Research › Search › Judgment

Bombay High Court · body

2018 DIGILAW 927 (BOM)

Vitthal Budho Tayade v. Union of India

2018-04-03

M.S.SONAK, V.K.TAHILRAMANI

body2018
JUDGMENT : V.K. TAHILRAMANI, J. 1. Heard both sides. 2. Rule. Rule is made returnable forthwith and the matter is heard finally by consent of the parties. 3. This Writ Petition has been preferred by the petitioner against the order dated 26.7.2012 passed by the Central Administrative Tribunal, Bombay Bench, Mumbai whereby Original Application No. 818 of 2011 preferred by the petitioner came to be dismissed. In the said O.A. the petitioner prayed for setting aside suspension order issued against him. 4. According to the respondents, the petitioner was detained in custody on a criminal charge under Prevention of Corruption Act for a period exceeding 48 hours, hence, pursuant to Rule 10 (2) (a) of the Central Civil Services (Classification, Control and Appeal) Rules 1965, the petitioner came to be suspended. 5. The petitioner was working as District Youth Coordinator in the office of the Nehru Yuva Kenda Sangathan at Thane in Maharashtra. He was admittedly taken into custody by Central Bureau of Investigation at 1.40 a.m. on 9.3.2011 in connection with a crime registered against him for an offence punishable under Section 7 of the Prevention of Corruption Act, 1988. The petitioner admits that he was produced by the Central Bureau of Investigation before the Special Judge at 6.11 p.m. on 9.3.2011 and remanded to CBI Custody till 11.3.2011. On expiry of the period of remand, the petitioner was produced before the Special Judge at 5.20 p.m. on 11.3.2011 and on that day, he was remanded to judicial custody till 25.3.2011, however, thereafter on 11.3.2001, the Court ordered his release on bail. 6. On 23.3.2011, Respondent No. 4 placed the petitioner under suspension invoking the power under sub-rule (2) of Rule 10 of the Central Civil Services (Classification, Control and Appeal) Rules 1965 (for short "the Rules") obviously reckoning the period of detention of the petitioner being in excess of 48 hours commencing from the point of his arrest. 7. The petitioner who was an employee in the Nehru Yuva Kendra Sangathan which comes under the Ministry of Youth Affairs and Sports, Government of India raised the short but interesting questions which are as under:- When does the period of detention of 48 hours contemplated under Rule 10 (2) (a) of the Central Civil Services (Classification, Control & Appeal) Rules, 1965 start to run? Does it commence from the moment, the Government Servant is detained in custody by the Police on his arrest? Does the period start to run only from the time when he is remanded to custody, be it judicial or police, by the jurisdictional Magistrate as provided under Section 167 of the Code of Criminal Procedure? 8. Mr. Chaturvedi, the learned counsel for the petitioner contended that the period of detention can be computed only from the time, the petitioner was produced before the Special Judge on 9.3.2011 at 6.11 p.m. and not from the time, when he was taken into custody by the CBI on 9.3.2011 at 1.40 a.m. The thrust of the argument of the learned counsel is that detention of the petitioner became "regular" or "legal" only when he was remanded to custody through a judicial order which was passed on 9.3.2011 at 6.11 a.m. and detention by the CBI prior to his production before the jurisdictional Court was "nonest" in the eye of the law. 9. Before we deal with the above contention, we may refer to the relevant clauses of Rule 10 of the Rules, which read thus:- 10. Suspension: (1) The Appointing Authority or any authority which it is subordinate or the Disciplinary Authority or any other authority empowered in that behalf by the President, by general or special order, may place a Government servant under suspension:- (a) xxx xxx (aa) xxx xxx (b) xxx xxx (2) A Government servant shall be deemed to have been placed under suspension by an order of Appointing Authority: (a) With effect from the date of his detention, if he is detained in custody, whether on a criminal charge or otherwise, for a period exceeding 48 hours. xxx xxx (Emphasis supplied) A perusal of the above clauses undoubtedly shows that the terminology employed by the Rule making authority is "detention" simpliciter. The Rule does not distinguish between judicial custody or police custody. The words "detained in custody" referred to in the above clause can be either on a "criminal charge or otherwise." Thus, apparently, what is in contemplation of the Rule making Authority is only "detention in custody" of the Government Servant for the period exceeding 48 hours. 10. The Rule does not distinguish between judicial custody or police custody. The words "detained in custody" referred to in the above clause can be either on a "criminal charge or otherwise." Thus, apparently, what is in contemplation of the Rule making Authority is only "detention in custody" of the Government Servant for the period exceeding 48 hours. 