Criminal Misc. No. M- 1130 of 2010 (O&M) 1 In the High Court of Punjab and Haryana at Chandigarh Criminal Misc. No.M- 1130 of 2010 (O&M) Date of decision: 8.2.2010 State (Chandigarh Administration) ......Petitioner Versus Devinder Singh Babla .......Respondent CORAM: HON'BLE MRS. JUSTICE SABINA Present: Mr. Anupam Gupta, Senior Standing Counsel for U.T. Chandigarh. Mr.A.P.S.Deol, Sr.Advocate with Mr.Tarminder Singh, Advocate, for the respondent. **** SABINA, J. This petition has been filed under Section 482 of the Code of Criminal Procedure by the Chandigarh Administration challenging the orders dated 8.1.2010 and 9.1.2010 by raising following substantial questions of law:- “1. Whether an accused, in judicial custody in one case, can seek production warrants for his own surrender Criminal Misc. No. M- 1130 of 2010 (O&M) 2 in another, completely different case pending investigation, and whether such production warrants can be issued by the Court in the teeth of opposition by the investigating agency? 2. Whether the period(s) of police and judicial remand permissible under Section 167(2), Cr.P.C. can begin to run or be counted even without the investigating agency seeking to effect the arrest of the accused and/or taking him into police custody? FIR No.197 dated 19.8.2009 was registered at Police Station Sector 26, Chandigarh under Sections 420, 467, 468, 471 and 120-B IPC relating to allotment of vegetable auction sheds in the Grain Market, Sector 26, Chandigarh. The respondent, who was Ex- Chairman of the Market Committee, Chandigarh, was arrested in the said case on 28.12.2009 by a Special Investigating Team following his surrender. In the said case, initially police remand was granted to the Investigating Agency and, thereafter, the respondent was sent to judicial custody. FIR No.5 dated 4.1.2010 was registered at Police Station, Sector 26, Chandigarh under Sections 420, 467, 468, 471, 380, 198, 200, 257, 260 and 120-B IPC. The respondent moved an application for his surrender in the said FIR and consequently production warrants of the respondent were issued vide the impugned order dated 8.1.2010 and intimation was also sent to the Criminal Misc. No. M- 1130 of 2010 (O&M) 3 Station House Officer of the concerned Police Station. Vide the impugned order dated 9.1.2010, respondent was sent to judicial custody. Hence, the present petition. Learned senior standing counsel for the Chandigarh Administration has submitted that the respondent could not be allowed to surrender in the present FIR as he was not facing any threat of arrest in the said FIR. The main accused in the present FIR was Rajesh Chauhan, who was still absconding and it was only after his interrogation, the investigation team would decide whether the respondent was required for custodial interrogation in the present FIR. In case the respondent is sent to judicial custody, the valuable right of the petitioner to seek custodial interrogation of the respondent in the FIR in question would be in jeopardy. Learned counsel has further stated that in the third FIR No.1 of 2010 under Section 13(1) (d) of the Prevention of Corruption Act, the respondent had filed an application for his surrender but the same was rejected by the Chief Judicial Magistrate vide order dated 19.1.2010 on the ground that the respondent could not be sent to judicial custody as his arrest had not been sought in the present case. In support of his arguments, learned senior standing counsel for Chandigarh Administration has placed reliance on Budh Singh vs. State of Punjab (2000) 9 SCC 266, wherein in para 5, it was held as under:- “In the face of facts, as noticed above, the order of the Criminal Misc. No. M- 1130 of 2010 (O&M) 4 learned Judicial Magistrate, dated 4.1.2000, in our opinion, did not require any interference. The mandate of Section 167 of the Criminal Procedure Code, 1973 postulates that there cannot be any detention in police custody, after the expiry of the first 15 days, so far as an accused is concerned. That period of 15 days had in this case admittedly expired on 4.1.2000. 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 CBI v. 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. The direction to grant police remand for a Criminal Misc. No. M- 1130 of 2010 (O&M) 5 period of seven days by the High Court is, accordingly, set aside. The appeal, therefore, succeeds and is allowed to the extent indicated above.” Learned senior standing counsel has further placed reliance on Mithabhai Pashabhai Patel and others vs. State of Gujrat (2009) 6 SCC 332, wherein in para 20, it was held as under:- “Yet again in CBI v. Anupam J.Kulkarni, K.Jayachandra Reddy, J. speaking for the Bench held as under:- “II.........We may, however, like to make it explicit that such rearrest or second arrest and seeking police custody after the expiry of the period of first fifteen days should be with regard to the investigation of a different case other than the specific one in respect of which the accused is already in custody. A literal construction of Section 167 (2) to the effect that a fresh remand for police custody of a person already in judicial custody during investigation of a specific case cannot under and circumstances be issued, would seriously hamper the very investigation of the other case the importance of which needs no