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2007 DIGILAW 1220 (PNJ)

State Of Haryana v. Zafar Ali

2007-05-28

S.D.ANAND

body2007
Judgment S. D. Anand, J. 1. The short question that has come up for adjudication presently before this Court is whether the provisions of section 167 (2) of the Code of Criminal procedure indicate that the person of the accused cannot be at all given to the police after initial 15 days period is over or whether the period for which person of the accused can be handed over to the police cannot exceed 15 days in all. 2. Facts, having a relevant bearing on the controversy, are as under: on 19.4.2007, at about 12.15 a. m. , a secret information was received by the police that the accused is travelling by atari Express Train No.4001 upto Pakistan on a forged passport and that he is also carrying a number of forged passports which could be recovered. The secret informer further informed that the apprehension of the petitioner may give a breakthrough in the investigation of the Atari Train Bomb blast case. Thereupon, the police acted and apprehended the accused respondent zafar Ali at Railway Station Ambala cantt. His personal search led to the recovery of a Visa from wherein the name of the accused (Zafar Ali son of saif Ali, resident of Sankhani, Police station, Jahangirabad, District bulandshahar) was found to be entered as Chanda son of Makbool hasan, resident of 4431, Gali Sitara, kazi House, Ajmeri Gate, Delhi. The passport he was carrying bore No. B1688679 which had been issued at delhi and which also bore his photograph. The accused also informed the raiding party that his mother Mst. Bano was also accompanying him, that she had gone ahead and that both the passports (that of the accused and his mother Mst. Bano) are with the latter only. The relevant information was furnished by GRP (Government Railway police), Ambala, to their counterpart at attari and that is how the apprehension of Mst. Bano wife of Saif ali came about. On interrogation (on 20.4.2007), the accused made a disclosure statement that he had kept concealed 4/5 forged passports in an attached case at the house of a named friend of his. He offered to get the recovery thereof effected. Thereupon, the police of GRP Ambala presented the accused before the Judicial Magistrate who declined to commit the accused to police custody. Instead thereof, the accused was remanded to judicial custody upto 24.4.2007. He offered to get the recovery thereof effected. Thereupon, the police of GRP Ambala presented the accused before the Judicial Magistrate who declined to commit the accused to police custody. Instead thereof, the accused was remanded to judicial custody upto 24.4.2007. That order of the judicial Magistrate was challenged by the State of Haryana in revision petition before the Court of Sessions at ambala. While allowing the revision petition, the learned Additional Sessions judge directed the matter to be put up before the Illaqa Magistrate "to reconsider the request of the prosecution for police remand after perusal of the police record and to decide the application for police remand afresh on merits. " While granting that order, the learned Additional Sessions Judge noticed the fact of disclosure statement made by the accused and also observed that "it is a well known fact that recently, various blasts had occurred in the Attari Express resulting into various deaths and injuries. Under such circumstances, travelling of accused with the fake passport, particularly in train like Attari Express after the recent blast is a thing which has to be viewed very seriously. " 3. However, the fate of the prosecution plea was no different this time as the learned Judicial Magistrate, before whom the matter came up in compliance withthe orders of learned Additional Sessions Judge, ambala observed that the police remand of the petitioner could not be granted as the initial period of 15 days was over. Reliance, in support of the view, was placed upon central Bureau of Investigation, Special investigation Cell-1, Delhi V/s. Anupam Kulkarni. 4. The State of Haryana again went up in revision (Crl. R. No.35/7.5.2007 ). This time, the point of view of the State of haryana did not find favour with the Court of revision and the petition came to be declined on 10.5.2007. The learned Additional sessions Judge upheld the line of reasoning adopted by the learned Judicial Magistrate thereby impelling the filing of the present petition. 5. The point of controversy has already been noticed by this Court in the opening para of this order. 6. Learned counsel for the petitioner/ state of Haryana placed absolute reliance upon Siyaram Gopichand Gupta and others V/s. The State of Gujarat a Single Bench ruling rendered by Gujarat High Court. 7. 5. The point of controversy has already been noticed by this Court in the opening para of this order. 6. Learned counsel for the petitioner/ state of Haryana placed absolute reliance upon Siyaram Gopichand Gupta and others V/s. The State of Gujarat a Single Bench ruling rendered by Gujarat High Court. 7. As against it, learned counsel for the accused-respondent relied upon CBI V/s. Anupam Kulkarni, AIR 1992 SC 1768 (supra ). 8. On consideration of the matter in entirety, in the light of the judicial pronouncements cited aforesaid and their reliability to the peculiar facts and circumstances of the present case, I am inclined to agree with the petitioner, State of Haryana. The following observations shall buttress this view of mine: 9. In Siyaram Gopichand Gupta and others (supra), the matter involved a "fraud involving huge sum amounting to Rs.21,00,000 in a systematic and planned manner acting in unison and in such a case investigation would not be over in few days. " after noticing the respective pleas of the parties, the Court observed as under: "further, it could not be said that remand at such late stage cannot be asked for even for discovery of any muddamal articles when as many as almost nine months have passed in between. It cannot be gainsaid that time factor is likely to come in the way of investigation. At the same time, however, it has to be appreciated that it is always a difficult task to discover the truth when scheming minds are at work, almost at cross-purposes. Moreover, the investigating agency had a very short time in matters such as the prevention to deal with the accused after having been granted remand and that too under strict conditions. " 10. In so far as Central Bureau of investigations case (supra) is concerned, it cannot be said to be applicable to the facts and circumstances of the present case. In that case, there was no refusal of police remand at all. As against it, in the present case, the refusal on the part of the Illaqa Magistrate and, thereafter, the Duty Magistrate to grant police remand completely disabled the investigating agency from proceeding in the matter. The net result thereof was that the investigating agency was not in a position to effect the recovery in pursuance of a disclosure statement made by the accused. The net result thereof was that the investigating agency was not in a position to effect the recovery in pursuance of a disclosure statement made by the accused. Thereby, the investigating agency was also denied an opportunity to get a clue with regard to identity of the quarters which were responsible of the Attari Train Bomb blast in which many lives were lost. The ruling in the aforementioned cases provides that the detention of an accused in police custody cannot exceed 15 days in the whole. It does not conceptualize a case in which there was a complete denial of police remand by the Magistracy. 11. The object of the procedural statutory law is to advance the interest of justice. A court ought not to pass an order which fetters the investigation to such an extent that the accused can safely envision exoneration from liability. In the present case, the plea raised by the investigating agency was declined on account of certain infractions in the matter of compliance with the provisions of the Code of Criminal Procedure. Be that as it may, it was plainly illogical to scuttle the further investigation. The effect of noticed irregularities could be adjudicated upon at the trial. The law cannot conceptualize a situation in which the Courts put a bloc on the investigation of a case, particularly when it is obvious that in the absence of recovery, the disclosure statement made by the accused would not be admissible. 12. In the light of foregoing discussion, the petition filed by State of Haryana shall stand allowed. The matter shall come up before the Illaqa Magistrate/duty magistrate tomorrow at 10.00 a. m. who shall proceed to pass an appropriate order in accordance with law in the light of the observations made by this Court. 13. Copy of this order be given to the learned counsel for the parties under the signatures of the Court Secretary attached to this Court. Petition allowed.