29apl437.22.odt

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY

NAGPUR BENCH AT NAGPUR

CRIMINAL

APPLICATION (APL)

NO. 437 OF 2022

State of Maharashtra...Versus...Upendra Gunwant Mule

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Office Notes, Office Memoranda of Coram,

Court's or Judge's orders

appearances, Court's orders or directions

and Registrar's orders

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Mr.V.A.Thakre, APP for the applicant/State.

Mr. Anil Mardikar, Senior Advocate assisted by Mr. V.R.Deshpande, Advocate for non-applicant.

CORAM : AVINASH G. GHAROTE, J.

DATE : 01/04/2022

1]

Heard Mr. Thakre, learned APP for the applicant/

State and Mr. Mardikar, learned Senior Advocate for the non-

applicant.

2]

The challenges is to the order dated 24.3.2022,

whereby the request of the prosecution for police custody

remand of the non-applicant has been turned down and the

non-applicant was sent to MCR.

3]

Mr. Thakre, learned APP for the applicant/State

contends that the non-applicant was arrested on 17.3.2022 at

Gurgaon and was produced before the Court at Washim on

17.3.2022 itself, on which date the learned Sessions Court

remanded him to police custody till 24.3.2022. On 24.3.2022

when further PCR was sought, the same was refused by the

learned Sessions Court and the non-applicant was sent to

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MCR.

4]

Mr. Thakre, learned APP for State submits that

since the application before this Court came to be filed within

the period of 15 days from the date of production i.e. on

29.3.2022, the applicant would be entitled to seek PCR for the

period remaining out of 15 days permissible under Section

167(2) of the Cr.P.C.

5]

Mr. Mardikar, learned Senior Advocate appearing

for non-applicant opposes the same and contends that the

total permissible period for PCR is 15 days, which can be

availed of in bits and pieces, however, such availment has to

be within the first 15 days from the date of production. He

places reliance upon (1) CBI vrs. Anupam J. Kulkarni, (1992)

3 SCC 141 (paras 2, 3, 4, 5, 10, 11 & 13); (2) Budh Singh vrs.

State of Punjab, (2000) 9 SCC 266 and (3) Satyajit Ballubhai

Desai vrs. State of Gujarat, (2014) 14 SCC 434 (paras 11 to

15).

6]

Mr. Thakre, learned APP in rebuttal relies upon

State of Maharashtra Vrs. Varsha Shankarrap Phadke, 2017

(1) Mh.L.J (Cri) 774, to contend that the same can be done.

7]

Perusal of Section 167(2) of the Cr.P.C. indicates

that the total period for which the magistrate can authorize

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the detention of the accused in police custody is for a term not

exceeding 15 days in the whole. The provision has been

interpreted by the Hon’ble Apex Court in Anupam Kulkarni

(supra), to mean that the PCR can be granted in bits and

pieces, however, such total period should not exceed 15 days.

The question as to how this 15 days period is to be reckoned

has been considered and answered in para 8 thereof, which is

quoted as under;

“8. Having regard to the words "in such custody as such

Magistrate thinks fit a term not exceeding fifteen days in the

whole" occurring in sub-section (2) of Section 167 now the

question is whether it can be construed that the police custody, if

any, should be within this period of first fifteen days and not

later or alternatively in a case if such remand had not been

obtained or the number of days of police custody in the first

fifteen days are less whether the police can ask subsequently for

police custody for full period of fifteen days not availed earlier or

for the remaining days during the rest of the periods of ninety

days or sixty days covered by the proviso. T