STATE OF KARNATAKA v. KALANDAR SHAFI

04-12-2024 passed by the Judicial Magistrate First Class (III Court) Mangalore, by which the Court rejects the requisition of the 5 prosecution for grant of Police custody of the accused. Writ Petition No.33526 of 2024 is preferred by the complainant and Criminal Petition No.13459 of 2024 is preferred by the State.

Heard Sri P.P. Hegde, learned senior counsel appearing for the petitioner the writ petition No.33526 of 2024; Sri B N Jagadeesha, learned Additional State Public Prosecutor appearing for petitioner in Criminal Petition No.13459 of 2024 and for respondent No.1 in writ petition No.33526 of 2024; Sri B.Lethif, learned counsel appearing for respondents 2 and 4 in writ petition and respondents 1 and 3 in Criminal Petition and Sri Hasmath Pasha, learned senior counsel appearing for respondent No.3 in Writ Petition and respondent No.2 in Criminal Petition.

Facts, in brief, germane are as follows:- On 06-10-2024 brother of the original complainant one B.M.Mumtaz Ali dies leading to registration of crime in Crime No.150 of 2024 for offences punishable under Sections 190, 308(2), 308(5), 351(2) and 352 of BNS. Pursuant to registration of crime 6 accused Nos.1 and 5 are arrested and produced before the learned Magistrate, after which, it appears, they were remanded to judicial custody. Subsequently, during investigation on 10-10-2024 accused Nos. 2, 3 and 4 were arrested and produced before the learned Magistrate and were also remanded to judicial custody. On 12-10-2024 the Investigating Officer causes arrest of accused No.6 and produced him before the learned Magistrate who has remanded him to judicial custody. The learned Magistrate then on a requisition made by the Police grants police custody of accused Nos. 1 to 3. In the course of investigation, the prosecution is said to have come across certain voice samples of accused persons which were recorded and which were within the knowledge of the Court. The prosecution then files an application seeking police custody. This comes to be objected to by the accused. On the application and the objection, the concerned Court passes the impugned order by which police custody that is sought by the prosecution comes to be rejected, on the ground that the period of investigation in the case at hand was 60 days and the police custody available in terms of Section 187 of BNSS is within 40 days. Those 40 days having lapsed, there was no warrant to grant police custody is the reason 7 rendered concerned Court reject application/requisition. Challenging these orders, the petitioners- State and the complainant - are before this Court in these petitions.

The learned senior counsel Sri P.P.Hegde, appearing for the complainant and the Additional State Public Prosecutor for the State would vehemently contend that the punishment imposable in the case at hand for an offence of abetment to suicide is ten years. Section 187 of BNSS, which is akin to Section 167 of the earlier regime Cr.P.C., would clearly permit investigation in an offence punishable with ten years or more to 90 days. The period for filing the charge sheet is 90 days and under Section 187 of the BNS if the period of investigation is 90 days, the police custody available in total for 15 days would be between day one to day 60. If it is interpreted that the offences are punishable with less than ten years, the police custody will be for 15 days between day one to day forty. Both the learned counsel would contend that Section 108 of BNS which deals with abetment to suicide is punishable up to ten years. Therefore, it should be construed that it is ten years or more 8 and the police custody must be extended to a period from day one to day 60 and not restricted to day one to day forty.

The learned Additional State Public Prosecutor would however add that many voice samples are procured during investigation which had to be put to the accused for which police custody is imperative. The prosecution has now filed an application to add the offence of abetment for ransom as obtaining under Section 140(2) of BNS which is akin to Section 364 of the earlier regime of IPC which is punishable with death or imprisonment for life. The application is yet to be considered at the hands of the learned Magistrate.

