TMI Blog2012 (8) TMI 1145X X X X Extracts X X X X X X X X Extracts X X X X ..... -56 of 2012 lodged with Pethapur Police Station. (D) Be pleased to pass such other and further orders as may be deemed fit and proper. 1.1 This petition was preferred on 11/07/2012. This Court passed following order on 17/07/2012 in the said petition: Notice to the respondents returnable on 7 t h August, 201 2. Learned APP Mr.H.L. Jani waives service of notice for respondent no.1-State of Gujarat. Ad-interim relief in terms of Para No.15c till then. Direct service is permitted. 2. Before that order was passed, the petitioner was arrested on 16/07/2012. The petitioner was produced before learned JMFC, Gandhinagar at 04:00 p.m. on 17/07/2012. The Police prayed for remand of the petitioner to police custody which was granted by learned JMFC upto 02:00 p.m. of 19/07/2012. The order granting ad-interim-relief in CRMA No.10303 of 2012 in terms of paragraph No.15c was served upon the Investigating Officer and the Investigating Officer, therefore, produced the petitioner before learned JMFC on 19/07/2012 at 11:00 O'clock as per his say in affidavit and the said production report appears to have been recorded by the learned JMFC on 11:55 a.m. on that day (Annexure H) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... accused under Section 167 of the Code can be said to be legal after investigation was stayed. According to him, Section 41 of the Code provides for arrest without warrant in case of cognizable offence by Police. Section 57 of the Code authorises detention for period of 24 hours. However, the detention in police custody or in judicial custody can be authorised in sub-section (2) of Section 167 of the Code, if the investigation is going on and is not completed within 24 hours. Since there is no investigation today, the power of investigation stands eclipsed by virtue of order of this Court passed in CRMA No.10303 of 2012 and, therefore, continued detention of the petitioner is illegal and lacks jurisdiction. 5. Learned APP, Mr.Neeraj Soni appearing on advance copy, on the other hand submitted that it cannot be said that there is no investigation. The investigation is only stayed. The order granting remand of the accused to police custody as well as judicial custody has not been challenged by the petitioner before higher forum and has therefore attained finality and, therefore, this petition may not be entertained. According to Mr.Soni, alternative remedy is available to the petit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 7/2012, the Investigating Officer seems to have informed learned JMFC about the stay granted by the High Court and has attended High Court in connection with anticipatory bail application preferred by the petitioner. It is also not the case of the petitioner that after the service of order of stay, any other investigation has been carried by the Investigating Officer. On 19/07/2012 itself the applicant preferred an application for bail under Section 437 of the Code, which came to be rejected and the accused was remanded to judicial custody and as such the petitioner accused is in judicial custody as on now. It is pertinent to note that the learned JMFC has rightly observed in his order upon bail application that the High Court has stayed further investigation only. 8. It may also be noted that so far as jurisdiction of learned JMFC is concerned, it is nobody's case that he has no jurisdiction to remand the accused to either police custody or judicial custody. The main question that requires to be considered is whether the custody of the petitioner can be said to be illegal as of now. In this context, the main contention is that because the investigation is stayed it has to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ssing of order by learned JMFC. Effectively, the accused was arrested before the order of stay of investigation was passed by this Court and accused was aware about it. We may stop only by observing that the accused did not ask for any relief about his release either on bail or his release from custody in any other manner by order of this Court. Nor did he ask for any relief against passing of an order by learned JMFC. 11.1 The grant of stay of investigation after the arrest of accused cannot be read to mean that accused is to be set free establishing status-quo ante because, even at the time of passing order of staying investigation, the accused was arrested. It would not be possible to interpret the order of stay of investigation that the Investigating Officer should release him from custody, because that is possible only under Section 169 of the Code and, that can be done only at the end of investigation where the Investigating Agency finds that there is no material to send the accused for a trial. In the instant case, the investigation is stayed and, therefore, it is not possible to hold that no material is likely to be unearthed, if the investigation is permitted. 12. Fu ..... X X X X Extracts X X X X X X X X Extracts X X X X
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