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Harshad Mehta Case

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    Harshad S. Mehta vs Central Bureau Of Investigation

    Investments Private Ltd. and other unknown under Sections 11,12,13(2) and 13(l)(d) of Prevention of Corruption Act, 1988 (hereinafter called as ‘P. C. Act’) read with Section 120B Indian Penal Code. (2) That since the petitioner during the relevant time was in Byculla jail Bombay, therefore, C. B. I, moved an application before Special Judge Delhi on 12th August 1992 under Section 267 Criminal Procedure Code . for the production of the petitioner. The Special Judge, Delhi vide his order dated 12th August 1992 directed the Supdt.

    Jail, Byculla Bombay to produce Mr. Harshad S. Mehta in the Court as his presence was required for interrogation in connection with the investigation of this case. (3) That the petitioner, in pursuance to the said order was produced before the Special Judge, Delhi on 17th August 1992. On being produced, the petitioner was formally arrested in this case on 17th August 1992. Police remand was sought which was given till 20th August 1992. Thereafter police remand was extended till 22nd August 1992.

    However, vide order dated 22nd August 1992, Mr. Kuldip Singh, Special Judge, Delhi did not grant police remand but remanded the petitioner to judicial custody till 25th August 1992 at Central Jail, Tihar. (4) That the petitioner was taken to Bombay on 24th August 1992 and thereafter never produced before the Special Judge, Delhi. The remand after 25th August 1992 was neither sought nor given to the petitioner. (5) It is in this background Mr. Dinesh C. “Mathur, Sr. Advocate for the petitioner has raised very important questions of law.

    So ‘far there is no decision of any High Court or of the Apex Court on these points. These are:

    1. Whether for the sake of interrogation in connection with the investigation, the prosecuting agency can invoke the provisions of Section 267 Criminal Procedure Code.
    2. Whether remand under Section 167(2) Criminal Procedure Code has to be taken after every 15 days or not and whether after the initial remand of 15 days, the accused can be remanded in perpetuity subject of course to the outer limit of 60/190 days? (6)

    On question No. , the rival contention of the counsel for the parties can be summed up thus, that the production of the petitioner from Byculla Jail in order to answer the charge in the investigation is contrary to law. The provisions of Section 267 Criminal Procedure Code . can only be invoked in case proceedings are pending in Court pertaining to Inquiry or trial. The investigation is neither Inquiry nor trial. Further, this provision helps in aid to the Criminal Court for summoning the accused from another jail for the purpose of answering a charge in Inquiry or trial; and to appear as a witness or for giving evidence.

    The intention of the legislature was not to allow the investigating agency to use this provision for the purpose of summoning the accused from another jail in order to answer a charge in the investigation. That is why the word investigation has been omitted in this Section. The provision of Section 267 Criminal Procedure Code . can not be invoked in Indian Kanoon order to facilitate the investigating agency to make a formal arrest. On the other hand, C. B.I’s contention is that the word another proceeding’ appearing under Section 267 Criminal Procedure Code . would include investigation. The interpretation of the statute should be liberal and harmonious. It should not be construed in such a way that it should whittle down the powers of the Court. (7) That, while interpreting the statute, ascertainment of the legislature’s, the intention is a must. Legislature speaks its mind by use of correct expression and unless there is an ambiguity in the language of the provision the Court should adopt literal construction if it does not lend to absurdity. The language used, in fact, speaks the mind of Parliament.

    There is no need to look somewhere else to discover the intention or meaning. To ascertain the literal meaning it is equally necessary first to ascertain the juxtaposition in which the rule is placed, the purpose for which it is required to subserve, and the authority by which is to be used. So held by the Supreme Court in the case of Lt. Col. Prithi Pal Singh Bedi Vs. Union of India and others. Keeping this principle in mind, we have to see what was the intention of the legislature while incorporating Section 267 in the Criminal Procedure Code. (8) Section 267 Criminal Procedure Code reads as under; Section 267 (1)Whenever, in the course of any inquiry, trial or another proceeding under this Code, it appears to a Criminal Court, –

    • (a) that a person confined or detained in a prison should be brought before the Court for answering to a charge of an offense, or for the purpose of any proceedings against him, or
    • (b) that it is necessary for the ends of justice to examine such person as a witness, the Court may make an order requiring the officer in charge of the prison to produce such person before the Court for answering to the charge or for the purpose of such proceeding or, as the case may be, for giving evidence.

    2)Where an order under sub-section (1) is made by a Magistrate of the second class, it shall not be forwarded to or acted upon by the officer in charge of the prison unless it is countersigned by the Chief Judicial Magistrate to whom such Magistrate is subordinate. (3)Every order submitted for countersigning under sub-section (2) shall be accompanied by a statement of the facts which, in the opinion of the Magistrate, render the order necessary, and the Chief Judicial Magistrate to whom it is submitted may, after considering such statement, decline to countersign the order.

    This Section provides that a criminal Court in the course of an inquiry or trial or another proceeding could direct the production of an accused detained in another prison for the purposes of answering to a charge or for the purposes of any proceeding against him. He could also be called to appear as a witness for the purposes of giving evidence. Admittedly this case is at investigation. No inquiry or trial is pending.