The learned senior counsel Sri P. P. Hegde appearing for the complainant would submit that investigation is yet to complete despite passing of 60 days from registration of crime. However, applications are moved before the concerned Court for grant of statutory bail and these people who have rendered themselves in heinous and horrendous offences will walk out of the prison on erroneous interpretation of Section 187 by the concerned Court. 9

Per-contra, the learned senior counsel Sri Hasmath Pasha appearing for the respondents would vehemently refute the submissions in contending that there is no change in Section 187 of BNSS in comparison to Section 167 of the Cr.P.C. What should be looked into is not Section 167 or 187, it is the offence that is alleged. The offence, in the case at hand, is the one punishable under Section 108 of the BNS which is Section 306 of the IPC. It is punishable up to ten years. If it is punishable up to ten years, the period of investigation is 60 days. If the period of investigation is 60 days, the police custody runs from day one to day forty totally for 15 days. The period is admittedly over. Therefore, the police custody cannot be sought after forty days in terms of Section 187 of BNSS. He would contend that the order of the learned Magistrate does not require any interference. Learned counsel Sri B. Lethif representing other accused would also toe the lines of the learned senior counsel and seek dismissal of these petitions.

I have given my anxious consideration to the submissions made by the respective learned counsel and have perused the material on record. 10

In furtherance whereof, what requires consideration and interpretation is the purport of statutory provisions. At the outset, I deem it appropriate to notice the order that has driven the petitioners to this Court in these petitions. The order reads as follows: “…. …. ….

In the present case accused persons were given to police custody as follows: Accused no.1 Smt. Rehmath and accused no.2 Shohaib were given to police custody From 4.15 PM of 09.10.2024 till 4.15 PM of 17-10-2024 (8 days) Accused by name Abdul Sattar, Kalandar Shafi and Mohammed Musthafa were given to police custody Accused persons by name Smt. Shohaib, Abdul Sattar, Kalandar Shafi and Mohammed Musthafa were given to police custody Accused persons by name Smt. Rehmath, Abdul Sattar and Kalandar Shafi were given to police custody Rehmath, Accused persons by name Smt. Rehmath, Abdul Sattar and Kalandar Shafi were produced From 3.30 PM of 10.10.2024 till 3.30 PM of 17-10-2024 (7 days) Were produced in Home office at 17-10-2024 at 2.45 PM From 3.30 PM of 22.10.2024 till 3.30 PM of 25-10-2024 (3 days) in Open Court on 25-10-2024 at 1.45 PM. 11

In Rakesh Kumar Paul, the Supreme Court by 2:1 majority (Justices Madan B Lokur and Deepak Gupta in majority, Justice Prafulla C Panth in dissent).

In Sec. 187(3) (i) - 90 days where investigation relates to an offence punishable with death, imprisonment for life or imprisonment for a term of 10 years or more.

But in the present case, maximum punishment for the alleged offences are imprisonment either description for a term which may extend to 10 years. This court relied on judgment of Hon'ble Supreme Court In Rakesh Kumar Paul vs. State of Assam and Rajiv Choudary Vs. State (NCT) of Delhi. As per the observation of the Hon'ble Apex Court this case is comes under the category of 187 (3)(ii) of B.N.S.S. Hence, as per the provision of B.N.S.S., I.O. must seek police custody within 40 days from the date of arrest. But in this case, I.O. seeks police custody after the lapse of statutory period. Hence requisition filed by the I.O. is hereby rejected.” The Court records the offences alleged. The offences alleged are the ones punishable under Section 108, 308(2), 308(5), 351(2) and 352 of BNS as on the date of consideration of application for Police custody before the learned Magistrate. The said provisions read as follows:- “108. Abetment of suicide.—If any person commits suicide, whoever abets the commission of such suicide, shall be punished with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine. … … … 12

Extortion.—(1) … (2) Whoever commits extortion shall be punished with imprisonment of either description for a term which may extend to seven years, or with fine, or with both. … … … (5) Whoever commits extortion by putting any person in fear of death or of grievous hurt to that person or to any other, shall be punished with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine. … … …

Criminal intimidation.—(1) … (2) Whoever commits the offence of criminal intimidation shall be punished with imprisonment of either description for a term which may extend to two years, or with fine, or with both. … … …

Intentional insult with intent to provoke breach of peace.—Whoever intentionally insults in any manner, and thereby gives provocation to any person, intending or knowing it to be likely that such provocation will cause him to break the public peace, or to commit any other offence, shall be punished with imprisonment of either description for a term which may extend to two years, or with fine, or with both.” Section 108 of BNS punishes for abetment to suicide which is Section 306 of the earlier regime, IPC. The maximum term of punishment may extend to ten years. Section 308 deals with extortion. Section 308(2) punishes a person who commits extortion by a term up to 7 years and Section 308(5) if it is extortion putting the person in fear of death, the term may extend to ten years. The 13 other two provisions under Sections 351 and 352 have maximum punishment of 2 years. Therefore, the offences alleged in the case at hand, at this juncture, have their punishments to run up to a maximum of ten years and the phrases used “may extend to ten years”.

