RAJARAM JAGBASI PASWAN v. STATE OF GUJARAT

CORAM : HONOURABLE MR.JUSTICE H.B.ANTANI Date : 24/07/2008 CAV JUDGMENT

1. RULE. Learned Additional Public Prosecutor Mr. K. T. Dave waives service of Rule for the respondent-State.

2. This petition is directed against the order dated 18- SCR.A/164/2008 JUDGMENT 01-2008 passed by the learned IVth Additional Senior Judicial Magistrate (First Class), Nadiad, by which the learned Magistrate has granted police remand of the petitioner for a period of 3 days.

3. Learned Advocate Mr. Tejas Barot for the petitioner submitted that the petitioner has been working with BSNL as a Phone Mechanic since last 21 years. He has got unblemished service record and he is working with sincerity and diligence. At the material point of time, the petitioner was discharging his duties as a Store Lineman. The petitioner was required to take Casual Leave on 25-10-2007 and, therefore, he made an application on 24-10-2007 for Casual Leave and same was granted by the competent authority. When the petitioner went on leave, the key of the stores was given to the higher authority as per the procedure. When the petitioner returned from leave and opened the stores, he found that 100 pairs of underground cable having length of 27 meters were missing. The petitioner immediately informed the higher authority. Although the petitioner informed the higher authority about the loss of the cable wires, the Department issued a Memorandum dated 14-11-2007 along with the statement of imputation of misconduct under the provisions of BSNL CBA Rules calling SCR.A/164/2008 JUDGMENT upon the petitioner to give explanation of the charges which were levelled against him. The petitioner gave reply dated 16- 11-2007 and denied the allegations made against him and submitted that he was innocent and had no role to play in the loss of the cable. However, after long period, FIR bearing C. R. No. I-190 of 2007 was lodged on 01-12-2007 with Chaklasi Police Station, Nadiad for the offences punishable under Section 381 of the Indian Penal Code. The petitioner, apprehending his arrest in connection with the said offences, preferred anticipatory bail application before the learned Additional Sessions Judge, Kheda. The learned Sessions Judge, Kheda was pleased to grant anticipatory bail to the petitioner. However, the Investigating Officer filed an application under Section 167 of the Code of Criminal Procedure before the learned Magistrate seeking remand of the petitioner for 5 days. After considering the application filed by the Investigating Officer, the learned Magistrate was pleased to grant remand for 3 days. The learned Counsel for the petitioner submitted that considering the provisions of Section 167 of the Criminal Procedure Code, the learned Judge ought not to have granted remand. The learned Advocate submitted that custodial interrogation cannot be given in order to make further inquiry into the theft or to have further investigation or interrogation SCR.A/164/2008 JUDGMENT from the petitioner. The learned Advocate submitted that on bare perusal of the order passed by the learned Magistrate, it becomes clear that the learned Magistrate has not assigned reasons for granting custodial interrogation of the petitioner and, therefore, the order requires to be quashed and set aside.

4. The learned Advocate for the petitioner has placed reliance on the judgment in the case of Jairajsinh Temubha Jadeja Vs. State of Gujarat, 2002 (1) GLH 645 and submitted that while granting remand of the petitioner, the learned Magistrate has to take into account the fact that the material which is required to be collected cannot be collected without ordering the remand of the petitioner. The learned Magistrate ought to have scrutinized the circumstances and other factors and after arriving at the satisfaction, he could have ordered the detention of the petitioner in the police custody under the provisions of Section 167 of the Code of Criminal Procedure. The learned Advocate submitted that in view of the ratio laid down in the aforesaid judgment, the order of remand is an exception and not rule and, therefore, the Investigating Agency is required to make out a case for remand. Thus, the learned Advocate submitted that in view of the ratio laid down in the aforesaid judgment, no case is made SCR.A/164/2008 JUDGMENT out by the Investigating Agency for custodial interrogation and, therefore, the petition deserves to be allowed and the order passed by the learned Magistrate be quashed and set aside.

5. Learned Additional Public Prosecutor Mr. K. T. Dave representing the State submitted that Section 167 of the Code of Criminal Procedure is clear. The Court has power to grant custodial interrogation if muddamal article which was stolen was not recovered and in order to have further interrogation, the custodial interrogation was required to be given. The learned Advocate submitted that no error is committed by the learned Magistrate in ordering the custodial remand of the petitioner. Even on perusal of the conditions laid down in the anticipatory bail order, the learned Additional Sessions Judge has observed in one of the conditions that if the learned Magistrate grants remand of the applicant, then the order granting anticipatory bail shall be suspended for the period the remand of the applicant has been granted. In view of the aforesaid condition, the learned Magistrate has rightly granted the remand of the petitioner and no interference is called for in the order passed by the learned Magistrate and the petition deserves to be dismissed. SCR.A/164/2008 JUDGMENT

6. Having heard learned Counsel of both the sides and taking into consideration the reasons assigned by the learned Magistrate in the impugned order, it becomes clear that the learned Magistrate has not assigned adequate reasons to remand the petitioner to police custody. The application preferred by the Investigating Agency has urged the learned Magistrate that the cable wire which was stolen was not recovered. The learned petitioner used to keep two keys of the store-room and, therefore, more persons could also be involved in the commission of offence of theft. After the theft of the cable wire, it was also required to be ascertained as to whom it was given by the petitioner and, therefore, the prayer was made by the Investigating Agency seeking custodial remand. However, on perusal of the order passed by the learned Magistrate, nowhere the learned Magistrate has considered as to on what ground the custodial remand of the petitioner is required to be given. It is mentioned in the order by the learned Magistrate that without custodial remand, further inquiry cannot be made. Save and except the aforesaid reasoning, no other reasoning is given by the learned Magistrate while granting police remand. As the reasoning given by the learned Magistrate is not adequate enough to grant police remand and considering the ratio laid down by our SCR.A/164/2008 JUDGMENT High Court in the judgment discussed hereinabove, the impugned order, in my considered view, is required to be quashed and set aside.

7. The fact that the petitioner was on Casual Leave on 25-10-2007 when the incident of theft is alleged to have taken place and it is the petitioner who informed about the theft of cable wires to his higher authority on resumption of duty needs consideration. Under such circumstances, it is just and proper that instead of granting police remand of the petitioner, the Investigating Agency can call upon the petitioner and questions him as to where the cables which were stolen had gone and to whom it was given in a free atmosphere.

8. For the foregoing reasons and in the peculiar facts and circumstances of the case, the petition is allowed. The order dated 18-01-2008 passed by the learned IVth Additional Senior Judicial Magistrate (First Class), Nadiad is hereby quashed and set aside. However, it would be open to the Investigating Agency to call the petitioner and have the interrogation about the cable wires which were stolen from the store-room. The petitioner shall give full cooperation to the Investigating Agency and he shall report to the Investigating SCR.A/164/2008 JUDGMENT Officer as and when he is called for interrogation.

9. Rule made absolute. Ad interim relief made absolute. The petition stands disposed of accordingly. [H. B. ANTANI, J.] /shamnath