special Criminal Misc. No. M- 1130 of 2010 (O&M) 6 emphasis. The procedural law is meant to further the ends of justice and not to frustrate the same. It is an accepted rule that an interpretation which furthers the ends of justice should be preferred. It is true that the police custody is not the be- all and end-all of the whole investigation but yet it is one of its primary requisites particularly in the investigation of serious and heinous crimes. The legislature also noticed this and permitted limited police custody. The period of first fifteen days should naturally apply in respect of the investigation of that specific case for which the accused is held in custody. But such custody cannot further held to be a bar for invoking a fresh remand to such custody like police custody in respect of an altogether different case involving the same accused.” Learned senior standing counsel has next placed reliance on Central Bureau of Investigation vs. Anupam J.Kulkarni 1992 SC 1768, wherein, it was held as under:- “The magistrate under Section 167(2) can authorise the Criminal Misc. No. M- 1130 of 2010 (O&M) 7 detention of the accused in such custody as he thinks fit but it should not exceed fifteen days in the whole. Therefore, the custody initially should not exceed fifteen days in the whole. The custody can be police custody or judicial custody as the magistrate thinks fit. The words “such custody” and “for a term not exceeding fifteen days in whole.” are very significant.” “On a combined reading of Section 167(2) and (2A) it emerges that the Judicial Magistrate to whom the Executive Magistrate has forwarded the arrested accused can order detention in such custody namely police custody under Section 167 (2) for the rest of the first fifteen days after deducting the period of detention order by the Executive Magistrate. The detention thereafter could only be in judicial custody.” “In one occurrence it may so happen that the accused might have committed several offences and the policy may arrest him in connection with one or two offences on the basis of the available information and obtain police custody. If during the investigation his complicity in more serious offences during the same occurrence is disclosed that does not authorise the police to ask for police custody for a further period after the expiry of the first fifteen days. If that is permitted than Criminal Misc. No. M- 1130 of 2010 (O&M) 8 the police can go on adding some offence or the other of a serious nature at various stages and seek further detention in police custody repeatedly, this would defeat the very object underlying Section 167. However, this limitation shall not apply to a different occurrence in which complicity of the arrested accused is disclosed. That would be a different transaction and if an accused is in judicial custody in connection with one case and to enable the police to complete their investigation of the other case they can require his detention in police custody for the purpose of associating him with the investigation of the other case. In such a situation he must be formally arrested in connection with other case and then obtain the order of the magistrate for detention in police custody. If best must be made in this connection explicit that such re-arrest of second arrest and seeking police custody after the expiry of the period of first fifteen days should be with regard to the investigation of a different case other than the specific one in respect of which the accused is already in custody. A literal construction of Section 167(2) to the effect that afresh remand for police custody of a person already in judicial custody during investigation of a specific case cannot under any circumstances be issued would seriously Criminal Misc. No. M- 1130 of 2010 (O&M) 9 hamper the very investigation or the other case the importance of which needs no special emphasis. The procedural law is meant to further the ends of justice and not to frustrate the same.” Learned senior standing counsel has next placed reliance on The State of Punjab vs. Ajaib Singh and another AIR 1983 SC 10, wherein it was held as under:- “Broadly speaking, arrests may be classified into two categories, namely, arrests under warrants issued by a Court and arrests otherwise than under such warrants. There can be no manner of doubt that arrests without warrants issued by a Court call for greater protections than do arrests under such warrants. The provision in Article 22 that the arrested person should within 24 hours be produced before the nearest Magistrate is particularly desirable in the case of arrest otherwise than under a warrant issued by the Court, for it ensures the immediate application of a judicial mind to the legal authority of the person making the arrest and the regularity of the procedure adopted by him. In the case of arrest under a warrant issued by a court, the judicial mind had already been applied to the case when the warrant was issued and therefore, there is less reason for making such production in that case a matter of a substantive Criminal Misc. No. M- 1130 of 2010 (O&M) 10 fundamental right. The requirement of Article 22 (1) that no person who is arrested shall be detained in custody without being informed, as soon as may be, of the grounds for such arrest indicates that the clause