K.S. Palanichamy vs State

S. Tamilvanan, J.—The revision has been preferred u/s 397 r/w 401 of the Code of Criminal Procedure, seeking to set aside the order,

dated 10.10.2011 made in Crl.M.P. No. 2645 of 2011 on the file of the Special Court for TNPID Act, Madurai. It is seen that the Criminal

Miscellaneous Petition in Crl.M.P. No. 2645 of 2011 had been filed by the respondent hereinbefore the Court below u/s 167 (3) Cr. P.C.,

seeking police custody of the petitioner/accused for four days.

It is an admitted fact that the case was registered against the petitioner/accused under Sections 406 and 420, IPC and Section 5 of TNPID Act

in Crime No. 2 of 2011 by the respondent. In connection with the criminal case, the petitioner/accused was arrested by police and remanded to

judicial custody.

As per the prosecution case, the petitioner/accused along with the co-accused had collected money from various persons in the year 2009 by

giving false assurance to pay monthly interest of Rs. 25,000/-, if anybody invest with them, a sum of Rs. 1,00,000/-, however failed to repay the

money as well as the interest as assured by the petitioner and others and on the complaint given by the affected persons case was registered and

the matter was being investigated and found by the respondent that the petitioner had collected Rs. 1,07,31,500/- from seven persons.

As per the affidavit filed by the respondent herein, it is seen that the petitioner was arrested on 23.09.2011 at 14.15 hours and produced before

the Special Court, Madurai and remanded to judicial custody. The respondent has further averred that the petitioner herein has purchased various

properties at Vathalakundu, Nilakottai. Goodalur, Sasthanodai and in Indukki District of Kerala State and the passbooks issued by various Banks

and other documents relating to the offence are yet to be seized from the petitioner, apart from identifying 10 vehicles purchased by him, out of the

money collected from the public and to seize the R.C. Books relating to the vehicles. Similarly, the computer and laptop used by the petitioner

have to be seized for getting further details. On the aforesaid grounds, the respondent herein filed a petition u/s 167 (3), Cr. P.C., seeking police

custody and the aforesaid request was opposed on the side of the petitioner/accused, as legally not sustainable.

Considering the facts and circumstances and the arguments advanced by both the learned counsel, the Court below, by order, dated

10.10.2011 granted two days police custody with the condition that the petitioner/ accused should not be subjected to harassment by police and

he should be provided with proper food and other essential requirements and produce him by 13.10.2011 at 10.00 a.m. before the Court.

Aggrieved by the said order, this criminal revision has been preferred by the petitioner/accused.

In the counter, the respondent has stated that on 23.09.2011, the case was registered in Crime No. 2 of 2011 on the file of the E.O.W. Unit II,

Dindigul against the petitioner / accused and others for the offence punishable under Sections 406, 402, IPC and Section 5 of TNPID Act. On the

said date, the petitioner, who has been arrayed as A1 was arrested along with the other accused and remanded to judicial custody. On

04.10.2011, the respondent herein filed a petition, seeking police custody of the petitioner herein, in order to recover certain incriminating materials

such as documents relating to movable and immovable properties purchased out of the amounts received from the depositors. The petition was

numbered as Crl.M.P. No. 2645 of 2011. Since 5-10-2011 and 6-10-2011 were public holidays on account of Ayudha Pooja and Vijaya

Dhasami, the matter was posted for arguments on 7-10-2011 by the Court below and the sworn statement of the respondent was also recorded

by the court below on 7-10-2011. After hearing both sides, the learned Special Judge for TNPID. Act cases, Madurai, passed an order on 10-

10-2011 granting police custody of the petitioner for a period of two days from 11-10-2011, 10 a.m. to 13-10-2011, 10 a.m.

Learned Additional Public Prosecutor appearing for the respondent submitted that on 11.10.2011, pursuant to the order, the respondent took

custody of the petitioner/accused from Central Prison, Madurai and after completing the formalities of investigation, he was produced before the

Court below on 12.10.2011 at about 10.30 a.m. and was lodged in the Central Prison, Madurai on the said date at 11.30 a.m. This Criminal

Revision Petition was filed on 11.10.2011 by the petitioner. Learned Additional Public Prosecutor submitted that only on 12.10.2011 at about

6.30 p.m. telegram was received from the learned counsel appearing for the petitioner that the matter was stayed by this Court.

