SATYAJIT BALLUBHAI DESAI Vs STATE OF GUJARAT
Bench: G.S. SINGHVI,GYAN SUDHA MISRA
Case number: Crl.A. No.-001158-001158 / 2012
Diary number: 32463 / 2011
Advocates: EJAZ MAQBOOL Vs
HEMANTIKA WAHI
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Reportable
IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. /2012 (Arising out of S.L.P. (Crl.) No. 7821/2011)
SATYAJIT BALLULBHAI DESAI & ORS. ..Appellants
Versus
STATE OF GUJARAT ..Respondent
J U D G E M E N T
GYAN SUDHA MISRA, J.
1. Leave granted.
2. The appellants herein have assailed the
judgment and order of the High Court of Gujarat at
Ahmedabad dated 29.09.2011 passed in Special Crl.
Application No.810/2011 alongwith Criminal
Miscellaneous Application No.11636/2011 whereby the
learned single Judge was pleased to dismiss the
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applications and thus upheld the order passed by the
learned Magistrate permitting police remand of the
appellants herein for three days for their interrogation
in complaint case No.3/2004 registered in the court of
Judicial Magistrate (1st Class) Valod, Gujarat which had
been referred to the police for investigation after which
the said complaint was registered as Talod M. Case
No.1/2004.
3. Before we consider the justification and
correctness of the impugned order permitting police
remand of the appellants, the relevant factual details
are required to be recorded which disclose that a lady
named Surjaben widow of Badharsinh @ Babarsinh
Chauhan aged approximately 80 years filed a criminal
complaint before the Judicial Magistrate 1st Class
(JMIC) , Valod in Gujarat being case No.3/2004 against
the appellants alleging inter – alia that the husband
of the complainant namely Badharsinh @ Babarsinh
Ratnaji Chauhan had expired on 10.6.1967 and after
his death and death of other brothers of the husband
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of the complainant, name of the complainant got
entered in the revenue record. However, when the
complainant obtained a copy of the revenue record in
respect of the aforesaid land, she came to know that
one Satyajitbhai Ballubhai Desai forged and created
a bogus power of attorney at the instance of the owner
of the property in the name of one Jaydipbhai
Ranchhodbhai Solanki who is a fictitious person and
on the basis of the bogus and fabricated power of
attorney, he got executed a registered sale deed on
2.8.2003 in favour of a 3rd party without the
knowledge of the complainant. The learned Magistrate
sent the matter for investigation to the police which
registered it as Talod M.Case No.1/2004.
4. The complainant apart from filing the
complaint against the appellants also instituted a
Regular Civil Suit No. 15/2004 in the court of learned
Civil Judge (Jr. Division), Valod against the appellant
No.1 herein for declaration, permanent injunction and
cancellation of registered sale deed executed on
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2.8.2003. However, on appearance of the appellant
No.1 in the civil suit, a compromise came to be arrived
at between the appellant No.1 Satyajit Ballubhai Desai
and the complainant Surjaben wherein the parties
agreed that the criminal complaint filed by the
complainant will be withdrawn unconditionally. The
learned Civil Judge accepted the said compromise and
directed to draw a decree as per the terms of the
compromise.
5. In view of the aforesaid compromise, the
complainant as also the appellant No.1 appeared before
the learned Judicial Magistrate First Class, Valod and
prayed to withdraw the criminal complaint. In view of
the request made by the parties, the Judicial Magistrate
directed the Deputy Superintendent of Police Vyara to
return the complaint by February 15, 2005. However,
a third person and a stranger to the dispute namely
Randhirsing Deepsing Parmar, who according to the
appellants had nothing to do with the dispute between
the complainant and the appellants herein, felt
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aggrieved with the order dated February 15, 2005
passed by the JMFC and filed a Special Criminal
Application No. 918/2007 before the High Court of
Gujarat challenging the order of JMFC by which the
order of investigation in the complaint case had been
directed to be returned.
6. The High Court, however, was pleased to
allow this application and directed for investigation of
the complaint which had been lodged by Surjaben. As
a result of this order of the High Court dated November
30, 2007, the criminal complaint case No. 3/2004/Talod
M.Case 1/2004 got revived in spite of the fact that a
compromise decree had been drawn before the Civil
Court in regard to the property for which criminal
complaint had been lodged and the complainant had
withdrawn the complaint but was revived by order of
the High Court. The appellants, therefore, had to
approach the High Court seeking anticipatory bail in
the criminal complaint which was revived and the same
was rejected but subsequently the High Court by order
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dated 23rd March, 2011 enlarged the appellants herein
on regular bail. However, the Dy. S.P. Vyara only six
days thereafter on 29.3.2011, filed an application
before the Judicial Magistrate First Class,Valod Court,
Valod seeking police remand of the appellants for
seven days in connection with M.Case No.1/2004 based
on the complaint of the complainant lady – Surjaben
which had been registered with the Valod Police Station
on the basis of the complaint lodged for offences under
Section 406, 420, 467,468, 471, 504, 506 (2) and 114
of the Indian Penal Code and had been withdrawn but
was later revived as stated hereinbefore.
