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TMI Blog2011 (11) TMI 867X X X X Extracts X X X X X X X X Extracts X X X X ..... 2011, on the file of the very same police. In the cases, in Crime Nos.24 of 2011 and 26 of 2011, the respondents were arrested and on the orders of remand passed by the learned Judicial Magistrate No.IV, Trichy, they were detained in the prisons in Cuddalore, Palayamkottai and Salem, respectively. 3. While so, in connection with Crime No.27 of 2011, the petitioner/Investigating Officer effected formal arrest of the first respondent, on 03.10.2011, at 9.00 a.m. in the prison. Similarly, he effected formal arrest of the respondents 2 and 3, on 03.10.2011, at 3.15 p.m. and 4.55 p.m., respectively. Thereafter, the petitioner rushed to Trichy and on 04.10.2011 made a request to the learned Judicial Magistrate No.V to issue warrant [hereinafter referred to as P.T warrant - Prisoner Transit warrant], as per Section 267 of the Code of Criminal Procedure. On considering the same, the learned Magistrate issued warrants directing the respective jail authorities to produce the respondents, on 07.10.2011, obviously, because 05.10.2011 and 06.10.2011 were holidays. Accordingly, the respondents were produced before the learned Magistrate, by the jail authorities, in pursuance of the P.T.W ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n view of the pendency of the H.C.P(MD).No.913 of 2011, the Magistrate should not pass any order on the remand request made by the petitioner. The learned Magistrate, admittedly, heard the counsel for the respondents as well. 6. Mr.N.R.Elango, the learned Senior Counsel, who appeared for the accused before the Magistrate, had submitted that the learned Magistrate lacked jurisdiction to remand the accused, since the accused were in the illegal detention of the police in violation of Article 22(2) of the Constitution of India. It appears from the order of the learned Magistrate that the learned Senior Counsel Mr.N.R.Elango placed reliance on the order of this Court made in Crl.O.P.(MD)No.1182 of 2009, wherein a learned Single Judge of this Court had taken the view that in the event the accused is not produced before the Magistrate within 24 hours of the arrest, the said detention, beyond 24 hours from the time of arrest, is illegal, and thereafter, if the accused is produced before the Magistrate with a request for remand, the Magistrate cannot remand as per law, and if any such remand is made, the same would be illegal. The learned Judicial Magistrate No.V, after having considere ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ormal arrests were effected in connection with the subsequent cases by the police. Thereafter, the Investigating Officer approached the Jurisdictional Magistrate for issuance of P.T.Warrants for production of the accused. Accordingly, P.T.Warrants were issued and the accused were produced before the Jurisdictional Magistrate. This process took a few days. Thus, the accused could not be produced before the learned Magistrate concerned within 24 hours from the time of formal arrest. But, the learned Magistrate remanded the accused to judicial custody. When the accused approached this Court for bail, the learned Judge, by referring to a judgment of the Hon'ble Apex Court, in Manoj vs. State of Madhya Pradesh, reported in 1999 (3) SCC 715, held that the learned Magistrate had no jurisdiction to remand the accused, since, the accused were produced beyond 24 hours from the time of arrest excluding the time taken for the journey of the accused from the jail to the Court. According to the learned Judge, the remand was illegal. In the referral order, the Hon'ble MR.JUSTICE M.M.SUNDRESH] has stated that Manoj's case was rendered in a totally different context, and therefore, the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... within a period of 24 hours of such arrest excluding the time necessary for journey from the place of arrest to the Court of the Magistrate and no such person shall be detained in custody beyond the said period without the authority of a Magistrate. Similar provision is found in Section 57 of the Code of Criminal Procedure, which also mandates that no police officer shall detain in custody a person arrested without warrant for a longer period than under all the circumstances of the case is reasonable, and such period shall not, in the absence of a special order of a Magistrate under Section 167, exceed twenty-four hours exclusive of the time necessary for the journey from the place of arrest to the Magistrate's Court. These two provisions came up for consideration on several occasions before the Hon'ble Supreme Court, as well as this Court and the Courts have in no uncertain terms held that without the authorisation of a Magistrate, no arrestee shall be detained in the custody of the police beyond 24 hours from the time of arrest excluding the time taken for the journey from the place of arrest to the Court. In this regard, there could be no controversy that when an accuse ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... arrest, according to the learned Public Prosecutor, since there is only a formal arrest, the accused does not get into the physical custody of the police, and therefore, there is no police custody either for 24 hours or beyond that. 13. But, it is the contention of the learned Senior Counsel, Mr.N.R.Elango that the Phrase Arrest and Custody as enumerated in Article 22(2) of the Constitution and Section 57 of the Code of Criminal Procedure, cannot be split into two distinct terms. He would submit that they would go together. In other words, according to him, the moment an accused is arrested, he comes under the physical custody of the police. Therefore, there cannot be any arrest without custody. Arrest and custody are the integral part of the same process. In such view of the matter, according to the learned Senior