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Jharkhand High Court · body

2010 DIGILAW 826 (JHR)

Sudhir Kumar v. State of Jharkhand

2010-08-23

R.R.PRASAD

body2010
JUDGMENT This writ of habeas corpus has been filed for release of the petitioner, who, in contravention of the provision of Section 57 of the Code of Criminal Procedure, had been in police custody with effect from 17.2.2009 until he was ordered to be released by this Court. The facts giving rise this application are that the officials of the Electricity Board when laid a raid on 17.2.2009 in the factory of the petitioner known as Neha Cement Pvt. Ltd. Company, electric energy was found being consumed stealthily by tampering with the meter and in that course, when the petitioner made an attempt to flee from there, he was apprehended by the police when he fell down and broke his leg. Thereupon, Mandu (Kuju) P.S. case no.57 of 2009 was registered under section 379 read with sections 136 and 138 of the Electricity Act. The petitioner having been arrested was not produced before the learned Chief Judicial Magistrate, Hazaribagh, rather he was taken to Brindavan Hospital & Research Centre, Ramgarh by the opposite party no.3, who was entrusted with investigation of the case by the Officer-in-Charge of Mandu Police Station. Thereafter, opposite party no.3 intimated to Chief Judicial Magistrate, Hazaribagh on 18.2.2009 that the petitioner is being treated at Brindavan Hospital & Research Centre, Ramgarh by the Doctor and as per the advice of the Doctor, petitioner is to be operated upon and, therefore, petitioner would be produced before the court after he gets cured. Thereafter, a bail application was field on behalf of the petitioner before the Chief Judicial Magistrate, Hazaribagh, which was rejected on 26.2.2009 holding therein that the bail application is not maintainable as the petitioner has not been produced before the court. Being aggrieved with that order, this writ application has been filed challenging the said order of the Chief Judicial Magistrate, whereby prayer for bail was rejected on the ground that the application for bail is not maintainable and also for setting the petitioner at liberty on the ground that the detention of the petitioner is illegal on account of non-production of the petitioner before the court within 24 hours in terms of section 57 of the Code of Criminal Procedure. Earlier when the case had been taken up, notice was issued to opposite party no.3 calling upon him to submit his show cause/ counter affidavit by 30.4.2009 which he did. Earlier when the case had been taken up, notice was issued to opposite party no.3 calling upon him to submit his show cause/ counter affidavit by 30.4.2009 which he did. Meanwhile, petitioner was granted bail Mr. Jai Prakash, learned Senior counsel appearing for the petitioner submits that when the petitioner was arrested at the spot on completely wrong allegation, he was thrashed like anything, as a result of which, he suffered fracture in his leg and thereafter he, instead of being produced before the Chief Judicial Magistrate, Hazaribagh, was brought to Brindavan Hospital & Research Centre, Ramgarh on 17.2.2009 and was never produced before the court and since then the petitioner had been in custody of the police, until he was released under the order of this Court. Thus, the action of the police officer is violative of the provision of Section 57 of the Code of Criminal Procedure. Meanwhile, when the petitioner moved for bail, it was rejected by the Chief Judicial Magistrate, Hazaribagh holding therein that the bail application was not maintainable which order is also illegal as the petitioner being in custody can very well move for bail in terms of Section 437 of the Code of Criminal Procedure and under this situation, the petitioner not only deserves to be set at free but is also entitled to compensation. However, Mr. V. Shivnath, learned counsel appearing for the opposite party no.3 submits that as the opposite party no.3 was not a member of the raiding party, he is not in a position to say as to under what manner the petitioner suffered fracture and, therefore, he cannot be held responsible for the same and that when the opposite party no.3 took up for investigation of the case, he immediately got the petitioner admitted in Brindavan Hospital & Research Centre, Ramgarh for providing necessary treatment but the Doctor did not allow the petitioner to move as he was required to undergo operation and under that situation, the court of Chief Judicial Magistrate, Hazaribagh was immediately intimated with the said fact on the very next date, i.e, 18.2.2009, vide Annexure 5 stating therein that the petitioner would be produced before the court as soon as he gets cured and under this situation, the opposite party no.3 cannot be said to have violated the provision as enshrined under section 57 of the Code of Criminal Procedure. Having heard learned counsel appearing for the parties, the question which does arise as to whether one can maintain his bail application, without being remanded to judicial custody ? From reading of the provision of Section 437(i) it is clear that the Court other than the High Court or Court of Sessions gets power to grant bail only when any person accused of an offence is in custody. The custody may be both, it may be either police custody as permissible in law or it may be custody in the sense that the accused is under the control of the Court having been remanded by judicial order. So far the police custody is concerned, the police has no power to keep a person under a police custody beyond 24 hours exclusive of the time necessary for the