Bombay HC: Right to seek default bail in MCOCA case will arise next day after sanction to prosecute is refused by competent authority

 The issue can be examined from a different angle. If we assume for the sake of argument that the effect of the order refusing sanction to prosecute the accused as amounting to not disclosing of any offence under the MCOC Act, the further consequence thereof would, at the most, be that the custody extension order will cease to have any effect at the end of the day on which sanction is refused and till that day, the extension order would have to be held as valid. Even from this view point, the petitioners are not entitled to be released on default bail as the essential condition required for accrual of indefeasible right under Section 167(2) of Cr.P.C. to the petitioners is not fulfilled. This can be seen from the facts available on record, which show that charge-sheet has been filed on 22/08/2022 and on the same day, the application under Section 167(2) of Cr.P.C. was moved by the petitioners. Of course, it is the contention of the learned Counsel for the petitioners that the application of the petitioners was filed about 30 minutes before the charge-sheet was filed and, therefore, their application was first in point of time and as such there was an accrual of right of default bail to the petitioners. The argument, in our view, is really not relevant for deciding the controversy involved in the petition. The reason being that, the day on which sanction was refused by the authority, would have to be considered to be the day on which the extended period of custody expired and, therefore, the right to seek default bail would arise on the immediate next day. It also means that when sanction is refused, as for example on Monday, this day of Monday would be the last day on which extended period of custody would come to an end, though in normal circumstances it would have expired later, and therefore, the Investigating Officer would have to take care that he files the final report on that day or otherwise he risks the grant of default bail to the accused. This is because of the fact that the provisions made under Section 167(2) of Cr.P.C. speak not in terms of hours, minutes and seconds, but only in terms of number of days completed. For the purpose of ascertaining as to when the period of authorized custody comes to an end, it is only the number of completed days, which is relevant and not the time at which the event having the effect of rendering the custody as unauthorized took place. {Para 21}

22. If we examine the issue from the above alternative, which we have proposed only by way of assumption and for the sake of argument, still the petitioners cannot be said to be fulfilling the essential requirement of Section 167(2) of Cr.P.C. in order to avail of right of default bail. The application under Section 167(2) of Cr.P.C. was filed by them on 22/08/2022 and that was the day when the sanction to prosecute the petitioners was refused. It was thus the day which became the last day of their authorized custody, which was otherwise extended up to 23/08/2022. Therefore, the right to avail of default bail in terms of Section 167(2) of Cr.P.C. really arose in their favour only from 23/08/2022.

IN THE HIGH COURT OF BOMBAY (NAGPUR BENCH)

Criminal Writ Petition No. 817 of 2022

Decided On: 23.12.2022

Naresh and Ors. Vs. The State of Maharashtra and Ors.

Hon'ble Judges/Coram:

S.B. Shukre and M.W. Chandwani, JJ.

Author: M.W. Chandwani, J.

Citation: MANU/MH/4539/2022.

Read full judgment here: Click here.

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Bombay HC: Refusal Of Sanction To Prosecute under MCOCA Does Not Invalidate Extension Of Judicial Custody Given By Special Court

A question remains, whether or not refusal of sanction by the A.D.G.P. under the provisions of the MCOC Act by itself will invalidate the grant of extension of period up to 180 days and would automatically reduce the judicial custody remand to it's original period of 90 days, especially when the extension had been granted under a judicial order, not challenged by the petitioners. It is to be noted the investigation for an offence and cognizance of the offence under the provisions of MOCC Act are governed by Section 23 of the MCOC Act, which are reproduced here. {Para 6}

"23. Cognizance of, and investigation into, an offence-

(1) Notwithstanding anything contained in the Code,-Section 167

(a) no information about the commission of an offence of organised crime under this Act, shall be recorded by a police officer without the prior approval of the police officer not below the rank of the Deputy Inspector General of Police;

(b) no investigation of an offence under the provisions of this Act shall be carried out by a police officer below the rank of the Deputy Superintendent of Police.

(2) No. Special Court shall take cognizance of any offence under this Act without the previous sanction of the police officer not below the rank of Additional Director General of Police."

