Dharmendra Tripathi vs State of U.P.

M. Quddusi, J.—By means of the present petition u/s 482, Code of Criminal Procedure, the Petitioner has prayed for the quashing of the order dated 19.6.1996 passed by the Chief Judicial Magistrate, Bhadohi passed in Criminal Case No. 135 of 1995, and to release the applicant on bail.

The facts of the case in brief is that one Bhawani Prasad filed a first information report against the applicant which was registered as Case Crime No. 185 of 1995 under Sections 302, 307 and 323, I.P.C. at Police Station Kurai, district Bhadohi. In the aforesaid incident, one Devi Prasad is shown to have been killed and Bhawani Prasad Upadhya is alleged to have sustained simple injuries. With regard to the aforesaid incident, the father of the applicant also lodged a cross report which has been registered as case Crime No. 135A of 1995 under Sections 395, 397 and 307.I.P.C. in which the applicant including 5 other persons have sustained injuries. The case of the applicant is that since the applicant was lying In Hospital and, as such, the police took him into custody on the day of incident itself. The investigation of the case was entrusted to the C.B.C.I.D., Varanasi Sector. The Inspector of C.B.C.I.D. without completing the investigation has submitted a report that a detailed investigation is going on and the statement of the eye-witnesses including Shesh Mani Shukla have not been recorded, the charge-sheet is being submitted since 90 days are elapsing and further detailed investigation is going on. The contention of the learned Counsel for the applicant is that since the remand to judicial custody granted to the applicant expired on 17.6.1996 and thereafter the learned Magistrate did not grant any further remand and, as such, the applicant is entitled to be set at liberty as there is no valid order of remand to detain the applicant in Jail. The applicant also moved an application before the Chief Judicial Magistrate containing precisely the same prayer which has been rejected by the Learned Chief Judicial Magistrate on 19.6.1996. While rejecting the said application, the learned Chief Judicial Magistrate took into consideration a report submitted by the Superintendent of District Jail u/s 269, Code of Criminal Procedure to the effect that since the applicant is in half coma, he could not be produced before the Court for taking remand. On 19.6.1996, the Chief Judicial Magistrate, Bhadohi who has taken cognizance of the matter and was seized with the enquiry directed the Additional Chief Judicial Magistrate, Bhadohi to pass an order of remand to detain the applicant in district Jail, Varanasi. Accordingly on 19.6.1996, the A.C.J.M., Bhadohi remanded the applicant to the jail custody. The contention of the applicant is that the Court which had taken the cognizance is alone entitled to grant remand after applying his mind judiciously, and the order of remand has been passed mechanically by other Magistrate who has not taken cognizance of the case. It has been further submitted that the Chief Judicial Magistrate, Bhadohi was present in the Court on 19.6.1996 and in fact, he disposed of the application of the applicant in which the objection was raised that in the absence of valid remand order, the applicant was entitled to be released on bail. It has been contended that the warrant purported to have been issued by the A.C.J.M., Bhadohi on 19.6.1996 is illegal and without any authority of law as the C.J.M. who has taken cognizance and has decided the applicant''s application cannot abdicate his Judicial function further and direct any other Magistrate during his presence to grant remand. The contention of the applicant is that Petitioner''s remand having expired on 17.6.1996 and no other warrant or order of remand having been passed, the applicant''s custody in Jail on subsequent does has become illegal which cannot be cured by issue of subsequent order of remand by any other Magistrate. The contention of the learned Counsel is that Section 269, Code of Criminal Procedure only authorises the Superintendent of District Jail not to forward any accused or produce him in Court but that section does not authorise the Jailor to keep a person in jail in the absence of any valid order of remand and in view of the provisions of Sections 167, 209 and 309, Code of Criminal Procedure as well as U.P. Jail Manual and the Prisons Act a valid order of remand is the only authority to keep an accused in jail.

