TMI Blog2012 (7) TMI 1107X X X X Extracts X X X X X X X X Extracts X X X X ..... matter where the alleged accused had been enlarged on bail and the dispute had practically come to an end when the complainant had arrived at a compromise with the accused persons and subsequently withdrew the complaint; yet the investigation was revived at the instance of a stranger, namely, Randhirsing Deepsing Parmar who admittedly is a third party unconnected with the dispute and is alleged to have demanded money from the appellants by taking undue interest in the matter and getting the investigation revived without the consent of the complainant who herself had entered into a compromise with the appellant and had not sought revival of the complaint. Be that as it may, the fact remains that the learned Magistrate as also the High Court appears to have adopted a casual or a mechanical approach permitting police remand of the appellants without scrutinizing the reasons ignoring the fact that the appellants had already been enlarged on bail by the High Court and the dispute with the complainant Surjaben who had lodged the complaint had already been settled. Thus, the existing facts and circumstance prima facie were clearly not so grave or extraordinary justifying police remand wh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... said land, she came to know that one Satyajitbhai Ballubhai Desai forged and created a bogus power of attorney at the instance of the owner of the property in the name of one Jaydipbhai Ranchhodbhai Solanki who is a fictitious person and on the basis of the bogus and fabricated power of attorney, he got executed a registered sale deed on 2.8.2003 in favour of a 3rd party without the knowledge of the complainant. The learned Magistrate sent the matter for investigation to the police which registered it as Talod M.Case No.1/2004. 4. The complainant apart from filing the complaint against the appellants also instituted a Regular Civil Suit No. 15/2004 in the court of learned Civil Judge (Jr. Division), Valod against the appellant No.1 herein for declaration, permanent injunction and cancellation of registered sale deed executed on 2.8.2003. However, on appearance of the appellant No.1 in the civil suit, a compromise came to be arrived at between the appellant No.1 Satyajit Ballubhai Desai and the complainant Surjaben wherein the parties agreed that the criminal complaint filed by the complainant will be withdrawn unconditionally. The learned Civil Judge accepted the said compromise an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Civil Judge and Judicial Magistrate First Class, Valod permitting police remand of the appellants for three days against which the appellants moved the High Court whereby a stay against the order of police remand was passed in favour of the appellants herein. However, when the matter was heard finally, the High Court upheld the order passed by the magistrate permitting police remand of the appellants for a period of three days in view of the investigation which was conducted in regard to the case lodged by the complainant-Surjaben, finally giving rise to a case before the police for investigation at the instance of a third party, namely, Randhirsing Deepsing Parmar who was a stranger to the dispute. 8. The appellants feeling aggrieved with the order passed by the High Court and the JMIC permitting police remand of the appellants for a period of three days has challenged this order in this appeal essentially on the ground that the order granting police remand of the appellants are not based on valid or justifiable reason on the part of the investigating agency and hence the same encroaches on the personal liberty of the appellants as the appellants have never tried to scuttle the i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ermitted limited police custody. 11. It may, therefore, be noted that Article 22 (2) of the Constitution of India and Section 57 of the Cr.P.C. gives a mandate that every person who is arrested and detained in police custody shall be produced before the nearest magistrate within a period of 24 hours of such arrest excluding the time necessary for the journey from the place of arrest to the court of the magistrate and no such person can be detained in the police custody beyond the said period without the authority of a magistrate. These two provisions clearly manifest the intention of the law in this regard and therefore it is the magistrate who has to judicially scrutinise circumstances and if satisfied can order detention of the accused in police custody. The resultant position is that the initial period of custody of an arrested person till he is produced before a Magistrate is neither referable to nor in pursuance of an order of remand passed by a Magistrate. In fact, the powers of remand given to a Magistrate becomes exercisable only after an accused is produced before him in terms of sub section (1) of Section 167 Cr.P.C. 12. The Judicial Magistrate thus in the first instance ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ace of arrest to the Magistrate s court can be excluded from the prescribed period of 24 hours. Since sub section (1) provides that if the investigation cannot be completed within the period of 24 hours fixed by Section 57 the accused has to be forwarded to the Magistrate alongwith the entries in the Diary, it follows that a police officer is entitled to keep an arrested person in custody for a maximum period of 24 hours for purposes of investigation. In the landmark judgement of C.B.I. Vs. Anupam J. Kulkarni (1992) 3 SCC 141, it was held that the law does not authorise a police officer to detain an arrested person for more than 24 hours exclusive of the time necessary for the journey from the place of arrest to the magistrate court. Sub-section (1) of Section 167 covers all this procedure and also lays down that the police officer while forwarding the accused to the nearest magistrate should also transmit a copy of the entries in the diary relating to the case. As already stated herein before, the initial period of police custody of an arrested person till he is produced before a Magistrate is neither referable to nor in pursuance of an order of remand passed by a Magistrate. In f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pellants for seven days by filing an application on 29.3.2011 which was allowed by the Principal Civil Judge and Judicial Magistrate 1st Class, Valod by order dated 31.3.2011 as apparently the same is beyond comprehension since no reason had been assigned. It is thus obvious that an extremely casual approach has been adopted by the Judicial Magistrate permitting such police remand overlooking the legal position and yet the High Court has also confirmed it overlooking and ignoring two very important aspects - first one being that the complainant although had withdrawn the complaint, the investigation was revived at the instance of a third party namely Sri Parmar who was wholly unconnected with the case and secondly that the appellants although had been enlarged on bail by the High Court in the case for which investigation had been revived, yet police remand was sought only six days after the grant of bail. In spite of these glaring inconsistencies writ large on the matter, the Judicial Magistrate allowed the request of the investigating authorities seeking police remand of the appellants without judicially scrutinizing and disclosing a single circumstance as to why it was so essenti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... who was already granted bail but also the magistrate nullifying the order of the High Court granting bail even if it was for a period of three days only. In fact when the accused had been enlarged on bail by the High Court, it was all the more essential initially for the police authorities and thereafter by the magistrate to disclose and assign convincing reasons why investigation could not proceed further without seeking police remand of the accused and in case police remand was sought on any ground of interference with the investigation in any manner alleging influencing the witnesses or tampering with the evidence in any manner, straightaway it could have been a case for cancellation of bail of the accused and the magistrate could have directed the police authorities to approach the High Court seeking cancellation or any other appropriate direction. What is sought to be emphasized is that the disclosure of reasons by the magistrate allowing police remand specially in a matter when the accused has been enlarged on bail by the High Court is all the more essential and cannot be permitted in absence of a valid and sufficiently weighty reason seeking such custody as it clearly affec ..... X X X X Extracts X X X X X X X X Extracts X X X X
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