It is an admitted fact in this criminal revision that on 10.10.2011, police custody was granted for two days from 11.10.2011, 10 a.m. to

13.10.2011, 10 a.m. Pursuant to the order passed by the Court below, the respondent took custody of the petitioner/accused on 11.10.2011 at

about 11.30 a.m. as stated in the counter filed by the respondent.

It is seen that the revision petitioner/ accused filed this Criminal Revision on 11.10.2011 and this Court granted interim stay on 11.10.2011

against the order of the Court below, dated 10.10.2011 granting police custody. In the counter, the respondent has not specifically stated as to

what are the incriminating materials recovered from the revision petitioner/accused, according to law, while he was in police custody and further the

respondent received the telegram from the counsel for the revision petitioner, intimating the stay granted by this Court on 11.10.2011 only on

12.10.2011, hence, the petitioner was handed over for judicial custody. In the aforesaid circumstances, it is argued by the learned counsel for the

petitioner that in view of the stay granted on 11.10.2011, the materials collected pursuant to the order of police custody could be non-est in the

eye of law.

Mr. Ajmal Khan, learned counsel appearing for the petitioner / accused submitted that after the expiry of the period of 15 days of the first

remand, police custody could not be granted by the court below u/s 167, Cr. P.C. In support of his contention, the learned counsel relied on the

following decisions:

Budh Singh Vs. State of Punjab,

Devender Kumar v. State of Haryana, (2010) 3 SCC (Cri) 223 : (2010 Cri LJ 3849).

Central Bureau of Investigation, Special Investigation Cell-I, New Delhi Vs. Anupam J. Kulkarni,

In Budh Singh Vs. State of Punjab, it has been held as follows:

5...The impugned order of the High Court violates the statutory provisions contained in Section 167, Cr. P.C. since it authorises police remand for

a period of seven days after the expiry of the first fifteen days'' period. In Central Bureau of Investigation, Special Investigation Cell-I, New Delhi

Vs. Anupam J. Kulkarni, this Court considered the ambit and scope of Section 167, Cr. P.C. and held that there cannot be any detention in police

custody after the expiry of the first 15 days even in a case where some more offences, either serious or otherwise committed by an accused in the

same transaction come to light at a later stage. The Bench, however, clarified that the bar did not apply if the same arrested accused was involved

in some other or different case arising out of a different transaction, in which event the period of remand needs to be considered in respect to each

of such cases. The impugned order of the High Court, under the circumstances, cannot be sustained.

In Devender Kumar v. State of Haryana reported in (2010) 3 SCC (Cri) 223 : (2010 Cri LJ 3849, Para 10), it has been held as follows :

With regard to the second point which was argued by Mr. Luthra, the same was considered in depth and was settled in Central Bureau of

Investigation, Special Investigation Cell-I, New Delhi Vs. Anupam J. Kulkarni, case referred to hereinabove. What is clear is the fact that police

remand can only be made during the first period of remand after arrest and production before the Magistrate, but not after the expiry of the said

period.

Of course, we do not agree with the submissions made by Mr. Luthra that the second application for police remand is not maintainable even if

made during the first 15 days'' period after arrest. The said point has also been considered and decided in the above case. Within the first 15 days

of arrest the Magistrate may remand the accused either to judicial custody or police custody for a given number of days, but once the period of 15

days expires, the Magistrate cannot pass orders for police remand.

It has been made clear by the Hon''ble Apex Court that the application seeking police custody is not maintainable, after the expiry of 15 days

from the date of arrest and first remand of the accused. As contemplated u/s 167, Cr. P.C., the Magistrate may remand the accused either to

judicial custody or grant police custody for limited days, if he is satisfied, but once the period of 15 days of first remand expires, as per the rulings

of the Apex Court, the Magistrate is not empowered to pass an order granting police custody.

In Central Bureau of Investigation, Special Investigation Cell-I, New Delhi Vs. Anupam J. Kulkarni, , it has been held that Section 167 Cr.

