TMI Blog2022 (9) TMI 45X X X X Extracts X X X X X X X X Extracts X X X X ..... d 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 - sub-section (2) of Section 167 makes it clear that a Magistrate can grant such custody as he thinks fit which means he can grant either police custody or judicial custody. The Investigating Officer is empowered with the provisions of law to investigate thoroughly. Thorough investigation is the base on which the superstructure of the entire criminal jurisprudence exists. The entire criminal trial depends on a material evidence collected during the course of investigation. If, by any means, the investigation is not allowed to be made thoroughly, in that event, the Court would not be in a position to arrive at a just conclusion - the investigation is the heart of the criminal jurisprudence based on which the Criminal Court proceeds to do justice. Thus, the investigation is considered to be the most crucial element in criminal trial. In other words, with the assistance of the able and effective investigation, the Criminal Court can achieve its paramount goal to impart substanti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... brought to the notice that the petitioner along with mastermind accused namely Mohammad Abbas Rafikali Meghani have created bogus firm, through which, without transportation of any goods and only by issuing of invoices and duty bills, passed on the Input Tax Credit and indulged into the economic offences. It is further alleged that the petitioner accused, in connivance with other co-accused, have operated the bogus firm and credited bogus invoices / bills to the extent of Rs.74,07,63,818/- and thereby, has caused loss to the government treasury to the extent of Rs.11,29,97,870/-. It is further alleged that the accused has admitted that he has got the bills/invoices from the certain firms for the purpose of showing purchase. [3] Thus, the petitioner came to be arrested on 6th July 2022 and produced before the concerned learned Magistrate, Jamnagar on the same day with an application for seeking remand for 14 days to find out the real truth and from where the petitioner accused got bogus invoices / bills and with a view to unearth the big racket of economical offence, the custodial interrogation of the petitioner is required. However, the learned Magistrate, Jamnagar, vide it ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ssions Judge is perfectly justified and within the four corners of the provisions of Section 167 of the Code of Criminal Procedure, 1973 (for short, the Cr.P.C. ), and thereby, Mr. Amin requested this Court not to interfere with the order passed by the learned Sessions Judge. Mr. Amin submitted that the order dated 6th July 2022 not granting police custody was challenged within one day i.e. on 8th July 2022 and the said application was fixed on 11th July 2022 and on that date, the matter was partly heard and then, adjourned to 15th July 2022. Mr. Amin submitted that on 15th July 2022, again, the matter was heard and the State Tax Officer submitted his written submissions and thereafter, on request of both the sides, the matter was adjourned to 20th July 2022. On 20th July 2022, the matter was finally heard and was kept for orders on 22nd July 2022. Mr. Amin, accordingly, submitted that the State has not wasted any undue time and acted promptly and precipitated the matter almost day-to-day, therefore, merely because the order passed after completion of initial period of 15 days of arrest would not take away the crucial right of the investigation to investigate the matter effectivel ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... not 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, the officer in charge of the police station or the police officer making the investigation, if he is not below the rank of sub- inspector, shall forthwith transmit to the nearest Judicial Magistrate a copy of the entries in the diary hereinafter prescribed relating to the case, and shall at the same time forward the accused to such Magistrate. (2) The Magistrate to whom an accused person is forwarded under this section may, whether he has or has not jurisdiction to try the case, from time to time, authorise the detention of the accused in such custody as such Magistrate thinks fit, for a term not exceeding fifteen days in the whole; and if he has no jurisdiction to try the case or commit it for trial, and considers further detention unnecessary, he may order the accused to be forwarded to a Magistrate having such jurisdiction: Provided that- (a) the Magistrate may authorise the detention of the accused person, otherwise than in the custody of the police, beyond the period of fifteen days; if he is satis ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ll be released on bail except where an order for further detention of the accused person has been made by a Magistrate competent to make such order; and, where an order for such further detention is made, the period during which the accused person was detained in custody under the orders made by an Executive Magistrate under this sub- section, shall be taken into account in computing the period specified in para- graph (a) of the proviso to subsection (2): Provided that before the expiry of the period aforesaid, the Executive Magistrate shall transmit to the nearest Judicial Magistrate the records of the case together with a copy of the entries in the diary relating to the case which was transmitted to him by the officer in charge of the police station or the police officer making the investigation, as the case may be. (3) A Magistrate authorising under this section detention in the custody of the police shall record his reasons for so doing. (4) Any Magistrate other than the Chief Judicial Magistrate making such order shall forward a copy of his order, with his reasons for making it, to the Chief Judicial Magistrate. (5) If in any case triable by a Magistrate a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rise detention in custody of the police. Thus, sub-section (2) of Section 167 makes it clear that a Magistrate can grant such custody as he thinks fit which means he can grant either police custody or judicial custody. [16] While considering the aforesaid provisions of Section 167 of the Cr.P.C., in my considered opinion, one should not be obliviated the rights of the Investigating Officer. Once the offence is disclosed, then it is the right of the police and/or Investigating Officer to investigate such offence and further, it is the discretion of the Investigating Officer to adopt the mode of investigation. It is needless to say that the right to investigate the offence is the statutory right of the Investigating Agency. Thus, the Investigating Officer is empowered with the provisions of law to investigate thoroughly. Thorough investigation is the base on which the superstructure of the entire criminal jurisprudence exists. The entire criminal trial depends on a material evidence collected during the course of investigation. If, by any means, the investigation is not allowed to be made thoroughly, in that event, the Court would not be in a position to arrive at a just conclusio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rrest is over without there being any order of remand either in judicial or police custody, the accused can claim that no remand be ordered as of right. In my view, recognising the initial period of 15 days has to be from the date of arrest and first remand of the accused. In such peculiar facts, in my view, expiry of the initial period of 15 days would not be any help to the present petitioner. Thus, the submission of the learned Senior Counsel for the petitioner accused that there cannot be any order of remand on expiry of 15 days from date of arrest, is not acceptable. I say so because there can be many situations where the question of remand may not be decided initially for 15 days either by the learned Magistrate or by the Revisionist Court or even by the High Court for whatsoever reasons. In my considered opinion, there is no any absolute bar that once the 15 days are over, the Court cannot grant an order of remand. In the instant case, the Investigating Agency appears to have acted all through out very promptly, however, merely because the Revisionist Court passed an impugned order after 15 days are over, the said order of the Revisionist Court cannot be termed as illegal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... judicial custody. Thus, by virtue of the order of the learned Magistrate, in a way, remand of an accused either in police custody or in a judicial custody completely denied, which, in my view, would be prejudicial to the statutory right of the Investigating Officer to investigate the matter thoroughly. It would also be apt to note that the Coordinate Bench of this Court in the case of Kantibhai Devisibhai Patel (supra) has observed in para 39 as under: 39. It has been made clear by the Apex Court that the application seeking police custody is not maintainable after the expiry of fifteen days from the date of arrest and first remand of the accused. As contemplated under Section 167 of the Code, the Magistrate may remand the accused either to judicial custody or grant police custody for limited days if he is satisfied, but once the period of fifteen days of first remand expires, as per the rulings of the Apex Court, the Magistrate is not empowered to pass an order granting police custody. [20] The aforesaid observation, in no uncertain terms, clears the position of law that the application seeking police custody is not maintainable after expiry of 15 days from the date ..... X X X X Extracts X X X X X X X X Extracts X X X X
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