Therefore, if the prosecution wanting 90 days to file their final report, it will only be for an offence which has minimum sentence of ten years. If the offence now alleged against these accused are noticed, it does not have a threshold minimum sentence of ten years, but it is extendable up to ten years. Therefore, the term can be between one year to ten years. If it is one year to ten years, Section 187(3) of BNSS cannot be pressed into service for the purpose of police custody or any other reason for that matter, as the investigation for offences punishable upto ten years must get completed in 60 days. I hasten to add that it is only in few cases where it relates to life, death or ten years or more, the investigation can be for 90 days. In all other offences under the IPC or BNS, investigation must complete within 60 days. In the considered view of the Court, there can be no other interpretation. The purport of the word ‘up to five years or five 20 years and more or extendable up to five years, or up to ten years’, have borne judicial interpretation from time to time.

The Apex Court in the case of RAJEEV CHAUDHARY v. STATE (NCT) OF DELHI1 interpreting Section 167(2) or the words found therein “imprisonment for a term of not less than ten years” has held as follows: “…. …. ….

6. From the relevant part of the aforesaid sections, it is apparent that pending investigation relating to an offence punishable with imprisonment for a term “not less than 10 years”, the Magistrate is empowered to authorise the detention of the accused in custody for not more than 90 days. For rest of the offences, the period prescribed is 60 days. Hence in cases where offence is punishable with imprisonment for 10 years or more, the accused could be detained up to a period of 90 days. In this context, than” would mean the expression

not imprisonment should be 10 years or more and would cover only those offences for which punishment could be imprisonment for a clear period of 10 years or more. Under Section 386 punishment provided is imprisonment of either description for a term which may extend to 10 years and also fine. That means, imprisonment can be for a clear period of 10 years or less. Hence, it could not be said that minimum sentence would be 10 years or more. Further, in context also if we consider clause (i) of proviso (a) to Section 167(2), it would be applicable in case where investigation relates to an offence punishable (1) with death; (2) imprisonment for life; and (3) imprisonment for a term of not less than ten years. It would not cover the offence for which punishment could be 1 (2001) 5 SCC 34 21 imprisonment for less than 10 years. Under Section 386 IPC, imprisonment can vary from minimum to maximum of 10 years and it cannot be said that imprisonment prescribed is not less than 10 years.

(Emphasis supplied) Later, the Apex Court in the case of RAKESH KUMAR PAUL v. STATE OF ASSAM2 carrying forward the interpretation afore- quoted, has held as follows: “…. …. ….

A bare reading of Section 167 of the Code clearly indicates that if the offence is punishable with death or imprisonment or with a minimum sentence of 10 years, then Section 167(2)(a)(i) will apply and the accused can apply for “default bail” only if the investigating agency does not file charge-sheet within 90 days. However, in all cases where the minimum sentence is less than 10 years but the maximum sentence is not death or life imprisonment then Section 167(2)(a)(ii) will apply and the accused will be entitled to grant of “default bail” after 60 days in case charge-sheet is not filed. category envisaged

Even if I were to assume that two views are possible and in Section 167(2)(a)(ii) is ambiguous, as suggested by learned Brother Pant, J., then also I have no doubt in my mind that a statute which curtails the liberty of a person must be read strictly. When any human right; a constitutional fundamental right of a person is curtailed, then the statute which curtails such right must be read strictly. Section 167 of the Code lays 2 (2017) 15 SCC 67 22 down the procedure established by law by which a person can be deprived of his personal liberty guaranteed to him under Article 21 of the Constitution of India. If two meanings could be attributed to such a provision then the courts must lean towards liberty and accept that interpretation of the statute which upholds the liberty of the citizen and which keeps the eternal flame of liberty alive. If words are ambiguous then also the court should be reluctant to accept that interpretation which curtails the right of a human being of being free.” (Emphasis supplied) The Apex Court holds that even an assumption of two views emerging possible it should be in favour of the liberty under Article 21 of the Constitution of India. Later, the Apex Court in the case of M. RAVINDRAN v. INTELLIGENCE OFFICER, DIRECTORATE OF REVENUE INTELLIGENCE3 has held as follows: II. Section 167(2) and the Fundamental Right to Life and Personal Liberty “…. …. ….