17. It is worthy to note here that the power to extend the period to complete the investigation up to 180 days is exercised under Section 167(2) of Cr.P.C. by invocation of provisions made under Section 21 of the MCOC Act and whereas power to grant or refuse sanction to prosecute has it's source in Section 23 of the MCOC Act. Former power is exercised by the Court and latter power by a Police Officer. Objects of both kinds of powers are different. Custody extension is done for, inter alia, ensuring effective and speedy investigation, without any hindrance, while sanction is necessary to enable the Special Court to take cognizance of an offence under the MCOC Act, which is disclosed by the charge-sheet. In other words, former power exists for facilitating the investigation, while the latter power is to facilitate trial of the accused. Thus, both these powers operate in different fields. After considering the magnitude of the investigation required in a particular case, the Special Judge enables in depth investigation by extending custody period, and whereas, there is an embargo created by Section 23(2) of the MCOC Act on the cognizance taking by the Special Court without previous sanction of the A.D.G.P. The purpose of incorporating such embargo is to provide double filter before roping in anybody under the stringent provisions of law.

18. Thus, extending further time of 90 days for completing the investigation by the Special Judge is one thing and giving sanction by the A.D.G.P. is a different thing. Once, the Special Court after giving reasons has extended the period of investigation up to 180 days, the refusal of sanction will not take away the extended period of 90 days granted by the Special Court or even curtail the extended period granted by the Special Court. The detention here was authorized by a legal order of the Court under Section 21(2)(b) of the MCOC Act, after considering the material then available with police and with reasoned order and it was never challenged and, therefore, it became a final order. The detention of the petitioners after 90 days thus can not be said to be unauthorized detention.

 IN THE HIGH COURT OF BOMBAY (NAGPUR BENCH)

Criminal Writ Petition No. 817 of 2022

Decided On: 23.12.2022

Naresh and Ors. Vs. The State of Maharashtra and Ors.

Hon'ble Judges/Coram:

S.B. Shukre and M.W. Chandwani, JJ.

Author: M.W. Chandwani, J.

Citation: MANU/MH/4539/2022

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Should the court send the accused to police custody remand in the same crime after completion of fifteen days if subsequently a serious offence is made out against him?

  A question may then arise whether a person arrested in respect of an offence alleged to have been committed by him during an occurrence can be detained again in police custody in respect of another offence committed by him in the same case and which fact comes to light after the expiry of the period of first fifteen days of his arrest. The learned Additional Solicitor General submitted that as a result of the investigation carried on and the evidence collected by the police the arrested accused may be found to be involved in more serious offences than the one for which he was originally arrested and that in such a case there is no reason as to why the accused who is in magisterial custody should not be turned over to police custody at a subsequent stage of investigation when the information discloses his complicity in more serious offences. We are unable to agree. In one occurrence it may so happen that the accused might have committed several offences and the police may arrest him in connection with one or two offences on the basis of the available information and obtain police custody. If during the investigation his complicity in more sessions offences during the same occurrence is disclosed that does not authorise the police to ask for police custody for a further period after the expiry of the first fifteen days. If that is permitted than the police can go on adding some offence or the other of a serious nature at various stages and seek further detention in police custody repeatedly, this would defeat the very object underlying Section 167. However, we must clarify that this limitation shall not apply to a different occurrence in which complicity of the arrested accused in disclosed. That would be a different transaction and if an accused is in judicial custody in connection with one case and to enable the police to complete their investigation of the other case they can require his detention in police custody for the purpose of associating him with the investigation of the other case. In such a situation he must be for formally arrested in connection with other case and then obtain the order of the magistrate for detention in police custody. The learned Additional Solicitor General however strongly relied on some of the observations made by Hardy, J. in Mehar Chand's case extracted above in support of his contention namely that an arrested accused who is in judicial custody can be turned over to police custody even after the expiry of first fifteen days at a subsequent stage of the investigation in the same case if the information discloses his complicity in more serious offences. We are unable to agree that the mere fact that some more offences alleged to have been committed by the arrested accused in the same case are discovered in the same case would by itself render it to be a different case. All these offences including the so-called serious offences discovered at a later stage arise out of the same-transaction in connection with which the accused was arrested. Therefore there is a marked difference between the two situations. The occurrences constituting two different transactions give rise to two different cases and the exercise of power under Sections 167(1) and (2) should be in consonance with the object underlying the said provision in respect of each of those occurrences which constitute two different cases. 

 After the expiry of the first period of fifteen days the further remand during the period of investigation - can only be in judicial custody. There can not be any detention in the police custody after the expiry of first fifteen days even in a case where some more offences either serious or otherwise committed by him in the same transaction come to light at a later stage. But this bar does not apply if the same arrested accused is involved in a different case arising out of a different transaction. Even if he is in judicial custody in connection with the investigation of the earlier - case he can formally be arrested regarding his involvement in the different case and associate him with the investigation of that other case and the Magistrate can act as provided under Section 167(2) and the proviso and can remand him to such custody as mentioned therein during the first period of fifteen days and thereafter in accordance with the proviso as discussed above.

