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S.N. Phukan, J.—Civil Rule No. 2374 of 1993 has been filed by the elder brother of detenu Shri Thikung Mosang, who was taken into custody on 15.3.93 by the Dibrugarh Police where he was going from the State of Arunachal Pradesh, his place of permanent resident, for business purpose. He was arrested in connection with Dibrugarh P.S. Case No. 229/93 under Sections 3 / 4 TADA (P) Act. Thereafter he was taken to a place called Changlang on 15.4.93 and according to the writ Petitioner the detenu was kept in quarter guard at that place. It has also been suited that he was never produced before any Magistrate. He was shown arrested in GR Case No. 9/93 of Karsung PS Case No. 4993/93 u/s 121-A of the Indian Penal Code pending before the Court of Deputy Commissioner (J), Changlang. Thereafter he was granted bail in that case by this Court on 15.7.93 in Criminal Original Application No. 443 of 1993. But he was not enlarged on bail as he was shown arrested in another case, namely, Jairampur PS Case No. 12/93 under Sections 3 / 4 TADA (P) Act. The grievance of the Petitioner is that his brother was never produced before a competent Court and there was no proper remand order. The Civil Rule (HC) No. 81/93 has been filed by Shri Remna Juglie, a permanent resident of Nampang in the State of Arunachal Pradesh, He was arrested by Arunachal Pradesh Police on 3.7.93 and was kept in the police look up. Thereafter he was transferred to police custody at Jairampur It has been stated that he was never produced before any Magistrate and subsequently he came to know that the was arrested in connection with Jairampur PS Case 12/93 registered u/s 121 / 21-A 386 / 34 IPC. He was subsequently shown arrested also in the case registered as Jairampur PS Case 12/93 under Sections 3 / 4 TADA (P) Act. Hence the present petition.
A counter affidavit has been filed on behalf of the Respondents. Original case diary has also been produced.
As the matter involves interpretation of provisions of TADA (P) Act, notices were issued to all the Advocate Generals of the North-east. We have heard Mr. C. Baruah, learned Counsel for the Petitioners and Mr. N.M. Lahiri, Mr. S.N. Bhuyan and Mr. A.M. Majumdar, learned Advocate Generals of Meghalaya, Assam and Arunachal Pradesh respectively. On behalf of the Union of India, we have also heard Mr. K.N. Choudhury and on behalf of the State of Tripura Mr. B.P. Kataky.
We may state here that by our recent order dated 30.5.94, we held that accused Thikung Mosang be set at liberty forthwith and we have been informed that it has been done. The main question in these two petitions involves interpretation of the provisions of the Code of Criminal Procedure and Terrorists and Disruptive Activities (Prevention) Act, The said provisions are quoted below:
Procedure when investigation cannot be completed in twenty-four hours.- (1) Whenever 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 well-founded, the officer-in-charge of the police station or the police officer making the investigation, if he is not below the rank of sub-inspector, shall forth with 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 lime forward 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:
Provided that-
(a) the Magistrate may authorise the detention of the accused person, otherwise than in the custody of the police, beyond the period of fifteen days, if he is satisfied that adequate grounds exist for doing so, but no Magistrate shall authorise the detention of the accused person in custody under this paragraph for a total period exceeding,-
(i) ninety, days, where the investigation relates to an offence punishable with death, imprisonment for life or imprisonment for a term of not less than ten years;
(ii) sixty days, where the investigation relates to any other offence,
and on the expiry of the said period of ninety days, or sixty days, as the case may be, the accused person shall be released on bail if he is prepared to and does furnish bail, and every-person released on bail under this sub-section shall be deemed to be so released under the provisions of Chapter XXXIII in for the purpose of that Chapter.
(b) no Magistrate shall authorise detention in any custody under this section unless the accused is produced before him;
(c) up Magistrate of the second class not specially empowered in this behalf by the High Court, shall authorise detention in the custody of the police.
Sub-section (4) of Section 20 of the Terrorist and Disruptive Activities (Prevention) Act, 1985 runs as follows:
(4) Section 167 of the Code shall apply in relation to a case involving an offence punishable under this Act or any rule made thereunder subject to the modifications that-
(a) the reference in Sub-section (1) thereof to "Judicial Magistrate" shall be construed as a reference to "Judicial Magistrate or Executive Magistrate or Special Executive Magistrate":
(b) the reference in Sub-section (2) thereof to "fifteen days", "ninety days" and "sixty days", wherever they occur, shall be construed its references to "Sixty days" [One hundred and eighty days] and [One hundred and eighty days] respectively; and
2 [(bb) in Sub-section (2), after the proviso, the following proviso shall be inserted, namely.-
Provided further that, if it is not possible to complete the investigation within the said period of one hundred and eighty days, the Designated Court shall extend the said period upto one year, on the report of the Public Prosecutor indicating the progress of the investigation and the specific reasons for the detention of the accused beyond the said period of one hundred and eighty days; and]
(c) Sub-section (2-A) thereof shall be deemed to have been omitted.
