Saturday, 11 July 2020

Whether magistrate can remand accused to custody even though investigating officer has not produced case diary?

 However, the submission made by the applicants that the learned Magistrate has committed an error in granting remand and ordering detention of the applicants from the beginning, as at no time the extracts of the case diary regarding investigation were submitted before the Magistrate, deserves to be accepted. The Magistrate before passing the order of detention or remand has to get himself satisfied regarding adequacy of grounds for the said purpose. This cannot be from what is stated in the application i.e. whether the investigation is complete or certain accused are to be arrested. He has to get himself satisfied from the case diary which is required to be maintained under section 172(1) by the Investigating Officer. It is obligatory upon every Investigating Officer to maintain the said diary which contains various details regarding the progress of the investigation. It is a chart or graph of the investigation which is carried out by the said officer as day to day progress of the investigation is required to be recorded in it. The said extract of the diary must be produced before the Magistrate when any remand or detention of the accused is claimed. The Magistrate must look into the same and get himself satisfied regarding adequacy of the grounds and pass necessary order. Without the extracts of the said diary of investigation or case papers, it is not possible for the Magistrate to find out the adequacy of grounds and to get himself satisfied. The Magistrate must indicate, however succinctly it may be, his satisfaction for detention or remand of the accused. Since the order passed by the learned Magistrate is having the effect of taking away the liberty of a person, which is a fundamental right guaranteed to every citizen under the Constitution of India, it must be scrupulously followed.

8. The learned advocate for the applicants cited MANU/GH/0013/1963, R. K. Nabachandra Singh v. Manipur Administration. It dealt with Section 167 of the Code of Criminal Procedure, 1898. Same provision is to be found in the Code of Criminal Procedure, 1973, as Section 167 (with some modifications). It is observed - (at page 312 (of Cri LJ)

"...... if the police do not transmit to the Court a copy of the entries in the diary relating to the case, to satisfy the Magistrate that there are grounds for believing that the accusation or information is well-founded, and that a remand is absolutely necessary for the purpose of investigation, the Magistrate has no jurisdiction to direct the detention of the arrested person."

Similarly, in MANU/AP/0154/1955 : AIR 1957 AP 561, In re B. J. Reddi the Division Bench considered the effect of Section 167 of the Code of Criminal Procedure, 1898. It came to be observed as follows : at page 1065 (of Cri LJ)

"It is manifest that the provision relating to the transmission of a copy of the entries in the diary prescribed in S. 172 is mandatory and therefore imperative that every one of the officers answering the description in the section should send along with the remand report a copy of the case-diary which he is bound to keep under S. 172, Criminal Procedure Code. The object of enacting this section is that the entries in the diary afford to the Magistrate information upon which he can decide whether or not the detention of the accused person in custody should be authorised and also to enable him to form an opinion as to whether any further detention is necessary.

In the absence of the entries referred to in that section, it is difficult for the Magistrate to decide whether either the detention was authorised or the further detention is necessary. By not complying with the first requirement, the investigating officer render that part of the section which requires the transmission of entries in the case diary otiose. It is really astounding that a Police Officer should offer the explanation that it is not usual to send copies of case-diary in spite of an obligation cast on them by the section.

We are unable to understand how the Magistrate are able to act on the remand reports without the entries. These are very relevant in considering whether a further remand should be granted or not. We hope that the Magistrate acting under S. 167 would insist upon the mandatory provisions of the section being complied with."

IN THE HIGH COURT OF BOMBAY AT NAGPUR

Criminal Revision Application No. 61 of 1993

Decided On: 17.06.1993

Shrawan Waman Nade  Vs.  The State of Maharashtra

Hon'ble Judges/Coram:
P.S. Patankar, J.

Citations: 1994 (2) BomCR 668, 1994 CriLJ 780, 1994 (1) MhLj 220,MANU/MH/0144/1993