Counsel, if formal arrest is effected in prison by the police, the accused is taken into custody forthwith by the police, and therefore, as mandated under Article 22(2) of the Constitution and Section 57 of the Code of Criminal Procedure, the accused should be produced before a Magistrate within 24 hours from the time of such formal arrest and any detention beyond ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ant case, in that case also, the accused was already in prison in connection with a former case. In connection with the subsequent case, the accused was arrested in prison. Thereafter, he was produced before the learned Magistrate. By that time, the initial period of 15 days of remand in the former case had expired. When police custody was sought for in the latter case, it was opposed by the accused that during the subsequent period, after the initial period of 15 days of remand, the police custody cannot be granted. While declaring the law that the detention of the accused in police custody can be made by the Magistrate either having jurisdiction or not, only during the initial period of 15 days from the date of first remand, the Hon'ble Supreme Court went on to analyse the legal position as to the effect of formal arrest made in connection with a latter case after the expiry of the initial period of 15 days in connection with the former case. The Hon'ble Supreme Court in Paragraph No.13 of the said Judgment, has held as follows:- There cannot be any detention in the police custody after the expiry of first fifteen days even in a case where some more offences either se ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Warrant can be issued only by the Jurisdictional Magistrate and not by any other Magistrate. When such a request for production of the accused from prison in the Court is needed, the Magistrate shall issue P.T.Warrant and in pursuance of the said P.T.Warrant, the accused shall be thereafter produced before the Magistrate. This process will mostly take more than 24 hours. For example, let us assume that an accused is lodged in Central Prison, Chennai, in connection with a case. Later on, in connection with a case relating to Kanyakumari District, the Investigating Officer effects formal arrest of the accused in Central Prison, Chennai, as per the procedure indicated above and thereafter it will take at least one full day for the police officer to rush back to Kanyakumari to make an application for issuance of P.T.Warrant. Assuming that the learned Magistrate issues P.T.Warrant on the same day, it will take yet another day for the police officer to take P.T.Warrant to the prison authorities at Chennai. It is only thereafter, the accused will be again taken from Chennai to Kanyakumari for the purpose of remand. This process would certainly consume at least 3 to 4 days. If we have to s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in every arrest, there is custody but not vice versa and that both the words 'custody' and 'arrest' are not synonymous terms. Though 'custody' may amount to an arrest in certain circumstances but not under all circumstances. If these two terms are interpreted as synonymous, it is nothing but an ultra legalist interpretation which if under all circumstances accepted and adopted, would lead to a startling anomaly resulting in serious consequences, vide Roshan Beevi. 19. A perusal of the above Supreme Court judgment would make it clear that in every arrest there is custody and not vice-versa. The question as to when a person gets into the custody of the Court for the purpose of exercising the power by the Magistrate under Section 167(1) of the Code of Criminal Procedure came up for consideration before the Hon'ble Supreme Court in Niranjan Singh vs. Prabhakar Rajaram Kharote, reported in (1980) 2 SCC 559. Speaking for the Bench, Hon'ble Justice V.R.Krishna Iyer has declared the law as follows:- He can be in custody not merely when the police arrests him, produces him before a Magistrate and gets a remand to judicial or other custody. He can be s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... compulsion and he thereafter submits to the compulsion. 22. From the above judgments, one can easily understand that for a Magistrate to exercise his power under Section 167(1) of the Code of Criminal Procedure, the pre-requisite condition is that the accused must be in the custody of the Court and such custody may be had either by arrest by a competent officer and production before the Magistrate or on the surrender of the accused on his own volition before the learned Magistrate or on his appearance in pursuance of any process. Under these circumstances, the accused will be in the custody of the Court, and therefore, the Magistrate will be competent to pass further orders of detention, either in judicial custody or in police custody, initially for 15 days. 23. Section 46 of the Code of Criminal Procedure, as we have already seen, prescribes the mode of arrest. According to the said provision, the arrest can be effected only by keeping the arrestee in the custody of the police. It is only on interpreting Section 46 and various other provisions, in the judgments cited supra, the Hon'ble Supreme Court has laid down the law thereby stating that in every arrest, there is cu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Investigating Officer in the latter case filed a petition before the Chief Metropolitan Magistrate, Calcutta, who was the Jurisdictional Magistrate in respect of the latter case, and requested for a P.T.Warrant. The Chief Metropolitan Magistrate, Calcutta, allowed the said prayer and directed the accused to be produced before him, on 22.02.2006. A copy of the said order was sent to the Chief Metropolitan Magistrate, Egmore, Chennai, on 14.02.2006, and the order, dated 13.02.2006, passed by the Chief Metropolitan Magistrate, Calcutta, was brought to the notice of the