7. The prayer made by the Dy. S.P. in the
application seeking police remand for three days was
partly allowed by the Principal Civil Judge and Judicial
Magistrate First Class, Valod permitting police remand
of the appellants for three days against which the
appellants moved the High Court whereby a stay
against the order of police remand was passed in
favour of the appellants herein. However, when the
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matter was heard finally, the High Court upheld the
order passed by the magistrate permitting police
remand of the appellants for a period of three days in
view of the investigation which was conducted in regard
to the case lodged by the complainant-Surjaben, finally
giving rise to a case before the police for investigation
at the instance of a third party, namely, Randhirsing
Deepsing Parmar who was a stranger to the dispute.
8. The appellants feeling aggrieved with the
order passed by the High Court and the JMIC permitting
police remand of the appellants for a period of three
days has challenged this order in this appeal essentially
on the ground that the order granting police remand of
the appellants are not based on valid or justifiable
reason on the part of the investigating agency and
hence the same encroaches on the personal liberty of
the appellants as the appellants have never tried to
scuttle the investigation justifying police remand. It
was further submitted that the grant of police remand
is an exception and not the rule and therefore the
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investigating agency was required to make a strong
case for taking police custody of the appellants in
order to undertake further investigation and only in that
event police custody would be justified. The appellants
having fully co-operated with the investigating
authority and having appeared for questioning as and
when required after the grant of bail, should not have
been allowed to be sent for police remand on the
pretext of conducting further investigation as prayed
for by the investigating authority.
9. Learned counsel for the State however has
supported the order of the JMFC and the High Court
permitting police remand of the appellants herein in
view of revival of investigation by the police.
10. Having considered and deliberated over the
issue involved herein in the light of the legal position
and existing facts of the case, we find substance in the
plea raised on behalf of the appellants that the grant of
order for police remand should be an exception and not
a rule and for that the investigating agency is required
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to make out a strong case and must satisfy the learned
Magistrate that without the police custody it would be
impossible for the police authorities to undertake
further investigation and only in that event police
custody would be justified as the authorities specially
at the magisterial level would do well to remind
themselves that detention in police custody is generally
disfavoured by law. The provisions of law lay down that
such detention/police remand can be allowed only in
special circumstances granted by a magistrate for
reasons judicially scrutinised and for such limited
purposes only as the necessities of the case may
require. The scheme of Section 167 of the Criminal
Procedure Code, 1973 is unambiguous in this regard
and is intended to protect the accused from the
methods which may be adopted by some overzealous
and unscrupulous police officers which at times may be
at the instance of an interested party also. But it is
also equally true that the police custody although is not
the be-all and end-all of the whole investigation, yet it is
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one of its primary requisites particularly in the
investigation of serious and heinous crimes. The
Legislature also noticed this and, has therefore,
permitted limited police custody.
11. It may, therefore, be noted that Article 22 (2)
of the Constitution of India and Section 57 of the Cr.P.C.
gives a mandate that every person who is arrested and
detained in police custody shall be produced before the
nearest magistrate within a period of 24 hours of such
arrest excluding the time necessary for the journey
from the place of arrest to the court of the magistrate
and no such person can be detained in the police
custody beyond the said period without the authority of
a magistrate. These two provisions clearly manifest the
intention of the law in this regard and therefore it is the
magistrate who has to judicially scrutinise
circumstances and if satisfied can order detention of
the accused in police custody. The resultant position is
that the initial period of custody of an arrested person
till he is produced before a Magistrate is neither
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referable to nor in pursuance of an order of remand
passed by a Magistrate. In fact, the powers of remand
given to a Magistrate becomes exercisable only after an
accused is produced before him in terms of sub section
(1) of Section 167 Cr.P.C.
12. The Judicial Magistrate thus in the first
instance can authorise the detention of the accused in
such custody i.e. either police or judicial from time to
time but the total period of detention cannot exceed
fifteen days in the whole. 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. If the arrested accused is produced before
the Executive Magistrate he is empowered to authorise
the detention in such custody either police or judicial
only for a week, in the same manner namely by one or
more orders but after one week he should transmit him
to the nearest Judicial Magistrate along with the
records. When the arrested accused is so transmitted
the Judicial Magistrate, for the remaining period, that is
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to say excluding one week or the number of days of
detention ordered by the Executive Magistrate, may
authorise further detention within that period of first
fifteen days to such custody either police or judicial.