1. The applicants along with some others came to be arrested in Crime No. 45 of 1993 registered at Police Station Hingna under Sections 147, 148, 149, 302 and 307 of the Indian Penal Code for murdering one Rajesh and causing serious injuries to one Bahadur on 1-2-1993. A report in that respect came to be made to the Police Station Officer on 1-2-1993 at about 11.15 p.m. The applicants came to be arrested on 1-3-1993 and produced before the Judicial Magistrate, First Class, 10th Court, Nagpur on 2-3-1993. The prosecution sought police remand. The said application was signed by one K. G. Patil as Investigating Officer and it came to be granted up to 6th March, 1993. Another application came to be submitted on 6th March, 1993 signed by P.S.O., Police Station Hingna before the learned J.M.F.C., 10th Court, Nagpur, seeking magisterial custody remand. The learned Magistrate granted M.C.R. up to 20th March, 1993. Again on 20th March, 1993, another application came to be filed for extension of the said remand. The said application was signed by police constable attached to the said Court. The learned Magistrate extended the said remand up to 5-4-1993. On the very day i.e. 20th March, 1993, the applicants filed an application praying for releasing them on bail. In the said application it was contended that the application filed by the prosecuting agency was highly improper; it was not submitted by the Investigating Officer and it has been filed by the police constable, who was not authorised to do it. Further it was submitted without furnishing the extracts of the case diary of the investigation carried out by the Investigating Officer. It was also pointed out that the reason given in the application that some accused were absconding and they are to be arrested is not a proper cause. It was contended that the application for remand was illegal and should be rejected and bail granted. The learned A.P.P. filed a reply and contended that the investigation is incomplete and, therefore, detention of the applicants is necessary and was a sufficient reason for extending the remand. It was also pointed out that the order for remand has already been passed and the applicants can challenge the same before the higher Court and the application as filed by the applicants is not tenable and liable to be rejected. It is clear from this reply that there is no denial of the fact that the Investigating Officer has not forwarded the extracts of the case diary regarding investigation of the offence to the learned Magistrate when the application for extension of remand was made.

2. The learned J.M.F.C. 10th Court, Nagpur, rejected the application filed by the applicants, inter alia observing that the investigation was in progress and the applicants were required to be detained for completing the investigation and finding out the whereabouts of the absconding accused. He, therefore, held that the applicants are not entitled to claim any bail and rejected the application. The said order passed by the learned Magistrate is challenged in this revision application filed on 27-4-1993.

3. A few subsequent facts are required to be noted. Further application came to be filed on behalf of the prosecution on 5-4-1993 praying for extension of M.C.R. The same was again signed by the police constable attached to the Court and it came to be granted by the learned Magistrate till 19-4-1993. Again on 19-4-1993, another application was filed for further extension of M.C.R. and it came to be extended till 3-5-1993. Charge-sheet came to be filed within 90 days of the date on which the applicants were produced before the learned Magistrate for remand.

4. The learned advocate for the applicants submitted that the learned Magistrate has granted remand for the first time and subsequently blindly inasmuch as at no time any extract of the case diary which is required to be maintained by the Investigating Officer under Section 172(1) of the Code of Criminal Procedure was produced before the learned Magistrate. He submitted that, therefore, there was obvious violation of Section 167(1) and also of Section 167(2) of the Code of Criminal Procedure, as there was no material whatsoever for the learned Magistrate for getting himself satisfied that there were adequate grounds for detaining the applicants in magisterial custody. He further submitted that the applications were signed and submitted not by the Investigating Officer or by the officer-in-charge of the concerned police station, but by the constable who was attached to the said Court and, therefore, the same was invalid. He contended that the applicants have approached this Court before the charge-sheet was filed and merely because charge-sheet was filed, the right which is created in them to get bail cannot be defeated. He, therefore, submitted that the applicants are entitled to be released on bail.

5. The learned A.P.P. appearing for the State submitted that there was nothing wrong in submitting or signing the application by the constable who was attached to the Court. He submitted that the learned Magistrate is required to be satisfied from the material which is shown to him and if the learned Magistrate is satisfied, then he can extend the remand and if is not satisfied can release the accused. He further submitted that as the charge-sheet has already been filed before any order of granting bail in favour of the applicant is passed, the applicants cannot be released now under section 167. The applicants are now required to take recourse to Section 437 of the Code of Criminal Procedure for bail.

6. As far as the contention of the learned advocate for the applicants that the applications could not have been filed or signed by the police constable attached to the Court is concerned, it is not possible for me to accept it. In my opinion, it is not material who signs or submits the application. It is a ministerial act. Section 167(1) of the Code of Criminal Procedure provides that if the officer in charge of the police station or police officer making investigation is having ground for believing that the accusation or information against the accused, who are arrested and detained in custody, is well-founded, then he has to forward the accused to the nearest Judicial Magistrate and transmit copy of the entries in the diary, which is required to be maintained by him under section 172(1) of the Code of Criminal Procedure. This is required to be transmitted and produced before the Magistrate for considering whether the accused should be detained or not. Section 167(2) gives power to the Magistrate to detain the accused after satisfying himself that there are grounds for detaining the accused. The Magistrate can pass an order of detention for a maximum period of 15 days in police custody and thereafter in magisterial custody. In case the accused is involved in an offence punishable with death, imprisonment for life or imprisonment for a term not less than 10 years, then such detention or custody can be extended for a maximum period of 90 days, and in case of any other offence for a period of 60 days. However, in all these cases, satisfaction of the Magistrate as regards existence of adequate grounds for detention is necessary. This cannot depend upon the application which is presented to him, but the material regarding investigation which is produced before him. Therefore, in my opinion, it is not material as to who signed the application or submitted the application. The said application is presented on behalf of the Investigating Officer and the same is required to be considered by the learned Magistrate as contemplated by Section 167(2) of the Code of Criminal Procedure.

