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TMI Blog1994 (1) TMI 315X X X X Extracts X X X X X X X X Extracts X X X X ..... provided in Section 19 of the Terrorist and Disruptive Activities (Prevention) Act, 1987 No. 28 of 1987 (hereinafter for the sake of brevity referred as TADA Act ) would affect the exercise of the power or the jurisdiction conferred under Arts. 226 and 227 of the Constitution of India. These questions have arisen on the following facts. 2. On the 12th of September, 1992 offences of murder and other related offences was committed. The offence is what is now known as J.J. Hospital Shoot-out Case . The offence was initially registered by the Byculla Police Station vide its Crime Register No. 446 of 1992. The investigation was, thereafter, taken over by the D.C.P., C.I.D. under its Crime Register No. 217 of 1992. On the 30th of March, 1993 an application was filed for issue of non-bailable warrants for arrest of the accused involved in the offence. By an order passed on the 1st of April, 1993 order issuing non-bailable warrants was passed. On the 6th of August, 1993 a charge-sheet was filed before the TADA Court and a case was registered being Special Case No. 31 of 1993. The charge-sheet contained the names of several accused, some of them being before the Court and some others ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... with by a Division Bench of this Court rather than by single Judge ...... The petition was, thereafter, placed before a Division Bench consisting of G. D. Kamat Patankar, JJ. and rule was issued subject to the maintainability of the petition. It is in these circumstances that the petition is taken up by us for hearing and final disposal. 5. Before the petition was taken up for hearing on merits, we enquired with Shri Lambay, the learned Addl. Public Prosecutor, whether he would be satisfied if the petitioner is handed over to the police during day time for certain number of days in order to facilitate investigation against the accused. During the course of hearing, Shri Jetmalani, the learned counsel appearing on behalf of the petitioner offered, and in fact made a with prejudice statement, that the petitioner can be handed over to the police during specified hours of the day, during day time, in order to facilitate investigation as against him. Shri Lambay, however, has declined the offer and has insisted that unless police custody is given effective progress in the investigation will not be possible. 6. Shri Jethmalani, the learned counsel appearing on behalf of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e order passed by the Designated Court granting police custody remand is without jurisdiction and is liable to be set aside. 6A. On the question of jurisdiction of this Court under Articles 226 and 227 of the Constitution Shri Jethmalani has made it clear that he is not impugning the order of the Designated Court on merits. He is not impugning a discretionary order passed by the Designated Court. He is challenging the very jurisdiction of the Designated Court to grant police custody remand. According to Shri Jethmalani, it has now been well settled that an order of bail is an interlocutory order. Hence, if the granting or refusing bail is an interlocutory order an order imposing terms for grant of bail or imposing the nature of custody either judicial or police, is all the more a discretionary order. In the circumstances, no appeal can lie to the Supreme Court under Section 19(1) of the TADA Act. As far as sub-section (2) of Section 19 is concerned, it no doubt bars an appeal or revision to any Court. That, however, cannot and does not in any way abridge the powers bestowed upon the High Court under the Constitution. If sub-section (2) of Section 19 were to do so, the said provi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... succeed in shutting out or stopping investigation. 8. Shri Lambay has further pointed out that the investigating agency in terms of Section 167 of the Code of Criminal Procedure is bound to file a chargesheet within a stipulated period. Non-filing of a chargesheet within the said period would entitle undeserving accused to be enlarged on bail. In the circumstances, the prosecution has filed a chargesheet against several accused even though several others were absconding and had not been apprehended. Since the petitioner has been apprehended after the filing of the chargesheet and the investigation as against him is yet to commence the provisions of Section 167 Criminal Procedure Code would apply and the learned Judge of the Designated Court would be entitled to grant either judicial or police custody in terms of the powers conferred by sub-section (2) of Section 167. 9. In regard to the jurisdiction and power of the High Court under Articles 226 and 227 of the Constitution Shri Lambay placed reliance on Section 19 of the TADA Act and has pointed out that an appeal from a judgment, sentence or order, not being an interlocutory order lies to the Supreme Court. Sub-section (2) o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 71. The case of the petitioner can squarely fall within the provisions of Section 73 and the issue of warrants by the designated Court can be said to have been issued against the petitioner under Section 73(1) as the petitioner who is accused of a non-bailable offence was evading arrest. Sub-section (3) of Section 73 provides that when a person against whom a warrant is issued by a Magistrate is arrested, he is required, without loss of time, to be taken to the nearest police station and the police officer is required to produce him before a Magistrate. These provisions indicate that the police have been given the least powers to detain an accused person without a proper authority in that behalf. 