Harmail Singh vs State of Punjab

Dr. (Mrs.) Sarojnei Saksena, J.

The petitioner is assailing the impugned order whereby the Sessions Judge, Bathinda, allowing the revision filed by the State of Punjab, granted police remand for the petitioner for six days.

The factual matrix of the case is that a case under Sections 302/452/34 IPC and 25/54/59 of the Arms Act was registered against the petitioner at Police Station Sangat, District Bathinda. Coaccused was arrested on November 25, 1995. The petitioner was outside the State. He was declared proclaimed offender in this case. On coming back he came to know of this fact and he immediately surrendered himself in the Court of Chief Judicial Magistrate, Bathinda, on April 21, 1997. On the same day the learned Chief Judicial Magistrate sent him in judicial custody. Notice was also given to the police for April 24, 1997. The petitioner remained in judicial custody from 21st April to 20th May 1997. During this period test identification parade was held on May 20,1997. A prayer was made by the Investigating Officer to grant police remand. The learned Chief Judicial Magistrate allowed the prayer and granted petitioner''s police remand for two days i.e. from 20th May, 1997 to 22nd May, 1997. The petitioner was again produced before the Court on 22nd May, 1997. Police asked for further police remand, which was declined by the learned Magistrate and the petitioner was sent to Judicial custody.

Thereafter prosecution filed Criminal Revision in the Court of the Sessions Judge Bathinda, on June 5, 1997. On the same date the learned Sessions Judge granted petitioner''s police remand for a duration of six days, on the ground that it is a double murder case and the police has to make recovery of the weapon A.K. 47 in pursuance of the disclosure statement made by the petitioner and since this recovery is to be made from Pillibhit, which is at a distance, Police remand of six days was granted.

All the above facts are not disputed by Mr. A.R. Sidhu, Deputy Advocate General, Punjab.

The petitioner''s contention is that police remand could be granted only within initial 15 days of the detention of the petitioner but not beyond that. After fifteen days the accused can be detained only in judicial custody. In support of this contention he has relied on State (Delhi Admn.) v. Dharam Pal and others, 1982 Crl. L.J. 1103 and State (Delhi Admn.) v. Ravinder Kumar Bhatnagar, 1982 Crl. L.J. 2366.

Petitioner''s learned counsel also pointed out that under Section 167(2) Cr.P.C. when the Magistrate grants police remand, the accused is required to be produced before him, which indicates that accused has a right of hearing at that time. He further pointed out that while deciding the revision, the Sessions Judge exercises the power under Section 399 Cr.P.C. when he decides a revision the provisions of subsection (2), (3), (4) and (5) of section 401 Cr.P.C. apply. Subsection (2) of section 401 Cr.P.C. provides that no order under this section shall be made to the prejudice of the accused or other person unless he has had an opportunity of being heard either personally or by pleader in his own defence. He pointed out that from the impugned order it is evident that the date on which this revision was filed, learned Sessions Judge decided the revision on that very day without issuing notice for the production of the accused and without giving him a right of hearing. Thus, it amounts to flagrant violation of both the above legislative mandates.

Learned Deputy AdvocateGeneral, Punjab, submitted that since it was a case of double murder and in the first police remand the petitioner made a disclosure statement that he has kept the weapon of offence in Pillihbit, the Investigating Officer wanted to take the accused to Pillibhit. Therefore, he wanted extension of the period of police remand. When this prayer was made before the learned Magistrate, he declined to grant police remand. Therefore, the State filed revision before the Sessions Judge and considering the graveness of the matter, the Sessions Judge granted police remand for six days. He also submitted that the police had already availed this opportunity, the petitioner was taken to Pillibhit and after the period of police remand of six days, the petitioner is already sent in judicial custody. Thus, according to him, this petition has become infructuous.

After hearing the rival contentions, in my considered view, this Criminal Misc. Petition filed under Section 482 Cr.P.C. has not become infructuous. Though the police has already availed the benefit given to them by the impugned order and had taken the petitioner to Pillibhit for the said purpose, but the legal question involved in these quashment proceedings still remains to be decided.

The moot question for decision is whether police remand can be granted after a period of 15 days of the detention of an accused. This legal question is no more res integra as the Apex Court has decided this point in Central Bureau of Investigation, Special Investigation CellI, New Delhi v. Anupam J. Kulkarni, AIR 1992 S.C. 1768. The Apex Court has examined the provisions of section 167(2) proviso (b) along with other relevant provisions of the Code of Criminal Procedure and has held that remand of accused to police custody can be for 15 days only. Thereafter further remand during periods of 90 days or 60 days can only be judicial. It is further clarified that during the initial custody of 15 days, which is to be computed from the date of order of detention, the custody can be either judicial or police and can be vice versa also. But after 15 days the accused cannot be remanded to police custody. After 15 days the custody of the accused can only be judicial.

In this case, no doubt, the accused was not arrested by the police in this murder case. He surrendered before the Judicial Magistrate on April 21, 1997. Immediately he was sent to judicial custody. Notice was given to the police on April 24, 1997. Till May 20, 1997, the petitioner was in judicial custody. Thereafter for two days the petitioner was given in police custody i.e. from 20th May to 22nd May, 1997. On May 22, 1997, when a further request was made to extend the period of police remand, it was declined by the Magistrate and the petitioner was sent to judicial custody. As since by then initial 15 days of the detention of the petitioner had already expired, neither the Judicial Magistrate nor the Sessions Judge had any power to remand accused to police custody. In view of this legal position, the impugned order is patently illegal and beyond jurisdiction.

Further, it is also noteworthy that while deciding the Criminal Revision, the Sessions Judge was required to give notice to the accused. Even the Magistrate cannot grant order of remand in the absence of the accused under section 167(2) proviso (b). The Magistrate has no jurisdiction to authorise detention of the accused in any custody unless the accused is produced before him. Further under Section 401(2) of the Code the revisional Court is duty bound to hear the accused or his counsel before any order is passed to his prejudice. The Sessions Judge has not cared to look into these provisions, to summon the accused from jail and hear him before granting his remand for six days to police custody. On this count also, the impugned order is not sustainable.

Since the accused was remanded to police custody for six days, the Investigating Officer has already availed the benefit of this order to this extent no relief can be granted to the petitioneraccused now.

With the above observations the petition is disposed of. Copy of this order be sent to Mr. K.S. Grewal, Sessions Judge, Bathinda.