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2012 DIGILAW 647 (HP)

State of Himachal Pradesh v. Jagar Nath

2012-09-27

KULDIP SINGH

body2012
JUDGMENT Kuldip Singh, Judge This petition has been filed under Section 482 Cr.P.C. read with Article 227 of the Constitution for setting aside order dated 2.2.2012 passed by learned Judicial Magistrate, 1st Class, Court No.1, Sundernagar ( here in after Magistrate unless context is otherwise) in bail application No. 4-XXII of 2012. 2. It has been stated that the respondent was arrested on 29.1.2012 at Piplu Mod, near Chakli Slapper and on his personal search 5 grams Charas was recovered. An FIR No. 11 of 2012 was registered against him under Section 20 of the Narcotic Drugs and Psychotropic Substances Act, 1985 ( for short ‘Act’). The respondent was produced before Magistrate on 30.1.2012 and was remanded to Police Custody till 2.2.2012. After the period of remand, the respondent was again produced before Magistrate in the custody of C. Chanderkant No. 756 under supervision of H.C.Shanta Kumar No. 56, Police Station, Sundernagar. The Station House Officer, Sundernagar forwarded the respondent with a request to grant 14 days judicial remand as the investigation was complete. 3. The Magistrate on 2.2.2012 has allowed the bail application of the respondent only on the ground that the accused has not been produced in proper custody, the accused has not been produced by the SHO, personally, the remand of accused cannot be sought by the official below the rank of Sub Inspector. The order dated 2.2.2012 has thus been assailed in the petition. 4. It has been stated that Section 167 Cr.P.C. provides that person arrested has to be forthwith transmitted to the nearest Judicial Magistrate with record, the request has to be made by the Officer Incharge of the Police Station or the Police Officer making the investigation, if he is not below the rank of Sub Inspector. It has been stated that H.C. Shanta Kumar No. 56 was the Investigating Officer and the application for 14 days judicial remand was duly signed by the then SHO, S.I. Madan Lal. The Magistrate has erred that the remand has not been sought by the proper officer and accused has not been produced in proper custody. 5. It has been submitted that the Magistrate has exercised jurisdiction wrongly, illegally and with material irregularity in granting bail to the respondent only on the ground that the accused has not been properly produced in the Court. The submission has been made for setting aside the impugned order. 6. 5. It has been submitted that the Magistrate has exercised jurisdiction wrongly, illegally and with material irregularity in granting bail to the respondent only on the ground that the accused has not been properly produced in the Court. The submission has been made for setting aside the impugned order. 6. Heard. The learned Additional Advocate General has reiterated the contentions raised in the petition. The learned counsel for the respondent has supported the impugned order and has submitted that the Investigating Officer in the present case is below Sub Inspector. The respondent was not produced by SHO, Police Station, Sundernagar in the Court on 2.2.2012. In these circumstances, the order dated 2.2.2012 of Magistrate is fully in accordance with law. He submitted for rejection of the petition. 7. In the order dated 2.2.2012 the Magistrate has recorded the presence of APP for the State. Accused Jagar Nath produced in custody of Chanderkant No. 756 and under supervision of HC Shanta Kumar No. 56, Police Station, Sundernagar. It has been stated that accused had been produced before the Court in pursuance of order dated 30.1.2012. Police vide separate application sought remand of accused in judicial custody for 14 days. The investigation in the case was complete. It has been observed that the police officials were informed that the accused had not been produced in proper custody, since remand of accused could not be sought by an official below the rank of SI. The Magistrate has further observed that SHO was in Police Station and was unable to come. Separate bail application had been filed on behalf of the accused. The investigation in the case was complete, further keeping in view the fact, the accused had not been produced in proper custody, the accused was enlarged on bail subject to the conditions mentioned in the order. 8. It emerges from the order dated 2.2.2012, the remand of the accused could not be sought by the official below the rank of SI, therefore, Magistrate granted bail to the respondent since the investigation was complete. Simply investigation is complete in itself is not a ground for releasing an accused on bail. The facts of the case and other relevant factors are to be considered for granting the bail. The order dated 2.2.2012 does not show that Magistrate has considered the facts of the case and other relevant factors for granting the bail. 9. Simply investigation is complete in itself is not a ground for releasing an accused on bail. The facts of the case and other relevant factors are to be considered for granting the bail. The order dated 2.2.2012 does not show that Magistrate has considered the facts of the case and other relevant factors for granting the bail. 9. The Section 167 (1) of the Code provides as under:- “167(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.” 10.In Mrs. Sudha Shivarame Gowda vs. State of Karnataka 1993 Cri. L.J. 1533, it has been held that Section 167(1) of Cr.P.C. relates to procedural matters. The procedural law is hand made of the justice and cannot at all be used to defeat the ends of justice or to affect the lawful proceedings. 