Bholey alias Jaswant Singh and Another vs State of U.P. and Another

P.N. Bakshi, J.—Applicants Bholey alias Jaswant Singh and Kalloo are co--accused in case crime No. 141/82 State v. Balbir and Ors. case crime No. 141/82Under Sections 147, 148, 149, 302, 307, 404, 201 & 142, IPC, of Police Station Atarra. The case is under investigation. The applicants along 18 others surrendered before the Magistrate on 23rd August, 82 and were ordered to be taken in Judicial custody. On 24th August, 1982, Station Officer Atarra moved the court for the remand of the two applicants in police custody, for a period of 5 days in connection with the investigation and recovery of the gun, cartridges etc. used in the commission of the crime. On 25th August, 1982, applicants filed their affidavits asserting that they had received information that the looted articles were handed over to the police by the complainant and that these things were in possession of the police who wanted to plant them as recovery from the accused--applicants. They alleged that the police would harass and intimidate them and give them a severe beating in order to extort their confession. They did not have any knowledge of the incriminating articles. The Magistrate heard both the parties and examined the case diary. He passed an order on 28th August, 1982 remanding the accused to police custody for 3 days. By the same order he directed that the accused be medically examined before being given in police custody and thereafter again on their return. Aggrieved by this order, a revision was filed before the Sessions Judge which is still pending there. It also appears that the applicants moved this Court by way of an application u/s 482 Code of Criminal Procedure on 30th August, 82. This application was admitted and an interim order passed by this Court staying the operation of the order of the Munsif--Magistrate dated 28th August, 1982. In these circumstances, the instant application has come up before me for disposal.

I have heard learned Counsel for both the parties at considerable length. I have also perused the affidavits, counter affidavits, and the annexures filed by the parties. I have also examined the relevant case law, which has been cited by counsel of either side.

The applicant''s counsel did not dispute that an accused held in judicial custody by the order of the Magistrate, could subsequently be given in police custody. What he stressed was that in the instant case the circumstances were such that the applicants should not have been given in police custody. He argued that since the applicants have taken--up this stand that they do not know anything about the incriminating articles, they could not be compelled to make a statement against themselves which itself is incriminatory. The applicants apprehended that they would be tortured and the police would apply third--degree method in order to plant recoveries of incriminating articles at their pointing out.

Counsel for the State has on the other hand argued that the impugned order of the Magistrate dated 28th August, 82 was an order in accordance with law and the same had been passed by the Magistrate after perusing the case diary. He was satisfied that there was sufficient ground for remanding the accused in police custody and that the impugned order indicated that adequate precautions were taken therein to prevent the use of third degree method, since the Magistrate had ordered the medical examination of the accused before being handed--over to police custody and thereafter on the completion of the remand for 3 days.

In support of his submission the applicants'' couasel has cited a number of cases which I shall deal hereinafter. His first citation is by Kidwai, J. in case Raja Ram Chopra Vs. The State, . The facts of this case is distinguishable. It appears that in this case the Magistrate after hearing the parties refused to remand the accused to police custody on the ground that the police could interrogate the accused in jail. The Additional District Magistrate had interfered with this order and had directed Judicial Magistrate to remand the accused to police custody. Hon. Kidwai, J. held that it was highly undesirable that the superior Magistrate should by his orders hamper the conduct of proceedings by the Magistrate, seized of the case in accordance with his discretion. At the most the Additional District Magistrate should have made a reference to the High Court for orders. While dealing with the merits of the case, learned Judge has observed as follows:

Learned Judicial Magistrate made it clear that the accused had stated that they did not know anything and so could not point out any thing. If the police knew where the stolen property was, as they stated in the application which they made to the Addl. Judicial Magistrate, there was nothing for the accused to point out and the identity of the property should have been ascertained from the complainant whose property had been stolen. Further if it was merely for the purpose of interrogation there was nothing to prevent the accused being interrogated in jail. On the facts of the present case it would appear, therefore, that it was not with a view to derive any further knowledge as to the offence but merely to get hold of the accused for some ulterior object that the police made the application and it would be highly improper to allow such an application.

I have very carefully perused the impugned order, passed by the Magistrate in the instant case on 28th August, 1982. It appears therefrom that the Magistrate after hearing the parties was careful enough to examine the merits of the respective contentions. He examined the case diary. He has observed that twenty accused persons had been taken into judicial custody. Rest of the accused were absconding. The investigation was, therefore, being seriously hampered. The prosecution had applied for remand on the ground that it would enable the recovery of the gun and the cartridge etc. which were used for the commission of the offence. Without a remand proper investigation cannot be made. The Magistrate appeared to be satisfied with these contentions despite the denial of the accused that they knew anything about the accused. As such the Magistrate directed a remand of the accused for 3 days in police custody for the purposes of necessary investigation. The Magistrate took further care to see that the accused were not tortured and pressurised by directing that they would be medically examined before being handed--over to police custody and also on their return to jail after three days of remand.

The applicants'' counsel has also cited before me another decision of the Lucknow Bench of the Allahabad High Court reported in Tej Babu Singh v. State of U.P. 1982 ACJ 146 in which Brother S.C. Mathur has observed as follows:

A remand to police custody should not be granted without sufficient cause being shown for the same. This was so held by a Division Bench of the Chief Court of Oudh in Jai Singh and Ors. v. Emperor AIR 1932 Oudh 11. I am in respectful agreement with the view expressed in this case. It is in this background that it will have to be seen whether there exists any special circumstance for detaining the applicant in policy custody.

In that case the learned Single Judge was of the view that since the police claimed the custody in connection with the recovery of the weapon, used in the crime and since the applicant had stated that he did not want to point out any material allegedly used in the commission of the crime, therefore no useful purpose would be served by transferring him from Jail custody to police custody. The accused could be interrogated with the permission of the Magistrate even while he was in Judicial custody.

