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SUPREME COURT OF INDIA
K. S. RADHAKRISHNAN & DIPAK MISRA, JJ.
MANUBHAI RATILAL PATEL TR. USHABEN - Appellant
VERSUS
STATE OF GUJARAT & ORS. - Respondents
Criminal Appeal No. 1572 of 2012 (Arising out of S.L.P. (Criminal) No. 6468 of 2012)
Decided on : 28-09-2012
Criminal Procedure Code,1973-Section 167-Scope and ambit of-The act of directing remand of an accused is fundamentally a judicial function- While exercising this judicial act, it is obligatory on the part of Magistrate to satisfy himself whether the materials placed before him justify such a remand or, to put it differently, whether there exist reasonable grounds to commit the accused to custody and extend his remand- It is obligatory on the part of Magistrate to apply his mind and not to pass an order of remand automatically or in a mechanical manner (Para 24)
Facts of the Case :
Appellant accused was arrested herein in the instant case for offences punishable under Sections 467, 468, 471, 409 and 114 of IPC.Stay of investigation was ordered by High Court in exercise of power under Section 482 of Code. Prayer for remand of accused to police custody was Granted by Magistrate. Prayer for bail was however Rejected.
B. Habeas corpus petition was filed on plea that since power of Magistrate remanding the accused to custody during course of investigation stood eclipsed by order of stay passed by High Court , detention was absolutely illegal and non est in law . Said Habeas corpus petition was dismissed.
C. Present appeal has been filed against dismissal of Habeas corpus petition.
Findings of the Court :
No was error found in order passed by High Court refusing to grant a writ of habeas corpus as detention by virtue of judicial order passed by Magistrate remanding the accused to custody was valid in law.
Result : Appeal dismissed
JUDGMENT
Dipak Misra, J.-Leave granted.
2. The appellant was an accused in FIR No. I-CR No. 56/12 registered at Pethapur Police Station on 20th of June, 2012 for offences punishable under Sections 467, 468, 471, 409 and 114 of the Indian Penal Code (for short ‘the IPC’). Challenging the registration of the FIR and the investigation, the accused-appellant (hereinafter referred to as “the accused”) preferred Criminal Miscellaneous Application No. 10303 of 2012 on 11.7.2012 under Section 482 of the Code of Criminal Procedure (for brevity “the Code”) in the High Court of Gujarat at Ahmedabad for quashing of the FIR. A prayer was also made for stay of further proceedings in respect of the investigation of I-CR No. 56/12.
3. The unfurling of factual scenario further shows that the matter was taken up on 17.7.2012 and the High Court issued notice and fixed the returnable date on 7.8.2012 and allowed the interim relief in terms of prayer No. (C) which pertained to stay of further proceedings in respect of the investigation.
4. The exposition of facts reveals that the accused was arrested on 16.7.2012 and produced before the learned Judicial Magistrate First Class, Gandhinagar at 4.00 p.m. on 17.7.2012. The police prayed for remand of the accused to police custody which was granted by the learned Magistrate upto 2.00 p.m. on 19.7.2012. On 18.7.2012, it was brought to the notice of the concerned investigation agency about the stay order passed by the High Court on 17.7.2012 and prayer was made not to proceed further with the investigation in obedience to the order passed by the High Court. It is pertinent to note that an application for regular bail under Section 439 of the Code was filed on 19.7.2012 before the learned Magistrate. Apart from other grounds, it was highlighted that when a petition was pending before the High Court for quashment of the First Information Report and a stay order had been passed pertaining to further investigation, the detention was illegal and hence, the accused was entitled to be admitted to bail.
5. The learned Magistrate dwelled upon the allegations made against the accused and declined to release him on bail regard being had to the nature of offences. Dealing with the order passed by the High Court, he observed that the order passed by the Hon’ble High Court pertained to stay of further investigation although no investigation was required to be carried out during judicial custody and, as the accused was involved in commission of grievous offences, it would not be just to enlarge him on bail.
6. Being aggrieved by the aforesaid order, the accused preferred Criminal Miscellaneous Application No. 539 of 2012 in the Court of learned Sessions Judge, Gandhinagar and also prayed for grant of interim bail. The learned Sessions Judge rejected the prayer for grant of interim bail and fixed the main application for hearing on 24.7.2012.
7. Dissatisfied with the aforesaid orders, the accused preferred a habeas corpus petition before the High Court of Gujarat forming the subject matter of Special Criminal Application No. 2207 of 2012. It was contended before the High Court that since the investigation was stayed by the High Court in exercise of power under Section 482 of the Code, the learned Magistrate could not have exercised power under Section 167(2) of the Code remanding the accused either to police or judicial custody. It was submitted that the power of the Magistrate remanding the accused to custody during the course of investigation stood eclipsed by the order of stay passed by the High Court and, therefore, the detention was absolutely illegal and non est in law. It was also urged that as the detention of the accused was unlawful, a writ of habeas corpus would lie and he deserved to be set at liberty forthwith as long as the stay order was operative.
8. The aforesaid stand put forth by the learned counsel was combated by the State contending, inter alia, that it could not be said that there had been no inve
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