12. The next section, which is relevant to the issue at hand, is Section 167, which appears in Chapter-XII, which deals with information to the Police and their powers to investigate. Section 167 provides as under : 167(1) Whenever any person is arrested and detained in custody, and it appears that the investigation cannot be completed within the period of twenty four hours fixed by Section 57, and there are grounds for believing that the accusation or information is well founded, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... equired to produce the accused before a Magistrate and the Magistrate is given liberty and/or discretion to detain the accused either in police custody or judicial custody. The period during which a Magistrate can remand an accused to custody has been limited for a term not exceeding 15 days in the whole. The proviso to Section 167 provides for detention of an accused in judicial custody beyond the period of 15 days, if a Magistrate is satisfied that adequate reasons exists for doing so. However, such a remand is limited to 90 days where the offence is punishable with death, imprisonment for life or for a term not less than ten years and the period is limited to 60 days where the investigation relates to any other offence. The proviso further provides for a right of the accused to be enlarged on bail after the aforestated period of 90 days or 60 days. The proviso further gives a mandate that no accused shall be kept in custody unless the accused is produced before a Magistrate and the power of ordering detention in custody is restricted to a Magistrate of the First Class. Such a power has not been granted to a Magistrate of a Second Class who is not specially empowered in this beha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... same shall be continued from day to day until all the witnesses in attendance have been examined, unless the Court finds the adjournment of the same beyond the following day to be necessary for reasons to be recorded. (2) If the Court, after taking cognisance of an offence, or commencement of trial, finds it necessary or advisable to postpone the commencement of, or adjourn, any inquiry or trial, it may, from time to time, for reasons to be recorded, postpone or adjourn the same on such terms as it thinks fit, for such time as it considers reasonable, and may by a warrant remand the accused if in custody; Provided that No Magistrate shall remand an accused person to custody under this section for a term exceeding fifteen days at a time : (Second and Third proviso omitted) Explanation 1. - If sufficient evidence has been obtained to raise a suspicion that the accused may have committed an offence, and it appears likely that further evidence may be obtained by a remand, this is a reasonable cause for a remand ....... (Explanation - 2 omitted) . 17. Sub-section (1) of Section 309 provides for expeditious conduct of trials. Sub-section (2) of Section 309 prov ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lternatives. it is also very pertinent to note that under Section 167(6), a Magistrate is required to record his reasons for authorising, under that section, detention of an accused person in the custody of the police. The necessary implication of that requirement is that police custody may be given only very sparingly. Such a requirement is absent in Section 344. What all the Magistrate can do under this section is that he may remand the accused to custody for a term not exceeding 15 days at a time. If this custody also include police custody, there is no reason to suppose that the Magistrate would not have been required to give his reasons therefore. The place in the Code where Section 344 occurs also points out that what is contemplated by Section 344 is only Court or jail custody and not police custody. It is true, as is now settled by the ruling of the Supreme Court in Gauri Shankar v. State of Bihar, 1972CriLJ505 that the power under Section 344 can be exercised even before the submission of the charge sheet and when the investigation is still going on. At the same time, Section 344 comes into play only after the stage contemplated by Section 167 is over. There the police cus ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... which is likely to be placed under the provisions of Section 309 (344 old Code) is likely to put serious hurdles in the way of investigation, the Court observed : We are not impressed by this argument or the possible practical difficulties that may ensue from giving the construction to Section 344, which we are inclined to give. According to the scheme of the Code, the information to the police and their powers to investigate generally precede the Court taking cognizance of an offence. In fact, Section 156 empowers any officer in charge of a Police Station to investigate any cognizable offence without the order of a Magistrate. Section 161 enables any police officer making an investigation to examine orally any person acquainted with the facts and circumstances of an alleged offence. No statement by any person to police officer need be signed and those statements may be used for purposes of contradiction, under Section 162. However, no police officer shall offer any inducement, threat or promise while making investigation. He is even enabled by Section 165 to conduct searches in the course of investigation. He is also enabled to secure search warrants. If all the investigation ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... investigation, even in extraordinary cases. We find nothing in that section which makes an exception and says that in extraordinary cases the Court can remand an accused person to police custody. We are thus unable to agree with the learned Public Prosecutor in thinking that some practical difficulties would ensure if this judicial discretion is not recognised in a Court under Section 344 to entrust the accused to police custody if it becomes necessary. 20. A passage appearing in 1929 Royal Commission on police powers and procedures, while dealing with a proposal that the police should be forbidden from questioning suspects in custody at all, observed : ....... a right to ask question gives rise to an impression of a right to an answer, and ..... the right to an answer seems to create 'a right to the expected answer', that is a confession of guilt. The simple and peaceful process of questioning breeds readiness to resort to bullying and physical force and torture. 21. In the circumstances we find considerable justification in the contention of Shri Jethmalani that the grant of police custody of the petitioner for the purposes of custodial interrogation would ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in respect of the accused who are before the Court. No cognizance can be said to have been taken in respect of the accused who are absconding and are not before the Court. In the circumstances, the bar provided by Section 309 will not come in the way and the order passed by the Designated Court can be justified with reference to powers conferred under Section 167, Criminal Procedure Code. In this context, it is to be noted that, cognizance is taken in respect of an offence and not in respect of an accused. In the case of Dubey v. State of Bihar , 1967CriLJ1081 , the Supreme Court observed (Para 9) : It seems to us that S. 207(a) refers back to Section 190(1)(b); in other words, the police report mentioned in S. 207(a) is the report mentioned in S. 190(1)(b), and once cognizance is taken under S. 