IMPORTANT POINT
A notional surrender while already in custody in another case at different place cannot be treated as Police custody so as to count 90 days from the date of that notional surrender.

Headnote:Code of Criminal Procedure, 1973 – Section 167(1) and (2) – The police custody means the Police custody in a particular case for investigation and not judicial custody in another case – The custody of police for investigation purpose in one case cannot be treated judicial custody/ detention in another case – A notional surrender cannot be treated as Police custody so as to count 90 days from the date of that notional surrender – The occurrence constituting two different transactions give rise to two different cases and the exercise of power under Sections 167(1) and (2) should be in consonance with the object underlying the said provision in respect of each of those occurrences which constitute two difference cases –Although the accused surrendered notionally on 27th February, 2006 while in custody in another case at another place, he was produced before the Calcutta Court on 13th March, 2006 on which date the Court directed his custody for investigation in the criminal case registered against him in Calcutta – Therefore, the police custody will be treated from 13th March, 2006 and not from 27th February, 2006. (Paras 14 to 17) (2001) 5 SCC 453; (1992) 3 SCC 141; (1994)3 SCC 440; (2002)2 SCC 121 – Relied upon. (1980) 2 SCC 559 – Distinguished.
       Facts of the case :
       There were two cases pending in the Calcutta Court against the accused and the accused-respondent was arrested at Delhi in CBI case and he was produced before the Additional Chief Metropolitan Magistrate Egmore, Chennai under the investigation of CBI. The accused was remanded for the investigation before the CBI after that the accused was sent for judicial custody in the CBI case. The Calcutta Court directed the production of the accused-respondent and a request was made before the Additional Chief Metropolitan Magistrate, Egmore, Chennai for the custody of the accused in the cases pending before the Calcutta. In fact the accused was detained in CBI case pending in Egmore, Chennai. The CBI sought the police remand of accused for some scientific test and the accused was sent for the test and after that the accused was sent back by the CBI to the Egmore, Court. Then an order dated 11th March, 2006 was passed for handing over of the accused to the Calcutta Police for being produced before the Magistrate on 13th March, 2006 and on 11th March, 2006 Police took physical custody of the accused under the order of the Metropolitan Magistrate, Egmore, Chennai and on the basis of the transit warrant, the accused was taken over on 11th March, 2006 and was produced before the Calcutta court on 13th March, 2006 and from there the accused was sent to the custody of the police for investigation. Therefore, in the sequence of event, physical custody of the accused was taken over for investigation by the Calcutta Police on 13.3.2006. The accused was very well aware that there were two cases registered against him in Calcutta for which he was required by the Police, so he voluntarily surrendered before the Magistrate on 27th February, 2006 when he was already in custody in relation to the CBI case.
       Findings of the Court :
       A notional surrender while already in custody in another case at different place cannot be treated as Police custody so as to count 90 days from the date of that notional surrender. Therefore, the police custody will be treated from 13th March, 2006 when the Calcutta court ordered custody and not from 27th February, 2006 when the accused surrendered notionally while in custody in another case at Chennai.

J U D G M E N T

A.K. MATHUR, J. —

Leave granted.

1.This appeal is directed against the order dated 27.9.2006 passed in A.S.T. No.570 of 2006 by the Calcutta High Court whereby the learned single Judge of the High Court has set aside the order dated 16.6.2006 passed by the learned Chief Metropolitan Magistrate, Calcutta and directed the 5th Court of Metropolitan Magistrate, Calcutta to consider the matter afresh and pass necessary order in the light of observation made by the Court.

2.Aggrieved against this order dated 27.9.2006 passed by learned Single Judge, the present S.L.P. was preferred by the State of West Bengal.