7. However, the submission made by the applicants that the learned Magistrate has committed an error in granting remand and ordering detention of the applicants from the beginning, as at no time the extracts of the case diary regarding investigation were submitted before the Magistrate, deserves to be accepted. The Magistrate before passing the order of detention or remand has to get himself satisfied regarding adequacy of grounds for the said purpose. This cannot be from what is stated in the application i.e. whether the investigation is complete or certain accused are to be arrested. He has to get himself satisfied from the case diary which is required to be maintained under section 172(1) by the Investigating Officer. It is obligatory upon every Investigating Officer to maintain the said diary which contains various details regarding the progress of the investigation. It is a chart or graph of the investigation which is carried out by the said officer as day to day progress of the investigation is required to be recorded in it. The said extract of the diary must be produced before the Magistrate when any remand or detention of the accused is claimed. The Magistrate must look into the same and get himself satisfied regarding adequacy of the grounds and pass necessary order. Without the extracts of the said diary of investigation or case papers, it is not possible for the Magistrate to find out the adequacy of grounds and to get himself satisfied. The Magistrate must indicate, however succinctly it may be, his satisfaction for detention or remand of the accused. Since the order passed by the learned Magistrate is having the effect of taking away the liberty of a person, which is a fundamental right guaranteed to every citizen under the Constitution of India, it must be scrupulously followed.

8. The learned advocate for the applicants cited MANU/GH/0013/1963, R. K. Nabachandra Singh v. Manipur Administration. It dealt with Section 167 of the Code of Criminal Procedure, 1898. Same provision is to be found in the Code of Criminal Procedure, 1973, as Section 167 (with some modifications). It is observed - (at page 312 (of Cri LJ)

"...... if the police do not transmit to the Court a copy of the entries in the diary relating to the case, to satisfy the Magistrate that there are grounds for believing that the accusation or information is well-founded, and that a remand is absolutely necessary for the purpose of investigation, the Magistrate has no jurisdiction to direct the detention of the arrested person."

Similarly, in MANU/AP/0154/1955 : AIR 1957 AP 561, In re B. J. Reddi the Division Bench considered the effect of Section 167 of the Code of Criminal Procedure, 1898. It came to be observed as follows : at page 1065 (of Cri LJ)

"It is manifest that the provision relating to the transmission of a copy of the entries in the diary prescribed in S. 172 is mandatory and therefore imperative that every one of the officers answering the description in the section should send along with the remand report a copy of the case-diary which he is bound to keep under S. 172, Criminal Procedure Code. The object of enacting this section is that the entries in the diary afford to the Magistrate information upon which he can decide whether or not the detention of the accused person in custody should be authorised and also to enable him to form an opinion as to whether any further detention is necessary.

In the absence of the entries referred to in that section, it is difficult for the Magistrate to decide whether either the detention was authorised or the further detention is necessary. By not complying with the first requirement, the investigating officer render that part of the section which requires the transmission of entries in the case diary otiose. It is really astounding that a Police Officer should offer the explanation that it is not usual to send copies of case-diary in spite of an obligation cast on them by the section.

We are unable to understand how the Magistrate are able to act on the remand reports without the entries. These are very relevant in considering whether a further remand should be granted or not. We hope that the Magistrate acting under S. 167 would insist upon the mandatory provisions of the section being complied with."

Similarly, recently the Gauhati High Court in (1992) 1 CCR 1055, Sampatmall Jain v. The State of Assam considered the effect of Section 167 of the Code of Criminal Procedure, 1973. In fact, in the said case, the accused was involved in a case under the Terrorists and Disruptive Activities (Prevention) Act, 1987. It was held that even the designated Court under the said Act shall have to first find out whether on the material placed before the Court i.e. copies of the entries in the case-diary, prosecution has been bale to show a prima facie case under the Act against the person. I fully agree with the view expressed by Gauhati High Court and I also express the hope that the Magistrate acting under section 167 would insist every time upon the mandatory provisions of the said section being complied with, i.e. to get himself satisfied after perusing the extracts of the diary maintained by the Investigating Officer under section 172(1) of the Code of Criminal Procedure. The Apex Court in MANU/SC/0335/1992 : 1992CriLJ2768 : C.B.I. v. Anupam J. Kulkarni held that Section 167 is supplementary to Section 57. The investigation should be completed in the first instance within 24 hours; if not the arrested person should be brought by the police before the Magistrate as provided under Section 167. While doing so, the police should also transmit a copy of the entries in the case-diary relating to the case which is meant to afford to the Magistrate the necessary information upon which he can take the decision whether the accused should be detained in custody further or not. Even at this stage, the Magistrate can release him on bail if an application is made if he is satisfied that there are no grounds to remand him to custody but if he is satisfied that further remand is necessary, then he should act as provided under section 167.