really contemplated an arrest without a warrant of Court, for, a person arrested under a Court's warrant is made acquainted with the grounds of his arrest before the arrest is actually effected. There can be no doubt that the right to consult a legal practitioner of his choice is to enable the arrested person to be advised about the legality or sufficiency of the ground for his arrest. The right of the arrested person to be defended by a legal practitioner of his choice postulates that there is an accusation against him against which he has to be defended. The language of Article 22 (1) and (2) indicates that the fundamental right conferred by it gives protection against such arrests as are effected otherwise than under a warrant issued by a Court on the allegation or accusation that the arrested person has or is suspected to have, committed, or is about or likely to commit an act of a criminal or quasi-criminal nature or some activity prejudicial to the public or the State interest. In other words, there is indication to the language of Article 22 (1) and (2) that it was designed to give Criminal Misc. No. M- 1130 of 2010 (O&M) 11 protection against the act of the executive or other non- judicial authority. Whatever else may come within the purview of Article 22 (1) and (2), the physical restraint put upon an abducted person under Section 4 of the Act 65 of 1949 in the process of recovering and taking that person into custody without any allegation or accusation of any actual or suspected or apprehended commission by that person of any offence of a criminal or quasi-criminal nature or of any act prejudicial to the State or the public interest, and delivery of that person to the custody of the officer is charge of the nearest camp under Section 4 of the Act cannot be regarded as arrest and detention within its meaning of Article 22 (1) and (2).” Learned senior standing counsel, during the course of arguments, has also drawn my attention to Sections 41, 57 and 167 Cr.P.C. and Article 22 of the Constitution of India. Learned senior counsel for the respondent has submitted that the respondent was specifically named in the FIR and hence, the respondent could offer his surrender before the trial Court. Notice had been issued to the petitioner and they had not sought police remand of the respondent, nor had made out a case for requirement of custodial interrogation of the respondent. Hence, the impugned orders were liable to be upheld. In support of his arguments, learned Criminal Misc. No. M- 1130 of 2010 (O&M) 12 senior counsel has placed reliance on State vs. Sukhsingh and others, AIR 1954 Rajasthan 290, wherein, it was held as under:- “Where an accused is kept in jail by orders of adjournment or remand under Section 344 he can be handed over to the police in some other case for purposes of investigation. In view of the powers of the Magistrate under Section 167(2) there is no prohibition in the Criminal Procedure Code against such a course. Of course, before the Magistrate does so, he will have to satisfy himself that a good case is made out for detaining the accused in police custody in connection with the investigation of the other case.” Learned senior counsel has further placed reliance on Niranjan Singh and another vs. Prabhakar Rajaram Kharote and others 1980 SC 785, wherein it was held as under:- “Where the accused had appeared and surrendered before the Sessions Judge, the Judge would have jurisdiction to consider the bail application as the accused would be considered to have been in custody within meaning of Section 439. Custody, in the context of Section 439 is physical control or at least physical presence of the accused in court coupled with submission to the jurisdiction and orders of the court. He can be in Criminal Misc. No. M- 1130 of 2010 (O&M) 13 custody not merely when the police arrests him, produces him before a Magistrate and gets a remand to judicial or other custody, He can be stated to be in judicial custody when he surrenders before the court and submits to its directions.” Thus the legal position that emerges is that the investigating agency can seek police remand of an accused who is involved in different cases arising out of different transactions. In said situation the remand has to be considered in respect of each of such cases. The Magistrate can authorise detention of the accused in such custody as he thinks fit but it should not exceed fifteen days in all. The custody can be police custody or judicial custody as the Magistrate thinks fit. Where the accused surrenders before the Magistrate then the said accused would be considered to be in custody. The prosecution case, as per the FIR is that Rajesh Chauhan had applied for the post of Auction Recorder, who had attached certificate regarding his passing 10th Class examination in March 1993 from Himachal Pradesh Education Board; Certificate regarding passing 10+2 class examination in March 1996 from Punjab School Education Board and Transfer Certificate from Bundel Khand College, Jhansi (UP) regarding his BA qualification. Further the allegations in the FIR are that Rajesh Chauhan had sent forged certificates regarding his qualification of 10+2 examination. Criminal Misc. No. M- 1130 of 2010 (O&M) 14 Rajesh Chauhan did not attach any certificate regarding his B.A. Qualification. However, Rajesh