3.Brief facts giving rise to this appeal are that the Respondent, Dinesh Dalmia filed a petition under Section 397/482 of the Code of Criminal Procedure, 1973 in the High Court of Calcutta for setting aside the order of 27th May, 2006 and 16th June, 2006 passed by the learned Chief Metropolitan Magistrate, Calcutta and the learned 5th Court of Metropolitan Magistrate, Calcutta respectively in connection with GDD 476 dated 24.9.2002 corresponding to G.R.No. 2001 of 2002 being investigated by Detective Department (Special Cell) Lalbazar pending before the 5th Court of Metropolitan Magistrate, Calcutta.

4.The Secretary of the Calcutta Stock Exchange Association Limited lodged a written complaint with the Hare Street Police Station on 9th September, 2002 alleging a commission of offences under Sections 120B/4 20/409/467/468/471/477A of the Indian Penal Code against Harish Chandra Biyani and others. The complaint was treated as First Information Report and was registered at Park Street P.S. case No. 476 dated 24.9.2002 under the aforesaid Sections of the I.P.C. Thereafter, the investigation of the case was taken up by the Detective Department. During the course of the investigation, Investigating Officer prayed for issuance of warrant of arrest against the respondent on 12th February, 2006. Prior to that the respondent was arrested in New Delhi by the Central Bureau of Investigation, Bank Securities and Fraud Cell, New Delhi in connection with CBI Case No. RC 4(E)/200 3-BS &F C CBI. He was produced before the learned Additional Chief Judicial Magistrate, Tis Hazari. On transit remand, the respondent was produced before the learned Court of Additional Chief Judicial Magistrate, Egmore, Chennai on 14th February, 2006. In the mean time, the Investigation Officer of the present case also prayed for issuance of production warrant against the respondent before the Court of learned Chief Metropolitan Magistrate Calcutta, as the respondent was arrested and detained in the aforesaid CBI case pending before the Chief Metropolitan Magistrate, Egmore, Chennai. The Chief Metropolitan Magistrate, Calcutta by order dated 13th February, 2006 allowed such prayer of the Investigating Officer and directed that the accused-respondent be produced before the Learned Chief Metropolitan Magistrate, Calcutta on or before 22nd February, 2006. A copy of the said order was sent to the Court of Additional Chief Metropolitan Magistrate, Egmore, Chennai. On 14th February, 2006, the order dated 13th February, 2006 passed by the Chief Metropolitan Magistrate, Calcutta was brought to the notice of the Additional Chief Metropolitan Magistrate, Egmore, Chennai by the CBI in their further remand application. The Addl. Chief Metropolitan Magistrate, Egmore, Chennai observed that the matter of Calcutta Police would be considered after the period of CBI custody was over. On 17th February, 2006 the Investigating Officer of the present case filed an application before the learned Court of Chief Metropolitan Magistrate, Calcutta intimating that the accused-respondent was in the custody of CBI till 24th February, 2006 in connection with the aforesaid CBI cases and sought direction for production of the accused-respondent in Calcutta on or by 8th March, 2006. The Court at Calcutta by order dated 17th February, 2006

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2007 Supreme(SC) 582

2007(4) Supreme 136SUPREME COURT OF INDIA(From Calcutta High Court)A.K. Mathur & Tarun Chatterjee, JJState of West Bengal — PetitionerversusDinesh Dalmia —RespondentAppeal (Criminal) 623 of 2007(Arising out of SLP(Crl.) No. 5124/06)Decieded on : 25-04-2007

IMPORTANT POINTA notional surrender while already in custody in another case at different place cannot be treated as Police custody so as to count 90 days from the date of that notional surrender.

Cases Referred (5)

2007(4) Supreme 136
SUPREME COURT OF INDIA
(From Calcutta High Court)
A.K. Mathur & Tarun Chatterjee, JJ
State of West Bengal — Petitioner
versus
Dinesh Dalmia —Respondent
Appeal (Criminal) 623 of 2007
(Arising out of SLP(Crl.) No. 5124/06)
Decieded on : 25-04-2007

IMPORTANT POINT
A notional surrender while already in custody in another case at different place cannot be treated as Police custody so as to count 90 days from the date of that notional surrender.