Additional Chief Metropolitan Magistrate, Egmore, Chennai. The Additional Chief Metropolitan Magistrate, Egmore, Chennai, observed that the matter of Calcutta police would be considered after the period of C.B.I. custody was over. On 17.02.2006, the Investigating Officer intimated the Chief Metropolitan Magistrate, Calcutta, that the accused was in C.B.I. custody till 24.02.2006, in connection with the former case. Therefore, the learned Chief Metropolitan Magistrate, Calcutta, directed the production of the accused before him, on or by 08.03.2006. In the mean while, the accused came to know that he was wanted for ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to count 90 days from that notional surrender. A notorious criminal may have number of cases pending in various police stations in a city or outside the city, a notional surrender in pending case for another FIR outside the city or of another police station in same city, if the notional surrender is counted then the police will not get the opportunity to get custodial investigation. The period of detention before a Magistrate can be treated as device to avoid physical custody of the police and claim the benefit of proviso to sub-section (2) and can be released on bail. This kind of device cannot be permitted under Section 167 CrPC. The condition is that the accused must be in the custody of the police and so-called deemed surrender in another criminal case cannot be taken as starting point for counting 15 days' police remand or 90 days or 60 days as the case may be. Therefore, this kind of surrender by the accused cannot be deemed to be in the police custody in Case No. 476 of 2002 in Calcutta. [emphasis supplied]. In Paragraph No.17 of the said judgment, the Hon'ble Supreme Court has held as follows:- 17. Therefore, it is very clearly mentioned that the accused must ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... te. If the police officer has to rush to the Jurisdictional Magistrate to get P.T.Warrant, in the mean while, the time limit of 24 hours may lapse. 30. The next question is as to whether at all it is necessary invariably in all cases that such formal arrest is required to be effected in prison, when the accused is already lodged in prison in connection with some other case. It is needless to point out that though the police officer has got power to arrest, it does not mean that he has to resort to arresting the accused, irrespective of the need and justification for arrest. As held in Joginder Kumar vs. State of U.P. And others reported in 1994 SCC (Crl) 1172, no arrest can be made, because it is lawful for the police officer to arrest. The existence of power to arrest is one thing. The jurisdiction for the exercise of it is quite another. Thus, he has got discretion and only in a case where such arrest is absolutely necessary, he shall resort to arrest. In all other cases, he may, without arresting the accused, proceed with the investigation and file final reports. 31. In a case where the police officer deems it necessary to arrest when the accused is already in judicial cu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er in judicial custody or in police custody. 34. Now, let us move on to the next contention. In case the accused is produced before the Magistrate by keeping him in illegal custody for some time beyond 24 hours time from the time of arrest, it is the contention of the learned Senior Counsel for the respondents that the Magistrate would be incompetent to pass a valid remand order. According to the learned counsel for the respondents, the illegal detention by the police cannot be cured by a subsequent valid order of remand. The learned Senior Counsel tried to substantiate his contention based on the judgment of the Hon'ble Supreme Court, in Manoj vs. State of Madhya Pradesh, reported in 1999 SCC (Cri) 478. In that case, the accused concerned was arrested by the police of Kota in Rajasthan (hereinafter referred to as Rajasthan case ) and he was later remanded to judicial custody. While he was in judicial custody, he was required to be arrested in connection with a case in Rampura Police Station, Madhya Pradesh State (hereinafter referred to as M.P. case ). The Investigating Officer in M.P. case, went to Rajasthan and effected a formal arrest, on 07.08.1998. But he was never p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ive Magistrates, under Section 167(1) of the Code of Criminal Procedure. The learned Single Judge held that such remand orders were illegal. The learned Single Judge, after referring to the Manoj's case, has held that since the accused were produced in pursuance of P.T.Warrants beyond 24 hours of formal arrest, the said orders of remand were illegal. With great respect, we state that the said conclusion arrived at by the learned Single Judge in those two Criminal Original Petitions does not expound the correct position of law. 37. In this connection, we may now refer to the Judgment of the Hon'ble Supreme Court, in Sadhwi Pragyna Singh Thakur vs. State of Maharashtra, reported in Manu/SC/1101/2011. The facts of the said case would be that the accused therein was arrested on 10.10.2008 and he was produced before the Jurisdictional Magistrate, on 24.10.2008. According to the police, he was arrested only on 23.10.2008. Thus, according to the police, he was produced within 24 hours from the time of arrest, whereas, according to the accused, he was detained in illegal custody, and thereafter, produced before the Magistrate, on 24.10.2008. On appreciating the materials avai ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d Counsel for the Appellant do not support the plea that in every case where there is violation of Article 22 of the Constitution, an accused has to be set at liberty and released on bail. Whereas, an accused may be entitled to be set at liberty if it is shown that the accused at that point of time is in illegal detention by the police, such a right is not available after the Magistrate remands the accused to custody. Right under Article 22 is available only against illegal detention by police. It is not available against custody in jail of a person pursuant to a judicial order. Article 22 does not operate against the judicial order. 