Before we proceed to expand upon the parameters of the right to default bail under Section 167(2) as interpreted by various decisions of this Court, we find it pertinent to note the observations made by this Court in Uday Mohanlal Acharya [Uday Mohanlal Acharya v. State of Maharashtra, (2001) 5 SCC 453 : 2001 SCC (Cri) 760] on the fundamental right to personal liberty of the person and the effect of deprivation of the same as follows : (SCC p. 472, para 13) 3 (2021) 2 SCC 485 23

13. … Personal liberty is one of the cherished objects of the Indian Constitution and deprivation of the same can only be in accordance with law and in conformity with the provisions thereof, as stipulated under Article 21 of the Constitution. When the law provides that the Magistrate could authorise the detention of the accused in custody up to a maximum period as indicated in the proviso to sub-section (2) of Section 167, any further detention beyond the period without filing of a challan by the investigating agency would be a subterfuge and would not be in accordance with law and in conformity with the provisions of the Criminal Procedure Code, and as such, could be violative of Article 21 of the Constitution.

17.1. Article 21 of the Constitution of India provides that “no person shall be deprived of his life or personal liberty except according to procedure established by law”. It has been settled by a Constitution Bench of this Court in Maneka Gandhi v. Union of India [Maneka Gandhi v. Union of India, (1978) 1 SCC 248] , that such a procedure cannot be arbitrary, unfair or unreasonable. The history of the enactment of Section 167(2) CrPC and the safeguard of “default bail” contained in the proviso thereto is intrinsically linked to Article 21 and is nothing but a legislative exposition of the constitutional safeguard that no person shall be detained except in accordance with rule of law.

17.2. Under Section 167 of the Code of Criminal Procedure, 1898 (“the 1898 Code”) which was in force prior to the enactment of the CrPC, the maximum period for which an accused could be remanded to custody, either police or judicial, was 15 days. However, since it was often unworkable to conclude complicated investigations within 15 days, a practice arose wherein investigating officers would file “preliminary charge-sheets” after the expiry of the remand period. The State would then request the Magistrate to postpone commencement of the trial and authorise further remand of the accused under Section 344 of the 1898 Code till the time the investigation was completed and the final charge-sheet was filed. The Law Commission of India in Report No. 14 on Reforms of the Judicial Administration (Vol. II, 1948, pp. 758-760) pointed out that in many cases the accused were languishing for several months in custody 24 without any final report being filed before the courts. It was also pointed out that there was conflict in judicial opinion as to whether the Magistrate was bound to release the accused if the police report was not filed within 15 days. the need

17.3. Hence the Law Commission in Report No. 14 for an appropriate provision recommended specifically providing for continued remand after the expiry of 15 days, in a manner that “while meeting the needs of a full and proper investigation in cases of serious crime, will still safeguard the liberty of the person of the individual”. Further, that the legislature should prescribe a maximum time period beyond which no accused could be detained without filing of the police report before the Magistrate. It was pointed out that in England, even a person accused of grave offences such as treason could not be indefinitely detained in prison till commencement of the trial. filing “preliminary reports”

17.4. The suggestion made in Report No. 14 was reiterated by the Law Commission in Report No. 41 on The Code of Criminal Procedure, 1898 (Vol. I, 1969, pp. 76-77). The Law Commission re-emphasised the need to guard against the misuse of Section 344 of the 1898 Code by remanding the accused beyond the statutory period prescribed under Section 167. It was pointed out that this could lead to serious abuse wherein “the arrested person can in custody in this manner be kept indefinitely while the investigation can go on in a Commission leisurely manner”. recommended fixing of a maximum time-limit of 60 days for remand. The Commission considered the reservation expressed earlier in Report No. 37 that such an extension may result in the 60-day period becoming a matter of routine. However, faith was expressed that proper supervision by the superior courts would help circumvent the same. Hence

