High Court
Facts
902WP1905-24.odtIN THE HIGH COURT OF JUDICATURE OF BOMBAYBENCH AT AURANGABAD902 CRIMINAL WRIT PETITION NO. 1905 OF 20241. Meena Ashok Gabda,Age : 58 years, Occu. Household,R/o : Block No.F-2, Room No.9/10,Kumar Nagar, Sakri Road, Dhule …..PETITIONER (Orig. Complainant)VERSUS1.Manoj Gopaldas Taneja,Age : 55 years, Occ: Labour,R/o: Kumar Nagar, Sakri Road,Dhule2.Mahak Sunil @ Dattan Popali,Age: 32 years, Occ: Labour,R/o: As above3.Dattan @ Sunil Davram @ Gopaldas PopaliAge: 61 years, Occ:Labour,R/o: As above4.Mohit Sunit @ Dattan PopaliAge: 31 years, Occ: LabourR/o : As above5.The State Of Maharashtra6.S.S. Jadhav,Investigating Officer,Dhule City Police Station, Dhule (Respondent No.6 deleted as per Court’s order dt:25.11.2024) ...RESPONDENTS…..Mr. Satyajit S Bora, Advocate for Petitioner Mr. H.V. Tungar, Advocate for Respondent Nos. 1 to 4 Mr. V. M. Chate, Advocate for Respondent No.5 - State…. 1 of 12 (( 2 ))902WP1905-24CORAM: Y. G. KHOBRAGADE, J.RESERVED ONPRONOUNCED ON:: 13.12.2024 20.12.2024 JUDGMENT :- 1. Rule. Rule made returnable forthwith. With the consent ofboth the sides, it is heard finally at the stage of admission.2.By the present Petition, the Petitioner/Informant invokedjurisdiction of this Court under Article 227 of the Constitution of Indiaread with Section 528 of the Bharatiya Nagarik Suraksha Sanhita andtakes exception to the order dated 15.11.2024 passed by the learnedAdditional Sessions Judge, Dhule in Criminal Revision Application No.74of 2024.3.Facts giving rise to the present Petition are that on03.11.2024, the Petitioner/Informant lodged an F.I.R No.513 of 2024,alleging that, Jitendra Taneja, Auto Rikshaw driver started loud musicon his Auto Rikshaw at midnight on 02.11.2024, therefore, he and otherresidents asked Jitendra Taneja to stop the music, but he was annoyed.It is further alleged that, on 02.11.2024 at about 11.30 p.m. her sonManjit was bursting fire crackers with her grand children and she wassitting on stair of her house, at that time the accused Jitendra came in 2 of 12 (( 3 ))902WP1905-24front of her house and again started playing music loudly and abusedher son. Therefore, she visited the accused Jitendra but the accusedcaught her hand with intention to outrage her modesty. At that timeother accused i.e., Respondent Nos.1 to 4 came there. The accusedRespondent No.1 Manoj Taneja was holding knife in his hand and gave ablow of knife on head and back of Kapil. The accused No.4 Mohitassaulted with the stick to Manjit, whereas Respondent No.2 Mahak beatIshant with stick and other accused assaulted with kicks and fist blows.On the basis of said report, a Crime No.513 of 2024 registered againstthe accused persons for the offences punishable under Sections 74,118(1), 189(2), 191(1), 191(2), 190, 352 of Bhartiya Nyaya Sanhitaand Section 37(1)(3) and 135 of the Maharashtra Police Act.4.On 03.11.2024, the Investigating Officer arrested theaccused Respondent Nos.1 to 4 and produced before the learned In-charge Chief Judicial Magistrate, Dhule on 04.11.2024 with writtenapplication seeking remand of the Respondents accused for a period of 5days with reasons that, the accused have committed an offence andweapons need to be recovered, however, the learned In-charge ChiefJudicial Magistrate refused to grant PCR of the accused persons andremanded them in MCR on 10.11.2024 because there is no question ofrecovery. 3 of 12 (( 4 ))902WP1905-245.Being aggrieved by the said order, the Petitioner de factocomplainant approached before the learned Sessions Court by filingCriminal Revision Application No.74 of 2024. On 15.11.2024, thelearned Additional Sessions Judge, Dhule passed the impugned orderand dismissed the Revision because it is not maintainable. 