Chaudhan had been appointed as Auction Recorder in connivance with respondent Devinder Singh Babla, who was the then Chairman of the Market Committee, Sector 26, Chandigarh, being his family friend. In the present case the facts are not in dispute. Admittedly the respondent has surrendered in FIR No.197 dated 19.8.2009. After giving police remand of the respondent for some days in the said FIR, the respondent was sent to judicial custody. Two more FIRs were registered against the respondent in the month of January, 2010. Respondent applied for his surrender in both the said FIRs. The application filed by the respondent to surrender in FIR No.1 of 2010 was dismissed by the Chief Judicial Magistrate, Chandigarh vide order dated 19.1.2010 (Annexure P-14) and a perusal of the said order reveals that the learned Chief Judicial Magistrate, Chandigarh has observed that the respondent was not specifically named in the FIR and the case of the prosecution was that the involvement of the respondent could not be determined at this stage and in case his involvement was established during investigation, respondent would be taken in custody. In these circumstances, the application filed by the respondent to surrender was dismissed. However, in the present case i.e. FIR No.5 dated 4.1.2010, respondent is specifically named in the FIR as an accused. Hence, there is every apprehension that the respondent will be Criminal Misc. No. M- 1130 of 2010 (O&M) 15 arrested in the said FIR as there are specific allegations against the respondent in the FIR that the respondent in connivance with Rajesh Chauhan had got him (Rajesh Chauhan) appointed as an Auction Recorder. The respondent under the said apprehension, moved an application for his surrender in FIR No.5 dated 4.1.20120. Notice of the application was issued to the petitioner. A perusal of the reply submitted by the petitioner (Anenxure P-8) reveals that the whole thrust of the submission of the petitioner was to the effect that “the respondent could not convert himself into the investigating agency and arrogate to himself the right to take decisions which lie entirely in the domain of investigation. Nor can any accused dictate to the investigating agency either the path that the investigation should follow or the steps that it should take for proper and effective investigation, or determine for the investigating agency the pace or intensity of investigation.” It was further submitted in the reply that the decision to arrest an accused, who was not in custody, was within the domain of the investigating agency and the accused could not dictate as to when such decision should be taken. In the reply filed by the petitioner, it was not pleaded that the investigating agency first of all wanted to arrest accused Rajesh Chaudhan and after his interrogation would arrest the respondent, if necessary. The said plea was neither raised before the Magistrate nor it has been pleaded in the grounds of this petition. It is only during the course of arguments the learned counsel for the petitioner has submitted that Criminal Misc. No. M- 1130 of 2010 (O&M) 16 the investigating agency, at this stage, had no intention to arrest the respondent and it was only after interrogation of co-accused Rajesh Chauhan, the investigating agency would decide as to whether the respondent in the present FIR was necessary to be arrested or not. Since this plea was never raised before the Magistrate, the same has not been taken in consideration while passing the impugned order. The scope of interference by this Court in this petition is limited. The learned Magistrate had taken in consideration all the pleas raised before it and has passed the impugned orders while exercising the jurisdiction vested in it. Even otherwise in the present case, admittedly, the respondent is one of the principal accused. Hence, the respondent, who was apprehending his arrest in this case, offered his surrender. The respondent has been allowed to surrender by the Magistrate in this case after issuing notice to the petitioner and after hearing their arguments. The petitioner had an option to seek police remand of the respondent but they have not done so. It cannot be said in the facts of the present case that the respondent is interfering in the investigation of this case or arrogating to himself the right to take justice. Rather the respondent has taken recourse to law. A person, who is involved as an accused in an FIR, can offer his surrender before the Magistrate. Thereafter, the Magistrate, on hearing the prosecution, can order the accused to be sent to police custody or to judicial custody as per the facts of the case. Since in the present case, the petitioner, after receiving notice Criminal Misc. No. M- 1130 of 2010 (O&M) 17 of the application filed by the respondent to surrender in the FIR in question, had not sought the police remand of the respondent, the learned Magistrate rightly sent the respondent to judicial custody. The judgments relied upon by the learned counsel for the petitioner fail to advance the case of the petitioner in the facts and circumstances of the present case. The substantial questions of law raised by the petitioner stand answered accordingly. No ground for interference by this Court is made out. Dismissed. (SABINA) JUDGE February 08, 2010 anita