AI Structured Summary
Not yet generated for this judgment
Judgment
H.S. Brar, J.
This is a petition under Section 482 of the Code of Criminal Procedure, for quashment of the order of Special Judge, Chandigarh, dated August, 17, 1993, remanding Jatinder Singh son of Rajinder Singh, petitioner to police custody for a continuous period of 14 days.
The petition has been filed by Rajinder Singh, father of accused Jatinder Singh as according to the Note appended at the end of the petition by Mr. P.S. Hundal, Advocate, the accused that is, the son of the petitioner was in police custody and the counsel was not allowed to have power of attorney of the accused.
It is stated in the petition that a cse (No. RC20/93CHG under Section 120B, read with Sections 409, 409/467/471, Indian Penal Code, and Section 13(1)(8) read with Section, 13(2) of the prevention of Corruption Act, 1988, was registered by the Central Bureau of Investigation (for short, CBI) Chandigarh on July 21, 1993 against a number of employees of the Department of Radiology of the Post Graduate Institute, Chandigarh. The son of the petitioner, that is accused Jatinder Singh was summoned to the CBI Headquarters by the CBI Officers thrice. He was duly interrogated and let off later on. It is then stated in the petition that for the reasons best known to the CBI Officers, the petitioner''s son Jatinder Singh was arrested after about a month, that is, on August 16, 1993 in the above mentioned case and was produced before Shri R.S. Madan, Special Judge, Chandigarh, on August 17, 1993. An application for police remand of Jatinder Singh accused was moved by the CBI, true copy of which has been annexed as Annexure P/1 with the petition.
It is then stated in the petition that petitioner''s son Jatinder Singh accused requested the Court that his counsel may be awaited for five to ten minutes, but his request was not acceded to and 14 days'' remand to police custody was ordered by the learned Special Judge, Chandigarh, in the absence of the counsel for the accused. A true copy of the order is also annexed with the petition as Annexure P/1.
The petition goes on to say that at 11 a.m. when the CBI party headed by Deputy Superintendent of Police Surjan Singh was waiting for the police van the counsel for the accused and the petitioner met the accused in police custody and asked him whether he was asked by the Court for having a counsel. Then the accused told them that nothing was asked by the Court from him and the police remand was granted inspite of his request (that is, the request of the accused) to wait for his counsel.
The learned counsel for the petitioner contends that the order of the learned Special Judge, Chandigarh, dated August 17, 1993, being arbitrary and ultra vires the provisions of law and guidelines provided by the High Court Rules and orders, is liable to be quashed on the following grounds :
i) granting of 14 days remand to police custody at one go is not in accord with Section 167(2) of the Code of Criminal Procedure 1973, (hereinafter referred to as the Code);
ii) the guidelines for the grant of police remand embodied in Chapter 11B of the High Court Rules and JUDGMENTs Volume III, have not been taken into consideration by the learned Special Judge before remanding the accused to the police custody for a continuous period of 14 days; and
iii) the learned Special Judge did not satisfy himself that there were good and sufficient reasons for remanding the accused to police custody for a continuous period of 14 days as required by the Code as well as the guidelines referred to above.
The requisite provision authorising the detention of the accused in police custody in Section 167 of Code of Criminal Procedure, relevant portion of which is reproduced as under:
"167. Procedure when investigation cannot be completed in twenty four hours. (1) When 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 wellfounded, the officer in charge of the police station or the police officer making the investigation, if he is not below the rank of subinspector, 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.
xx xx xx xx
xx xx xx xx
xx xx xx xx
According to subsection (2) of Section 167 of the Code, when an accused is produced before the Magistrate, he may from time to time authorise the detention of the accused in police custody as he thinks fit but not any case for a term exceeding 15 days in a whole. A reading of subsection (2) of Section 167 of the Code, conveys that until and unless there is a case in which prosecution shows that there are compelling circumstances to remand the accused to police custody for a continuous period 14 or 15 days, the Magistrate has to give police remand for 3 or 4 days at a time and not for the full period of 15 days, which is the maximum period for which he is allowed to remand the accused to police custody.
In the case in hand, nothing is borne out from the request made by Shri Surjan Singh, Deputy Superintendent of Police to the learned Special Judge for police remand of the accused that there were such compelling circumstances that the accused could be remanded to police custody for a continuous period of 14 days. Not only that the counsel for the CBI has failed to show me any other order, request or evidence which could be made the basis for remanding the accused to police custody for 14 days in the first instance. The relevant portion of the guidelines enunciated in Chapter 11B of the High Court Rules and orders Volume II relating to the remand of the accused to police custody is reproduced as sender :
1 .... ... ... ... ... ...