The second limb of argument of the learned Counsel for the applicant is that since the detailed Investigation is continuing against the applicant, as such, the filing of the charge-sheet on 30.9.95 against the applicant is wholly illegal and unjust and contrary to the provisions of Section 173, Code of Criminal Procedure. It has been submitted that when the eye-witnesses named in the F.I.R. were admittedly not examined the investigation could not be said to be completed within the prescribed period of 90 days and in view of the provisions of Section 167, Code of Criminal Procedure, the applicant is entitled to ball. The learned Counsel for the applicant has placed reliance on the case law laid down in the case of State of Uttar Pradesh v. Laxmi Brahman (1983) 2 SCC 378, in which it has been held that the investigation would come to an end the moment charge-sheet is submitted as required u/s 170 unless the Magistrate directs further investigation.

I have heard the learned Counsel for the applicant Shri Bhagwati Prasad and the learned Additional Government Advocate Sri Surendra Singh.

The learned Additional Government Advocate on the other hand submitted that the occurrence is of 28th June, 1995 and the accused applicant was arrested on 3.7.1995 and the report was submitted by C.B.C.I.D. on 30.9.1995 and as such the applicant is not entitled to the provisions of Section 167, Code of Criminal Procedure. It has been contended that remand of the applicant to jail custody after charge-sheet u/s 209, Code of Criminal Procedure and 309, Code of Criminal Procedure being valid, the detention of the applicant cannot be said to be illegal; the bail application of the applicant having been rejected on merit by Hon''ble O. P. Jain, J. and parole having been granted to the applicant by him, no application containing the bail prayer could be entertained by any other Hon''ble Judge. The next contention of the learned Additional Government Advocate is that during investigation remanding the accused to jail custody u/s 167, Code of Criminal Procedure is no illegality, that the applicant has concealed material facts from this Court; the scope of Section 482, Code of Criminal Procedure to interfere is very limited and no application u/s 482, Code of Criminal Procedure is maintainable If alternative remedy is available; and if detention of an accused in Jail is Illegal then the proper remedy is Habeas Corpus Petition under Article 226 of the Constitution.

In reply to the submissions of the learned Counsel for the applicant that the remand of the accused is Illegal, the learned Additional Government Advocate has contended that the word ''custody'' includes both legal and illegal custody and illegal custody is curable as held by the Apex Court as well as by this Court in various decisions that error in remand after taking cognizance is a mere irregularity and that can be cured by subsequent remand; that if the accused has not been produced before the remanding Magistrate physically, the remand order will not be Improper.

After hearing the arguments of the learned Counsel for the applicant as well as of the learned Additional Government Advocate, the judgment was reserved. On 15.7.1996 Sri S.T. Siddiqui, learned Counsel appearing for the complainant Bhawani Prasad filed an application alongwith the written arguments. Since the copy of the application was not served on the counsel for the applicant, it was directed that copy of the said application be served on the counsel for the applicant and the case was put up for the next day, i.e., 16.7.1996.

On 16th July, 1996, the arguments of Sri Bhagwati Prasad learned Counsel for the applicant, Sri S.T. Siddiqui learned Counsel for the complainant and the learned Additional Government Advocate were again heard at length and the judgment was reserved.

Shri S.T. Siddiqui, learned Counsel for the complainant, adopting the arguments raised by the learned Additional Government Advocate, further contended that Criminal Revision on the same grounds as taken in the instant petition u/s 482, Code of Criminal Procedure is pending before the Sessions Judge, Bhadohi and, as such, the present application is barred; that since the aforesaid fact has been suppressed by the applicant, the same apart from being contempt of this Court also disentitles the Petitioner from getting any relief; the remands granted on 3.6.1996 and 19.6.1996 were valid; that the charge-sheet has been submitted against the accused-applicant after completion of investigation and that false facts have been stated in Paragraph 5 of the petition u/s 482, Code of Criminal Procedure. The learned Counsel also cited certain case law in support of his contentions which shall be dealt with at the proper place.

At the cost of repetition, it may be stated that I have given my anxious consideration to the various arguments raised by the learned Counsel for the complainant, the learned Counsel for the applicant as well as the learned Additional Government Advocate and have also minutely considered the various submissions and the decisions cited by the learned Counsel in support of their respective contentions.