    The only question for consideration is whether “other proceedings” used in this Section would include investigation, Investigation has been defined under Section 2(h) as under “investigation” includes all the proceedings under this Code for the collection of evidence conducted by a police officer or by any person (other than a Magistrate) who is authorized by a Magistrate in this behalf. ” (10) From the reading of the above provisions, it is clear that inquiry, trial, and investigation are not of the same class or thing. (11) Mr.

    Mathur contended that the word “other proceeding” has to be a proceeding in the Court whereas investigation is conducted by investigating agency/ police. The legislature deliberately omitted the word “investigation” in Section 267 Criminal Procedure Code. The general word appearing in Section i. e. “other proceeding” has to be read with the words of a particular and specific meaning, such general words are not to be construed in their widest extent, but are to be held as applying only to persons or things of the same general kind or class as those specifically mentioned.

    The rule of construction requires that the general provision be limited in its scope to the identical things specifically named. Under “ejusdem generis” canon of statutory construction, where general words follow the enumeration of particular classes of things, the general word will be construed as applying only to things of the same general class as those enumerated.

    Hence “other proceeding” has necessarily to go with inquiry and trial and not an investigation. The “other proceeding” cannot be construed as an investigation. If it is construed, it would mean reading the provision out of context. (12) The legislature intentionally omitted the word investigation under Section 267 Cr. P. C. The underlying reason for requiring the attendance of a prisoner from another prison is primarily to answer a charge of an offense in inquiry or trial pending in Court or for such proceedings.

    His attendance can also be required for the purpose of being examined as a witness or for giving evidence. (13) Mr. Saxena on the other hand forcefully argued that “other proceeding” would include investigation because the rule of “ejusdem generis” does not necessarily require that general provision be limited in its scope to the identical thing specifically named nor does it apply when the context manifests a contrary intention.

    He drew my attention to the provision of Sections 91, 92, and 93 of the Code which corresponds to the Provisions of Sections 94 to 96 of the Old Code. Section 91 which corresponds to Section 94 of the Old Code deals with a summons to produce documents or things. Whenever any Court or any officer in charge of a Police Station considers that production of any document or thing is necessary or desirable for the purposes of any investigation, inquiry, trial or other proceedings such Court may issue the summons.

    Similarly, Section 92 prescribes that if any document, parcel or thing in the custody of a postal or telegraph authority is, in the opinion of the Court wanted for the purposes of any investigation, inquiry, trial or other proceedings such Court may direct the same to be delivered. Sub Section (1) of Section 93 corresponds to Section 96(1) of the Old Code. Sub- Section 2 of Section 93 corresponds to Section 97 and Section 3 to Section 96(2) of the Old Code.

    Section 93 is reproduced as under: “Section 93 “(1)(a) Where any Court has reason to believe that a person to whom a summons or order under Section 91 or a requisition under sub-Section (1) of Section 92 has been, or might be, addressed, will not or would not produce the document or thing as required by such summons or requisition, or (b) where such document or thing is not known to the Court to be in the possession of any person, or (c) where the Court considers that the purposes of any inquiry, trial or another proceeding under this Code will be served by a general search or inspection, it may issue a search warrant, and the person to whom such warrant is directed, may search or inspect in accordance therewith and the provisions hereinafter contained. (2)The Court may, if it thinks fit, specify in the warrant the particular place or part thereof to which only the search or inspection shall extend, and the person charged with the execution of such warrant shall then search or inspect only the place or part so specified. (3)Nothing contained in this section shall authorize any Magistrate other than a District Magistrate or Chief Judicial Magistrate to grant a warrant to search for a document, parcel or another thing in the custody of the postal or telegraph authority. ” (14) Mr. Saxena contended that reading of Clause l(c) of Section 93 would make it clear that search warrants can be issued only for the purposes of any inquiry, trial or another proceeding under this Code and the person to whore such warrant is directed, may search or inspect in accordance with the provisions contained therein. The reading of this Section shows that the word ‘investigation’ has been omitted under Section 93, but still, the Magistrate do issue search warrants for the purposes of investigation. If the magistrates can exercise the power of issuing warrants under Section 93 because of the enabling provision and taking recourse to the word “other proceedings” which provision is general in nature. Similarly for requiring the attendance of an accused lodged in another jail can be sought by invoking Section 267 Criminal Procedure Code or the purposes of interrogation and investigation. In this regard, he has placed reliance on the decision of Mysore High Court in the case of M. P. Kevarappa Vs. D. Sankannayya Setty 1965(2) Crl. L. J. 225. in that case the Court was dealing with the provisions of Section 94 and 96 of the Old Code. The facts of that case were that the word Circle Inspector of Police at ercara acquired information that two persons had printed and circulated a pamphlet containing matters falling witn the purview of of Section 124A and Section 153A of the Penal Code.