17.5. The suggestions made in Report No. 41 were taken note of and incorporated by the Central Government while drafting the Code of Criminal Procedure Bill in 1970. Ultimately, the 1898 Code was replaced by the present CrPC. The Statement of Objects and Reasons of the CrPC provides 25 the Government considerations recommendations of the Law Commission: account while following evaluating important

3. The recommendations of the Commission were examined carefully by the Government, keeping in view, among others, the following basic considerations: (i) (ii) an accused person should get a fair trial in accordance with the accepted principles of natural justice; every effort should be made to avoid delay in investigation and trial which is harmful not only to the individuals involved but also to society; (iii) the procedure should not be complicated and should, to the utmost extent possible, ensure fair deal to the poorer sections of the community.

time-limits for sufficient

17.6. It was in this backdrop that Section 167(2) was enacted within the present day CrPC, providing for time- limits on the period of remand of the accused, proportionate to the seriousness of the offence committed, failing which the accused acquires the indefeasible right to bail. As is evident from the recommendations of the Law Commission mentioned supra, the intent of the legislature was to balance the need investigation with the need to protect the civil liberties of the accused. Section 167(2) provides for a clear mandate that the investigative agency must collect the required evidence within the prescribed time period, failing which the accused can no longer be detained. This ensures that the investigating officers are compelled to act swiftly and efficiently without misusing the prospect of further remand. This also ensures that the court takes cognizance of the case without any undue delay from the date of giving information of the offence, so that society at large does not lose faith and develop cynicism towards the criminal justice system. to complete

17.7. Therefore, as mentioned supra, Section linked to the constitutional integrally 167(2) 26 commitment under Article 21 promising protection of life and personal liberty against unlawful and arbitrary detention, and must be interpreted in a manner which serves this purpose. In this regard we find it useful to refer to the decision of the three-Judge Bench of this Court in Rakesh Kumar Paul v. State of Assam [Rakesh Kumar Paul v. State of Assam, (2017) 15 SCC 67 : (2018) 1 SCC (Cri) 401] , which laid down certain seminal principles as to the interpretation of Section 167(2) CrPC though the questions of law involved were somewhat different from the present case. The questions before the three-Judge Bench in Rakesh Kumar Paul [Rakesh Kumar Paul v. State of Assam, (2017) 15 SCC 67 : (2018) 1 SCC (Cri) 401] were whether, firstly, the 90-day remand extension under Section 167(2)(a)(i) would be applicable in respect of offences where the maximum period of imprisonment was 10 years, though the minimum period was less than 10 years.

Secondly, whether the application for bail filed by the accused could be construed as an application for default bail, even though the expiry of the statutory period under Section 167(2) had not been specifically pleaded as a ground for bail. The majority opinion held that the 90-day limit is only available in respect of offences where a minimum ten year' imprisonment period is stipulated, and that the oral arguments for default bail made by the counsel for the accused before the High Court would suffice in lieu of a written application. This was based on the reasoning that the court should not be too technical in matters of personal liberty. Madan B. Lokur, J. in his majority opinion, pertinently observed as follows : (SCC pp. 95-96 & 99, paras 29, 32 & 41) “29. Notwithstanding this, the basic legislative intent of completing investigations within twenty-four hours and also within an otherwise time-bound period remains unchanged, even though that period has been extended over the years.

This is an indication that in addition complete investigations, the legislature has also and always put a premium on personal liberty and has always felt that it would be unfair to an accused to remain in custody for a to giving adequate 27 prolonged or indefinite period. It is for this reason and also to hold the investigating agency accountable that time-limits have been laid down by the legislature. … *** ensure conclusion expeditious

… Such views and opinions over a prolonged period have prompted the legislature for more than a century investigations so that an accused person is not unnecessarily deprived of his or her personal liberty by remaining in prolonged custody for an offence that he or she might not even have committed. In our opinion, the entire debate before us must also be looked at from the point of view of expeditious conclusion of investigations and from the angle of personal liberty and not from a purely dictionary or textual perspective as canvassed by the learned counsel for the State. ***

We take this view keeping in mind that in matters of personal liberty and Article 21 of the Constitution, it is not always advisable to be formalistic or technical. The history of the personal liberty jurisprudence of this Court and other constitutional courts includes petitions for a writ of habeas corpus and for other writs being entertained even on the basis of a letter addressed to the Chief Justice or the Court.” (emphasis supplied) Therefore, the courts cannot adopt a rigid or formalistic approach whilst considering any issue that touches upon the rights contained in Article 21.

