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ALLAHABAD HIGH COURT
Vishnu Chandra Gupta, J.
Chandra Dev Ram Yadav and Another -Appellant
Versus
State of U.P, and Another -Respondent
Criminal Misc. Case No. 812 of 2013
Decided On : 29-08-2013
Criminal Procedure Code - Police Custody Remand - Sections 409, 420, 467, 468, 471, 204, 301, 174A, 120B IPC and 7/13(1)d r/w 13(2) of Prevention of Corruption Act - 167(2) Cr.P.C.
Fact of the Case:
The petitioners sought to quash an order for police custody remand under various sections of the IPC and the Prevention of Corruption Act. They argued that the remand beyond the first 15 days was illegal.
Finding of the Court:
The court held that the remand from zero hours to 9.00 a.m. on 18.02.2013 was invalid as it exceeded the first 15 days, but the remand from 9.00 A.M. of 17.02.2013 to midnight was upheld. The subsequent remand in judicial custody was deemed valid.
Issues: The legality of police custody remand beyond the first 15 days and the interpretation of Section 167(2) Cr.P.C.
Ratio Decidendi: The court clarified that the first day of remand should be excluded when calculating the first 15 days, and an accused on bail cannot be deemed to be in custody for the purpose of Section 167 Cr.P.C.
Final Decision: The petition was partly allowed, and the order for police custody remand from zero hours to 9.00 A.M. on 18.02.2013 was set aside, while the remand from 9.00 A.M. of 17.02.2013 to midnight was upheld.
1.By means of this petition under section 482 of Criminal Procedure Code (for short 'Cr.P.C.') petitioners have prayed for quashing the order dated 16.02.2013 passed by learned in-charge District & Sessions Judge/Additional Sessions Judge, Court No.1 Lucknow relating to case Crime 64 of 2012, under Sections 409, 420, 467, 468, 471, 204, 301, 174A, 120B IPC and 7/13(1)d r/w 13(2) of Prevention of Corruption Act, Police Station Hussainganj, District Lucknow remanding the petitioners/accused persons in the police custody from 9AM of 17th Feb, 2013 to 9.00 AM of 18th Feb 2013.
2.The brief facts for deciding the case are that both the petitioners were accused in the above mentioned case and they surrendered before the court for the first time on 10.01.2013 and moved application for their bail before the court concerned. The Court keeping in view the judgement rendered by the Apex Court in Lal Kamlendra Pratap Singh Vs. State of U.P.). 2009 (3) ADJ 322 (SC) released the petitioners on interim bail because the bail could not be disposed of on that day. The court fixed 19.01.2013 for hearing of the regular bail. On 19.01.2013 the petitioner again surrendered but the bail application could not be disposed of and case was listed for final disposal on 24.01.2013 and they were released on interim bail till 24.01.2013. As 24.01.2013 was holiday on account 'Barabafat' the petitioners surrendered in court on 25.01.2013. On that date too the bail could not be disposed of and they were released on interim bail till 02.02.2013. They again surrendered on 02.02.2013 and their bail application was rejected and they were taken into custody and remained to judicial custody and send to jail. On 05.02.2013 an application has been moved for police custody remand of petitioners by the investigating officer. The court fix 11.02.2013 for disposal of application. On 11.02.2013 the court directed the police to inform purpose of remand and for showing the provision on 15th February. The case was again adjourned and listed on 15.02.2013. On 15.02.2013 State sought adjournment, consequently the application was fixed on 16.01.2013 for disposal. On 16th February, 2013 the application was allowed and petitioners were ordered for police custody remand from 9 AM of 17.02.2013 to 9 AM of 18.02.2013. They were given in police custody and sent back to the jail in terms of the order passed by the Court.
3.The impugned order was assailed by the petitioners on the following grounds.
(i) That period of first 15 days shall be counted from the date of first remand on 02.02.2013, hence, the 17.02.2013 would be the 16th day as such the remand of the petitioner from 17.02.2013 onwards would be illegal and would be hit by Section 167(2) Cr.P.C..
(ii) That the petitioners were not present in the court when the impugned order has been passed. Hence, in view of provision contained in Clause (b) of proviso of sub-Section 2 of Section 167 Cr.P.C. remanding the petitioners in the police custody on 17.02.2013 would be illegal.
(iii) That the day on which the accused person surrendered before the court i.e. on 10.02.2013, 19.01.2013, 25.01.2013 and 02.02.2013 would be included while calculating first 15 days for the purpose of remaining the petitioner in the police custody. As such the police remand granted in this case beyond period of 15 days would be illegal.
(iv) That accused persons surrendered on 10.01.2013 and they remained on interim bail till 02.02.2013. The period during which they were remained on interim bail shall be deemed to be in custody for the purpose of Section 167(2) Cr.P.C. and 15 days expired during this period, therefore, the petitioners cannot be remained in the police custody. Hence police custody remand granted beyond first 15 days by the impugned order would be illegal.
4.Learned senior counsel appearing for the petitioners Sri Jyotinjay Mishra submitted that the Apex Court in Central Bureau of Investigation, Special Investigation Cell-1, N
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