    Inspector wanted to collect the evidence so that the prosecution could be commenced in respect of those offenses. He applied to the First Class Magistrate Mercara for sanction to investigate those offenses since those offenses were non-cognizable offenses, hence permission was necessary. The Magistrate accorded the permission to investigate the offenses which he presumably did under the provisions of Section 155(2) of the Code of Criminal Procedure and thereafter a case was registered. The police wanted to search the houses of the accused and asked for the general search warrants. The general search warrants were issued by the Magistrate authorizing the police to search the premises of the complainant.

    The complainant filed a suit for damages against the Magistrate for issuing search warrants illegally. The District Magistrate upheld the contention of the complainant and awarded damages against the magistrate. Against that order, the matter went up in appeal. The point raised before the High Court was whether the Magistrate had the power to issue the general search warrant when there was no matter pending before him either in which he had to make an inquiry or trial, and that the magistrate did not consider that for the purposes of any inquiry, trial or another proceeding before the Court to which there is a reference in para 3 of Sub Section 96 of the Code of Criminal Procedure, it was necessary that a general search should be made.

    Para 3 of Sub Section (1) of Section did not authorize the Magistrate to issue a search warrant for the purposes of investigation. The Court considered the provision of Section 94(1) of the Old Code as well as of Section 96 of the Old Code which is corresponding to Section 91 and 93 of the present Code and came to the conclusion that it does not appear reasonable to say that a general search warrant which may be made under the third paragraph of Section 96(1) for an inquiry which is made by a Magistrate to determine prima facie the truth and falsity of certain facts in order to take further action thereon, cannot be made during an investigation whose purpose is in substance similar.

    Relying on the various other judgments the High Court came to the conclusion that although the word Investigation’ occurring in Section 94(1) does not occur in para 3 of Section 96(1) of the Code. So long as that paragraph employs the comprehensive words ‘or another proceeding under this Code’ and the definition of an ‘investigation’ contained in S. 4(1)(1) of the Code makes it clear that an investigation like the one in the present case, is a proceeding under the Code, it would not be, right for the Court to depend upon the inexistence of the word ‘investigation’ in para 3 of Section 96(1) for founding the conclusion that an investigation is not a proceeding under the Code or that a general search to aid an investigation is not within para 3 of Section 96(1) of the Code. Therefore, relying on these observations, Mr. Saxena contended that the inexistence of the word ‘investigation’ in Section 267 will not make any difference. The word ‘other proceedings’ is comprehensive enough to include investigation. The scope of the word ‘other proceeding’ should not be restricted only to the inquiry or trial pending in the Court because if that had been the import of the legislature it would have manifestly made it clear in its language as was done under Section 491(1)(C) of the Old Code. In fact in order to enlarge the scope of this Section the word ‘other proceeding’ has been used. (15) I have considered the rival contentions put forward by the council. So far as the case of Mysore High Court is concerned, that is distinguishable on the facts.

    There the High Court was dealing with the issuing of a general search warrant for the purpose of collecting evidence in the investigation for which investigation sanction was accorded by the Magistrate himself. Moreover, the Court took the view that for the purposes of collecting evidence in respect of an offense suspected to have been committed it can issue search warrant even if it is at the stage of investigation because Section 4(1) of the Old Code (which corresponds to Section 2(h) of the new Code defines ‘investigation’. It means all the proceedings under this Code for the collection of evidence conducted by a police officer or by any person (other than a Magistrate) who is authorized by a Magistrate in this behalf. A search warrant under section 93 is also issued for the purposes of collecting such evidence.

    Therefore, it was in this background that the Court took the view that the commission of the word ‘investigation’ from para 3 of Section 96(1) Is immaterial because there the police officer wanted to collect the evidence and the Magistrate by issuing the search warrant aided him to do so. But in the present case that is not so. So far as Section 267 Criminal Procedure Code . is concerned it cannot be used as a sheet anchor by the police, to serve its purpose. The police cannot use the services of the Court for requiring the attendance of an accused from another jail to enable the police to arrest him in another case. There is no difficulty in reaching this conclusion. In arriving at the decision I am supported by the language used in Forms No. 36 and 37 of the Second Schedule to the Code of Criminal Procedure which is used under Section 267 Criminal Procedure Code.

    Reading of Form 36 makes it clear that the attendance of the person is required in the Court to answer to a charge or the proceeding pending in the Court. Form No. 37 Schedule two deals with.. the production of the person from another jail for the purposes of giving evidence. There is no other form prescribed in the Schedule to the Criminal Procedure Code under Section 267 empowering the Magistrate to issue the warrants compelling the attendance of the person from another jail in order to answer a charge in the investigation.

    Therefore, the observation made by the Mysore High Court while interpreting para 3 of Section 96(1) of the Old Code will have to be of no help in the interpretation of Section 267 of the new Code nor the word “other proceeding” used in Section 267 Criminal Procedure Code . can be stretched to such an extent that the word ‘investigation’ could be covered. (16) The word “other proceedings” used in Section 267 Criminal Procedure Code . would mean proceedings pending in Court. For example cases under Section 145 and 146 Criminal Procedure Code . are neither inquiry nor trial. Such cases are in fact covered under the definition of “other proceedings” appearing under Section 267 Criminal Procedure Code. It is keeping in view such cases that the legislature used the expression ‘any other proceedings’.