17.8. We may also refer with benefit to the recent judgment of this Court in S. Kasi v. State [S. Kasi v. State, (2021) 12 SCC 1 : 2020 SCC OnLine SC 529] , wherein it was observed that the indefeasible right to default bail under Section 167(2) is an integral part of the right to personal liberty under Article 21, and the said right to bail cannot be suspended even during a pandemic situation as is prevailing currently. It was emphasised that the right of the accused to be set at liberty takes precedence over the right of the State to carry on the investigation and submit a charge-sheet. 28

17.9. Additionally, it is well-settled that in case of any ambiguity in the construction of a penal statute, the courts must favour the interpretation which leans towards protecting the rights of the accused, given the ubiquitous power disparity between the individual accused and the State machinery. This is applicable not only in the case of substantive penal statutes but also in the case of procedures providing for the curtailment of the liberty of the accused.

17.10. With respect to the CrPC particularly, the Statement of Objects and Reasons (supra) is an important aid of construction. Section 167(2) has to be interpreted keeping in mind the threefold objectives expressed by the legislature, namely, ensuring a fair trial, expeditious investigation and trial, and setting down a rationalised procedure that protects the interests of indigent sections of society. These objects are nothing but subsets of the overarching fundamental right guaranteed under Article 21.

17.11. Hence, is from the perspective of upholding the fundamental right to life and personal liberty under Article 21 that we shall clarify and reconcile the various judicial interpretations of Section 167(2) for the purpose of resolving the dilemma that has arisen in the present case. … … … V. Rights of the Prosecutor under Section 167(2) CrPC read with Section 36-A(4), NDPS Act the opinion expressed

20. There also appears to be some controversy on account of in Hitendra Vishnu Thakur [Hitendra Vishnu Thakur v. State of Maharashtra, (1994) 4 SCC 602 : 1994 SCC (Cri) 1087] that the Public Prosecutor may resist grant of default bail by filing a report seeking extension of time for investigation. The Court held that : (SCC p. 635, para 30) 29 “30. … It is, however, permissible for the Public Prosecutor to resist the grant of bail by seeking an extension under clause (bb) by filing a report for the purpose before the court. However, no extension shall be granted by the court without notice to an accused to have his say regarding the prayer for grant of extension under clause (bb). In this view of the matter, it is immaterial whether the application for bail on ground of “default” under Section 20(4) is filed first or the report as envisaged by clause (bb) is filed by the Public Prosecutor first so long as both are considered while granting or refusing bail. If the period prescribed by clause (b) of Section 20(4) has expired and the court does not grant an extension on the report of the Public Prosecutor made court shall release the accused on bail as it would be an indefeasible right of the accused to be so released. Even where the court grants an extension under clause (bb) filed within the extended period, the court shall have no option but to release the accused on bail if he seeks it and is prepared to furnish the bail as directed by the court.” charge-sheet clause (bb), (emphasis in original and supplied) This was affirmed by the Constitution Bench in Sanjay Dutt [Sanjay Dutt v. State, (1994) 5 SCC 410 : 1994 SCC (Cri) 1433] , wherein it was held that the grant of default bail is subject to refusal of the prayer for extension of time, if such a prayer is made. This seems to have given rise to the misconception that Sanjay Dutt [Sanjay Dutt v. State, (1994) 5 SCC 410 : 1994 SCC (Cri) 1433] endorses the view that the prosecution may seek extension of time (as provided completing the investigation or file a final report at any time before the accused is released on bail, notwithstanding the fact that a bail application on ground of default has already been filed. the relevant special statute) for under

20.1. The observations made