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2015 Supreme(MP) 282
MADHYA PRADESH HIGH COURT
A.M. Khanwilkar, C.J. and K.K. Trivedi, J.
State of M.P. v. Vipin Goyal
Miscellaneous Criminal Case No.10945 of 2015 (Jabalpur) : against order passed by Additional Sessions Judge, Bhopal dated 30.6.2015;
Decided on 3.7.2015.
P.K. Kaurav, Additional Advocate General with
Piyush Dharmadhikari, Government Advocate and Prakash Gupta,
Panel Lawyer for applicant/State;
Anil Khare with Priyankush Jain, Jasneet Hora, Renu Jain and
Shantanu Saxena for respondent/accused.
Headnote:Criminal P.C., 1973 -- Ss.482 and 167(2) -- reckoned of specified period of 15 days -- accused surrendered before this Court on 18.6.2015 during pendency of bail application -- in pursuance of directions, police took custody of accused on 30.6.2015 and produced before Magistrate -- impugned order passed that custody cannot be extend from 3.7.2015 -- period specified would start running from date of first remand order passed by Magistrate and not otherwise -- outer limit is from date of production of accused arrested by police without arrest warrant -- person who surrenders before Court and is directed to be kept in judicial custody during pendency of his bail application -- can by no stretch of imagination be said to have been arrested by police or to be in police custody -- impugned order being untenable -- set aside -- investigating agency was entitled to ask for police custody upto 15 days -- police custody is extended till 6.7.2015 -- investigating agency is free to apply further extention of police custody -- application allowed.
Held : The question posed in the present application, as aforesaid, however, is the time from when 15 days period specified in section 167 of the Code for police custody must be reckoned, which as noted earlier and as is explicit from section 167 of the Code must commence from the date of production of the accused for the first time by the police before the concerned Magistrate in connection with same crime consequent to his arrest by the police without arrest warrant and as in the present case in furtherance of direction given by the High Court whilst rejecting the bail application. Person who surrenders before the Court and is, therefore, directed to be kept in judicial custody during the pendency of his bail application can by no stretch of imagination be said to be have been arrested by the police.
The opinion recorded by the Designated Court in the impugned order of limiting the period of police custody of the respondent only till 3.7.2015 is untenable. (1992)3 SCC 141 followed. (1986)3 SCC 141 referred to. (2014)2 SCC on-line SC 257 distinguished.
naM izfdz;k lafgrk] 1973 & /kkjk 482 rFkk 167¼2½ & 15 fnu dh fofufnZ”V dkykof/k dh lax.kuk & vfHk;qDr bl U;k;ky; ds le{k tekur vkosnu ds yacu ds nkSjku 18-6-2015 dks vH;fiZr gqvk & funs’kksa ds vuqlj.k esa] iqfyl us vfHk;qDr dks 30-6-2015 dks vfHkj{kk esa fy;k rFkk eftLVªsV ds le{k izLrqr fd;k & vk{ksfir vkns’k ikfjr fd;k x;k fd 3-7-2015 ls vfHkj{kk ugha c<+kbZ tk ldrh & fofufnZ”V dkykof/k eftLVªsV }kjk ikfjr izFke izfrizs”k.k vkns’k ds fnukad ls pkyw gksuk izkjaHk gksxk vU;Fkk ugha & ckg~; ifjlhek iqfyl }kjk fcuk fxjrkjh okjaV ds fxjrkj fd, x, vfHk;qDr ds izLrqfr fnukad ls gS & O;fDr tks U;k;ky; ds le{k izLrqr gksrk gS mlds tekur vkosnu ds yafcr jgus ds nkSjku U;kf;d vfHkj{kk esa j[kus ds fy, funsf’kr fd;k tkrk gS & fdlh dYiuk ds vk;ke ls iqfyl }kjk fxjrkj fd;k x;k ;k iqfyl vfHkj{kk esa gksuk ugha dgk tk ldrk & vk{ksfir vkns’k vekU; gksus ls & vikLr fd;k x;k & vUos”k.k vfHkdj.k iqfyl vfHkj{kk vkSj c<+kus ds fy, vkosnu djus ds Lora= gS & vkosnu eatwjA
vfHkfu/kkZfjr % orZeku vkosnu esa mBk;k x;k iz’u tSlk fd iwoZdfFkr fd;k] fQj Hkh] le; gS tc ls lafgrk dh /kkjk 167 esa fofufnZ”V 15 fnu dh dkykof/k dh iqfyl vfHkj{kk ds fy, lax.kuk gksuk pkfg, tks fd iwoZ esa mYys[k fd;k x;k rFkk tSlk fd lafgrk dh /kkjk 167 ls lqO;Dr gS iqfyl }kjk fcuk fxjrkjh okjaV ds mlh vijk/k ds laca/k esa mldh fxjrkjh dj lacaf/kr eftLVªsV ds le{k igyh ckj dh xbZ vfHk;qDr dh izLrqfr fnukad ls izkjaHk gksuk pkfg, rFkk tSlk fd orZeku ekeys esa bldks vxzlj djus ds fy, tekur vkosnu [kkfjt gksus rd mPp U;k;ky; }kjk funs’k fn;k x;kA O;fDr tks U;k;ky; ds le{k izLrqr gksrk gS rFkk blfy,] mlds tekur vkosnu ds yafcr jgus ds nkSjku U;kf;d vfHkj{kk esa j[kus ds fy, funsf’kr fd;k tkrk gS] fdlh dYiuk ds vk;ke ls iqfyl }kjk fxjrkj fd;k x;k ;k iqfyl vfHkj{kk esa gksuk ugha dgha tk ldrhA