As has already been indicated above, the applicant has filed the present petition, mainly on two grounds viz., the remand granted to the applicant having expired on 17.6.1996 and no other remand or warrant or order having been passed, the applicant''s custody in jail became illegal which cannot be cured by subsequent order of remand and that since the detailed investigation was continuing, the filing of the charge-sheet on 30.9.1995 is wholly illegal, unjust and contrary to the provisions of Section 173, Code of Criminal Procedure. The precise submission of the learned Counsel for the applicant is that when the eye-witnesses named in the first information report were admittedly not examined by the Investigating Officer, the investigation could not be said to have completed and the interim charge-sheet has been filed only to deny the accused-applicant his legal right of getting bail in the event of investigation having not been completed within 90 days in view of the provisions of Section 167, Code of Criminal Procedure.

So far as the first argument of the learned Counsel for the applicant regarding the applicant''s custody in jail being illegal, the learned Additional Government Advocate has vehemently denied the allegations and has placed reliance on the case law laid down in the case of Gulab Khatik v. State of U.P. 1995 ACC 206, wherein a Division Bench of this Court has held that even if no proper order of remand is passed u/s 309(2), Code of Criminal Procedure, it will make no difference if legal and valid order of remand had been passed by the committing Magistrate u/s 209(b) of the Code of Criminal Procedure.

The another case on which reliance has been placed is resorted in Noorul Huda v. The Superintendent Central Jail, Naini, Allahabad and Ors. 1984 ALJ 561, wherein it has been held that when a valid order of remand is passed after submission of the charge-sheet then all previous irregularities or illegalities occurring in connection with the order of remand passed u/s 167, Code of Criminal Procedure stand cured, as the orders of remand then would be governed by the provisions of Section 209, Code of Criminal Procedure. In such a case, the question of releasing a person from custody or detention authorised by any particular order of remand, or detention order would not arise since the last order of remand whereby the accused is remanded to custody is a valid order.

In the matter of Muneshwar v. State of U.P. and Anr. 1984 (II) ACC 368, a Full Bench of this Court has held that remand can be passed without physical production of the accused before the Court. Even if it be desirable for the Magistrate to have the prisoner produced before him, when the prisoners are remitted to further custody, an order of remand without producing the accused in court is not invalid as it may on occasion be necessary to order remand in the absence of the accused.

In the matter of Surjeet Singh v. State of U.P. 1984 ALJ 375, another Full Bench of this Court has held that the word custody in Section 309(2), Code of Criminal Procedure means physical imprisonment as distinct from being on bail. Even if the accused is in prison after his arrest in a criminal case without an order or warrant of remand by a competent Court, he is in custody as distinct from being on bail. The word ''custody'', therefore, embrances both legal imprisonment as well as illegal imprisonment. In both Sections 41(1)(e) and Section 60(1), Code of Criminal Procedure, the words ''lawful custody'' are used instead of the word ''custody''. Thus it is clear that where the Legislature intended to restrict the ordinary meaning of the word ''custody'' to lawful custody, it has done so. The fact that in Section 309(2), Code of Criminal Procedure, the word ''lawful'' is not used alongwith the word ''custody'' shows that the Legislature did not intend to restrict the ordinary meaning of the word ''custody'' to lawful custody only and hence the word ''custody'' in Section 309(2), Code of Criminal Procedure means imprisonment both legal and illegal.

From the case law laid down by this Court in various decisions referred to above, it is well settled that it is not necessary to produce the accused in person before the Magistrate at the time of taking remand from the Magistrate and on subsequent remand order the detention made earlier would revalidate the illegal detention of the accused.

For appreciating the second argument raised by the learned Counsel for the applicant to the effect that investigation is in progress and the charge-sheet has been filed by the investigating agency, it is necessary to peruse the provisions of Section 173, Code of Criminal Procedure as well as the police report while filing charge-sheet which is contained in Annexure "9" to the affidavit filed in support of the application. In the report which is Parcha No. 17, dated 29.9.1995, it has been indicated by the Inspector C.B.C.I.D., that the accused Dharmendra Tripathi is unable to speak as he is unconscious and is getting his treatment at the Heritage Hospital, Varanasi as such, his statement could not be recorded and the statement of one eye-witness namely Sheshmani Shukla could not be recorded and, as the period of 90 days of judicial custody of accused Dharmendra Tripathi is going to expire on 30th September, 1995, the charge-sheet is submitted on the basis of the evidence collected till date. However, detailed investigation is being made and a cross-case is also registered as case Crime No. 135A of 1995 u/s 395/397, I.P.C. which is also liable to be investigated. Thus it is clear that the charge-sheet was filed with an intention that the accused may not take the advantage of proviso to Section 167(2), Code of Criminal Procedure. However, the matter was still under Investigation at the time of the filing of the charge-sheet. Provisions of Section 173, Code of Criminal Procedure is being quoted below:

Report of police officer on completion of investigation.--(1) Every investigation under this Chapter shall be completed without unnecessary delay.

(2)(i) As soon as it is completed, the officer in charge of the police station shall forward to a Magistrate empowered to take cognizance of the offence on a police report, a report in the form prescribed by the State Government stating-

(a) the names of the parties;

(b) the nature of the information;

(c) the names of the persons who appear to be acquainted with the circumstances of the case;

(d) whether any offence appears to have been committed and, if so, by whom;

(e) whether the accused has been arrested;

(f) whether he has been released on his bond and, if so, whether with or without sureties;

(g) whether he has been forwarded in custody u/s 170.

(ii) The officer shall also communicate in such manner as may be prescribed by the State Government, the action taken by him to the person, if any, by whom the information relating to the commission of the offence was first given.

(3) Where a superior officer of police has been appointed u/s 158, the report shall, in any case in which the State Government by general or special order so directs, be submitted through that officer, and he may, pending the orders of the Magistrate, direct the officer in charge of the police station to make further investigation.

(4) Whenever it appears from a report forwarded under this section that the accused has been released on his bond, the Magistrate shall make such order for the discharge of such bond or otherwise as he thinks fit.

(5) When such report is in respect of a case to which Section 170 applies, the police officer shall forward to the Magistrate alongwith the report-

(a) all documents or relevant extracts thereof on which the prosecution proposes to rely other than those already sent to the Magistrate during investigation;

(b) the statements recorded u/s 161 of all the persons whom the prosecution proposes to examine as its witness.

(6) If the police officer is of opinion that any part of any such statement is not relevant to the subject-matter of the proceedings or that its disclosure to the accused is not essential in the interests of justice and is inexpedient in the public interest, he shall indicate that part of the statement and append a note requesting the Magistrate to exclude that part from the copies to be granted to the accused and stating his reasons for making such request.

(7) Where the police officer investigating the case finds it inconvenient so to do, he may furnish the accused copies of all or an of the documents referred to in Sub-section (5).

(8) Nothing in this section shall be deemed to preclude further investigation in respect of an offence after a report under Sub-section (2) has been forwarded to the Magistrate and, whereupon such investigation the officer incharge of the police station obtains further evidence, oral or documentary, he shall forward to the Magistrate a further report or reports regarding such evidence in the form prescribed and the provisions of Sub-sections (2) to (6) shall, as far as may be, apply in relation to such report or reports as they apply in relation to a report forwarded under Sub-section (2).

A perusal of provisions of Section 173(2), Code of Criminal Procedure shows that after completion of the investigation, a police report shall be forwarded to the Magistrate empowered to take cognizance of the office but this section does not provide that even before the completion of the investigation, such report can be filed before the Magistrate. It has also not been provided in Section 173 that in case report is forwarded to a Magistrate which is not in accordance with the provisions of Section 173(2), Code of Criminal Procedure, the Magistrate can take cognizance on such report. Sub-section (5) of Section 173 is also relevant which makes it mandatory upon the Investigating Officer to forward to the Magistrate alongwith the report all documents or relevant extracts thereof on which the prosecution proposes to rely and statements recorded u/s 161 of all the persons whom the prosecution proposes to examine as its witness. Only Sub-section (8) of Section 173, Code of Criminal Procedure provides that after submission of a report, further investigation can be made and the police officer obtains further evidence, oral or documentary, shall forward to the Magistrate a further report or reports regarding such evidence in the form prescribed. But this Sub-section cannot be read independently and it will be always read alongwith Sub-section (2) which does not allow the Investigation Officer to submit a report on an incomplete investigation and thus the Investigating Officer should satisfy himself that he has completed the investigation to his end and then only he shall forward a police report to the concerned Magistrate and after completion of the investigation a police report is forwarded to a Magistrate and then for some reason it becomes necessary for the police officer to make further investigation he may do so and upon such investigation in case he obtains further evidence oral or documentary he may forward the same to the Magistrate along with a report or reports regarding such evidence in the form prescribed.