6.The learned counsel appearing for the Petitioner submitsthat the Petitioner lodged a F.I.R on 03.11.2024 and specifically allegedthat the accused Respondent No.1 Manoj Taneja assaulted with knife onthe head and back of Kapil, Mohit Respondent No.4 assaulted with stickto Manjit, whereas accused No.2 Mahak beat Ishant with stick and otheraccused persons assaulted with kicks and fist blows. Therefore, recoveryof knife and sticks are necessary. Therefore, the learned In-charge, ChiefJudicial Magistrate ought to have remanded the accused persons inpolice custody for recovery of the weapons because the InvestigatingOfficer submitted the report on 12.11.2024 and insisted for remand ofthe Respondents accused for recovery of weapons. The Respondents/accused persons have not produced knife and sticks, which have beenused while committing the offence. Therefore, it is obligatory on the partof the learned Magistrate to remand the accused persons in Policecustody for recovery of weapons, however, the learned In-charge ChiefJudicial Magistrate failed to consider prayer of the Investigating Officer. 4 of 12 (( 5 ))902WP1905-24Therefore, no recovery of weapons have been effected, hence, prayed forquashing and setting aside the order dated 04.11.2024 passed by thelearned Magistrate and to remand the Respondent/ Accused persons inpolice custody. 7.To buttress this submission, the learned counsel appearingfor the Petitioner relied on the case of Central Bureau of InvestigationVs. Vikas Mishra, AIR 2023 SC 1808, wherein para Nos. 7.1 and 8 areas under: “7.1.It is true that in the case of Anupam J. Kulkarni(supra), this Court observed that there cannot be anypolice custody beyond 15 days from the date of arrest. Inour opinion, the view taken by this Court in the case ofAnupam J. Kulkarni (supra) requires re-consideration.When we put a very pertinent question to Shri NeerajKishan Kaul, learned Senior Counsel appearing on behalfof the Respondent-Accused that in a given case it mayhappen that the learned trial/Special Court refuses togrant the police custody erroneously which as such wasprayed within 15 days and/or immediately on the dateof arrest and thereafter the order passed by thetrial/Special Court is challenged by the investigatingagency before the higher Court, namely, Sessions Courtor the High Court and the higher Court reverses thedecision of the learned Magistrate refusing to grant thepolice custody and by that time the period of 15 days isover, what would be position? The learned SeniorCounsel is not in a position to answer the court query.8.Be that as it may, the facts in the present case arevery glaring. Despite the fact that on 16.04.2021, thelearned Special Judge allowed police custody of the 5 of 12
Legal Reasoning
(( 9 ))902WP1905-24aggrieved, is the State, which is the custodian of social interestsof community is allowed.”13. In case in hand, it prima facie appears that, on03.11.2024 at about 10.49 hours a Crime No.513 of 2024 has beenregistered with Dhule city Police Station against the presentRespondents for the offences punishable under Sections 74, 118(1),189(2), 191(1), 191(2), 190, 352 of Bhartiya Nyaya Sanhita, 2023 andSection 37(1)(3) and 135 of the Maharashtra Police Act. 14.It is matter of record that the Investigating Officer arrestedthe Respondent/Accused persons on 03.11.2024 and they wereproduced before the Chief Judicial Magistrate, Dhule on the next day i.e.on 04.11.2024. On production of the Respondents/accused, theInvestigating Officer submitted an application seeking remand of theRespondent/ Accused in police custody for recovery of knife and sticksused while committing the offence. The Respondents avoided to giveanswer about recovery of knife and stick. However, the learned JudicialMagistrate passed an order dated 04.11.2024 and remanded theRespondents/ accused to MCR till 16.11.2024 holding that there is acounter case and there is no question of recovery.15.No doubt, the Petitioner/Informant questioned the legalityand validity of order of remand to MCR in Criminal Revision Application 9 of 12 (( 10 ))902WP1905-24No.74 of 2024. However, on 15.11.2024, learned Revisional Courtpassed the impugned order holding that the Revision is not maintainableagainst