9. In my opinion, ordinarily I would have set aside the order dated 5-4-1993 and granted the application filed by the applicants for bail. However, the same is not possible in view of filing of the charge-sheet against the applicants within a period of 90 days. It is no doubt true that the applicants have approached this Court before the said charge-sheet was filed and claimed bail. However, it is not possible for me to ignore the said subsequent event of filing of the charge-sheet within the stipulated period. The Division Bench of this Court in Abdul Wahid v. State of Maharashtra, reported in MANU/MH/0133/1991 : (1991)93BOMLR478 considered the effect of filing of charge-sheet before any order of bail was passed under section 167(2) of the Code of Criminal Procedure. It was held that the Magistrate has no jurisdiction under section 167(2) to pass the order regarding bail once the charge-sheet is submitted. In the said case, one Abdul Wahid, who was the applicant, came to be arrested on 8-8-1989 in respect of an offence of murder which had taken place on 25-4-1989. The charge-sheet came to be filed on 92nd day from the date of arrest. An application for bail was also filed on the same day. The Session Court refused bail on 31st January, 1991. The Division Bench observed as follows : at page 1906 (of Cri LJ)

"In our view the correct position is that the right accused to the accused who is in custody, under the proviso to sub-section (2) of Section 167, Code of Criminal Procedure, can be exercised by him only before the charge-sheet is filed. If, however, he continues to be in custody because no order granting him bail is passed under that proviso, the Magistrate's power of granting bail once the charge-sheet is filed, can be exercised only under section 437 of the Code. In the latter case the right to bail cannot be claimed under the proviso to sub-section (2) of Section 167 of the Code."
10. Another decision of the Apex Court reported in MANU/SC/0001/1993 : 1992CriLJ3712 Aslam Babalal Desai v. State of Maharashtra is also cited. The Apex Court has no doubt exhaustively considered and interpreted Section 167 of the Code of Criminal Procedure. The Apex Court was dealing with the question whether bail granted under the proviso to sub-section (2) of Section 167, Code of Criminal Procedure, 1973, for failure to complete the investigation within the period prescribed thereunder, be cancelled on the mere presentation of the charge-sheet. In the said case, a complaint was lodged against the appellant and 8 others for commission of offences punishable under sections 147, 148, 302 and 323 read with Section 149 of the Indian Penal Code with regard to an incident which had taken place at about 11.30 p.m. on 8th September, 1990. The appellant was arrested on 9th September, 1990. An application was made by him before the Sessions Judge for releasing him on bail. The application was rejected. The appellant also approached the High Court, but withdrew the application. Then again, he moved the Sessions Court for bail under the proviso to Section 167(2) of the Code of Criminal Procedure, on the ground that the investigation had not been completed within 90 days. The learned Sessions Judge by his order dated 11th March, 1991 directed the release of the appellant on bail. After the charge-sheet was submitted and documents were tendered subsequently and then the State moved an application under section 439(2) of the Code of Criminal Procedure in the High Court for cancellation of bail granted by the Sessions Judge. The High Court by an order dated 31st March, 1992 cancelled the bail, inter alia, observing that the appellant was granted bail on technical ground, viz., failure to file charge-sheet within the time allowed and since the investigation revealed commission of serious offence of murder, bail requires to be cancelled. The said order came to be challenged by the appellant in the apex Court. Allowing the appeal it was held that bail can only be cancelled on considerations which are valid for cancellation of bail granted under section 437(1) and (2) or Section 439(1) of the Code of Criminal Procedure and it cannot be cancelled merely because charge-sheet was filed.

11. Thus, strictly speaking the point raised here was not before the apex Court. But was considered by the Division Bench in MANU/MH/0133/1991 : (1991)93BOMLR478 (cited supra) and is binding upon me. In the present case, no order of bail was passed by the learned Magistrate under Section 167(2) of the Code of Criminal Procedure before the charge-sheet was filed and, therefore, applicants cannot now claim bail under the said provision. In view of this, the applicants are not entitled to be released on bail and now the remedy for them is to approach the Court under section 437 of the Code of Criminal Procedure. Hence, the following order.

The Criminal Revision Application is dismissed.

12. Application dismissed.


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