    But this by no stretch of the imagination would mean investigation. The import of the legislature becomes clear from the reading of the title under chapter Xxii which indicates attendance of persons confined Section 267 Criminal Procedure Code. deals with the Court’s power to require the attendance of a prisoner. Now this power to my mind cannot be used to facilitate the investigating agency. It is only when Court requires the attendance of a person lodged in another jail it will exercise this power and that too for the limited purpose i. e. to answer a charge in a trial or inquiry or in the proceedings pending before him or to require his presence as a witness for giving evidence and for no other purpose.

    The legislature in order to ensure that this power may not be misused made it sure that it be exercised by a senior judicial officer. Therefore when attendance is required by a Magistrate of the second class, it made it clear that the said order shall not be acted upon by the officer in charge of the prison unless countersigned by the Chief Judicial Magistrate. (17) From this, we can infer the mind of the Parliament. Prior to the amendment of the Code under the Old Code, there was only one Section dealing with the power of the court to seek the attendance of a prisoner and that was Section 491 under Chapter xxxvII. It was more in the nature of a writ of Habeaus Corpus. Section 491 of the Code of 1898 reads as under 491. POWER To Issue Directions Of The Nature Of A Habeaus CORPUS; (1)Any High Court may, whenever it thinks fit, direct (a) That a person within the limits of its appellate criminal jurisdiction be brought up before the Court to be deal with according to law: (b) that a person illegally or improperly detained in public or private custody within such limits be set at liberty, (c) that a prisoner detained in any jail situate within such limits be brought before the Court to be there examined as a witness in any matter pending or to be inquired into in such Court, (d) that a prisoner detained as aforesaid be brought before a Court-martial or any Commissioners … for any trial or to be examined touching any matter pending before such Court-martial or Comissioners respectively, (e) that a prisoner within such limits be removed from one custody to another for the purpose of trial, and (f) that the body of a defendant within such limits be brought in on the Sheriffs return of habeas corpus to writ of attachment. 2)The High Court may, from time to time, frame rules to regulate the procedure in cases under this section. (3)Nothing in this section applies to persons detained under the Bengal Slate Prisoners’ Regulation 1818 Madras Regulation Ii of 1819, or Bombay Regulation Xxv of 1827, or the State Prisoners Act, 1850, or the State Prisoners Act, 1858. ” (18) The law commission in its 40th and 41st report recommended that this Section 491 be omitted and more comprehensive provisions are incorporated under the new code. This chapter Xxii is substituted for Chapter xxxvii of the Code of 1898. The reason for suggesting the charge was that Section 491(1) corresponds to the writ of habeas corpus. That Art. 6 of the Constitution of India confer wide and comprehensive powers as the High Court of states to issue to any person or authority, including in appropriate cases any Government, directions, orders or writs, including writs in the nature of habeas corpus, etc. for any purpose. In view of this provision Clause (a) and (b) of Section 491 (1) became practically superfluous. Further recommended that the provisions of clause (c) (d) and (e) relating to the production of prisoners in court for various purposes should be omitted and more detailed provisions securing the attendance of prisoners in criminal courts on. the lines of those contained in the prisoners (Attend pursuance in Courts) Act, 1955 should be included in this chapter.

    It is on the lines of these recommendations of the Law Commission that present Chapter Xxii containing Section 267 was brought on the ‘statute. The objects and reasons for this amendment clearly point out the mind of the legislature. This was to secure the attendance of the prisoner in court and not to be a help in aid to investigating agency nor the legislature intended that these provisions be invoked in order to facilitate the investigating agency to call a prisoner through court from another jail in order to make a formal arrest or to interrogate in the investigation. Every heading shows that the attendance has to be in the court and not for the benefit of investigating agency.

    By doing so Court would be exceeding its jurisdiction because that is not the mandate given in this Section. The court can exercise the power under Section 267 only for the purpose of asking him to answer to the charge in inquiry or trial or in the proceeding pending before him, or for giving evidence as a witness in Court but cannot require his attendance to answer to the charge in the investigation. This answer the first point raised. (19) So far as the second point raised by Mr. Mathur, Sr. Advocate is concerned, the true test for the legality or otherwise of the detention is on the date of the hearing itself. In the case of Ramesh Kumar Vs. State of Bihar A. I. R. 988 page 199 it was observed that a defect in an earlier order of remand of an accused person is not incurable and he cannot claim a writ of Habeaus Corpus on this score alone if on the date of hearing he is in custody under a valid order of remand. As per Noor Mohd’s case (Noor Mohd. Vs. State I. L. R. 1978 page 442, the Delhi High Court held that the Magistrate has the power to authorize the detention of the accused in. such custody as he thinks fit for not more than 15 days on the whole. But he can authorize the detention of the accused otherwise than in police custody beyond the period of 15 days if he is satisfied that there are adequate grounds to do so. It should not, however, exceed a total period of 60 days or 90 days as the case may be.