10. Section 57 of the Code of Criminal Procedure postulates that the police cannot detain in custody a person arrested without warrant for more than 24 hours, in absence of a special order of a Magistrate under Section 167 of the Code. Undoubtedly, Section 167 of the Code empowers the Magistrate before whom the accused is produced as provided under Section 57, to authorize the detention of the accused in such custody, either judicial or police, as such Magistrate may deem fit "for a term not exceeding 15 days in the whole." Proviso (a) to sub-section (2) further authorizes the Magistrate to order detention of the accused person otherwise than in the custody of police beyond the period of 15 days if it is satisfied that adequate grounds exist for doing so but no Magistrate shall authorize the detention of the accused person in custody under this proviso for a total period exceeding: (i) 90 days where the investigation relates to an offence punishable with death, imprisonment for life or imprisonment for a term of not less than 10 years. (ii) 60 days where the investigation relates to any other offence. On the expiry of the said period of 90 days or 60 days, as the case may be, the accused person shall be released on bail if he is prepared to and does furnish bail and every person released on bail under this sub-section shall be deemed to be so released under the provisions of Chapter XXXIII for the purposes of that Chapter. 11. We have referred to the above provisions in the Code in extenso, since the learned counsel for the petitioner has advanced the argument that the detention of the petitioner by the CBI in its custody from the time of his arrest till his production before the Special Judge cannot be treated as "legal custody" in view of the provisions contained in Section 167. The argument of the learned counsel is that "detention in custody" contemplated under Rule 10 (2) of the Rules will commence in the eye of the law only when the arrestee is remanded by a jurisdictional Court to either judicial custody or police custody. 12. In the decision of the Supreme Court in the case of Central Bureau of Investigation, Special Investigation Cell-I vs. Anupama Kulkarni, AIR 1992 SC 1968, a question arose as to whether a person arrested and produced before the nearest Magistrate as required under Section 167(1) of the Code can still be remanded to police custody after the expiry of the initial period of 15 days. After dealing with the various clauses contained in Section 167 of the Code and also after referring the decision of the Supreme Court in the case of Chaganti Satyanarayan and Others vs. State of Andhra Pradesh, AIR 1986 SC 2130 , the Court held thus: "If the investigation is not completed within the period of 90 days or 60 days then the accused has to be released on bail, as provided under the proviso to Section 167(2). The period of 90 days or 60 days has to be computed from the date of detention as per the orders of the Magistrate and not from the date of arrest by the police." (Emphasis supplied) 13. It may at once be noticed that Section 167 of the Code essentially protects the right of the accused to be released on bail if the charge sheet is not filed within the period of 90/60 days depending on the nature of the offence. It is true that in the decision referred to above, it has been laid down that the period of 90/60 days envisaged under the proviso to Section 167 (2) is to be computed only from the date of remand. Obviously, such an interpretation has been given by the Court keeping in view the right to personal liberty guaranteed to every citizen of this country under Article 22 of the Constitution of India and particularly to ensure that the police or investigating agency does not misuse the power to detain an accused in custody pending investigation. 14. But, in our view "detention" envisaged under Rule 10 (2) (a) of the Rules cannot be construed or interpreted in such a narrow or strict sense. 14. But, in our view "detention" envisaged under Rule 10 (2) (a) of the Rules cannot be construed or interpreted in such a narrow or strict sense. Under Rule 10, a Government Servant shall be deemed to have been placed under suspension with effect from the date of his detention if he is detained in custody for a period exceeding 48 hours. 15. Learned counsel for the petitioner contended that the period of detention envisaged in sub-rule (2) of Rule 10 of the Rules is to be computed from the date of the order of remand passed by the Magistrate and not from the date of his arrest. According to the learned counsel, the time spent by the petitioner in custody after his arrest by the CBI from 1.40 a.m. on 9.3.2011 till his production before the Magistrate at 6.11 p.m. on the same day cannot be treated as detention as envisaged in Section 10 (2) (a) of the Rules. Learned counsel for the petitioner further contended that as detention commenced only at 6.11 p.m. on 9.3.2011 and ended at 5.20 p.m. on 11.3.2011, the petitioner was in "custody" only for 47 hours and 9 minutes. We are unable to accept the submission made by the learned counsel for the petitioner. In our view, Rule 10 (2) (a) envisages only detention of the delinquent employee in custody for a period exceeding 48 hours. What is crucial is only "detention in custody." Such detention can be on a "criminal charge or otherwise." It is also immaterial whether such detention was in judicial custody or police custody. Admittedly, the petitioner had remained in custody for more than 48 hours that is from 1.40 a.m. on 9.3.2011 till 5.20 p.m. on 11.3.2011. In our opinion, period of detention in custody is to be counted from time of arrest. 