190(1)(b), a proceeding is instituted within S. 207(a). Hidayatullah, J. speaking for the Court, while considering the interpretation of S. 251-A of the Code of Criminal Procedure in Pravin Chandra Mody v. State of Andhra Pradesh, 1965CriLJ250 , observed as follows : In our judgment the meaning which is sought to be given to a 'police report' is not correct. In S. 190, a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to find out who the offenders, really are and once he comes to the conclusion that apart from the persons sent us by the police some other persons are involved, it is his duty to proceed against those persons. The summoning of the additional accused is part of the proceeding initiated by his taking cognizance of an offence. As pointed out by this Court in 1965CriLJ250 , the term complaint would include allegations made against persons unknown. If a Magistrate takes cognizance under Section 190(1)(a) on the basis of a complaint of facts he would take cognizance and proceeding would be instituted even those persons who had committed the offence were not known at that time. The same positive prevails, in our view, under Section 190(1)(b). Similarly, in the case of Mahesh Chand v. State of Rajasthan , Full Bench of the Jaipur Bench, observed as follows (at pp 62 and 63 AIR) : We would first take up the questions which, in our opinion, admit of simple and straight answers. Let us take up question 4 which is : Whether cognizance of an offence can be taken in the absence of the accused ? This question must straightway be answered in the affirmative, and we answer it accordingl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... covery of further particulars. If it was permissible to take cognizance of the same offence repeatedly, then it was unnecessary for the Legislature, to have put Section 319 on the Statute Book as it would be redundant. The policy of the Legislature appears to be that when cognizance is taken of the offence, the Court taking cognizance will taken cognizance of the offence as such and not merely the particulars of the persons who are alleged to have committed the offence. In a given case the complainant may not even know the names and other particulars of the offenders and it would therefore be sufficient for him to lodge a complaint making persons who are known offenders as the accused. When such a trial proceeds against the known accused, if the evidence led in the trial discloses offences committed by other persons who could be tried along with the accused, then Section 319 comes into play and it would be permissible for the Court to exercise its powers thereunder. 25. It was next sought to be contended by Shri Lambay that the petitioner in the instant case has not been apprehended by the police but has been brought in execution of a warrant of a Court. According to him, as a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... preferred within a period of thirty days from the date of the judgment, sentence or order appealed from : Provided that the Supreme Court may entertain an appeal after the expiry of the said period of thirty days if it is satisfied that the appellant had sufficient cause for not preferring the appeal within the period of thirty days. According to Shri Lambay, the petitioner can, under sub-section (1), of Section 19, file an appeal to the Supreme Court. According to him, the order directing police custody is not an interlocutory order but a final order and hence an appeal to the Supreme Court is not barred, under sub-section (2) of Section 19. Even if it is required to be held that it is an interlocutory order, it is open to the petitioner to approach the Designated Court to vary the order as the principles analogous to res judicata will not apply to interlocutory orders. In any event, since an alternative efficacious remedy is open to the petitioner, it would not be open for us to exercise our extraordinary jurisdiction under Arts. 226 and 227 of the Constitution of India. 29. Shri Lambay relied on a decision of this Court, in the case of Prashant Kumar v. Mancharlal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s, it was held that an order framing a charge against an accused was not a final order but an interlocutory order within the meaning of Section 11(1) of the Special Courts Act, 1979 and therefore not appealable. It cannot be doubted that the grant or refusal of a bail application is essentially an interlocutory order. There is no finality to such an order for an application for bail can always be renewed from time to time. It is however contended that the refusal of bail by a Designated Court due to the non-fulfilment of the conditions laid down in Section 20(8) cannot be treated to be final order for it affects the life or liberty of a citizen guaranteed under Art. 21. While it is true that a person arraigned on a charge of having committed an offence punishable under the Act faces a prospect of prolonged incarceration in view of the provision contained in Section 20(8) which places limitations on the power of a Designated Court to grant bail, but that by itself is not decisive of the question as to whether an order of this nature is not an interlocutory order. The Court must interpret the words 'not being an interlocutory order' used in Section 19(1) in their natural sens ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s the impugned order of committing the petitioner to police custody. It has been laid down by the Supreme Court in the case of Dr. Smt. Kuntesh Gupta v. Management of Hindu Kanya Mahavidyalaya, Sitapur (U.P.) 1987(32)ELT8(SC) as under (at pp 2188-89 of AIR) : The next question that falls for our consideration is whether the High Court was justified in dismissing the writ petition of the appellant on the ground of availability of an alternative remedy. It is true that there was an alternative remedy for challenging the impugned order by referring the question to the Chancellor under Section 68 of the U.P. State Universities Act. It is well established that an alternative remedy is not an absolute bar to the maintainability of a writ petition. When an authority has acted wholly without jurisdiction, the High Court should not refuse to exercise its jurisdiction under Art. 226 of the Constitution on the ground of existence of an alternative remedy. In view of the above observations we find no substance in the contention of Shri Lambay that the order of the Designated Court may be wrong in law but cannot be said to be without jurisdiction and hence is not amenable in writ jur ..... X X X X Extracts X X X X X X X X Extracts X X X X
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