In criminal matters, the facts and circumstances of each case have to be judged independently. A slightest difference or distinction on questions of facts may make a world of difference in the ultimate decision arrived at by a criminal court. As a principle of law Brother Mathur has endorsed the view of the earlier decision of the Oudh Chief Court that police custody should not be granted without sufficient cause being shown for the same, but what would constitute sufficient cause will depend upon the facts and circumstances of each case and for that the Magistrate would be the best Judge. In the instant case the Magistrate bad before him the case diary which he has perused. It may be safely presumed that the Magistrate had applied his mind with due care in perusing the police papers. The fact that he has passed an order remanding the accused to police custody indicates that he was quite satisfied on the materials on record that this was a fit case in which there was sufficient cause for passing such an order. In my opinion in the exercise of powers u/s 482 Code of Criminal Procedure, the High Court should not transpose itself into the position of the trial court. The power u/s 482 Code of Criminal Procedure, as observed by the Supreme Court, has to be very sparingly used in the rarest of rare cases. For instance, if an accused is being prosecuted when there is no prima facie case even on the allegations contained in a report or complaint, it becomes the duty of the High Court to interfere, but where the question involved in the case pertains to investigation of the crime and the prosecution on the allegations made by it and the materials contained in the police papers urges that for a further and complete investigation of the case, it is necessary that the accused be given in police custody and if on the basis of this material, the Magistrate is satisfied that a judicial remand of the accused is essential for proper and complete investigation, in those circumstances the High Court should not interfere with the order of remand passed by the trial court. It is further clear from the impugned order that the interest of the accused is fully safeguarded inasmuch as he has to be medically examined before being handed in police custody and after remand, therefore it is not possible for the prosecution agency to use third--degree methods for making further investigation in connection with the recovery of the incriminating articles. It is significant that twenty accused persons have surrendered in Court and have been taken in judicial custody while the rest of the accused are absconding. If during investigation the police has come to know that the two accused--applicants are likely to give information in consequence of which the incriminating articles may be recovered, it can not be said that the remand order is unjust or unfair.

M.N. Sreedharan and Others Vs. State of Kerala, , has also been cited by the counsel for the applicants in support of his submission. That was a case in which anticipatory bail has been granted to the accused u/s 438(2) Code of Criminal Procedure by the court. Subsequently however, the accused surrendered before the court and obtained bail. Thereafter the investigator has filed an application before the court requesting that "sanction be kindly granted for the interrogation of the accused and recovery of one torch light and a thorthu mondu used by the accused for the commission of the offence as there is information that the accused are keeping those M Os. They may be directed to produce the M Os and made available for interrogation in the crime branch office, Trichur between 10 a.m. and 5 p.m. for 4 days from 28--5--79 onwards." The accused in their counter--affidavit alleged that they had nothing to do with the alleged crime or with the torch light and thorthu mondu referred to in the petition and that they had no information to give regarding the offence. The Magistrate was of the opinion that the investigator had other powers to secure the presence of the accused for interrogation, nevertheless he proceeded to pass the impugned order. In the facts of that case, the Kerala High Court was of the opinion that:

The learned Magistrate did not consider any of these aspects before he passed the order of custody. He ignored the facts on record and the facts on record clearly Indicate that this was not a case where police custody should have been ordered.

It will thus be obvious that the Kerala case rested on its own facts peculiar to the circumstances of that case.

As I have mentioned above, the applicants'' counsel has not disputed that an accused in judicial custody can be given in police custody and vice versa. However it may be mentioned that Justice S.C. Mathur did not decide this question in Tej Babu Singh''s case.

The Single Judge of the Delhi High Court was of the view that once the Magistrate directs the accused (?) to take an accused in judicial custody, there is no question of police remand. This view was expressed by Justice M.L. Jain of the Delhi High Court in Mohinder Singh Vs. Iqbal Singh, . The Single Judge''s view was however reversed by a Division Bench of the same court reported in State (Delhi Administration) v. Dharam Pal 1982 CriLJ 1103. Relying upon the Division Bench decision of the Delhi High Court, I have also held in an unreported Criminal Revision No. 18877 of 1982 Ajai Tewari v. State Criminal Revision No. 18877 of 1982 decided on 4--10--1982, that an accused who had been given in judicial custody could also be subsequently handed over in police custody. It may be worthwhile to mention in this connection a Division Bench case of our own court in State v. Raghuraj Singh 1968 ACR 561 wherein it has been observed as follows:

The manner in which an officer investigating the crime will carry on investigation is entirely the concern of the police and not subject to control by the Court.

Of course in a case of the nature we have in hand there can be no doubt that police custody has to be minimised as far as possible in order to ensure that the investigation is fair and above board, but in the circumstances of the present case, there is no material on record before me to justify an inference that the investigation has been unfair. The accused surrendered on 23rd August, 82 and under law a chargesheet has to be submitted if at all within 90 days, i.e. by 21st November, 1982, otherwise the accused would be entitled to be let off on bail and no further investigation would be possible.

Learned Counsel for the applicants has at the end taken up the objection that the application by the Station Officer for taking the accused in judicial custody was not competent in view of Section 121 of U.P. Police Regulation. This point was not taken in the ground of petition and is a point which involves consideration of question of fact for which no opportunity in rebuttal has been given to the opp. party. As such I refrain from considering this point.

The impugned order of the Magistrate is in my opinion just and fair and adequately safeguards and protects the interest of the applicants during the course of investigation. I do not find sufficient ground for interference u/s 482 Code of Criminal Procedure. This application is hereby dismissed and the interim order passed by this Court on 30th August, 82 is hereby vacated. The applicants shall be given in police custody forthwith.