9911796707
TMI Blog2015 (5) TMI 1258X X X X Extracts X X X X X X X X Extracts X X X X ..... n acquired any health problem after his arrest, then it is for the police officer to produce the accused before the Magistrate within twenty four hours after obtaining Medical Certification of the accused from a Government Doctor and thereafter it is for the Magistrate who after authorising the custody of the accused to this specified authority under Section 167(2) Cr.P.C. to take a decision and to give a direction either to prison authorities in case the accused is authorised to be detained in prison or to the police authorities in case the accused is authorized to be detained in police custody, for getting necessary medical aid and to provide necessary medical facilities to the accused so detained. It is not for the police officer to admit the accused in a hospital and to violate legal and constitutional mandate of production of the arrested accused before the Magistrate within twenty four hours of his detention under arrest. Such action on the part of the police officers is likely to lead unscrupulous tendencies like in the present case, where the accused was allowed to remain in hospital from 31.01.2015 to 06.02.2015 after his arrest without production before a Magistrate, till ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... onal Chief Judicial Magistrate, Alipore, South 24-Parganas in connection with case No. RC/04/S/2014-CBI SCB (SIT), Kolkata under Sections 120B/420/406/409 of the Indian Penal Code corresponding to ACGR No. 3482 of 2014 whereby and whereunder the Learned Magistrate allowed the prayer for further detention of the petitioner in police custody. 2. The factual matrix leading to the filing of the instant Revisional Application in brief is that the petitioner was served with a notice under Section 160 of the Cr.P.C. by the Additional Superintendent of Police, CBI, SCB (SIT), Kolkata asking him to appear before the Investigating Authority at CGO Complex, BS Block, Salt Lake, Kolkata on 31.01.2015 at 11 a.m. and on receipt of such notice the petitioner attended the office of the said officer on 31.01.2015 at 11 a.m. The petitioner assisted the process of investigation but surprisingly enough he was informed that he has been arrested by the Opposite Party at 6 p.m. in the evening. Thereafter he was taken to N.R.S. Hospital for medical examination and thereafter he was referred to SSKM hospital wherein he was admitted. Since he was admitted in hospital he was not produced before the Learned M ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... prayer for police remand till 21.02.2015 is bad in law and is liable to be set aside/quashed. He placed reliance on the decision of the Hon''ble Supreme Court reported in 1993 C.Cr.LR (SC)1 (CBI, Special Investigation Cell-1, New Delhi v. Anupam J. Kulkarni and (2015) 1 Supreme Court Cases (Cri) 398 : (2014) 14 Supreme Court Cases 434 (Satyajit Ballubhai Desai and others v. State of Gujarat) in order to substantiate his submission. 5. Mr. Asraf Ali, Learned Counsel appearing for the O.P. on the contrary, contended that since the accused person was not produced in person before the Learned Magistrate on 01.02.2015, the order passed by the Learned Magistrate remanding the petitioner to judicial custody is without jurisdiction and they have already challenged such order before the Learned Sessions Judge, Alipore and such order has been stayed. He further contended that the fifteen days should be counted from the date of production of the accused in person before the Learned Magistrate as per provision of the Clause (b) of the proviso of Section 167(2) Cr.P.C. Therefore, the Learned Magistrate was quite right and justified in passing the order of police remand of the petitione ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the arrest is made: Provided that where the arrested person is a female, the examination of the body shall be made only by or under the supervision of a female Medical Officer, and in case the female Medical Officer is not available, by a female registered Medical Practitioner. (2) the Medical Officer or a registered Medical Practitioner so examining the arrested person shall prepare the record of such examination, mentioning therein any injuries or marks of violence upon the person arrested, and the approximate time when such injuries or marks may have been inflicted. (3) Where an examination is made under Sub-section (1), a copy of the report of such examination shall be furnished by the Medical Officer or registered Medical Practitioner, as the case may be, to the arrested person or the person nominated by such arrested person. 11. Section 55A Cr.P.C. provides that it shall be duty of the person having the custody of an accused to take reasonable care of the health and safety of the accused. The duty under Section 55A is subject to the duty under Section 56 Cr.P.C. Section 56 Cr.P.C. enjoins duty on the Police Officer making arrest to take the person so arrested or send that per ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lace, in the light of the above provisions of the Constitution of India and the Code of Criminal Procedure, 1973. The action/inaction of the said C.B.I. Officer in not producing the accused person in this case before the Magistrate and in allowing the accused person to remain in hospital is in clear violation of the above constitutional and legal provisions. Any custody of the accused beyond twenty four hours without production of the accused before the Magistrate, becomes illegal as well as unconstitutional. When the accused was arrested on 31.01.2015 at 6 p.m. at the office of Additional Superintendent of Police, C.B.I., SCB (SIT), Kolkata, the accused should have been produced before the Magistrate at Alipore immediately thereafter or within reasonable time. Without there being prima facie case against the accused from the evidence collected by the said C.B.I. Officer, he would not have arrested the accused on 31.01.2015 at 6 p.m. Instead of producing the accused before the Magistrate either on the same day or within twenty four hours thereof by 6 p.m. on 01.02.2015 after getting the accused examined by Medical Officer of the Government Hospital, Kolkata either on 31.01.2015 or ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... horities and he was produced on 07.02.2015. Such activity on the part of the police officers will give wrong signals to the society and to the public at large that rich and influential person can manage unscrupulous police officers, so that they need not go either to a Court or to a prison even after arrest while in custody. The said C.B.I. Officer prima-facie committed a Constitutional violation in not producing the accused before the Magistrate within twenty four hours of his arrest. His action/inaction in this regard is highly deplorable. 14. In so far as granting of further police remand of seven days more to the accused in this case by the Learned Magistrate on 15.02.2015 till 21.02.2015, it has to be seen whether it was granted in accordance with law. 15. The Hon'ble Supreme Court in the case of CBI v. Anupam J. Kulkarni (supra) cited by the Learned Advocate appearing for the petitioner has dealt with this point, namely considering the scope of remand under Sections 57 167 of the Cr.P.C. has held thus:-- Having regard to the words in such custody as such Magistrate thinks fit for a term not exceeding fifteen days in the whole occurring in sub-section (2) of section 167 no ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Court emphasized reiterating and restating a view that only during the first remand period of fifteen days the police custody of the accused can be prayed for further investigation. The above said legal position has been further clarified by the Hon'ble Supreme Court in a subsequent and latest decision relied upon by the Learned Counsel for the petitioner (Satyajit Ballubhai Desai Ors. V. State of Gujarat) (supra). 19. In the decision 2010 Cr.L.J. 3849 (SC) : 2010(6) SCC 753 (Devender Kumar and Anr. V. State of Haryana and Ors.) the Hon'ble Supreme Court has further explained the legal position as follows:-- 12. As to the second branch of Mr. Luthra's submissions that a second application for police remand was not maintainable after the dismissal of the first, reference was made to a decision of this Court in CBI v. Anupam J. Kulkarni (1992) 3 SCC 141 : AIR 1992 SC 1768) wherein the provisions of Section 167 Cr.P.C. were gone into in some detail and the very question which is now before us was also considered and it was held that within the first 15 days' period of remand, the Magistrate could direct police custody other than judicial custody, but if the investigat ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