    On the expiry of that period of 60 days/ 90 days, the accused shall be released on bail if he is prepared to and does furnish the bail. In such a case granting of bail itself is mandatory and it cannot be refused on any ground. Nor can the accused be remanded to custody for a further period. Section 167(2)(a) is mandatory in nature. The magistrate has no power to delaine an accused after that period. Neither Section 436(1) nor Section 437(1) relating to bail enjoins the filing of an application. An application is needed only during the remand period. If the prayer for remand fails, the inevitable result would be that the accused must be released on bail.

    Thus the accused can always obtain bail without an application by merely showing that the prosecution has not established sufficient grounds for remand to detain an accused after that period. Neither Section 436(1) nor Section 437(1) relating to bail enjoins the filing of an application. An application is needed only during the remand period. If the prayer for remand fails, the inevitable result would be that the accused must be released on bail. Thus the accused can always obtain bail without an application by merely showing that the prosecution has not established sufficient grounds for remand. (20) Mr. D. C. Mathur urged that the law does not permit an accused to be in custody without an order of remand. He has placed reliance on the Provision of Section 167 of the Cr. P. C. which provides that: (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 forwarded the accused to such Magistrate. (2)The Magistrate to whom an accused person is forwarded under this section may, whether he has or has not jurisdiction to try the case, from time to time, authorise the detention of the accused in such custody as such Magistrate thinks fit, for a term not exceeding Fifteen days in the whole; and if he has no jurisdiction to try the case or commit it for trial, and considers further detention unnecessary, he may order the accused to be forwarded to a Magistrate having such jurisdiction: Provided that – (a) the magistrate may authorize the detention of the accused person, otherwise than in the custody of the police, beyond the period of fifteen days, if he is satisfied that adequate grounds exist for doing so, but no Magistrate shall authorize the detention of the accused person in custody under this paragraph for a total period exceeding, – (i) ninety days, where, the investigation relates to an offense punishable with death, imprisonment for life or imprisonment for a term of not less than ten years, (ii) sixty days, where the investigation relates to any other offense, and, on the expiry of the said period of ninety days, or sixty days,s 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 e so released under the provisions of Chapter Xxxiii for the purposes of that Chapter, (b) no Magistrate shall authorize detention in any custody under this section unless the accused is produced before him, (c) no Magistrate of the second class, not specially empowered in this behalf by the High Court, shall authorize detention in the custody of the police. ” (21) Provision (a) to Sub Section (2) of Section 167 provides that the Magistrate may authorize detention beyond 15 days if he is satisfied that adequate grounds exist for doing so in order to arrive at his satisfaction, Magistrate must be supplied the diary as mentioned in Section 172 Cr. P. C. Diary contains full and unabridged statements of persons examined.

    This furnishes the complete source of information which would enable the Magistrate to make up his mind whether or not the accused should be detained in custody. Transmission of a copy of the diary is mandatory, and failure to send it to the Magistrate leads to the inference that the diary had not by then come into existence. The Magistrate exceeds his authority in ordering further remand where police fail to produce the diary to justify the remand. (22) In no case, the Magistrate can authorize the detention beyond 90 days or 60 days as the case may be. But even beyond 15 days and up to the period of 60 days, the demand has to be taken of the accused as is apparent from the reading of Proviso (a) of sub Section 2 of Section 167 Cr. P. C. and i. e. 15 days each time.

    Even if the accused is not produced before the Magistrate for any sufficient reasons, still there has to be ordered by the Magistrate authorizing the detention of the accused as held by the Supreme Court in the case of Raj Narain Vs. Supdt. Jail. (23) The detention of the petitioner has to be in this case and not of a case pending at Bombay. Each case will have a separate cause of action and pursuance to Section 57 of the Cr. P. C. the petitioner after having been arrested has to be produced before the Magistrate within 24 hours but in this case, as per prosecution’s own showing, he was arrested in Court on 17th August 1992 but was never produced within 24 hours before the Magistrate.

    Rather he was produced on 20th August 1992 for seeking the remand, therefore, this is a clear case of violation of Section 57 of the Cr. P. C. After the arrest, the accused has to be produced by the police for seeking remand as held by Supreme Court in the case of Khatri and others Vs. State of Bihar and others (popularly known as Bhagal Pur blind case). In that case, the Supreme Court was discussing the duty of the Magistrate and the Sessions Judge and also the obligations of the State when the accused is first produced before the Magistrate. It was further held that when the petitioners are not produced before the Magistrate subsequent to their First production and they continued to remain in jail without any remand orders this was plainly contrary to law.

    In that case from the record, it was found that in few cases the accused persons were not produced before the Judicial Magistrate within 24 hours of the arrest as required by Article 22 of the Constitution of India, therefore, it was held that police authorities were required under the constitutional mandate to produce an arrested person before a Judicial Magistrate within 24 hours of the arrest and this has to be observed scrupulously. In other cases, the Supreme Court found that some of the accused persons were not produced before the Judicial Magistrate subsequent to their first production and -they continuously remained in Jail without any remand orders being passed by the Judicial Magistrates.