IN THE SUPREME COURT OF INDIA

Criminal Appeal Nos. 310-311 of 1992

Decided On: 08.05.1992

Central Bureau of Investigation,  Vs. Anupam J. Kulkarni

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Supreme Court: Accused can be remanded to police custody from Judicial custody within 15 days from the date of first remand on sufficient ground

We have considered the submissions of learned Counsel on both sides. That a person held in judicial custody could, if circumstances justify, be transferred to police custody or vice versa within a period of 15 days referred to in Section 167(2) of the Criminal Procedure Code, 1973 - which by virtue of Section 20 of the Terrorists and Disruptive Activities (Prevention) Act, 1987, is to be read as 60 days in this case cannot be disputed. There must, of course, be sufficient grounds for such a change of custody. In the present case, having regard to the nature of offence and the stage of the investigations it cannot be said that grounds for such custody do not exist.

IN THE SUPREME COURT OF INDIA

Writ Petn. (Cri.) No. 203 of 1992

Decided On: 28.07.1992

Kosanapu Ramreddy  Vs. State of Andhra Pradesh and Ors.

Hon'ble Judges/Coram:

M.N. Venkatachaliah, P.B. Sawant and N.P. Singh, JJ.

 Citations: AIR 1994 SC 1447, 1994 CriLJ 2121

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Whether accused can claim bail on ground that he was kept in custody without order of remand?

As per section 167(2)(b) of the Code, normally for seeking an order of remand to continue the accused in custody, the accused is required to be produced before the Court in person or through video linkage and in case it is not possible to bodily produce the accused, for example when he is hospitalized or undergoing treatment etc., the Investigating Officer is required to submit the reasons for non-production so that the Magistrate can satisfy himself the genuineness thereof, but he cannot refuse order of remand on ground of non-production of the accused. This issue is settled by the Hon'ble Apex Court in the case of RAJ NARAIN v. SUPERINTENDENT, CENTRAL JAIL, NEW DELHI AIR 1971 SC 178 and the ratio enunciated therein is followed by the Division Bench of this Court in NOOR JAHAN v. STATE OF KARNATAKA ILR 1991 KAR 4081 wherein the Division Bench has reiterated as under:

“For the purpose of passing an order remanding the accused to judicial custody, if it not possible to produce the accused bodily, he need not be produced and the order of remand can be passed even in the absence of the production of the accused.”

17. It is held in the above case by the Division Bench that the decision in Raj Narain's case holds good even under the new Code of 1973 that wherever it is not possible to produce the accused before the court bodily, the court cannot insist upon the production of the accused and cannot refuse to pass an order of remand. Therefore, it follows that mere non-production of the accused before extending the remand does not render the custody of the accused illegal. In the instant case, the custody of the petitioner/accused is seen to have been continued without there being specific order of remand by the learned Magistrate; but that by itself, in the light of the proposition referred above, does not render the custody of the petitioner illegal even though the continuation of the custody without authorization may give rise to a cause of action to the petitioner for the remedy of habeas corpus or for damages depending upon the circumstances of the case. In the absence of any provision either in Section 167 or section 209 of Cr.P.C, the petitioner cannot seek his release on bail on the ground that the custody was extended without an order of remand or without his production before the Magistrate. The very same question fell for consideration before another Division Bench of this High Court in the case ofSAJJAD v. STATE OF KARNATAKA by IG Prisons, ILR 2005 KAR 3313 and relying on the ratio laid down in Raj Narain's case, it was held that an order of remand in the absence of the accused is not an illegality and that merely on the ground that the remand order was passed in the absence of an accused, the accused cannot be released on bail. We are in agreement with this proposition and therefore, the contrary view taken by the Division Bench of the Andhra Pradesh High Court in the case relied on by the learned counsel for the petitioner in A. Narayana Reddy v. State of A.P, 1991 (3) Crimes 873 does not commend to us.

In the High Court of Karnataka at Bengaluru

(Before H.G Ramesh and John Michael Cunha, JJ.)