After the expiry of first period of fifteen days further
remand during the period of investigation can only be
in judicial custody. There cannot be any detention in
the police custody after the expiry of first fifteen days
even in a case where some more offences either
serious or otherwise committed by him if the same
transaction come at a later stage. But this bar does not
apply if the same arrested accused is involved in a
different case arising out of a different transaction.
13. As the legal position noted above have an
important bearing in discharge of the day to day
magisterial powers contemplated under Section 167 (2)
of the Cr.P.C., we considered it appropriate to sum up
briefly and reiterate the settled legal position that
whenever any person is arrested under Section 57
Cr.P.C., he should be produced before the nearest
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Magistrate within 24 hours as mentioned therein. Such
Magistrate may or may not have jurisdiction to try the
case. This position was further enunciated upon in
Chaganti Narayan Satyanarayan & Ors Vs. State
of Andhra Pradesh (1986 AIR 2130) wherein it was
held that the terms of sub section (1) of Section 167
have to be read in conjunction with Section 57 which
interdicts a police officer from keeping in custody a
person without warrant for a longer period than 24
hours without production before a Magistrate, subject
to the exception that the time taken for performing
journey from the place of arrest to the Magistrate’s
court can be excluded from the prescribed period of 24
hours. Since sub section (1) provides that if the
investigation cannot be completed within the period of
24 hours fixed by Section 57 the accused has to be
forwarded to the Magistrate alongwith the entries in the
Diary, it follows that a police officer is entitled to keep
an arrested person in custody for a maximum period of
24 hours for purposes of investigation. In the landmark
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judgement of C.B.I. Vs. Anupam J. Kulkarni (1992) 3
SCC 141, it was held that the law does not authorise a
police officer to detain an arrested person for more
than 24 hours exclusive of the time necessary for the
journey from the place of arrest to the magistrate court.
Sub-section (1) of Section 167 covers all this procedure
and also lays down that the police officer while
forwarding the accused to the nearest magistrate
should also transmit a copy of the entries in the diary
relating to the case. As already stated herein before,
the initial period of police custody of an arrested person
till he is produced before a Magistrate is neither
referable to nor in pursuance of an order of remand
passed by a Magistrate. In fact the powers of remand
given to a Magistrate become exercisable only after an
accused is produced before him in terms of sub section
(1) of Section 167. But there cannot be any detention
in the police custody after the expiry of first 15 days
even in a case where some more offences either
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serious or otherwise committed by him if the same
transaction comes to light at the later stage.
14. While examining the case of the appellants
in the light of the aforesaid legal position, it is apparent
from the provisions of the Cr.P.C. that the order
permitting police remand cannot be treated lightly or
casually and strict adherence to the statutory provision
is mandatory. In view of this, the order for police
remand of the appellants cannot be sustained for more
than one reason. In the first place, the courts below
have overlooked that the complainant Surjaben who
had lodged the complaint herself chose not to pursue
the complaint as she had entered into a compromise
with the alleged accused/appellant in the civil suit
which she had filed against them and finally withdrew
the complaint. The Judicial Magistrate 1st Class by
order dated 14.2.2005 therefore had rightly directed
the Dy. S.P. Vyara to return the complaint by February
15, 2005. But, thereafter, what weighed with the High
Court to set aside this order and entertain an
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application at the instance of a third person namely
Randhirsing Deepsing Parmar who had nothing to do
with the complaint lodged by Surjaben is neither clear
nor does it stand to reason, but the appellants having
not challenged the said order passed by the High Court
permitting revival of the investigation at the instance
of Sri Parmar as they had not been made party in the
said application, this aspect of the matter cannot be
examined herein by us.
15. However, even if the revival of the
investigation was rightly or wrongly justified, the High
Court as also the Magistrate lost sight of an important
factor which is the order of the High Court granting bail
to the appellants on 23.3.2011 which clearly had a
bearing on the plea seeking police remand. When the
appellants were enlarged on bail vide order dated
23.3.2011, it was incumbent upon the magistrate to
meticulously examine the facts and circumstance as to
whether it was so grave which persuaded the police
authorities only after six days to file an application
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seeking police remand of the appellants for seven days
by filing an application on 29.3.2011 which was
allowed by the Principal Civil Judge and Judicial
Magistrate 1st Class, Valod by order dated 31.3.2011 as
apparently the same is beyond comprehension since no
reason had been assigned. It is thus obvious that an
extremely casual approach has been adopted by the
Judicial Magistrate permitting such police remand
overlooking the legal position and yet the High Court
has also confirmed it overlooking and ignoring two very
important aspects - first one being that the complainant
although had withdrawn the complaint, the
investigation was revived at the instance of a third
party namely Sri Parmar who was wholly unconnected
with the case and secondly that the appellants although
had been enlarged on bail by the High Court in the case
for which investigation had been revived, yet police
remand was sought only six days after the grant of bail.