    In light of this discovery, the Supreme Court observed that this was plainly contrary to law. It was difficult to understand how the State continue to detain these accused persons in jail without any remand orders hence expressed. the hope and trust that the State Government will inquire as to why this irregularity was allowed to be perpetrated and will see to it that in future no such violations of law are permitted to be committed by the administrators of the law. The provision inhibiting detention without remand is a very healthy provision that enables the magistrates to keep a check over the police investigation and it is necessary that the Magistrates should try to enforce this requirement and where it is found to be disobeyed, come down heavily upon the police. Mr. Mathur further placed reliance on the case of Ram Narayan Singh Vs. The State of Delhi and others. There while interpreting Section 167 Cr. P. C. and Section 344 of the Old Code, (corresponding to Section 309 of the new code) the Supreme Court held that the detention of a person in custody after the expiry of the remand order without any fresh order of remand committing him to further custody while adjourning the case under Section 344 Cr. P. C. s illegal, it was further observed that in a question where the lawfulness or otherwise of the custody of the persons concerned is in question, the documents containing the order of remand would be of vital importance and should be produced at the time of filing return. Relying on the observations made in this judgment, Mr. Mathur contended that C. B. I was duty-bound to seek the remand of the petitioner even after the initial remand. Having not done so, the detention became illegal. (24) The reason why the legislature wants accused to be produced every time when remand is sought, it is to ward off malpractice and is in fact a counter check to safeguard the liberty of an accused.

    By process of remand, the Magistrate monitors the proceeding in such a manner so that a full account of the remand is handy and bail is offered to such accused person at the end of 90 or 60 days as the case may be. In the case of Madhu Limaya and others A. I. R. 1969 Sc 1014 Supreme Court has deprecated the routine remand under Section 167 Cr. P. C. (25) That Section 167 Cr. P. C. makes the production of the accused mandatory. Therefore Mr. Mathur contends that the legislature could not have intended that there should be no production of the accused after the initial period of 15 days till the expiry of 60/90 days. There is no provision under the statute authorizing the detention in perpetuity law enjoins upon the state to produce the accused for remand or for authorized detention before the Magistrate after every 15 days.

    This is a healthy rule made with a purpose which purpose cannot be allowed to be flouted at the whim of the investigating agency if Section 167 Cr. P. C. is interpreted then why Mr. Saxena urges. As per the rule of construction, the function of a proviso merely limits or qualify rather than to add to the substantive provision. The word of the proviso is to be construed with the proceeding words. The substantive provision is prescribed under sub Section 2 of Section 167 Cr. P. C. The proviso (a) merely qualify that after 15 days of such custody i. e. police or judicial custody, the Magistrate can refuse further detention if he is not satisfied and in case he is satisfied he can extend the detention but again it would not be more than 15 days at a time.

    The purpose behind this is to monitor remand proceedings, otherwise, the situation can arise to what happened in Bhagalpur blind cases where the accused remained in custody without remand for years and the Supreme Court deprecated such practice (26) In the case of Raj Narain Vs. Supdt. Central Jail, it was held that it would be desirable for the Magistrate to have the person produced before him when he continues to be in custody. Proviso (b) to sub-clause of Section 167 Cr. P. C. of the Code provides that no Magistrate shall authorize detention in any custody under this Section unless the accused is produced before him. In view of this provision, it has become mandatory for the magistrate to have the accused produced before him when he continues to be in custody. (27) On the other hand, Mr. Saxena, appearing for the C. B. I. intended that the Supreme Court, in the Case of The Central Bureau of Investigation, Special Investigation Cell-1 Vs. Anupam J. Kulkarni 1992(2) Crimes has held that if a person is in judicial custody in another case, his formal arrest in the second case is permissible. Therefore, remand for police custody was sought of accused Harshad S. Mehta for seven days by intimating the Court that Harshad S. Mehta has been put under arrest in this case. On this application of the C. B. I., the Court passed an order remanding the petitioner to police custody till 20th August 1992 and in the detailed order of the same day 17th August 1992 Shri Kuldeep Singh, Special Judge has mentioned that Harshad S.

    Mehta was produced in his Court and thereafter he was formally arrested by the C. B. I. in this case. Mr. Saxena contended that pursuance to C. B. I. Vs. Anupam J. Kulkarni’s judgment of the action of the C. B. I. is justified. Because if there are a number of cases against the accused, the subsequent arrest in other cases is permissible and not barred by any provision of law. Moreover, when the petitioner was produced before Shri Kuldeep Singh, Special Judge, he was formally arrested in this case and it was only after his arrest he was produced in the Court and the police remand was sought.

    Therefore, there is no infringement of the provisions under Section 57 of the Cr. P. C. (28) According to Mr. Saxena in Section 309 Cr. P. C. the word “remand” has been used whereas under Section 167 of the Cr. P. C. the word “authorization of detention” is only used. For the purposes of authorized detention, the legislature has not placed any restriction for producing the accused after every 15 days though such restriction has been placed under Section 309 while seeking remand. It is only when the Magistrate takes the cognizance that the question of remand will arise but in a case where the Magistrate has not taken the cognizance, the question of remand does not arise.