D. Gundappa Vs  State of Karnataka 

Criminal Petition No. 5347 of 2016

Decided on June 5, 2017

Citation: 2017 SCC online Kar 1149

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Leading Supreme Court judgment on issue of production warrant by magistrate

A question may then arise whether a person arrested in respect of an offence alleged to have been committed by him during an occurrence can be detained again in police custody in respect of another offence committed by him in the same case and which fact comes to light after the expiry of the period of first fifteen days of his arrest. The learned Additional Solicitor General submitted that as a result of the investigation carried on and the evidence collected by the police the arrested accused may be found to be involved in more serious offences than the one for which he was originally arrested and that in such a case there is no reason as to why the accused who is in magisterial custody should not be turned over to police custody at a subsequent stage of investigation when the information discloses his complicity in more serious offences. We are unable to agree. In one occurrence it may so happen that the accused might have committed several offences and the police may arrest him in connection with one or two offences on the basis of the available information and obtain police custody. If during the investigation his complicity in more sessions offences during the same occurrence is disclosed that does not authorise the police to ask for police custody for a further period after the expiry of the first fifteen days. If that is permitted than the police can go on adding some offence or the other of a serious nature at various stages and seek further detention in police custody repeatedly, this would defeat the very object underlying Section 167. However, we must clarify that this limitation shall not apply to a different occurrence in which complicity of the arrested accused in disclosed. That would be a different transaction and if an accused is in judicial custody in connection with one case and to enable the police to complete their investigation of the other case they can require his detention in police custody for the purpose of associating him with the investigation of the other case. In such a situation he must be for formally arrested in connection with other case and then obtain the order of the magistrate for detention in police custody. The learned Additional Solicitor General however strongly relied on some of the observations made by Hardy, J. in Mehar Chand's case extracted above in support of his contention namely that an arrested accused who is in judicial custody can be turned over to police custody even after the expiry of first fifteen days at a subsequent stage of the investigation in the same case if the information discloses his complicity in more serious offences. We are unable to agree that the mere fact that some more offences alleged to have been committed by the arrested accused in the same case are discovered in the same case would by itself render it to be a different case. All these offences including the so-called serious offences discovered at a later stage arise out of the same-transaction in connection with which the accused was arrested. Therefore there is a marked difference between the two situations. The occurrences constituting two different transactions give rise to two different cases and the exercise of power under Sections 167(1) and (2) should be in consonance with the object underlying the said provision in respect of each of those occurrences which constitute two different cases. Investigation in one specific case cannot be the same as in the other. Arrest and detention in custody in the context of Sections 167(1) and (2) of the Code has to be truly viewed with regard to the investigation of that specific case in which the accused person has been taken into custody. In S. Harsimran Singh v. State of Punjab MANU/PH/0290/1983 a Division Bench of the Punjab and Haryana High Court considered the question whether the limit of police custody exceeding fifteen days as prescribed by Section 167(2) is applicable only to a single case or is attracted to a series of different cases requiring investigation against the same accused and held thus:

We see no inflexible bar against a person in custody with regard to the investigation of a particular offence being either re-arrested for the purpose of the investigation of an altogether different offence. To put it in other words, there is no insurmountable hurdle in the conversion of judicial custody into police custody by an order of the Magistrate under Section 167(2) of the Code for investigating another offence. Therefore, a re-arrest or second arrest in a different case is not necessarily beyond the ken of law.

This view of the Division Bench of the Punjab & Haryana High Court appears to be practicable and also conforms to Section 167. We may, however, like to make it explicit that such re-arrest or second arrest and seeking police custody after the expiry of the period of first fifteen days should be with regard to the investigation of a different case other than the specific one in respect of which the accused is already in custody.

IN THE SUPREME COURT OF INDIA

Criminal Appeal Nos. 310-311 of 1992

Decided On: 08.05.1992

Central Bureau of Investigation  Vs.  Anupam J. Kulkarni

Hon'ble Judges/Coram: 

A.M. Ahmadi and K. Jayachandra Reddy, JJ.

Citation: 1992 CRLJ 2768,AIR 1992 SC 1768

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Whether accused can be remanded to police custody from judicial custody within fifteen days of his arrest?

 Whenever any person is arrested under Section 57 Cr. PC he should be produced before the nearest Magistrate within 24 hours as mentioned therein. Such Magistrate may or may not have jurisdiction to try the case. If Judicial Magistrate is not available, the police officer may transmit the arrested accused to the nearest Executive Magistrate on whom the judicial powers have been conferred. The Judicial Magistrate can in the first instance authorise the detention of the accused in such custody i.e., either police or judicial from time time but the total period of detention cannot exceed fifteen days in the whole. Within this period of fifteen days there can be more than one order changing the nature of such custody either from police to judicial or vice-versa. If the arrested accused is produced before the Executive Magistrate he is empowered to authorise the detention in such custody either police or judicial only for a week, in the same manner namely by one or more orders but after one week he should transmit him to the nearest Judicial Magistrate alongwith the records. When the arrested accused is so transmitted the Judicial Magistrate, for the remaining period, that is to say excluding one week or the number of days of detention ordered by the Executive Magistrate, may authorise further detention within that period of first fifteen days to such custody either police or judicial. After the expiry of the first period of fifteen days the further remand during the period of investigation - can only be in judicial custody.