journey from place of the arrest to the Magistrate’s Court. If investigation is not completed by the police within 24 hours, the accused has to be produced before the Magistrate as provided under section 167 of the Code. At this stage, Magistrate may either release the accused if no ground exists for remand or he may remand him to police custody or judicial custody which in no case initially shall exceed fifteen days in whole. The Magistrate is authorized to detain an accused in police custody only within the initial fifteen days of remand. However, after expiry of the 15 days the Magistrate has no power to send the accused to police custody but he may authorize detention for judicial custody for a maximum period depending upon the nature of the offence as provided under section 167(2) of the Code of Criminal Procedure. The question is as to whether the petitioner can be said to be in custody or not in terms of Section 437(1) of the Code of Criminal Procedure when the application for bail was filed ? What is the meaning of custody under section 439 of the Code of Criminal Procedure, came up for consideration before the apex Court in a case of Niranjan Singh and another vs. Prabhakar Rajaram Kharote and others ( AIR 1980 SC 785 ) wherein it was held hereunder: “ When is a person in custody, within the meaning of Section439 ofthe CodeofCriminalProcedure. When he is in duress either because he is held by the investigating agency or other police or a ied authority or is under the control of the Court having been remanded by judicial order or having offered himself to the Courts jurisdiction and submitted to its orders by physical presence. No lexical destrity nor prcedential profusion is needed to come to the realistic conclusion that he who is under the control of the Court or is in the physical hold of an officer with coercive power is in custody for the purpose of Section 439. This word is of elastic semantics but its core meaning is that the law has taken control of the person. The equivocatory quibblings and hide and seek niceties sometimes heard in Court that the police have taken a man into informal custody but not arrested him, have detained him for interrogation but not taken him into formal custody and other like terminological dubiotics are unfair evasions of the straightforwardness of the law. We need not dilate on this shady facet here because we are satisfied that the accused did physically submit before the Sessions Judge and the jurisdiction to grant bail thus arose. Custody in the context of Section 439, ( we are not, be it noted. dealing with anticipatory bail under Section 438) is physical control or at least physical presence of the accused in Court coupled with submission to the jurisdiction and order of the Court.” Thus, it has been held in the said case that even a person under the control of the Court either having been remanded by the judicial order or having offered himself to the Court’s jurisdiction and submitted to its orders by physical presence before the Court or he is held by the investigating agency or police of other allied authority will be treated to be in custody. No other meaning can be imported with the ‘word’ custody appearing also under section 437(1) of the Code of Criminal Procedure. In that view of the matter, the application for bail when was filed on behalf of the petitioner before the Chief Judicial Magistrate, Hazaribagh was very well maintainable and it was quite wrong on the part of the Chief Judicial Magistrate to keep it pending as premature application on account of the fact that the petitioner has not been remanded to judicial custody. Now the next question crops up for consideration as to whether the action of opposite party no.3 by simply intimating the court about the petitioner being treated at Brindavan Hospital & Research Centre, Ramgarh would amount to compliance of the provision as contained in Section 57 of the Code of Criminal Procedure? Section 57 of the Code of Criminal Procedure reads as follows: Person arrested not to be detained more than 24 hours - 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 under section 167, exceed 24 hours exclusive of the time necessary for the journey from the place of arrest to the Magistrate’s Court. On a plain reading of Section 57 of the Code of Criminal Procedure, it is evident that no police officer can detain in custody a person arrested without warrant for a period longer than 24 hours besides the time taken for the journey. In the instant case, admittedly, after the arrest of the petitioner only an intimation was given to the court concerned regarding the treatment of the petitioner whereas he never made any prayer for remanding the petitioner to jail custody. Had any such prayer been made, learned Magistrate may have taken effective step for getting the petitioner remanded to jail custody. In this situation, injustice seems to have been perpetrated upon the petitioner which, in view of the ratio laid down in a case of Rudul Sah vs. State of Bihar ( AIR 1983 SC 1086 ), can be rectified by compensating him in the interest of justice. Similarly, in the case of Bhim Singh vs. State of Jammu and Kashmir ( AIR 1986 SC 494 ) it has been held that non-production of the detenu before the court made the respondent liable to pay compensation but in the instant case no such prayer for awarding compensation to the petitioner has been made. Moreover in the facts and circumstances of the case it would not be desirable to pass any order in this respect. Under the circumstances, the interim order passed on 9.4.2009 granting bail to the petitioner is hereby confirmed. Accordingly, this application is allowed.