Back
1989 Supreme(All) 380
IN THE HIGH COURT OF ALLAHABAD
A. N. VERMA, G. MALVIYA
NARAIN PASI - Appellant
Versus
STATE OF U.P - Respondents
CRI. MISC. APPLN. 2997 Of 1989
Decided On : 07/26/1989
Virendra Saran
The Magistrate can remand an accused to police custody even if the accused takes the stand that he does not want to point out any material allegedly used in the crime, provided necessary safeguards are incorporated in the order to guarantee that the police shall not use any threat or coercion or any other kind of duress, whether mental or physical, against the accused while he is in their custody.
Headnote:
CRIMINAL PROCEDURE CODE - SECTION 167(2) - REMAND TO POLICE CUSTODY - VOLUNTARY DISCLOSURE OF INCRIMINATING ARTICLES - CONSIDERATION BY MAGISTRATE - LEGALITY - ARTICLE 20(3) OF THE CONSTITUTION OF INDIA - NO VIOLATION.
Fact of the Case:
The applicants, accused of murder, were remanded to police custody for three days to facilitate the recovery of a gun and a katta allegedly used in the commission of the offense. The applicants challenged the remand order, arguing that once an accused takes the stand that he does not want to point out any material allegedly used in the crime, the Magistrate cannot remand the accused to police custody.
Finding of the Court:
The court held that the Magistrate can legitimately rely on the entries in the Case Diary disclosing that the accused had volunteered to point out incriminating articles for considering the request of the police for remand of the accused to their custody to enable it to recover the articles, provided necessary safeguards are incorporated in the order to guarantee that the police shall not use any threat or coercion or any other kind of duress, whether mental or physical, against the accused while he is in their custody.
Issues: 1. Whether the Magistrate can remand an accused to police custody even if the accused takes the stand that he does not want to point out any material allegedly used in the crime? 2. Whether such remand would violate Article 20(3) of the Constitution of India?
Ratio Decidendi: 1. The court held that there is no specific provision in the Code of Criminal Procedure laying down that once an accused person has been remanded to judicial custody he cannot thereafter be transferred to police custody. The Magistrate is authorized under S. 167 (2) to grant remand for a limited purpose such as the necessity of the case might require. 2. The court held that Clause (3) of Art. 20 shall be attracted only where a person accused of an offense is compelled to be a witness against himself. Where, however, the accused volunteers without being subjected to duress, to point out incriminating articles, there would be, in the court's opinion, no breach of Cl. (3) of Art. 20, if the investigating officer is given a chance to recover such articles as a result of investigation carried out on the basis of information so supplied by the accused.
Final Decision: The petition was dismissed and the interim orders granted by the court were discharged.
( 1 ) THIS application under S. 482, Cr. P. C. has been referred to a larger Bench by a learned single Judge at the stage of admission on the ground that there was an apparent conflict of views in regard to the question which shall be elaborated presently. The two decisions which have led to the reference are reported in 1982 UP Cri R 259 : 1981 Lucknow LJ III Tej Babu Singh v. State and 1983 All Cri C 9, (Bhole v. State ).
( 2 ) THE application is directed against the order dated 6-4-1989 passed by the Chief Judicial Magistrate, Mirzapur remanding the applicants to the custody of the police under S. 167 (2), Cr. P. C. subject to the following safeguards :i) The applicants shall be medically examined before being remanded to the police custody and immediately after their return from such custody to judicial custody. (ii) During their custody the police shall not adopt any third degree methods, whether physical or mental, nor shall the police inflict any injury or treat the applicants inhumanly during their custody with the police, and (iii) The Senior Superintendent of Police shall ensure that these safeguards are duly carried out by the police.
( 3 ) THE relevant facts are that the applicants are accused in Crime No. 14 of 1989 under S. 302, I. P. C. The incident is said to have taken place on 9-1-1989. An F. I. R. was lodged in connection therewith and the applicants were named therein. In connection with a case under S. 60 Excise Act the applicants were arrested on 17-1-1989 and lodged in the District Jail, Ghazipur. In pursuance of a b warrant issued by the Chief Judicial Magistrate, Mirzapur on 7-2-89 to the District Jail, Ghazipur, the applicants were forwarded to Jail at Mirzapur where they are lodged since. On 5-4-1989 the Station Officer, Kotwali (Dehat), Mirzapur, made an application before the Chief Judicial Magistrate, Mirzapur for granting three days remand in police custody to facilitate the recovery of a gun and a katta stated to have been used in the commission of the offence under S. 302, I. P. C. The applicants filed an objection against that application stating that they were not willing to furnish any evidence of recovery or discovery of any gun or katta. The Chief Judicial Magistrate considered the application as well as the entries in the case diary and thereupon passed the impugned order remanding the applicants to the police custody. The court observed that from a perusal of the case diary it was established that the applicants had clearly admitted before the investigating officer that they could help in the recovery of the katta and the gun used in the commission of the offence. The katta and the gun constitute a vital piece of evidence in the case and there appeared to be a strong possibility of the recovery of the same. On these findings the Chief Judicial Magistrate passed the impugned order.
( 4 ) CHALLENGING the impugned order, Sri Virendra Saran, learned counsel for the applicants, submitted on the authority of the case of Tej Babu Singh (1982 Cri LJ NOC 43) (All) (supra) that once the accused takes the stand that he does not want to point out any material allegedly used in the commission of the crime the Magistrate cannot remand the accused to the police custody.
( 5 ) THE contention stands fully answered against the applicants by a Division Bench decision of this court in the case of Suresh v. The State reported in 1984 Lucknow LJ 105 which is directly in point. In the case of Suresh and others also, the applicant accused of an offence under Sections 302/394, I. P. C. had been arrested and they had, in the course of investigation and interrogation, volunteered to point out the incrimining articles consisting of gun, cartridge licence and a coat, but subsequently they changed their mind and took the stand before the Magistrate that they were not going to make any disclosures about the looted property.
( 6 ) THE Division Bench considered the case of Tej Babu Singh, (1982 Cri LJ NO