IN THE SUPREME COURT OF INDIA

Criminal Appeal Nos. 310-311 of 1992

Decided On: 08.05.1992

Central Bureau of Investigation,  Vs. Anupam J. Kulkarni

Hon'ble Judges/Coram: 

A.M. Ahmadi and K. Jayachandra Reddy, JJ.

Citation: 1992 CRLJ 2768,AIR 1992 SC 1768

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Whether magistrate can remand accused in judicial custody who is granted anticipatory bail by high court?

 A learned Single Judge of this Court in Jose George v. State of Kerala [MANU/KE/0082/2006 : 2006 (2) KLT 188] held thus:

"When this Court grants the relief of pre-arrest bail, though there is no specific direction to the Magistrate, the message is clear that this court is of the view that the person to whom the relief of pre-arrest bail is granted is not to be remanded to judicial custody."

The Constitution Bench of the Hon'ble Apex Court in Shri. Gurbaksh Singh Sibbia and Others v. State of Punjab (MANU/SC/0215/1980 : 1980 (2) SCC 565) held that the normal rule should be not to limit the operation of the order under section 438 Cr.P.C. in relation to a period of time and the bail granted by the Court should ordinarily be continued till the trial of the case. The Apex court in Sibbia's case (supra) further held in paragraph 36 thus:--

"Secondly, if an application for anticipatory bail is made to the High Court or the Court of Session, it must apply its own mind to the question and decide whether a case has been made out for granting such relief. It cannot leave the question for the decision of the Magistrate concerned under Section 437 of the code, as and when an occasion arises. Such a course will defeat the very object of Section 438."

The Apex Court in Siddharam Satlingappa Mhetre v. State of Maharashtra and others (MANU/SC/1021/2010 : AIR 2011 SC 312) held that the court which grants the bail also has the power to cancel it and the discretion to cancel the bail can be exercised either at the instance of the public prosecutor or the complainant on finding new material or circumstances at any point of time. It was further held in Siddharam (supra) that the order granting anticipatory bail for a limited duration and thereafter directing the accused to surrender and apply for regular bail is contrary to the legislative intention and the judgment of the Constitution Bench in Sibbia's case (supra). The Apex court in Siddharam (supra) further held in paragraph 117 thus:--

"The view expressed by this Court in all the above-referred judgments have to be reviewed and once the anticipatory bail is granted, then the protection should ordinarily be available till the end of the trial unless the interim protection by way of the grant of anticipatory bail is curtailed when the anticipatory bail granted by the court is cancelled by the court on finding fresh material or circumstances or on the ground of abuse of the indulgence by the accused."

 The Apex Court in Bhadresh Bipinbhai Sheth v. State of Gujarat and another [MANU/SC/0949/2015 : 2016 (1) SCC 152] quoted with approval the ratio laid down by the Apex Court in Siddharam (supra).

 It is clear from the above decisions that once the pre-arrest bail is granted, the same will be in force unless it is canceled by the court granting the same or by the higher court. When pre-arrest bail is granted by the court, the same can be cancelled only by the court granting the order or by the higher court either at the instance of the public prosecutor or the complainant on finding new material or circumstances at any point of time.

IN THE HIGH COURT OF KERALA AT ERNAKULAM

Bail Appl. No. 688 of 2016

Decided On: 01.03.2016

 Nahif Ali 
Vs.
The Station House Officer, Ambalavayal Police Station

Coram:Bhaskaran Pillai Sudheendra Kumar, J.

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How to calculate ninety days for grant of default bail under S167 of crpc?

 In State of M.P. v. Rustam and others1995 Supp (3) SCC 221, this Court
has laid down the law that while computing period of ninety
days, the day on which the accused was remanded to the
judicial custody should be excluded, and the day on which
challan is filed in the court, should be included. That being
so, in our opinion, in the present case, date 5.7.2013 is to be
excluded and, as such, the charge sheet was filed on
ninetieth day, i.e., 3.10.2013.
Therefore, there is no
infringement of Section 167(2) of the Code.
Reportable
IN THE SUPREME COURT OF INDIA
CRIMILAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO.325 OF 2015
Ravi Prakash Singh @ Arvind Singh V State of Bihar
Citation;2015 ALLMR(cri)1230 SC

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