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2010 DIGILAW 124 (BOM)

State of Maharashtra v. Mitesh Manilal Lodhiya

2010-01-25

A.B.CHAUDHARI

body2010
JUDGMENT:- Rule. Rule is made returnable forthwith. Heard finally by consent of learned counsel for rival parties. Shri. S. V. Sirpurkar waives service of notice on behalf of respondent. 2. This application is directed against two orders-namely order dated 29.8.2009 passed by the Chief Judicial Magistrate, Chandrapur, and the order dated 11.9.2009 in Criminal Revision Application No.111 of 2009 passed by the Additional Sessions Judge, Chandrapur, in the matter of rejection of prayer for grant of police custody remand. 2-A. In support of the present application Shri. A. S. Sonare learned Additional Public Prosecutor, argued that both the courts below committed error in holding that there was non compliance of Section 41 (b) (as amended from 7.1.2009) and Section 50A of The Code of Criminal Procedure, 1973. According to him, such a non-compliance was never alleged in the application or pleaded before the lower court and there is no rule that police custody remand is required to be refused for the alleged non-compliance. He then argued that the observation recorded by the revisional court that there is no credible information in the statement of any of the accused about the sale of stolen property to respondent is factually incorrect since the police case diary shows otherwise. He, therefore, urged that the order refusing police custody and consequently granting bail to the respondent is illegal and the revisional court ought to have corrected the same. Since the revisional court did not do so, the State was compelled to file this application. 3. Per contra, Mr. Sirpurkar, learned counsel for the respondent, vehemently opposed the application and argued that the statement from the police case diary now shown to this Court was never placed before the Chief Judicial Magistrate or Sessions Judge and that is why the courts below could not be blamed for the observations made by them in respect of the orders. The counsel then argued that the respondent made a statement before Police Officer during interrogation and even before the Chief Judicial Magistrate that he did not possess any stolen property nor did he pay any price thereof to any of the accused persons and that should be the end of the matter and consequently police custody remand was rightly refused by the trial Court. The counsel then argued that the Chief Judicial Magistrate having rejected the request for police custody remand, granted bail and after lapse of period of 15 days in no case the police custody remand can be requested for muchless granted. In support of his submissions, he relied on (i) Central Bureau of Investigation, Special Investigation Cell-I, New Delhi Vs. Anupam J. Kulkarni AIR 1992 SC 1768 . (ii) Amar Pal & ors. Vs. State of V.P. 1994(2) Crimes 288 . (iii) Budh Singh Vs. State of Punjab - 2001 Cri.L.J.2942. 4. The counsel then argued that at such a belated stage liberty of the respondent cannot be interfered with, he having once been released on bail and all the more so because there is no prayer for cancellation of bail that was granted by the Chief Judicial Magistrate. 5. I have gone through the impugned orders. In the order made by the Chief Judicial Magistrate it is stated that the respondent denied to have purchased any gold from either of the accused or paid anything to him as a price thereof and it is on the basis of this statement the Chief Judicial Magistrate held that police custody remand cannot be granted. The learned Chief Judicial Magistrate then straightway drew a conclusion that provisions of Sections 41(b) and 50-A of Code of Criminal Procedure were not complied with without referring to a single fact to that effect in his impugned order and simultaneously granted bail. The validity of this order was put to challenge in revision before the Sessions Judge who without application of mind as to whether the order under challenge before him was legal, correct or proper held that since the respondent was granted bail and the period of 15 days was over, the Court had no jurisdiction to grant police custody remand and thus dismissed the revision preferred by the State. I quote the amended provision of Section 41 (b) of Code of Criminal Procedure which reads thus - "41. When police may arrest without warrant - (1) Any police officer may without an order from a Magistrate and without a warrant, arrest any person - (a) .... I quote the amended provision of Section 41 (b) of Code of Criminal Procedure which reads thus - "41. When police may arrest without warrant - (1) Any police officer may without an order from a Magistrate and without a warrant, arrest any person - (a) .... (b) against whom a reasonable complaint has been made, or credible information has been received, or a reasonable suspicion exists that he has committed a cognizable offence punishable with imprisonment for a term which may be less than seven years or which may extend to seven years whether with or without fine, if the following conditions are satisfied, namely: (i) the police officer has reason to believe on the basis of such complaint information, or suspicion that such person has committed the said offence; (ii) the police officer is satisfied that such arrest is necessary (a) to prevent such person from committing any further offence; or (b) for proper investigation of the offence; or (c) to prevent such person from causing the evidence of the offence to disappear or tampering with such evidence in any manner; or (d) to prevent such person from making any inducement, threat or promise to any person acquainted with the facts of the case so as to dissuade him from disclosing such facts to the Court or to the police officer; or (e) as unless such person is arrested, his presence in the Court whenever required cannot be ensured, and the police officer shall record while making such arrest, his reasons in writing. (ba) against whom credible information has been received that he has committed a cognizable offence punishable with imprisonment for a term which may extend to more than seven years whether with or without fine or with death sentence and the police officer has reason to believe on the basis of that information that such person has committed the said offence." Section 50-A of Code of Criminal Procedure reads thus: "(1) Every police officer or other person making any arrest under this Code shall forthwith give the information regarding such arrest and place where the arrested person is being held to any of his friends, relatives or such other persons as may be disclosed or nominated by the arrested person for the purpose of giving such information. (2) The police officer shall inform the arrested person of his rights under subsection (1) as soon as he is brought to the police station. (3) An entry of the fact as to who has been informed of the arrest of such person shall be made in a book to be kept in the police station in such form as may be prescribed in this behalf by the State Government. (4) It shall be the duty of the Magistrate before whom such arrested person is produced, to satisfy himself that the requirements of sub-section (2) and subsection (3) have been complied with in respect of such arrested person." 