner could be remanded to further judicial custody was under Section 309 Cr. P. C. but that provision comes into operation only after taking of cognizance by the Court. P. C. and after the filing of the challan the only provision under which the petitioner could be remanded to further judicial custody was under Section 309 Cr. P. C. but that provision comes into operation only after taking of cognizance by the Court. ( 5 ) IN the other writ petition which is pertaining to FIR No. 427 of 2005 the petitioner has alleged that the police deliberately showed his arrest in this case on 29-05-2006 knowing fully well that the petitioner was already in custody in the other case of FIR No. 162/06 from 07-05-2006 and that had been done by the investigating officer to ensure that the petitioner remains in jail in some case or the other. The petitioner claims that his re-arrest on 29-05-2006 was not permissible under the law because both the cases were being investigated by the same Investigating Officer of the Crime Cell. The petitioner also claims that when he was already in custody since 07-05-2006 in fir No. 162 of 2006 he is deemed to be in custody from the same date in the earlier registered FIR No. 427 of 2005 also in which no charge-sheet had been filed so far. ( 6 ) MR. D. C. Mathur, learned senior counsel for the petitioner vehemently argued that without taking cognizance in the matter pertaining to FIR No. 162 of 2006 the learned Magistrate could not have extended the remand of the petitioner on 05-07-2006 and consequently his detention in jail became illegal entitling him to seek a writ of habeas corpus for his release without invoking the provisions of bail under the Code of Criminal Procedure. Mr. Mathur relying upon a judgment of Hon"ble Supreme Court in "natabar Parida and Ors. Vs. State of Orissa", AIR 1975 SC 1465 contended that the Magistrte has no inherent power to remand an accused to custody without taking cognizance of some offence after the filing of challan in Court. He also submitted that in case the petitioner succeeds on this ground he would become entitled to be released on bail automatically in the other case also because of the fact that the police had not filed the charge-sheet in that case within the prescribed period of sixty days from the date of his arrest (which as per the averments made in the petition no. 1567/06 was deemed to be 07-05-2006 but Mr. 1567/06 was deemed to be 07-05-2006 but Mr. Mathur did not urge this before us and in our view rightly so as that plea is totally absurd ). ( 7 ) ON the other hand, Ms. Mukta Gupta, learned Standing Counsel for the state submitted that these petitions are not maintainable because the petitioner was not remanded to judicial custody without the authority of law and the learned Magistrate was well within his powers to remand the petitioner to custody till the expiry of period of 90 days from the date of his arrest in exercise of the powers under Section 167 (2) Cr. P. C. since the investigation in both the cases was in respect of an offence punishable under Section 467 IPC whereunder the punishment which can be imposed is imprisonment for life or imprisonment of either description for a term which may extend to ten years. It was also contended that the charge-sheet in any case had been filed in Court on 59th day in the case pertaining to FIR No. 162 in which the petitioner was arrested on 07-05-2006 and further that the Magistrate can be said to have taken cognizance on 05-07-2006 itself even though not specifically stated so in the proceedings of that date since on the adjourned date copies of documents were supplied to the accused (petitioner herein) which was the stage which takes place only after taking of cognizance. Learned counsel also submitted that in any case on 19-07-2006 at least cognizance can definitely be said to have been taken since on that date the accused was supplied with the documents of the case filed with the challan. She also contended that even the learned Magistrate had also clarified in his order dated 02-08-2006 that the cognizance had already been taken impliedly in view of the registration of the challan on 05-07-2006 in the presence of the accused and supply of challan/documents to him on 19-07-2006 which is a requirement under Section 207 Cr. P. C. to be complied with by the court after taking cognizance. Ms. Gupta. thus contended that in these circumstances there is no merit at all in the writ petition no. 1568 of 2006 in respect of FIR No. 162/06. P. C. to be complied with by the court after taking cognizance. Ms. Gupta. thus contended that in these circumstances there is no merit at all in the writ petition no. 1568 of 2006 in respect of FIR No. 162/06. Learned counsel in support of the contention regarding cognizance part of the matter also cited two judgments of Hon"ble supreme Court which are reported as AIR (38) SC 207 and 1960 (1) SCR 93 . In respect of the case pertaining to FIR No. 427 of 2005 she submitted that when the writ petition for that case[being W. P. (Crl.) 1567 of 2006] was filed ninety days period from the date of the arrest of the petitioner had not expired and, therefore, the petitioner had no right to claim that his detention in jail was without the authority of law. In support of her stand that the permissible period of custody of an accused during investigation in respect of an offence punishable under Section 467 IPC was 90 days Ms. Gupta placed reliance on a latest decision of the Hon"ble Supreme Court in "bhupinder Singh Vs. Jarnail singh", 2006 (7) SCALE 79 wherein dealing with the offence punishable under section 304-B IPC Hon"ble Supreme Court had held that the maximum period of custody of an accused during investigation in respect of the said offence was 90 days. ( 8 ) REPLYING to the submission of the learned Standing Counsel for the state that the period of detention of the petitioner could be extended by the magistrate upto 90 days Mr. D. C. Mathur submitted that there is no evidence in any of the two cases that offence under Section 467 IPC is actually made out against the petitioner and just because this Section had been invoked by the