    It is at the stage of the investigation that authorization of detention order is passed under Section 167 Cr. P. C. Drawing attention to the provision of Section 167(2) Cr. P. C. Mr. Saxena contended that the Magistrate can authorize the detention of the accused “in such custody” for a term not exceeding 15 days in the whole. Such custody could be police custody or judicial custody. Such custody has to be determined by the Magistrate at the time of passing the detention order and such custody is not to exceed 15 days as a whole. This 15 day is the initial custody. Thereafter the proviso (a) will apply. While interpreting the proviso(a) of Sub Section 167 Cr. P. C., Mr.Saxena contended that the bare reading of the same will show that beyond the period of 15 days which is the initial ‘period, there is no restriction or impediment under this provision which prohibits the detention for more than 15 days at a time nor does it stipulates that beyond 15 days every time the accused was to be produced before the Magistrate. The only restriction which is imposed under the Proviso (a) is that the outer limit cannot be exceeded i. e. 90 days or 60 days as the case may be. As regards sub Section 2(b) the accused has to be produced when the order of detention is to be passed. And if for any reason accused cannot be produced his detention will not become illegal. The investigating agency can satisfy the court by giving a reasonable explanation for not producing the accused physically. (29) Mr.

    Saxena further contended that even if the Magistrate omits to mention the remand of the accused in his order still it will get cured while issuing the warrant for judicial custody. The Magistrate can mention the period of remand in the warrant, then that omission made in the order does not make the detention illegal as held by Allahabad High Court in the case of Dr. Ram Manohar Lohia. He further contended that there is in ‘fact initial and outer limit which has been fixed by the statute under Section 167 Cr. P. C. for passing the order of detention. But after the expiry of the initial period up to the outer limit, there is no such provision in Section 167 Cr. P. C. which prescribes any limit.

    However, by practice police have started seeking remand after every 15 days. So far reading of Section 167 Cr. P. C. it does not stipulate any such condition. To strengthen his arguments he placed reliance on the Full Bench Judgment of the Gujarat High Court in the case of Shardul Bhai Laxman Pancholi Vs. State of Gujrat 1990 Crl. LJ. page 1275 where it was held that even if on account of non-obtaining of the remand, the detent in which has become illegal, can still be cured. Moreover, if a reasonable explanation is given for not producing the accused for seeking his further detention because of his being in legal custody in other courts, then. he detention in the previous case as well as in this case will not become illegal. In this regard, he has placed reliance on the decision of the Allahabad High Court in the case to Ishar Ahmad Vs. State 1978 Crl. LJ. page 58. In that case, during the course of investigation first remand was taken for 15 days. Thereafter the remand was taken on four occasions. In the last four days, the accused was not produced before the judicial magistrate when the remand order was passed. Bail was sought because the detention without remand was illegal. The Court repelling this submission held that accused persons should not be released on bail simply because their detention at the stage of Section 167 Cr. P. C. was illegal.

    The question before the Allahabad High Court was whether that illegal detention of the applicants would entitle them to be released on bail and it was answered that because of that illegal detention they could not be released on bail because their detention which was illegal at the stage of Section 167 Cr. P. C. stood cured on the proper order of remand having been passed by the Magistrate under Section 209 Cr. P. C. after the charge sheet having been submitted. Therefore, the Court opined that it was to be seen whether the order of remand passed on the stage of Section 209 Cr. P. C. was a valid order or not because the stage of Section 167 Cr. P. C. was over. In that case, the accused was not produced either at the stage of Section 167 Cr. P. C. or at the stage of Section 209 Cr. P. C. r at the stage of Section 209 Cr. P. C., therefore, the detention was declared illegal and the accused were released on bail on this technical ground. Mr. Saxena contended that in the present case, the presence of the accused person is not necessary because of an order authorizing the detention in perpetuity having been passed by the Special Judge, Delhi. Similarly, in the case of Shardul Bhai, the Full Bench of the Gujrat High Court came to the conclusion that this is a curable irregularity. He further placed reliance on the Full Bench decision of the Patna High Court in the case of Ramesh Kumar alias Ram Prasad Vs. The state of Bihar and another 1987 Crl. L. J. 1489.

    The Court while holding that the formal application for remand or in any case an insistent request is not necessary. The whole spirit of the Code is that the custody and liberty of the accused are entirely governed by the authority and sanction of a Court of law beyond the initial period of 24 hours between the first arrest and the production before the Magistrate thereafter. Once an accused person is produced before the Magistrate he is in local senses in custodia legis and it is the Court’s responsibility and power whether he is to be remanded to further custody or granted bail or released altogether. By no stretch of imagination can this power of the Court be whittled down and be indeed passed on to the mere discretion of the investigating agency alone.

    Though the physical production of the accused before the Magistrate is desirable, yet the failure to do so would not per se vitiate the order of remand if the circumstances for non- productions were beyond the control of the prosecution or the police. It was further observed that one cannot possibly go to the extreme and accept the doctrinaire stand that the absence of the physical production of an accused person would vitiate the order of remand incurably. If it is physically impossible to produce the accused in person then his mere nonproduction would not render his remand to further custody illegally. The wholesome provisions of the Code requiring physical production have to be received reasonably and not to an impossibly logical extreme.