the order of sending the accused in MCR.16.Sub-Section 2 of Section 187 of Bhartiya Nyay Sanhita,2023 provides as under;“The Magistrate to whom an accused person is forwarded underthis section may, irrespective of whether he has or has nojurisdiction to try the case, after taking into consideration whethersuch person has not been released on bail or his bail has beencancelled, authorise, from time to time, the detention of theaccused in such custody as such Magistrate thinks fit, for a termnot exceeding fifteen days in the whole, or in parts, at any timeduring the initial forty days or sixty days out of detention period ofsixty days or ninety days, as the case may be, as provided in sub-Section (3), and if he has no jurisdiction to try the case or commitit for trial, and considers further detention unnecessary, he mayorder the accused to be forwarded to a Magistrate having suchjurisdiction.”17. Considering the provisions of Section 187(2) of BharatiyaNyaya Sanhita, the accused cannot be remanded in PCR after a lapse of15 days period from the date of arrest of the accused. In the case of ThePublic Prosecutor, High Court of A.P., Hyderabad Vs. J. C. NarayanaReddy and Another, 1996 Cri. L.J. 462, it is held that, the Magistrate canauthorise the detention of the accused either in police custody or judicialcustody from time to time but the total period of such detention cannot 10 of 12 (( 11 ))902WP1905-24be exceeded more than 15 days. In the case of Ambarish Patnigere cited(supra), it is held that rejecting request for police custody cannot betreated as an interlocutory order and the police custody may be grantedonly during first 15 days after the arrest or the detention of the accusedunder Section 167 of Criminal Procedure Code which is pari materiawith Section 187(2) of Bhartiya Nyaya Sanhita, 2023.18. In the case in hand it appears that, on 03.11.2024, CrimeNo.513 of 2024 was registered against the present Respondents and onthe same day, the present accused persons came to be arrested.Thereafter, on 04.11.2024, the Respondents/ Accused were producedbefore the Chief Judicial Magistrate, Dhule. The Investigating Officersubmitted an application with prayer for remand of Respondents/accused to the police custody for recovery of weapon knife and sticks,however, said prayer came to be turned down only on the ground thatthere are two counter F.I.Rs., and there is no question for recovery andno need of custodial interrogation. 19.It is settled principal of law that after a lapse of 15 daysfrom the date of arrest, the accused cannot be remanded in policecustody to effect recovery under Section 187(2) of the Bhartiya NyayaSanhita, 2023. Nonetheless, the informant de facto complainant ishaving no right to challenge the order of remand of the accused in 11 of 12 (( 12 ))902WP1905-24Magisterial custody, therefore, I do not find any bona fide andsubstantial reasons to interfere with the impugned order. Hence, theWrit Petition is dismissed. Accordingly, the Rule is discharged. [ Y. G. KHOBRAGADE, J. ] HRJadhav 12 of 12
Arguments
(( 6 ))902WP1905-24Respondent- Accused for seven days i.e., up to22.04.2021, the Respondent-Accused got himselfadmitted in the hospital during the period of policecustody, i.e., on 18.04.2021 and obtained interim bail on21.04.2021 which came to be extended till 08.12.2021when his interim ball came to be cancelled by thelearned Special Judge by observing that the Accused hasmisused the liberty shown to him and during the interimbail he has not cooperated with the investigating agency.At the cost of repetition, it is observed that initial orderof grant of seven days police custody attained finality.However, due to the aforesaid reasons of having got theAccused himself hospitalised on 18.04.2021 andthereafter obtaining the interim bail on 21.04.2021, theCBI could not interrogate the Accused in the policecustody though having a valid order in its favour. Thus,the Respondent-Accused has successfully avoided the