27.The decision in Manoj v. State of M.P. MANU/SC/0231/1999 : (1999) 3 SCC 715 relied upon by the learned Counsel for the Appellant was a case where the accused was not produced before the Magistrate in the second case and, therefore, was directed to be released. It was not a case where the person was produced before the learned Magistrate and remanded to custody and then directed to be released because there was infraction by the police. Thus, any doubt in understanding Manoj's case has been now obiviated by the Hon'ble Supreme Court by ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ound that since the detention of the accused, between 25.01.1993 and 25.02.1993, was illegal, the subsequent remand order passed, on 14.02.1993, was not legal. But, the Division Bench, after referring to various Judgments, including the Judgment of the Hon'ble Supreme Court, in A.K.Gopalan v. Government of India reported in 1966 (2) SCR 427, negatived the said contention. In A.K.Gopalan's case, the Hon'ble Supreme Court has held as follows:- It is well settled that in dealing with the petition for Habeas Corpus, the Court is to see whether the detention on the date on which the application is made to the Court is legal, if nothing more has intervened between the date of the application and the date of hearing After referring to the above law laid down in A.K.Gopalan's case, the Division Bench has held that, though admittedly, the detention of the accused, in pursuance of the illegal remand order, between 25.01.1993 and 25.02.1993 was illegal, that will not, in any manner, render the order of remand made on 14.02.1993, as illegal or non est in the eye of law. In effect, the Division Bench took a similar view, which we are now inclined to take that, though the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and order, prospectively. 42. From the above discussions, the following conclusions emerge:- 1). When an accused is involved in more than one case and has been remanded to judicial custody in connection with one case, there is no legal compulsion for the Investigating Officer in the other case to effect a formal arrest of the accused. He has got discretion either to arrest or not to arrest the accused in the latter case. The police officer shall not arrest the accused in a mechanical fashion. He can resort to arrest only if there are grounds and need to arrest. 2). If the Investigating Officer in the latter case decides to arrest the accused, he can go over to the prison where the accused is already in judicial remand in connection with some other case and effect a formal arrest as held in Anupam Kulkarni case. When such a formal arrest is effected in prison, the accused does not come into the physical custody of the police at all, instead, he continues to be in judicial custody in connection with the other case. Therefore, there is no legal compulsion for the production of the accused before the Magistrate within 24 hours from the said formal arrest. 3). For the pro ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... be in judicial custody, in connection with the former case, he can be transmitted in pursuance of P.T.Warrant in connection with the latter case. 43. With the above legal principles, let us now consider the facts of the present case. 44. To recapitulate the facts, formal arrests of the respondents were effected on 03.10.2011 and the request for issuance of PT warrant was made, on 04.10.2011, before the learned Judicial Magistrate No.V, Thiruchirappalli. The learned Judicial Magistrate issued PT warrants to the Jail Authorities, directing the production of the accused before her, on 07.10.2011. On 07.10.2011, the learned Judicial Magistrate No.V, was on leave and learned Judicial Magistrate No.IV, was in charge of the Judicial Magistrate No.V, Court. 45. In the earlier paragraph, we have extracted the order, dated 07.10.2011, passed by the learned Judicial Magistrate. In the said order, the learned Judicial Magistrate has concluded as follows:- Considering the circumstance of the Court holiday on 05.10.11 06.10.11 as well as Casual Leave of regular Magistrate on 07.10.11 this court not inclined to remand the accused on Judicial custody in view of available records. Pr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f formal arrest. Since, we have held that, by effecting formal arrest, the accused did not come into the custody of the police, there is no legal mandate that they should be produced within 24 hours before the learned Judicial Magistrate, from the time of formal arrest. Thus, we hold that the order passed by the learned Judicial Magistrate No.V is not sustainable and the same is liable to be set aside. The learned Judicial Magistrate ought to have considered whether it is necessary to remand the accused and to have passed appropriate orders, under Section 167(1) of the Code of Criminal Procedure. 48. While interfering with the said order, we would like to remind the learned Judicial Magistrates of their constitutional obligation, while exercising their right to remand an individual, since it involves the curtailment of right to life, as guaranteed in Article 21 of the Constitution of India. In this regard, we may also refer to the law laid down by the Hon'ble Supreme Court, in A.R.Antulay v R.S.Nayak, reported in AIR 1988 SC 1531 : 1988 2 JT 325 : 1988 (2) SCC 602 : 1988 SCC (Crl)372, wherein it has been stated as follows:- ..... It has been said long ago that actus curi ..... X X X X Extracts X X X X X X X X Extracts X X X X
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