    A defect in an earlier order of remand of an accused person is not incurable and he cannot claim a writ of habeas corpus on that score alone if on the date of hearing he is in custody under a valid order of remand. Mr. Saxena thereafter contended that the analogy can be drawn from the proviso (a) of Section 167(2) which prescribes that on the expiry of the period of 60 days or 90 days no further remand can be given but that does not mean that if the accused does not seeks the bail his detention would become illegal. Reading Explanation I of Section 167 makes it clear that notwithstanding the expiry of the period specified, the accused shall be detained in custody so long as he does not furnish the bail. Once the accused fails to furnish the bail and the charge sheet is filed then because of the default of Filing the charge sheet, he will not be entitled to bail. On the basis of this interpretation, Mr. Saxena contended that because of non-producing of the accused and on account of non-seeking the remand, his detention will not become illegal nor by any stretch of imagination it can be said that he should be set free. He further contended that the right of bail extinguishes if not availed immediately after 60 or 90 days by seeking bail when the charge sheet is filed then bail for default cannot be granted. Producing the accused physically is not a rule of law but a rule of caution.

    Therefore, according to Mr. Saxena, no irregularity has been committed by the C. B. I. either in non producing the petitioner before the Special Judge or for non seeking of further remand. (30) From the above discussion, a foregone conclusion can be drawn that an accused against whom the investigation is going on under Section 167 Cr. P. C. has to be physically produced before the Magistrate for seeking his remand/authorized detention and if for any reason it is not possible then the Investigating Agency must furnish reasons before the Court concerned for not doing so. In the absence of these two conditions, the detention of the accused in such circumstances will be illegal.

    The innovative argument of Mr. Saxena while interpreting proviso (a) to Sub Section 2 of Section 167 Cr. P. C. that after the initial remand of 15 days, the Magistrate has the power to remand the accused in perpetuity, to my mind is against the very mandate of the legislature. The remand or the authorized detention connotes that the Court has to monitor the remand proceedings in order to satisfy itself that further detention of the accused warrants his detention in judicial custody or not. The reading of this Proviso shows that there has to be the satisfaction of the Magistrate and this satisfaction cannot be in perpetuity. The Supreme Court in the case of Chaganti Vs. State of Andhra Pradesh while interpreting subsection 2 of Section 167 as well as a proviso to Sub Section (2) of Section 309, observed that these two provisions relating to the powers of remand of a Magistrate, though under different situation. The two provisos called for a harmonious reading in so far as the period of remands are concerned. Therefore what the Supreme Court has interpreted is that even under Section 167 Proviso (a) Subsection(2) also talks about the remand though using the word authorized detention but it has to be 15 days at a time.

    I am therefore of the view that there is no provision under Section 167 where the Magistrate could give a remand in perpetuity after the initial period of 15 days. Remand or the authorized detention has to be for a specific period and that too subject to the satisfaction of the Magistrate. A specific period has been prescribed in the substantive provision of Section 167(2). The proviso cannot extend or alter that period because proviso cannot add to the substituting provision. Therefore, I find no force in the submission of Mr. Saxena that the Magistrate could give the remand in perpetuity, or that the petitioner was not required to be produced for further remand.

    Even otherwise from the record, it is apparent that the Special Judge, Delhi remanded the petitioner in judicial custody only up to 28th August 1992 and not in perpetuity as alleged by Mr. Saxena. Nor the reading of production warrants shows that remand was in perpetuity. Law is well settled that if the accused is not produced before the Magistrate subsequent to his production and he continues to remain in Jail without any remand order being passed this is plainly contrary to law. His continuous detention would be illegal. This would amount to depriving the right of the Court to know whether the accused is required to be in custody at all. (31) Admittedly, in this case, the remand was not sought nor the police diary as required was produced before the Magistrate after 25th August 1992.

    Nor any application filed by C. B. I. giving the reason for the non-production of the petitioner after 25th August 1992. Therefore, his detention after 25th August 1992 was illegal. But the question which arises is whether the detention which became illegal, automatically entitled him to bail? The law is now well settled that if the detention is illegal, the remedy is not the bail but a petition for habeas Corpus as held in the case of Mahesh Chand Vs. State of Rajasthan 1985 Crl. LJ. 301. Though there is a Single Bench Judgment of our own High Court in the. case of Prof. Darshan Singh Vs. State in Crl. M. (M) 1306/86 dated 10th October 1986 decided by M. K. Chawla, J. herein the bail was granted taking this also as a factor but this was not the main ground for granting the bail. There is no quarrel with the proposition that this can also be a factor while considering the grant of the bail. This is so far as the legal position is concerned. So far as the grant of bail is concerned the bail can only be granted if the person is in custody. But in the present case, Mr. Harshad S. Mehta is not in custody. Therefore, Mr. Saxena appearing for the C. B. I. fairly conceded that the person who is not. in custody cannot be granted bail and therefore, so far as the bail is concerned, it has become infructuous. With these observations, the petition stands disposed of.

    References

    1. Indian Kanoon – http://indiankanoon.org/doc/538111/11

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