fulloperation of the order of police custody granted by thelearned Special Judge. No Accused can be permitted toplay with the investigation and/or the court's process.No Accused can be permitted to frustrate the judicialprocess by his conduct. It cannot be disputed that theright of custodial interrogation/investigation is also avery important right in favour of the investigating}agency to unearth the truth, which the Accused haspurposely and successfully tried to frustrate. Therefore,by not permitting the CBI to have the police custodyinterrogation for the remainder period of seven days, itwill be giving a premium to an Accused who has beensuccessful in frustrating the judicial process.”8.Per contra, the Respondent Nos.1 to 4 filed their reply andstrongly resisted the petition. The learned counsel appearing for theRespondents canvassed that, Manoj Gopaldas Taneja, the presentRespondent No.1 lodged a report on 03.11.2024 alleging that, the 6 of 12 (( 7 ))902WP1905-24accused persons, namely, (1) Manjit Ashok Gabda, (2) Ravi SureshMotwani, (3) Pankaj Jiseja and (4) Ishan Ashok Gabda have set on firetwo motor cycles of complainant, therefore, Crime No. 512 of 2024registered against them for the offence punishable under Sections326(f), 109, 324(4), 3(5) of Bharitya Nyaya Sanhita, 2023. However,counter FIR registered against Ishan, who beat Mahak with brick, Manjitwho beat Mohit with brick on head and Pankaj who assaulted Jitendrawith knife. The injured Respondent Nos.2 Mahak and Respondent No.Mohit are medically treated in the hospital.9.The learned counsel for the Respondents further submittedthat, the Petitioner has filed present petition after lapse of 15 days fromthe date of arrest of the Respondents and the learned Magistrateremanded the Respondents in MCR by refusing the PCR. Therefore, afterlapse of 15 days from the date of arrest, the Respondents can not beremanded in PCR, hence, prayed for dismissal of the Petition. 10.The learned counsel appearing for the Respondent Nos.1 to4 canvassed that the right given to the informant is very limited andwithout seeking permission to assist the prosecution under Section 338of Criminal Procedure Code, the informant de facto complainant has noright to participate in the trial. The trial commenced from framing ofcharge. Therefore, the Petitioner/Informant has no right to challenge the 7 of 12 (( 8 ))902WP1905-24order or remanding the Respondents/ Accused in MCR. 11. The learned counsel for the Respondents placed reliance onthe case of Ambarish Patnigere Vs. State of Maharashtra, 2010 ALL MR(Cri) 2775, wherein, it has been held that:“The learned Judge of this Court in R. Shakuntala, finallycame to conclusion that an order rejecting application forremand of the accused to judicial custody is a final order andnot an interlocutory order. This will be applicable with equalforce to the refusal or request for police custody also. As such,the order passed by the Magistrate rejecting request for policecustody cannot be treated as interlocutory order because thepolice cannot repeat and make applications again and againfor police custody after the application for police custody hadbeen rejected once and particularly in view of the limitationunder Sec. 167, Cr.P.C. that the police custody may be grantedonly during the first 15 days after the arrest or detention andnot thereafter. If such application for police custody is rejected,that order becomes final and the Investigating Officer ispermanently deprived of seeking police custody of thataccused for the purpose of further investigation, discovery,etc., even though the offence may be very serious.”12.It further relied on the case of Tukaram Vs. State of Bihar,AIR 1966 SC 911, wherein, it has been held that:“Criminal law is not to be used as an instrument of wreckingprivate vengeance by aggrieved party against a person who,according to private party, had caused injury to him. Barringfew exceptions in criminal matters, the party who is treated as 8 of 12