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2016 DIGILAW 1906 (GUJ)

Vijay Mohanbhai Savaliya v. State of Gujarat

2016-09-02

A.Y.KOGJE

body2016
JUDGMENT : A.Y. KOGJE, J. This petition under Article 226 is praying for the relief to quash and set aside the order of remand dated 25.04.2012 passed by the Additional Chief Judicial Magistrate, Vadodara in connection with FIR being CR No. I-269 of 2011, Karelibaug Police Station, Vadodara. 2. The facts in brief are that the petitioner is arraigned as an accused in the aforementioned offence, for which the petitioner had filed application for anticipatory bail, which came to be allowed by an oral order dated 11.04.2012 in Criminal Misc. Application No. 2121 of 2012 by this Court. One of the conditions imposed while granting the anticipatory bail by this Court was reserving liberty to the investigating agency to seek police remand in case of necessity. 3. It appears that in connection with the investigation, pursuant to the direction of anticipatory bail, the Investigating Officer submitted a remand report dated 20.04.2012 In the remand report, it is stated that the petitioner was formally arrested on 16.04.2012 and notice was given to him for remaining present before the Court of Additional Chief Judicial Magistrate for answering the remand report. The remand was sought on three grounds, viz. (1) for recovery of money which is subject matter of the complaint of cheating, (2) for the purpose of arresting the co-accused and (3) for the purpose of a document which is the subject matter of the investigation. 4. Considering the remand report, the Additional Chief Judicial Magistrate passed an order dated 20.04.2012 allowing police custody till 25.04.2012 03:30 hours. 5. This order of the Additional Chief Judicial Magistrate granting remand was challenged by the petitioner by filing Revision Application No. 87 of 2012 before the Court of Sessions Judge, Vadodara. The 9th Additional Sessions Judge, Vadodara rejected the revision application on the ground that exercising of revisional jurisdiction is barred in case of remand applications. It is these orders which are subject matter of challenge in the present petition. 6. The 9th Additional Sessions Judge, Vadodara rejected the revision application on the ground that exercising of revisional jurisdiction is barred in case of remand applications. It is these orders which are subject matter of challenge in the present petition. 6. This Court while issuing Rule vide order dated 11.05.2012 was pleased to grant interim relief in terms of para-10(C), which reads as under:- “10.(C) Pending admission, hearing and final disposal of this Special Criminal Application, Your Lordships may be pleased to stay the order of remand dated 25.4.2012 passed on an application filed by the I.O Karelibaug Police Station, before learned Additional Chief Judicial Magistrate, Vadodara and order dated 3.5.2012 passed by learned 9thAdditional Sessions Judge, Vadodara in Criminal Revision Application No. 87 of 2012.” 7. The matter is since then pending. 8. Considering the fact that the petitioner has been formally arrested on 16.04.2012 and considering the judgment of the Apex Court in the case of Central Bureau of Investigation, Special Investigation Cell-I, New Delhi v. Anupam J. Kulkarni, reported in (1992) 3 SCC 141 , the period thus having lapsed, the investigating agency would be precluded from having the police custody of the accused. 9. Considering the peculiar facts of the present case, learned Advocate for the petitioner has volunteered that in case of necessity, the petitioner is still ready and willing to cooperate with the investigation. While recording such concession, this Court is of the opinion that it would be of no consequence to now direct the petitioner to go again into the police custody. In that view of the matter, the order dated 25.04.2012 passed below remand report of even date in connection with FIR being CR No. I-269 of 2011, Karelibaug Police Station, Vadodara and confirmed by the 9thAdditional Sessions Judge, Vadodara in Criminal Revision Application No. 87 of 2012 is hereby quashed and set aside. The Investigating Officer in case of necessity is at liberty to call upon the petitioner-accused to attend his office for the purpose of investigation for a period of two days between 11.00 am to 5.00 pm by giving notice of two clear days to the petitioner. 10. With the aforesaid directions, the petition is disposed of. Rule is made absolute.