.... ... ... ... ... ...
Magistrates should observe the great distinction between a remand to police custody and an ordinary remand to the Magistrate''s lockup under Section 344 of the adjournment of an inquiry or trial owing to the absence of a witness or from any other reasonable cause.
The noncompletion of the enquiry or trial justifies the latter, but the former requires something more, as it is expressly provided by Section 167 that the noncompletion of the investigation shall not, in the absence of a special order of a Magistrate be deemed to be a sufficient case for the detention of an accused person by the police.
.... ... ... ... ... ...
4, 5 and 6 xx xx xx xx
xx xx xx xx xx xx
xx xx xx xx xx xx
Before making an order of remand to police custody under Section 167 of the Code of Criminal Procedure the Magistrate should satisfy himself that
1) there are grounds for believing that the accusation against the person sent up by the Police is well founded.
2) there are good and sufficient reasons for remanding the accused to police custody instead of detaining him in magisterial custody.
xx xx xx
xx xx xx
The following principles are laid down for the guidance of Magistrate in the matter of granting remands and District Magistrate (or in the Districts in which the experiment of separation of the Executive from the Judiciary is being tried the Additional District Magistrates) are required to see that they are carefully applied :
(i) Under no circumstances should an accused person be remanded to police custody unless it is made clear that his presence is actually needed in order to serve some important and specific purpose connected with the completion of the enquiry. A general statement by the officer applying for the remand that the accused may be able to give further information should not be accepted;
(ii) When an accused person is remanded to police custody the period of the remand should be as short as possible.
(iii), (iv) (v) xx xx xx
9 to 11. xx xx xx xx
(i) The following instructions have been issued by the Punjab Government for the guidance of Magistrate in regard to remands (Punjab Government circular letter No. 6091J36/39829(H. Judl.), dated the 19th December, 1936, to all District Magistrates in the Punjab :
(a) Before a remand is granted in any case, the Magistrate should inform the accused that he is a Magistrate and that a remand has been applied for, and he should ask the accused whether he has any objection to offer to the remand. The order grant the remand should be written at the time it is announced, in the presence of the accused;
(b) If the accused wishes to be represented by counsel, the Magistrate should allow time for counsel to appear and argue the matter before him. He may grant a temporary remand in such circumstances until arguments have been heard."
It seems that the guidelines as referred to above were perhaps not brought to the notice of the learned Special Judge before police remand of the accused was ordered by him. He has to see many things to satisfy himself before remanding the accused to police custody, particularly whether there are good and sufficient reasons for doing so instead of detaining him in magisterial custody and when an accused person is remanded to police custody, the period of remand should be as short as possible, as specifically provided in the guidelines reproduced hereinafter. It is not discernible from the order of the Special Judge as to whether after taking into consideration the ambit, scope and spirit of Section 167 of the Code as also the guidelines,he had satisfied himself to remand the accused to police custody for a continuous period of 14 days. Moreover, it is also not discernible either from the order or from any material with the prosecution which could show that the Special Judge allowed time to the accused or this counsel to appear and argue the matter before him before handing over his custody to the police for 14 days. Though there is no bar to the Special Judge or a Magistrate to remand the accused for a term of 15 days in the whole, to the police custody, yet he has to act according to the spirit of the provisions of the Code and guidelines as mentioned above and to see particularly whether there are compelling circumstances which warrant the remand of the accused to police custody for 3 or 4 days, or for a continuous period of 14 and 15 days at one go.
The learned counsel for the CBI has cited Central Bureau of Investigation, Special Investigation CellI New Delhi v. Anupam J. Kulkarni, AIR 1992 SC 1768, in support of his contention that accused could be remanded to police custody for 15 days in the first instance. The authority is, however, distinguishable and is not applicable to the facts of the case in hand.
In view of my discussion above, I find that on the facts and in the circumstances of this case, the order of the Special Judge, Chandigarh dated August 17, 1993, is not sustainable and is liable to be quashed. I order accordingly.
The CBI is directed to produce accused Jatinder Singh before the Special Judge, Chandigarh immediately. The Special Judge, Chandigarh will be at liberty to form his opinion again after taking into consideration relevant provisions of the Code of Criminal Procedure as well as the guidelines provided by the High Court Rules and JUDGMENTs, as to whether the accused be remanded to Police Custody again and for how much period.
The petition is disposed of with the above said observations.
Copy of this order be supplied dasti also.