ukefufnZ”V U;k;ky; }kjk dsoy 3-7-2015 rd izR;FkhZ dh iqfyl vfHkj{kk dh dkykof/k dks lhfer djus okys vk{ksfir vkns’k esa] vfHkfyf[kr dh xbZ jk; ekU; ugha gSA ¼1992½ 3 ,l lh lh 141 vuqlfjrA ¼1986½ 3 ,l lh lh fufnZ”VA ¼2014½ 2 ,l lh lh vkWu&ykbu ,l lh 257 izHksfnrA
1. Heard counsel for the parties. By consent, matter is taken up for final disposal. The respondent waives notice through counsel for final disposal.
2. This application under section 482 of the Code of Criminal Procedure (for brevity “Code”) takes exception to the order passed by the Additional Sessions Judge, Bhopal dated 30.6.2015 in Crime No.14/2013. By this order, application preferred by the Investigating Officer for granting police custody of the respondent has been disposed of by allowing police custody only till 3.7.2015, on the sole finding that the respondent having been taken in judicial custody on 18.6.2015 in furtherance of the order passed by this Court in Miscellaneous Criminal Case No.8811/2015 on the same date, the 15 days period provided in section 167 of the Code would start running from that date; and by efflux of time, expire on 3.7.2015. The Court held that, beyond 3.7.2015, police custody of the respondent cannot be permitted, in law. The trial Court has relied on the decision of Central Bureau of Investigation, Special Investigation Cell-1, New Delhi v. Anupam J. Kulkarni [(1992)3 SCC 141], to answer the point in issue.
3. Before examining the correctness of the opinion recorded by the trial Court, we may deem it appropriate to advert to some basic facts. The respondent has been named as accused in Crime No.14/2013 for offences punishable under sections 409, 420, 120B of IPC and section 3 (Gha), 1, 2/5 of M.P. Manyata Prapt Pariksha Adhiniyam, 1937. The respondent, however, could not be arrested inspite of the efforts made by the Investigating Agency because of the processes adopted by him since November, 2014, to which, elaborate reference has been made by us while deciding Miscellaneous Criminal Case No.8811/2015 (application for bail filed by the respondent in the same crime) vide order dated 29.6.2015. After exhausting all remedies, finally, in view of the liberty given by the Supreme Court, the respondent was required to approach the Sessions Court by way of bail application. Without surrendering before the trial Court, the bail application filed under section 439 of the Code was heard and rejected by the trial Court, because of the protection given to the respondent by the Supreme Court. Even this aspect has been referred to in the order dated 29.06.2015 passed in Miscellaneous Criminal Case No.8811/2015.
4. The respondent then approached this Court by way of application under section 439 of the Code being Miscellaneous Criminal Case No.8811/2015. When the said bail application was listed for consideration on 16.6.2015, it was made clear to the respondent that prayer for bail of the respondent can be entertained only if the respondent was already in jail or police custody or at-least he surrenders before this Court, in the first instance. The respondent, accordingly, agreed to appear before the Court and surrendered on 18.6.2015. On 18.6.2015, however, the hearing of the bail application could not proceed because of the circumstances already recorded in the order passed on that date and the successive dates till the bail application was closed for orders on 26.6.2015. That bail application was eventually disposed of on 29.6.2015, by a speaking judgment. When the respondent had appeared before this Court on 18.6.2015 and surrendered; and as the hearing of the bail application was required to be deferred for reasons attributable to the respondent himself and also for further adjournment, the Court thought it appropriate to direct to keep the respondent in judicial custody at Jabalpur. Indeed, the Investigating Agency did not apply for grant of police custody of the respondent for the purpose of investigation of the said crime, either before this Court or any other Court until the bail application was finally decided.
5. Suffice it to note that the respondent surrendered before this Court on 18.6.2015 and was sent to judicial custody until further order and final decision on his bail applicati