In the case of State of Uttar Pradesh v. Lakshmi Brahman and Anr. (supra), it has been held by the Hon''ble Supreme Court that Section 167 envisages a stage when a suspect is arrested and the investigation is not completed within the prescribed period. The investigation would come to an end the moment charge-sheet is submitted as required u/s 170 unless the Magistrate directs further investigation. This view is in accord with the decision of the Supreme Court in the matter of State of Bihar and Another Vs. J.A.C. Saldanha and Others, .

Thus if the Investigating Officer is of the opinion that he has not completed the investigation, he cannot forward a police report u/s 173(2). He also cannot get the advantage of Section 173(8) when the investigation is not completed in his opinion. However, if the investigation is completed in the opinion of the Investigating Officer, he can forward the police report being police officer incharge of a police station to a Magistrate empowered to take cognizance of the offence in the form prescribed by the State Government and thereafter if some more material comes to his knowledge or some superior officer of some other investigating agency appointed by the State to make further investigation collects further evidence which was not collected or was not noticed by the Investigating Officer during the course of investigation before completing the investigation, further investigation may be made and reports which may be in conformity with the provisions of Sub-sections (2) to (6) of Section 173.

The learned Additional Government Advocate has strongly contended that the applicant has not come in this Court with clean hands as he had moved bail applications before the court below as well as in this Court and one of his bail applications is still pending. He has not disclosed this fact before this Court and, as such, the present petition is liable to be dismissed. I do not know whether in those bail applications, the grounds which have been taken in the present petition u/s 482, Code of Criminal Procedure have been taken or not as none of the parties has disclosed the grounds taken in the bail applications. However, this Court is not going to grant him bail in exercise of the powers u/s 482, Code of Criminal Procedure.

The second contention raised by the learned Addl. Government Advocate as well as Sri S.T. Siddiqui, the learned Counsel for the complainant that the revision is pending challenging the validity of the order dated 19.6.1996 and, as such, the present petition u/s 482, Code of Criminal Procedure is not maintainable. This contention has certainly force in case this Court considers to quash the order passed by the learned Chief Judicial Magistrate which is under challenge. But in the instant matter, this Court is not inclined to quash the order passed by the learned Chief Judicial Magistrate. Hence this ground also has no force.

The learned Counsel has filed a copy of the memorandum of revision filed before the court below, a perusal of which shows that the applicant has raised the contention of grant of illegal remand. This point has been dealt with by the learned Chief Judicial Magistrate in his order dated 19.6.1996 against which the learned Counsel for the applicant has preferred the revision, but the point that the charge-sheet filed u/s 173(2), Code of Criminal Procedure without completing the investigation was not the subject-matter of the order dated 19.6.1996 and hence this point cannot be considered in the criminal revision by the learned Sessions Judge as in the revision, the learned Sessions Judge can see only the correctness, legality or propriety of any finding or order recorded or passed which is under challenge before him.

In view of the above discussions, I am of the view that when the Investigating Officer was of the opinion that the enquiry had not completed, the charge-sheet could not have been forwarded by him to the Court u/s 173(2), Code of Criminal Procedure. It could not be the intention of the Legislature to give power to the Investigating Officer to forward police report in such a manner as it would not be in public interest because such power is likely to be misused inasmuch as the accused persons in that event would invariably be denied the benefit of proviso to Section 167(2), Code of Criminal Procedure. Since in this case, the provisions of Section 173(2) have not been followed, the police report Parcha No. 17 dated 29.9.1995 is quashed. However, it will be for the concerned court to see whether the applicant is entitled to the benefit of proviso to Section 167(2), Code of Criminal Procedure.

With these observations the present application u/s 482, Code of Criminal Procedure is finally disposed of.