police it cannot be said that these are really the cases for this offence. He also submitted that the police cannot be given the latitude to invoke any section of Indian Penal Code to prolong the custody of some accused. Learned counsel further submitted that since under Section 467 IPC punishment of imprisonment for a period of less than ten years can also be imposed on an accused on being convicted the clause (ii) of proviso (a) of Section 167 (2)Cr. Learned counsel further submitted that since under Section 467 IPC punishment of imprisonment for a period of less than ten years can also be imposed on an accused on being convicted the clause (ii) of proviso (a) of Section 167 (2)Cr. P. C would be attracted whereunder the maximum period of detention of an accused during investigation is sixty days since under clause (i) of the proviso (a) applies to a case where the investigation relates to an offence punishable with death, imprisonment for life or imprisonment for a term of not less than ten years. Regarding the submission of State counsel that cognizance was deemed to have been taken on 05-07-2006 Mr. Mathur submitted that merely by ordering registration of the challan by the Magistrate on 05-07-2006 cognizance cannot be said to have been taken since cognizance can be taken after application of judicial mind to the facts of the case and registration of the challan is only an administrative kind of an order. On the point of "cognizance" Mr. Mathur also cited some judgments of Hon"ble Supreme Court reported as AIR 1995 SC 785 , 2000 SCC (Crl.) 1326, 1995 SCC (Crl.) 1051, (1984) 2 scc 500 and AIR 1961 SC and a judgment of Rajasthan High Court reported as 1982 crl. L. J. 2319. ( 9 ) LEARNED counsel also submitted that in fact it has been the case of the state itself even before the learned Magistrate that in these two cases the period of detention permissible under Section 167 (2) Cr. P. C. was sixty days. In this regard Mr. Mathur drew our attention to an order dated 28-06-2006 passed by the learned Additional Sessions Judge on the bail applications of the petitioner in respect of both the FIRs. In that order the learned Additional sessions Judge has noticed the contention raised by the State that challan would be filed within the period of sixty days and accordingly the Court directed the State to file the challan in Court while dismissing the bail applications. It was, however, made clear that in case the challan is not filed within sixty days" period the accused (petitioner herein) would be at liberty to file fresh bail applications. Mr. It was, however, made clear that in case the challan is not filed within sixty days" period the accused (petitioner herein) would be at liberty to file fresh bail applications. Mr. Mathur contended that this order of the learned Additional Sessions Judge shows that the State as well as the Court has been proceeding on the basis that these are the cases in which the maximum period of detention which can be authorized by the Magistrate during investigation was sixty days and so now the State should not be allowed to take a contrary stand to the effect that the petitioner could be kept in custody upto a period of 90 days without filing of the challan in Court. ( 10 ) WHEN we asked Mr. Mathur as to what would be the fate of the two petitions if we accept the contention of State counsel that in a case under 467 ipc the permissible period of custody during investigation is 90 days Mr. Mathur fairly conceded that in case this Court comes to such a conclusion that the petitioner could be kept in custody upto a period of 90 days because of Section 467 IPC having been invoked by the police then these writ petitions would not be sustainable. So, we would deal with this aspect of the matter first because if we hold this point in favour of the State other points would become academic only for these cases. ( 11 ) SINCE the applicability of Section 167 Cr,. P. C. to the facts of these matters is to be considered by us the relevant portions thereof may be noticed and the same read as under:-"section 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, 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 to released under the provisions of Chapter XXXIII for the purposes of that Chapter;]" ( 12 ) SECTION 467 IPC for the commission of which the police was investigating the two cases reads as under:-"467. Forgery of valuable security, will, etc.- Whoever forges a document which purports to be a valuable security or a will, or an authority to adopt a son, or which purports to give authority to any person to make or transfer any valuable security, or to receive the principal, interest or dividends thereon, or to receive or deliver any money, movable property, or valuable security, or any document purporting to be an acquittance or receipt acknowledging the payment of money, or an acuittance or receipt for the delivery of any movable property or valuable security, shall be punished with [imprisonment for life], or with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine. " ( 13 ) IN Bhupinder Singh"s case (supra) which was cited by the learned State counsel the Hon"ble Supreme Court was dealing with an offence punishable under section 304-B IPC which reads as under:-"304-B. Dowry death- (1) Where the death of a woman is caused by any burns or bodily injury or occurs otherwise than under normal circumstances within seven years of her marriage and it is shown that soon before her death she was subjected to cruelty or harassment by her husband or any relative of her husband for, or in connection with, any demand for dowry, such death shall be called "dowry death", and such husband or relative shall be deemed to have caused her death. Explanation- For the purpose of this sub-section, "dowry" shall have the same meaning as in section 2 of the Dowry Prohibition Act, 1961 (28 of 1961 ). (2) Whoever commits dowry death shall be punished with imprisonment for a term which shall not be less than seven years but which may extend to imprisonment for life. " ( 14 ) AFTER considering the judgments of different High Courts taking different views regarding the offences