TMI Blog2016 (4) TMI 1462X X X X Extracts X X X X X X X X Extracts X X X X ..... ng aside the impugned order dated 18.3.2016 rejecting police remand would not cure the prejudice caused to the entitlement of the investigating agency to seek police remand which was scuttled by the said illegal order of the Magistrate. Investigating agency had rightly availed of its valuable right to seek police remand within the first 15 days of detention of the accused but was denied the same due to a wrong order passed by the Court. Applying the maxim actus curiae neminem gravabit to the facts of the case, it is held that such erroneous order cannot defeat the right to seek police remand and the matter is accordingly remitted to the Magistrate for consideration of the prayer for further police remand as if such consideration is being ma ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to the aforesaid proceedings is that a first information report was registered under Section 380 of the Indian Penal Code by the de facto complainant alleging that the petitioner who was an employee of the de facto complainant had committed theft of Rs. 25 lakhs from the room of the de facto complainant while he had gone abroad. In course of investigation, the accused was arrested on 19th November, 2015 and on 20th November, 2015 he was remanded to police custody for a day. On the next day, that is on 21st November, 2015 the prayer for further police remand was not considered and the learned Magistrate released the accused on bail. Such order of bail was assailed before this Court in CRM 11243 of 2015 and by order dated 02.02.2016 a learne ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... h belated stage and in the factual matrix of the case the petitioner is entitled to be released on bail. He relied on (2010) 6 SCC 753 (Devender Kumar Anr. v. State of Haryana Ors.); (1992) 3 SCC 141 (Central Bureau of Investigation, Special Investigation Cell-I, New Delhi v. Anupam J. Kulkarni); and 2005 Vol. 1 Calcutta Criminal Law Reporter 52 (State of West Bengal v. Debanjan Das Ors.) in support of his contention. 5. Per contra, Mr. Bhattacharya, learned counsel for the de facto complainant submitted that the order dated 18.03.2016 was not only perverse but contrary to the direction of this Court in CRM11243 of 2015. He further submitted that the prayer for police custody was illegally refused inasmuch as the first 15 days of detention ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hen the learned Magistrate considered the prayer for further police remand in terms of the direction of this Court, as aforesaid. The learned Magistrate, however, completely misdirected himself and came to a patently erroneous finding that he had no jurisdiction to grant police remand inasmuch as first 15 days of detention of the accused had already lapsed. Such order of the Magistrate being wholly perverse and contrary to the materials on record is, therefore, liable to be set aside. The consequential question is whether the investigating agency is entitled to seek police remand after lapse of 26 days of detention of the accused in custody in the factual matrix of this case. On this score, Mr. Tewari has strenuously argued that the law dec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and turned it down on the erroneously finding that the first 15 days of detention had already passed and accordingly he had no jurisdiction to entertain such prayer. Such finding is wholly perverse inasmuch as the accused was hardly in custody for more than 5 days on 18.03.2016 when the prayer for police remand was considered by the learned Magistrate. Such illegal order was promptly challenged by the de facto complainant on 28th March, 2016 and has also been supported by the investigating agency. It is, therefore, clear that the denial of police custody to the investigating agency in the instant case was not due to any fault on the part of such agency or due to operation of any supervening circumstance beyond the control of the parties, na ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e aforesaid report is of no assistance to the petitioner. Similarly, in Devender Kumar (supra) initially police remand was given within first 15 days of detention. Subsequent police remand was sought for by the investigating agency after the expiry of first 15 days of detention. Such is not the factual situation in the instant case wherein the investigating agency having made its prayer for further police remand within the stipulated time was illegally denied of the same due to erroneous order by the Court. In Debanjan Das (supra) the prayer for police remand was considered after the period of 15 days of initial detention and hence, the said authority is also factually distinguishable from the instant case where the prayer was considered an ..... X X X X Extracts X X X X X X X X Extracts X X X X
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