6. The case diary shows arrest panchanama of the respondent, which is in Form-3A. Reading of this panchanama clearly shows compliance of provisions of Sections 41(b) and 50-A of Code of Criminal Procedure. Even otherwise, on perusal of the provisions of Section 41(b), at the outset, to my mind, it will have to be held to be directory since no consequence is provided in the Act any where for non compliance thereof. That apart, in the case where there is failure to comply with all the requirements of Section 41(b), the consequence cannot be to deny the right of police for police custody remand available under Section 167 of Code of Criminal Procedure. 7. Perusal of Section 50-A again seems to me to be directory for the similar reasons. Sub-section (4) of Section 50-A takes care of getting done compliance of subsections (1), (2) & (3) of Section 50-A. Therefore, it is difficult to appreciate the contention that for non-compliance of Sections 41(b) and 50-A of the Code of the Criminal Procedure the Magistrate is empowered to deny police custody remand even in a deserving case. 8. In the instant case, upon perusal of the case diary I find that during the course of interrogation in the matter of discovery under Section 27 of Evidence Act, accused Shivrajan Chinnakan Verkutty, who is alleged to have committed theft, disclosed that he sold gold articles to the respondent and received amount of Rs.80.000/- from him. This statement has been completely ignored by the courts below. This statement has been completely ignored by the courts below. The Chief Judicial Magistrate did not even refer to the statement and placed reliance on the alleged statement of respondent that he did not 'purchase any article and did not pay any price and then abruptly came to the conclusion that there was non-compliance of provisions of Sections 41 (b) and 50-A and police custody remand cannot be granted. Whether or not the person who has purchased the stolen property denies about it before the police or before the Magistrate is not at all relevant for considering the grant or otherwise of police custody remand. It is for the investigating machinery to obtain police custody remand, make thorough investigation and then find out about the veracity of the stand taken by such accused alleged to have purchased stolen property. No accused who has purchased the stolen property is likely to admit it before the Police Officer or before the court. Therefore the whole reasoning adopted by the Chief Judicial Magistrate is illegal and when the validity thereof was put to challenge in revision the learned revisional court failed in its duty to protect the interest of the State and went on giving some irrelevant reasons. 9. Coming to the reasons given by the learned revisional court, I find that those reasons are also factually and legally wrong. Merely because during the pendency of the matter, period of 15 days was over the revisional court was not entitled to ignore the legality and validity of the order under challenge before him. He ought to have tested the validity of the order made by Chief Judicial Magistrate. Merely because of the wrong order made by Chief Judicial Magistrate period of 15 days had lapsed the State could not be put to prejudice since that was the act of the Court, act us curiae neminem gravabit. The decisions cited before me relate to the cases where the facts are totally different. In those cases the order of the trial Magistrate was not found to be illegal for any reason. In ~e instant case, however, I find that the order of Chief Judicial Magistrate in refusing police custody remand is illegal and the validity of the same is under challenge before me. The cited cases are therefore distinguishable. 10. In those cases the order of the trial Magistrate was not found to be illegal for any reason. In ~e instant case, however, I find that the order of Chief Judicial Magistrate in refusing police custody remand is illegal and the validity of the same is under challenge before me. The cited cases are therefore distinguishable. 10. For the above reasons, the submission that now police custody remand cannot be granted because of lapse of 15 days and the bail granted cannot be cancelled, does not appeal to me. This Court being the higher court can cancel the bail granted to the respondent in order to streamline the process. Since the counsel for the respondent has stated that police had not shown any statement before Chief Judicial Magistrate, without entering into that controversy, it would be better to relegate both the parties to place materials before Chief Judicial Magistrate. In the result, I make the following order. ORDER (i) Criminal Application is partly allowed. Impugned orders dated 28.8.2009 and 11.9.2009 made by Chief Judicial Magistrate and Additional Sessions Judge, Chandrapur, respectively (in Crime No. 198/09 in Criminal Revision No.111/09) are quashed and set aside. Order granting bail as a result of refusal of police custody remand by the impugned order as a sequel is set aside. The learned Chief Judicial Magistrate shall now consider the entire matter including the request for grant of police custody remand by police and prayer for grant of bail by the respondent. (ii) The counsel for the respondent prays for stay of this order for a period of three weeks to enable him to approach the apex court. Since about four months have already passed, I am inclined to stay this order for a period of three weeks only and there shall be no further extension. (iii) Chief Judicial Magistrate shall decide the matter after he takes up the same within one week. (iv) It appears that provisions of Sections 41-A, 41-B, 41-C, 41-D and 46 of Code of Criminal Procedure have been amended with effect from 7.1.2009 and in order to have compliance of the requirement of those provisions it would be necessary for the Government to examine whether the printed form published by the Government for the benefit of police officers meet the requirements of all these provisions. The Government may also examine whether the present forms issued by the Government comply with the provisions of Section 50-A of Code of Criminal Procedure since the said section was brought into force with effect from 23.6.2006. Application partly allowed.