P.C. is supplementary to section 57, Cr. P.C. As per the Criminal Procedure Code, the investigation should be completed in the first instance

within 24 hours; if not the arrested person should be brought by the police before a Magistrate as provided u/s 167 of the Code. While doing so,

the police should also transmit a copy of the entries made in the diary relating to the case which is meant to afford to the Magistrate, in order to

furnish the necessary information upon which, he can take the decision whether the accused should be detained in the custody further or not. Even

at this stage, the Magistrate can release him on bail, if an application is made and he is satisfied that there are no grounds to remand him to custody

but if he is satisfied that further remand is necessary, then he should act as provided u/s 167, Cr. P.C. Thus the Judicial Magistrate can in the first

instance authorise the detention of the accused either to judicial custody or police custody, but the total period of detention cannot exceed fifteen

days in the whole, after the first remand. Within this period of fifteen days, there can be more than one order changing the nature of such custody

either from police to judicial or vice-versa, as decided by the Hon''ble Apex Court in the decision cited.

In His Holiness Sri Jeyendra v. State, by order, dated 22.11.2004 made in Crl.O.P.No. 36051 of 2004, (Reported in 2005 Mad (Cri) 110)

this Court relying on Anupani Kulkarni''s case has held as follows :

Inasmuch as remanding a person in an interlocutory order that can be modified at any point of time before it expires by the same Magistrate or by

any other jurisdictional Magistrate. Therefore, grant of police custody when the accused has already been remanded to judicial custody for 15

days is not violative of any provisions of the Code of Criminal Procedure. Therefore, the order granting police custody in the present case is not

violative of the procedures contemplated under Cr. P.C. and hence, it is not illegal.

In Amar Pal v. State of U.P. reported in 1995 Cri LJ 52, relying on the decision reported in Central Bureau of Investigation, Special

Investigation Cell-I, New Delhi Vs. Anupam J. Kulkarni, , the Allahabad High Court has held that the prosecuting agency has a right to apply

before the Magistrate for a police custody of remand within first fifteen days. On passing of the aforesaid order by the Sessions Court, the

prosecution loses its right to make prayer that the accused be given in police custody.

In State v. Sundaramoorthy, reported in 2008 Cri LJ 898, a Division Bench of this Court has held that application for grant of police custody

must be strictly considered on materials as it involves fundamental right and personal liberty of individual.

A Three Judge Bench of the Hon''ble Apex Court in Madhu Limaye Vs. The State of Maharashtra, has laid the following guidelines, while

exercising inherent power of the High Court (Para 8):

(1) That the power is not to be resorted to if there is a specific provision in the Code for the redress of the grievance of the aggrieved party;

(2) That it should be exercised very sparingly to prevent abuse of process of any Court or otherwise to secure the ends of justice;

(3) That it should not be exercised as against the express bar of law engrafted in any other provision of the Code.

The revision has been preferred u/s 397 r/w 401 of the Code of Criminal Procedure on the ground that the Special Court for TNPID Act,

Madurai has passed the impugned order, dated 10.10.2011 against the provisions of the Criminal Procedure Code, whereby ordered police

custody, after the 15 days period of initial remand.

Mr. M. Ajmal Khan, learned counsel appearing for the petitioner/accused submitted that the petitioner herein was arrested on 23.09.2011 and

was remanded to judicial Custody for 15 days on the same day. According to him, the said period of remand was over on 07.10.2011, however,

the petition filed by the respondent, seeking police custody was allowed on 10.10.2011, after the expiry of 15 days from the date of initial remand

against the dictum laid down by the Apex Court, hence, the police custody is not legally sustainable. In support of his contention, he cited various

decisions of the Hon''ble Apex Court, this Court and other High Courts.

In the counter filed by the respondents, it, has been admitted that the date of arrest and remand of the petitioner was on 23-9-2011. Learned

Additional Public Prosecutor submitted that on 04.10.2011, the respondent herein filed the petition before the Court below, seeking police

custody, in order to recover incriminating materials such as documents relating to movable and immovable properties purchased from and out of

the amounts deposited by the depositors and for the recovery of the RC Books, relating to the vehicles purchased out of the money collected from

various persons and also to recover the computer used in the office of the petitioner. According to the learned Additional Public Prosecutor, since

5-10-2011 and 6-10-2011 were public holidays on account of Ayudha Pooja and Vijaya Dhasami, the matter was posted to 7-10-2011 by the

court below and the sworn statement of the Inspector was recorded only on 7-10-2011, then the matter was posted for orders to 10-10-2011.

Subsequently, police custody was granted by the Court below by its order, dated 10-10-2011 for a period of two days from 11-10-2011, 10

a.m. to 13-10-2011 10 a.m.