16. As has been mentioned earlier, the Courts have given a strict interpretation to the clauses contained in Section 167 of the Code in the matters of computation of statutory period of 90/60 days since it affects the personal liberty of the citizen. The right of the accused to be released on bail cannot be tinkered with or frustrated by the police/ investigating agency indefinitely on the specious plea that the investigation is still pending. The right of the accused to be released on bail cannot be tinkered with or frustrated by the police/ investigating agency indefinitely on the specious plea that the investigation is still pending. The whole scheme envisaged under Section 167 of the Code will undoubtedly show that the legislature has given paramount importance to the right of the accused to "demand" for bail if investigation is not completed within 90/60 days. It is, therefore, that the Courts have taken a strict view while computing the period of detention of the accused in custody. 17. The scenario is totally different when it comes either to the concept or interpretation of "detention" under Rule 10 in service jurisprudence. The language employed in Rule 10 does not leave any room for doubt in this regard. Therefore, in our view, a narrow interpretation as in the case of Section 167 of the Code is not warranted while dealing with Rule 10 of the Rules. "Detention" will commence from the moment a Government servant is put under "custody" either on a criminal charge or otherwise. Order of remand shall have no impact or relevance while computing the period of 48 hours stipulated under the Rules. The Tribunal has taken into consideration all these aspects and has rightly dismissed the O.A. 18. Before parting with the judgment, we would like to deal with one other aspect of the matter i.e. according to the learned counsel for the petitioner, the petitioner was produced on 9.3.2011 at 6.11 a.m. before the learned Magistrate who remanded him to CBI custody till 11.3.2011. According to the learned counsel, the remand order dated 11.3.2011 shows that the petitioner was produced before the Magistrate at 5.20 p.m. at which time, the order was passed by the learned Magistrate remanding the petitioner to judicial custody till 25.3.2011. The contention of the learned Counsel for the petitioner is that immediately thereafter, the petitioner preferred an application for bail and he was immediately granted bail which means the petitioner was granted bail at 5.20 p.m. on 11.3.2011. The contention of the learned Counsel for the petitioner is that immediately thereafter, the petitioner preferred an application for bail and he was immediately granted bail which means the petitioner was granted bail at 5.20 p.m. on 11.3.2011. Thus, according to him, only after the learned Magistrate remanded the petitioner to CBI custody on 9.3.2011 at 6.11 p.m. the petitioner could be said to be in custody and as the petitioner was granted bail on 11.3.2011 at 5.20 p.m. the petitioner cannot have been said to be in custody for a period exceeding 48 hours, hence, the petitioner could not have been placed under suspension. 19. Though the above contention is not legally tenable, by way of indulgence, we have dealt with the above contention. Admittedly on 11.3.2011 at 5.20 p.m. the petitioner was remanded to judicial custody till 25.3.2011, hence, admittedly, till 5.20 p.m. on 11.3.2011, the petitioner was in custody. It is also the contention of the learned counsel for the petitioner that thereafter, the petitioner preferred an application for bail. Obviously, the application would have been heard which would have taken sometime as it was a case under Prevention of Corruption Act and thereafter, bail would have been granted to the petitioner, We would also like to quote relevant part of the bail order passed on 11.3.2011 which reads thus:- "Application for bail is allowed. Accused Vithal Budho Tayade shall be released on P.R. of Rs. 15,000/- with a surety of like amount in R.C. No. 12(A)/2011 CBI ACB Mumbai on following conditions......" 20. The bail order shows that to be released on bail, the petitioner had to comply with certain conditions which included furnishing surety in the sum of Rs. 15,000/- and executing P.R. Bond of Rs. 15,000/-. According to the learned counsel for the petitioner, the period of 48 hours expired on 11.3.2011 at 6.10 p.m. It is not humanly possible that in between the period from 5.20 p.m. to 6.10 p.m. on 11.3.2011 that the petitioner preferred an application for bail, it was heard, the order was passed thereon by the learned Magistrate, the order was typed which runs into 1 and 1/2 pages, it was checked and signed by the learned Magistrate and thereafter the petitioner had complied with all the formalities which were stipulated in the order. In this view of the matter, we do not agree with the contention of the learned counsel for the petitioner that as soon as the bail order was pronounced, the petitioner cannot be said to be anymore in custody, because unless and until the petitioner complies with all the conditions in the bail order, he could not have been released on bail. Thus, examining this case from any angle, it cannot be said that the petitioner was in custody for less than 48 hours, in such case, the Authorities rightly passed the order of suspension against the petitioner. Thus, in view of above facts, we are of the opinion that no interference is called for. The petition is dismissed. Rule is discharged.