11.In Directorate of Enforcement vs. Deepak Mahajan and another (1994) 3 SCC 440 , the Supreme Court has held as follows: “48. Thus the Code gives power of arrest not only to a police officer and a Magistrate but also under certain circumstances or given situations to private persons. Further, when an accused person appears before a Magistrate or surrenders voluntarily, the Magistrate is empowered to take that accused person into custody and deal with him according to law. Needless to emphasize that the arrest of a person is a condition precedent for taking him into judicial custody thereof. To put it differently, the taking of the person into judicial custody is followed after the arrest of the person concerned by the Magistrate on appearance or surrender. It will be appropriate, at this stage, to note that in every arrest, there is custody but not vice versa and that both the words’custody’ and ‘arrest’ are not synonymous terms. Though ‘custody’ may amount to an arrest in certain circumstances but not under all circumstances. It will be appropriate, at this stage, to note that in every arrest, there is custody but not vice versa and that both the words’custody’ and ‘arrest’ are not synonymous terms. Though ‘custody’ may amount to an arrest in certain circumstances but not under all circumstances. If these two terms are interpreted as synonymous, it is nothing but an ultra legalist interpretation which if under all circumstances accepted and adopted, would lead to a startling anomly resulting in serious consequences, vide Roshan Beevi 1984 Cri. L.J. 134.” “54. The above deliberation leads to a derivation that to invoke Section 167(1), it is not an indispensable pre-requisite condition that in all circumstances, the arrest should have been effected only by a police officer and none else and that there must necessarily be records of entries of a case diary. Therefore, it necessarily follows that a mere production of an arrestee before a competent Magistrate by an authorized officer or an officer empowered to arrest (notwithstanding the fact that he is not a police officer in its stricto sensu) on a reasonable belief that the arrestee “has been guilty of an offence punishable” under the provisions of the special Act is sufficient for the Magistrate to take that person into his custody on his being satisfied of the three preliminary conditions, namely (1) the arresting officer is legally competent to make the arrest; (2) that the particulars of the offence or the accusation for which the person is arrested or other grounds for such arrest do exist and are well-founded; and (3) that the provisions of the special Act in regard to the arrest of the persons and the production of the arrestee serve the purpose of Section 167(1) of the Code.” 12.The Section 167(1) provides that copy of entries in diary should be transmitted and accused also to be forwarded for custody by the officer in charge of the police station or police officer making the investigation, if he is not below the rank of Sub Inspector. It does not emerge from Section 167 that copies of entries in diary and request for remand of the accused are required to be produced and made by the Officer Incharge of the Police Station or Police Officer making the investigation if he is not below the rank of Sub Inspector by putting appearance personally before the Magistrate. It does not emerge from Section 167 that copies of entries in diary and request for remand of the accused are required to be produced and made by the Officer Incharge of the Police Station or Police Officer making the investigation if he is not below the rank of Sub Inspector by putting appearance personally before the Magistrate. The purpose of Section 167 is that case diaries should be produced and request should be made by some Senior Officer. The Section 167 has specified those officers as Officer Incharge of the Police Station or Police Officer making the investigation if he is not below the rank of Sub Inspector. These officers are required to transmit the case diaries and forward the accused to the Magistrate for remand. 13. Once the case diary and accused are before the Magistrate, then magistrate is to proceed in accordance with law for remand of the accused or granting him bail as the case may be. The Magistrate is fully competent to direct the Officer Incharge of the Police Station or the Officer who has applied for remand to seek further information as Magistrate deems just and proper. On 2.2.2012 the respondent was in custody when he was before the Magistrate. It was for the Magistrate to pass further order regarding his remand or bail in accordance with law. It is admitted case that application seeking remand of the accused in judicial custody for 14 days was before the Magistrate. This fact has been observed in the order dated 2.2.2012. It is not the case that the case diary was not transmitted to the Magistrate or the accused was not forwarded to the Magistrate by the Officer Incharge of the Police Station for remand. A copy of request for remand submitted by the S.H.O., Police Station, Sundernagar to the Magistrate on the relevant date has been placed on record. 14.It has not been denied H.C.Shanta Kumar, Police Station, Sundernagar was the investigating officer in the case. He was present before the Magistrate on 2.2.2012. The Magistrate erred in taking the view that since respondent has not been produced personally by the Officer Incharge of the Police Station and the request has not been made by the Officer Incharge of the Police Station in person, therefore, the production of accused and request for remand are illegal. He was present before the Magistrate on 2.2.2012. The Magistrate erred in taking the view that since respondent has not been produced personally by the Officer Incharge of the Police Station and the request has not been made by the Officer Incharge of the Police Station in person, therefore, the production of accused and request for remand are illegal. The Magistrate granted the bail to the respondent only on the ground that he has not been produced by the competent officer. The Magistrate has not considered any relevant factor for granting bail to the respondent. In these circumstances, the impugned order dated 2.2.2012 passed by the Magistrate is not sustainable. In view of above, the petition is allowed, the order dated 2.2.2012 passed by the learned Judicial Magistrate 1st Class, Court No.1, Sundernagar, is set-aside. The parties through their counsel are directed to appear before the Judicial Magistrate 1st Class, Court No.1, Sundernagar on 15.10.2012. The bail granted to the respondent by the Magistrate shall continue till 15.10.2012, there upon the Magistrate shall pass order and dispose of the request of the S.H.O., Police Station, Sundernagar for remand of the respondent and also the bail application of the respondent in accordance with law.