In spite of these glaring inconsistencies writ large on
the matter, the Judicial Magistrate allowed the request
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of the investigating authorities seeking police remand
of the appellants without judicially scrutinizing and
disclosing a single circumstance as to why it was so
essential to seek police remand of the appellants for
seven days in the interest of investigation which could
not proceed until they were taken into police custody
although they had already been enlarged on bail.
16. When the accused appellant in the instant
matter had already been enlarged on bail by the High
Court, it was all the more essential and judicial duty of
the Judicial Magistrate to ensure and ascertain as to
why the appellant was required to be taken into police
custody/police remand for conducting further
investigation specially when revival of the investigation
was done not even at the instance of the complainant
but by a third person, namely, Sri Parmar whose
locus-standi for revival of the investigation is itself not
clear. We find sufficient force in the submission
advanced on behalf of the appellants that the plea for
grant of police remand should be an exception and not
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the rule and the investigating agency ought to
advance strong reasons seeking police remand for
further investigation specially in a matter where the
alleged accused had been enlarged on bail and the
dispute had practically come to an end when the
complainant had arrived at a compromise with the
accused persons and subsequently withdrew the
complaint; yet the investigation was revived at the
instance of a stranger, namely, Randhirsing Deepsing
Parmar who admittedly is a third party unconnected
with the dispute and is alleged to have demanded
money from the appellants by taking undue interest in
the matter and getting the investigation revived
without the consent of the complainant who herself had
entered into a compromise with the appellant and had
not sought revival of the complaint.
17. Be that as it may, the fact remains that the
learned Magistrate as also the High Court appears to
have adopted a casual or a mechanical approach
permitting police remand of the appellants without
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scrutinizing the reasons ignoring the fact that the
appellants had already been enlarged on bail by the
High Court and the dispute with the complainant
Surjaben who had lodged the complaint had already
been settled. Thus, the existing facts and circumstance
prima facie were clearly not so grave or extraordinary
justifying police remand which could have been
overlooked by the High Court even though it was for
three days only as it was bound to have ramification not
only affecting the liberty of the person who was already
granted bail but also the magistrate nullifying the order
of the High Court granting bail even if it was for a
period of three days only. In fact when the accused
had been enlarged on bail by the High Court, it was all
the more essential initially for the police authorities and
thereafter by the magistrate to disclose and assign
convincing reasons why investigation could not proceed
further without seeking police remand of the accused
and in case police remand was sought on any ground of
interference with the investigation in any manner
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alleging influencing the witnesses or tampering with the
evidence in any manner, straightaway it could have
been a case for cancellation of bail of the accused and
the magistrate could have directed the police
authorities to approach the High Court seeking
cancellation or any other appropriate direction. What is
sought to be emphasized is that the disclosure of
reasons by the magistrate allowing police remand
specially in a matter when the accused has been
enlarged on bail by the High Court is all the more
essential and cannot be permitted in absence of a valid
and sufficiently weighty reason seeking such custody as
it clearly affects the liberty of an individual who has
been enlarged on bail by a court of competent
jurisdiction. In fact, the correct course for the
investigating authorities seeking police remand of an
accused who had been granted bail by the High Court,
should have been to approach the High Court as power
of the magistrate to grant police remand after the
accused has been granted bail by the High Court, would
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cease to exist and any direction to that effect can be
permitted by the High Court only in view of the fact that
the High Court considered it just and appropriate to
enlarge the accused on bail and the magistrate cannot
be permitted to over-ride the order of bail even if it be
for a brief period of few days. This in our view is the
only appropriate course considering the strict legal
provisions in the Code of Criminal Procedure wherein
the Legislature has earmarked 24 hours minus the
period of transportation of the accused from police
station to the magistrate as the maximum period of
police custody during the initial stage and not more
than fifteen days by order of the Judicial Magistrate
clearly is an indication that police custody cannot be
permitted without adherence to strict judicial scrutiny
from which it is obvious that it cannot be allowed
without assigning clear and cogent reason for
enhancement of the period of police remand and the
same would all the more be essential when police
remand is sought for an accused who has been
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enlarged on bail by the High Court. The inference is
thus candid and clear that police remand of the
accused - more so, who has been enlarged on bail
cannot be granted for an undisclosed or a flimsy
reason.
18. In view of the aforesaid analysis of the legal
position, we are of the considered opinion that the
High Court as also the Judicial Magistrate were not
legally justified in permitting the police remand of the
appellants even for three days in the wake of the
existing facts and features of the matter narrated
hereinbefore. Consequently, we set aside the
impugned order passed by the High Court as also the
order dated 31.3.2011 passed by the Principal Civil
Judge and Judicial Magistrate First Class, Valod
permitting police remand of the appellants and thus
allow this appeal.
……………………………….J. (G.S. Singhvi)
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……………………………….J. (Gyan Sudha Misra)
New Delhi; July 20, 2012
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