Remand to police custody is an exception and should only be granted when absolutely necessary, and it cannot be granted to collect material and evidence, especially of the nature narrated in the remand application.

ORDER :

1. Notice for final disposal. Learned APP waives service of notice for the respondent State.

2. With the consent of learned advocates appearing for the respective parties, the matter is taken up for final disposal today.

3. By way of present petition, the petitioners challenge impugned order dated 4.5.2022 passed by the learned 2nd Addl. CJM, Jamnagar below remand application, by which the learned 2nd Add CJM remanded the petitioners to police custody till 4:00 p.m. on 12.5.2022.

4. The facts and allegations alleged in the complaint appears to be a business transaction ranging from the year 2016 to 2018, wherein it is alleged that the petitioners were acting as agents of the complainant Mr. Hasanbhai Kataria. It appears that the petitioner came to be released on anticipatory bail as per order dated 3.3.2022. The investigating officer asked for remand of the petitioners to investigate the following matters:-

(1) The partnership firms of the petitioners are situated at different States of India and to investigate the partnership firms of the petitioners situated at different states and bank accounts of the petitioners and materials sold to which purchasers.

(2) To investigate as to which parties, the petitioners have sold the brass rod purchased from the complainant to different firms situated at Faridabad, Ambala, Meerut, Gaziabad, Delhi etc. and to get their addresses and to recover the goods from the firms.

(3) To get details as to whether the sum of Rs.2,07,82,921/- outstanding from the petitioners is invested or used by the petitioners and for its recovery.

(4) To investigate fraud committed by the petitioners qua Super Impex agency.

(5) To investigate whether any other persons assisted or abetted the petitioners in commission of crime.

(6) To investigate other partnership firms of the petitioners situated at Ambala, Chandigarh, Saharanpur, Delhi, Meerut etc.

5. Having regard to the rival contentions and gone through the records, the question, which is required to be considered is as to whether the petitioners are required to be delivered to the police custody i.e. on police remand on the aforementioned grounds or not. Needless to say that the Court will have to see that is there any case made out by the investigating agency to handover the accused on remand, because remand u/s 167(2) of the Code of Criminal Procedure is an exception and not the rule. It is the duty of a Magistrate to satisfy himself firstly that the accusation is well-founded and will have to satisfy himself that the presence of the accused in police custody is whether absolute necessary or not. Normally, remand to police custody cannot be granted to collect material and evidence, more particularly, like of the nature narrated in the remand application in the case on hand. While going through the grounds of remand, it appears that none of the grounds is sufficient to come to the conclusion that the police custody is necessary for interrogation even if there is a prima facie material with the investigating agency. In the facts and circumstances of the case, irrespective of involvement of the petitioners in the crime and the material collected by the police authority, none of the grounds is sustainable to order remand in police custody. The remand cannot be granted to discover the material or of the nature of transaction allegedly done by the petitioners, if any.

6. Having regard to the decision rendered in case of CBI Vs. Anupam J. Kulkarni reported in AIR 1992 SC 1978 and the grounds of remand mentioned in the remand application, the impugned order is not only illegal, but it appears that the investigating agency assumed the task of recovery officer of the complainant and issue of civil dispute has been given criminal colour to recover the outstanding amount.

7. In the result, present petition is allowed and the impugned order dated 4.5.2022 passed by the learned 2nd Addl. CJM, Jamnagar below remand application is hereby quashed and set aside with immediate eff