for which the maximum permissible detention period during the investigation could be ninety days the following conclusion was reached in para no. 14 of the judgment of Hon"ble Supreme Court in Bhupender Singh"s case:-"14. Where minimum and maximum sentences are prescribed both are imposable depending on the facts of the cases. It is for the Court, after recording conviction, to impose appropriate sentence. It cannot, therefore, be accepted that only the minimum sentence is imposable and not the maximum sentence. Merely because minimum sentence is provided that does not mean that the sentence imposable is only the minimum sentence. The High Court"s view in the impugned order that permissible period of filing of challan is 90 days is the correct view. Contrary view expressed by Jharkhand, Delhi and Karnataka high Courts is not correct. Himachal Pradesh, Rajasthan and Punjab and Haryana high Courts taking the view 90 days is the period have expressed the correct view. The High Court"s view in the impugned order that permissible period of filing of challan is 90 days is the correct view. Contrary view expressed by Jharkhand, Delhi and Karnataka high Courts is not correct. Himachal Pradesh, Rajasthan and Punjab and Haryana high Courts taking the view 90 days is the period have expressed the correct view. " ( 15 ) FROM the fore-going observations of the Hon"ble Supreme Court there remains no manner of doubt that if for an offence being investigated by the police the Court can impose sentence of life imprisonment on the accused then the maximum period of detention of an accused during investigation without filing of charge-sheet by the police which can be authorized by the Magistrate is ninety days even if a sentence of imprisonment of less than ten years also can be imposed for that offence. In our view the said judgment of Hon"ble supreme Court applies on all fours to the facts of present two cases since the punishment of imprisonment of life can be imposed if the accused is finally convicted for the offence under Section 467 IPC. Therefore, the Magistrate could very well authorize the detention of the accused " petitioner upto a period of 90 days from the date of his arrest in exercise of the powers vested in him under Section 167 (2) Cr. P. C. We do not find any force in the submission of learned senior counsel for the petitioner that unless there is definite evidence collected by the investigating agency during the investigation to sustain conviction finally for an offence which may be punishable with death, imprisonment for life or for a period of not less than ten years the period of detention would be sixty days only. The language of Section 167 (2) is very clear in this regard. It is provided that the period of detention would be ninety days in case the police is investigating an offence which is punishable with death, life imprisonment or for a period of not less than ten years. Whether or not on the completion of investigation any such offence is made out is irrelevant for the applicability of clause (i) of proviso (a) to Section 167 (2) Cr. P. C. ( 16 ) SIMILARLY the submission of Mr. Whether or not on the completion of investigation any such offence is made out is irrelevant for the applicability of clause (i) of proviso (a) to Section 167 (2) Cr. P. C. ( 16 ) SIMILARLY the submission of Mr. Mathur that it would be giving unnecessary latitude to the police to keep anyone in jail for ninety days on the pretext that it is investigating an offence which is punishable with death, imprisonment for life or for a term of not less than ten years even when no such offence is made out is not well founded. If an accused feels that he is being kept in custody without any such offence having been made out on the basis of material collected during investigation he can always approach the Court for bail even before the expiry of maximum period of detention of sixty/ninety days and if the Court is convinced the accused can always be released on bail and there is no requirement of law that an accused has to be kept in jail upto sixty/ninety days. In the present case the police was investigating an offence for which punishment of imprisonment of life can be imposed. He had a right to claim bail even on merits which he availed of but he could not get bail on merits either from the Magistrate or from the Sessions Court. ( 17 ) THERE is no doubt that the investigating officer of the two cases in his reply to the bail applications of the petitioner filed before the Sessions court had stated that the stipulated period for filing of charge-sheet in these cases was sixty days and he would be filing the same within that period but in our view that statement of the investigating officer cannot determine the legal position. It is the Court which is to decide as to what is the permissible period of detention of an accused during investigation without filing of challan. We have already held that the period of detention in these cases could be extended upto ninety days and so nothing turns around the statement of the investigating officer in his replies to the bail applications of the petitioner. We have already held that the period of detention in these cases could be extended upto ninety days and so nothing turns around the statement of the investigating officer in his replies to the bail applications of the petitioner. ( 18 ) WE are, therefore, of the view that it cannot be said that the remand of the petitioner to judicial custody on 05-07-2006 was without the authority of law and so no order can be passed in these petitions for releasing him from jail. Having reached this conclusion both these writ petitions are liable to be dismissed without going into the other points raised by the learned counsel for the petitioner which have become academic only. These writ petitions are accordingly dismissed. We may, however, make it clear that since we have not gone into the merits of the prosecution allegations against the petitioner he would be at liberty to pursue the remedy available to him under the Code of criminal Procedure for bail before the appropriate forum which he may be advised to approach.