In Anupam J. Kulkarni''s case (referred to above), the Hon''ble Supreme Court has decided the ambit and scope of Section 167 Cr. PC,

holding that there could be no detention of police custody after the expiry of the first remand of 15 days even in a case where some more offences,

either serious or otherwise committed by an accused in the same transaction, which were brought to light at a later stage.

In Budh Singh Vs. State of Punjab, and subsequently in the recent decision, Devender Kumar v. State of Haryana reported in (2010) 3 SCC

(Cri) 223 : (2010 Cri LJ 3849), the Hon''ble Supreme Court has categorically ruled that within the first 15 days of arrest, the Magistrate may

remand the accused either to judicial custody or police custody for a given number of days but once the period of 15 days expires, the Magistrate

cannot pass orders for police custody.

In the instant case, admittedly the petitioner was arrested and remanded to judicial custody on 23.09.2011, however, police custody was

ordered only on 10.10.2011, 15 days after the arrest and remand of the petitioner/accused. Learned Additional Public Prosecutor submitted that

the respondent had filed the petition, seeking police custody on 04.10.2011 itself and on account of the subsequent holidays, the matter was

adjourned to 07.10.2011. On the said date, the sworn statement of the concerned Inspector was recorded and after hearing the arguments, the

petition was posted for passing orders to 10:10.2011 and on 10.10.2011, the order was passed, granting police custody and accordingly, justified

the delay caused in granting police custody after the expiry of 15 days.

It cannot be disputed that personal liberty of any person is paramount in a democratic governance, for which Rule of Law is the basis. In order

to safeguard the personal liberty of the individuals, the Hon''ble Apex Court has given exhaustive and elaborate interpretations, whereby the scope,

ambit and importance of Article 21 of the Constitution has been emphasised, that no person shall be deprived of his life or personal liberty, except

according to procedure established by law. It is well established that Article 21 safeguards not only the life or personal liberty of citizens, but also

any person other than the citizens of India.

In this regard, I am of the view that the term ""Procedure established by law"" employed under Indian Constitution gives better safeguards to any

person, which is more than the safeguard given under the American Constitution, which has employed the term ""due process of law"". In my view,

under the due process concept, following the procedure in the manner known to law is Sufficient to justify any action curtailing life or personal

liberty of a person. However, as per the term ""Procedure established by law"", employed in our Constitution, the mere legal procedure alone would

not be sufficient, since the procedure could have been testified or subject to the acid test of judicial review, as contemplated under Article 21 of the

Constitution of India.

It has been made clear by the Hon''ble Supreme Court of India that the Magistrate is empowered to grant police custody u/s 167, Cr. P.C. for

a few days, if he is satisfied only within 15 days from the date of the first respondent and after the expiry of the 15 days from the date of the first

remand, he has no power to grant police custody.

In the aforesaid circumstances, the respondent police cannot assign any reason to justify the order of the Magistrate granting police custody

after the expiry of 15 days of the first remand. Had the petition been filed on the 15th day, considering the aforesaid statutory limitation, as decided

by the Apex Court, the prosecution could have convinced the learned Special Judge in the manner known to law, so as to get the order before the

expiry of the time limit of the said 15 days. It cannot be legally acceptable argument that the matter was adjourned to 07.10.2011, on account of

intervening holidays and on 07.10.2011, sworn statement was given by the concerned Inspector, however, the order could be pronounced only on

10.10.2011.

It cannot be disputed that as per Article 141 of the Constitution, any judgment or order passed by the Hon''ble Supreme Court is binding on all

Courts within the territory of India, as if the law passed by Parliament. Various decisions rendered by the Hon''ble Supreme Court of India

stipulating, 15 days time limit u/s 167, Cr. P.C. for seeking police custody is accordingly, the law declared by the Apex Court, which should be

followed scrupulously in its letter and spirit, which cannot be violated by any authority by assigning any reason.

In the aforesaid circumstances, I am, of the considered view that the order of police custody, dated 10.10.2011 passed by the. Special Judge

for TNPID Act, Madurai in Crl.M.P.No. 2645 of 2011, after the expiry of 15 days from the date of the first remand is not legally sustainable,

accordingly, the same is liable to be set aside. In the result, this Criminal Revision Petition is allowed and the impugned order is set aside and

accordingly, consequential acts done by the respondent police, pursuant to the impugned order are also declared as non est in the eye of law and

connected miscellaneous petition is closed.