An erroneous order of the court denying police remand to the investigating agency within the first 15 days of detention due to a misinterpretation of Section 167(2)(i) CrPC cannot defeat the right to seek police remand.

Joymalya Bagchi, J.

The two applications are taken up together for hearing and are disposed of by a common judgment and order.

2. In CRM 2439 of 2016 the accused seeks bail whereas in CRR 1107 of 2016 order dated 18th March, 2016 rejecting the prayer for police remand has been assailed at the behest of the de facto complainant.

3. The factual matrix giving rise to the aforesaid proceedings is that a first information report was registered under Section 380 of the Indian Penal Code by the de facto complainant alleging that the petitioner who was an employee of the de facto complainant had committed theft of Rs.25 lakhs from the room of the de facto complainant while he had gone abroad. In course of investigation, the accused was arrested on 19th November, 2015 and on 20th November, 2015 he was remanded to police custody for a day. On the next day, that is on 21st November, 2015 the prayer for further police remand was not considered and the learned Magistrate released the accused on bail. Such order of bail was assailed before this Court in CRM 11243 of 2015 and by order dated 02.02.2016 a learned Single Judge of this Court cancelled the order of bail and directed the accused to surrender before the Court below within a week from date. In the said order, this Court observed that the learned Magistrate shall pass a reasoned order on the prayer of the investigating officer for further police custody. The accused did not appear before the learned Magistrate as directed by this Court and on 16.02.2016 a prayer was made for issuance of warrant of arrest against him. Finally on 15.03.2016 the accused surrendered before the learned Magistrate and was remanded to judicial custody till 29.03.2016. On 18.03.2016 the investigating agency renewed its prayer for further police custody in terms of the liberty given by this Court in CRM 11243 of 2015 vide order dated 02.02.2016. However, such prayer for police custody was turned down by the Magistrate, inter alia, holding that no police custody could be granted after completion of 14 days from date of production of the accused in terms of Section 167(2)(i) Cr.P.C. Such order came to be challenged before this Court in CRR 1107 of 2016.

4. Mr. Tewari, learned counsel appearing for the accused submitted that there is an inordinate delay in lodging the first information report. Such delay has not been explained and the allegation of theft of Rs.25 lakhs from a room which was under lock and key is patently absurd and inherently improbable. He further submitted that no worthwhile purpose will be served in permitting police remand at such belated stage and in the factual matrix of the case the petitioner is entitled to be released on bail. He relied on (2010) 6 SCC 753 (Devender Kumar & Anr. v. State of Haryana & Ors.); (1992) 3 SCC 141 (Central Bureau of Investigation, Special Investigation Cell-I, New Delhi v. Anupam J. Kulkarni); and 2005 Vol. 1 Calcutta Criminal Law Reporter 52 (State of West Bengal v. Debanjan Das & Ors.) in support of his contention.

5. Per contra, Mr. Bhattacharya, learned counsel for the de facto complainant submitted that the order dated 18.03.2016 was not only perverse but contrary to the direction of this Court in CRM 11243 of 2015. He further submitted that the prayer for police custody was illegally refused inasmuch as the first 15 days of detention of the accused in custody had not lapsed on 18.03.2016 and the learned Magistrate misdirected himself on that score. He further submitted that in the event prayer for police custody was illegally turned down by the Court due to no fault on the part of the investigating officer, there is ample power in the Court to set aside the order and remedy the wrong by directing remand of the accused to police custody. He relied on 2008 (3) All India Criminal Law Reporter 452 (The State of West Bengal v. Aftab @ Aftab Ansari & Anr.) and (2016) 1 SCC 507 (Central Bureau of Investigation v. Rathin Dandapat) (paragraph 14).

6. Mr. Pawa