We may mention here that Section 167 of the Code of Criminal Procedure, inter alia, provides that the FIR recorded u/s 154 Code of Criminal Procedure or any information received regarding commission of cognizable offence, such information including FIR shall be forwarded to the Magistrate empowered to take cognizance of such offence forthwith. Admittedly, any offence committed under TADA (P) Act, 1987 only Designated Court has not jurisdiction to take cognizance directly and therefore first information report or any other information received by police regarding violation of any provisions of the TADA (P) Act, it has to be sent forthwith to the Designated Court. Delay in sending such information may pose subsequent problems during trial. In Section 167 of the Code of Criminal Procedure as amended by Section 20 of the TADA (P) Act power of remand has been given to Executive Magistrate also and the period has been extended.
Admittedly Executive Magistrate or Judicial Magistrate has no jurisdiction, to take cognizance of an offence under TADA (P) Act. So, the only question urged before us by Mr. Baruah, learned Counsel for the Petitioners is that in view of provisions contained in Sub-section (2) of Section 167 Code of Criminal Procedure as amended by TADA (P) Act, 1987, such remand by Executive Magistrate or Judicial Magistrate or Special Executive Magistrate can be only for the first occasion when the accused person is produced and subsequent order of remand has to be passed by the Designated Court. On this point, Mr. N.M. Lahiri, learned Advocate General, Meghalaya, Mr. S.N. Bhuyan, learned Advocate General, Assam Mr. K.N. Choudhury, learned Senior Central Govt. Standing Counsel and Mr. B.P. Kataky, learned Government Advocate, Tripura have agreed. But Mr. A.M. Majumdar learned Advocate General. Arunachal Pradesh has urged that subsequent remand order can be passed by Executive Magistrate/Judicial Magistrate/Special Executive Magistrate. In this connection, learned Counsel has drawn our attention to the last following two lines of Sub-section (2) of Section 167 of the Code of Criminal Procedure. The said lines are-
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.
We may state here that under Sub-section (2) of Section 167 Code of Criminal Procedure the period fixed for the remand is only 15 days, which has been increased to 60 days by the amendment made by Section 20 of TADA (P) Act, 1987. Therefore, even if we accept the contention of Mr. Majumdar learned Advocate General, Arunachal Pradesh, a Judicial Magistrate/Executive Magistrate of Special Executive Magistrate cannot pass remand orders beyond sixty days as days have no jurisdiction to try the case. Admittedly, in the present case, the period of sixty days was long over and no remand orders were passed by the Designated Court even if we accept the statement of Mr. Majumdar, such a Magistrate cannot pass remand order beyond sixty days. We farther hold that if any further detention is necessary within the limit prescribed by Section 20 of TADA (P) Act, such order shall be passed only by Designated Court. An accused person charged with an offence under the provisions of TADA (P) Act, 1987, if detained beyond the period of sixty days, only on the orders of the Executive Magistrate/Judicial Magistrate or Special Executive Magistrate, such detention beyond 60 (sixty) days will be illegal detention. If the investigating machinery wants to detain such an accused person beyond period of sixty days order shall be obtained from the Designated Court.
The submission of Mr. Majumdar is thus not different from the submission (sic) Baruah, as according to Mr. Baruah, the detention order by an Executive substrate/Judicial Magistrate or a Special Executive Magistrate can be passed (sic) Sub-section (2) of Section 167 Code of Criminal Procedure only for the period fixed by the department made by TADA (P) Act, i.e., sixty days and this view of Mr. Baruah, (sic) above, has been accepted by the learned Advocate Generals of Meghalaya, (sic) and learned Senior Central Government Standing Counsel and also by code Government Advocate, Tripura Mr. B.P. Kataky. Situated thus, we hold as follows:
The first information report or information received by police regarding mission of an offence under TADA (P) Act shall be sent forthwith to the granted Court. We further hold that Executive Magistrate/Judicial Magistrate special Executive Magistrate cannot order remand of an accused person charged (sic) TADA (P) Act beyond a period of sixty days and if further detention is (sic) order shall be obtained by investigating agency from the Designated (sic). The Designated Court cannot remand an accused person either to the police body or judicial custody beyond the period fixed by amending section 167 of the Code of Criminal Procedure by TADA (P) Act, 1987.
Mr. Majumdar has drawn our attention that provisions of the Code of Criminal Procedure and CPC do not apply in case of trial of in the State of Arunachal Pradesh in view of the Provisions of the Assam (sic) (Administration of Justice) Regulation, 1945 and Only spirit of these two are to be followed. There is no dispute that TADA (P) Act is in force before, Section 20 of TADA (P) Act has to be duly complied with and, in other (sic) the period of detention during investigation u/s 167 Code of Criminal Procedure (sic) exceed the period fixed by TADA (P) Act.
Regarding the facts of the case as persons were taken into custody long (sic) they might have been released by this time and, If not proper bail application to be filed before the Designated Court and the Designated Court shall ensure (sic) any remand Order has been passed by any Executive Magistrate/Judicial (sic) or Special Executive Magistrate beyond a period of sixty days and after dispose of the bail application in accordance with law and what has been in the judgment.
Both the petitions are accordingly disposed of. No costs.