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2015 Supreme(Bom) 1987
IN THE HIGH COURT OF BOMBAY AT AURANGABAD BENCH
V.M. DESHPANDE, J.
Shivnath and Ors. – Appellants
Vs.
State of Maharashtra – Respondent
Criminal Writ Petition No. 38 of 2015
Decided On : 13.01.2015
Advocate Appeared:
For the Appellants : Rajendra S. Deshmukh, Adv.
For the Respondents: S.A. Ambad, A.P.P.
Headnote:Constitution of India - Article 226 Extension of Police Custody Remand (PCR). - Prayer for extension of PCR by I.O. has to substantiated by putting forth reasons and also by pointing out progress in investigation carried out when accused was in his custody. For praying police custody remand, it is obligatory on the part of the investigating officer to satisfy the Magistrate as to why he requires the police custody remand of such accused persons. Mere wish of the investigating officer is not sufficient for claiming the police custody remand. The prayer for extension of the police custody remand coming from the side of the investigating officer has to be substantiated by the investigating officer not only by putting forth the reasons but also by pointing out the progress in the investigation carried out when the accused persons were in his custody.
In so far as fresh police custody remand is concerned, sole criteria for praying the police custody remand is that the investigating officer must satisfy the Magistrate as to why he requires the police custody remand. Merely because the police custody remand is requested or prayed by the investigating officer, the Magistrate is not obliged to accept or accede to the prayer of the investigating officer, but the Magistrate has to reach to the conclusion on the basis and by evaluating the material and reasons put forth before him by the investigating officer.
V.M. Deshpande, J.
1. Rule. Rule is made returnable forthwith. With the consent of the learned counsel for the parties taken up for final hearing. Heard Shri Rajendra S. Deshmukh, learned counsel for the petitioners and Shri S.A. Ambad, learned Additional Public Prosecutor for the respondent/State.
2. The present petitioners are original accused Nos. 5 and 6 in Crime No. 21 of 2014, registered with police station Shrirampur for the offences punishable under Sections 3, 5, 7and 25 of the Arms Act, 1959. The first information report was recorded in the said police station on 27.12.2014.
3. On 28.12.2014 original accused Nos. 1 and 2 were arrested in connection with the said crime and they were produced before the learned Magistrate and ultimately on the prayer being made by the investigating officer for their police custody remand the learned Magistrate found favour with the investigation officer and the police custody remand of original accused Nos. 1 and 2 was granted for a period of two days from 28.12.2014.
4. According to the prosecution, during the police custody remand of accused Nos. 1 and 2 the name of the present petitioners was divulged as the purchaser of country made pistol, and accordingly, on the basis of such information, which was received by the investigating officer during the investigation of original accused Nos. 1 and 2 the present petitioners were arrested on 29.12.2014.
5. The police custody remand of accused Nos. 1 and 2 was to expire on 30.12.2014. On the same day, it was obligatory on the part of the investigating officer to produce the present petitioners within 24 hours of their arrest before the learned Magistrate. The investigating officer produced the original accused Nos. 1 and 2 and the present petitioners before the concerned Magistrate on 30.12.2014 with the prayers:-
(i) to extend the police custody remand of accused Nos. 1 and 2; and
(ii) to grant police custody remand of the present petitioners i.e. accused Nos. 5 and 6.
The investigating officer supplemented the reasons as to why he requires the extension of the police custody remand of accused Nos. 1 and 2 and police custody remand for present petitioners.
6. After hearing the learned Assistant Public Prosecutor and also on the report of the investigating officer, the learned Magistrate refused to grant any of the prayer made by the investigating officer and on 30.12.2014 the learned Magistrate instead of extending police custody remand in respect of accused Nos. 1 and 2 and granting police custody remand for accused Nos. 5 and 6, took them into the magisterial custody.
7. As soon as the accused persons were taken up in the magisterial custody, the present petitioners on the very same day i.e. on 30.12.2014 filed an application to release them on bail. Their application for bail was found favour with the learned Magistrate and on the said day the present petitioners were released on bail on certain conditions.
8. On 2.1.2015, the public prosecutor filed Revision Petition before the court of Additional Sessions Judge, Shrirampur. The said Revision was registered as Criminal Revision Application No. 1 of 2015. The prayer clause of the said Revision Application reads as under:--
"It is therefore prayed that, the Revision Application be kindly allowed.
The impugned order of learned J.M.F.C. Court No. 1, Shrirampur dated 30.12.2014 in Crime No. II21/2014 for the offence punishable under S. 3, 5, 7 and 25 of Arms Act on M.C.R. Remand be kindly set aside and police custody of opponents be given to I.O. for investigation purpose."
Thus, what was challenged before the learned Revisional Court was refusal of police custody remand and the action on the part of the learned Magistrate in sending the accused persons including the present petitioners in the magisterial custody remand.
9. The learned Additional Sessions Judge, upon hearing, on 6.1.2015 partly allowed the Revision and set aside the order of the learned Magistrate in refusing to grant police cu
