Full Judgment Text
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PETITIONER:
MANOJ
Vs.
RESPONDENT:
STATE OF MADHYA PRADESH
DATE OF JUDGMENT: 01/03/1999
BENCH:
M.B.Shah, K.T.Thomas
JUDGMENT:
J U D G M E N T Thomas J. Leave granted. Appellantis caught between Scylla and C
harybdis. Such a peculiar
situation arises but rarely for an accused and he remains in
jail for long, without conviction in any case, despite
obtaining an order of bail as the High Court of Madhya
Pradesh expressed helplessness in considering his plea for
release, though he has a legal point in his favour.
The aforesaid situation was reached on the following
facts: On 22.6.1998 appellant was arrested in connection
with a case involving Section 15 of the Narcotic Drugs and
Psychotropic Substances Act, 1985 (For short the NDPS Act)
registered by the police of Kota in Rajasthan (it can be
referred to as the Rajasthan case, for convenience) and is
remaining in custody. In the meanwhile, another case under
NDPS Act started snowballing at Rampura district in Madhya
Pradesh which initially was against one Govind Singh and
eventually it involved the appellant also (for convenience
the latter case can be referred to as the MP case). It is
said that appellant was recorded as arrested in connection
with the MP case on 7.8.1998.
Appellant moved for bail in Rajasthan case and after
initial setbacks he succeeded in getting an order in his
favour which was passed on 16.10.1998 by the High Court of
Rajasthan (Jaipur Bench) directing him to be released on
bail on executing a personal bond for Rupees fifty thousand
together with two solvent sureties in a sum of Rupees twenty
five thousand each to the satisfaction of the Special Judge
(dealing with NDPS cases) Kota. We are told that appellant
did not execute the bond since his arrest in the MP case
became a stonewall for his release from custody.
So he moved the High Court of Madhya Pradesh for bail
under Section 439 of the Code of Criminal Procedure (the
Code for short) after his first move before the Sessions
Court at Mandsaur in Madhya Pradesh was rejected. The High
Court of Madhya Pradesh also rejected his petition. After
the expiry of ninety days of arrest in the Madhya Pradesh
case he moved an application before the Special Judge, Kota
contending that he is entitled to bail under the proviso to
Section 167(2) of the Code as no charge-sheet was laid in
the MP case till then. But the special court rejected the
application on the ground that he was never produced before
the court after the formal arrest(and no order as regards
first remand was ever passed): therefore, in this case,
question of completion of investigation within a period of
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ninety days does not arise.
He again moved the High Court of Madhya Pradesh upon
which the impugned order was passed. Learned single judge
of the High Court of Madhya Pradesh who passed the impugned
order, was not inclined to give the appellant benefit of the
proviso to Section 167(2) of the Code on the premise that he
was not produced before any Court pursuant to the arrest
dated 7.8.1998 and hence he cannot be treated to be in
judicial custody in the MP case. This is what the learned
judge has said:
On perusal of the impugned order of the trial court,
it emerged that the accused/applicant is not produced before
the Court as yet in compliance to the production warrant
issued by the Court. The trial Court considered that he is
not in a judicial custody in the instant case. Without
commenting anything on the applicability of Section 167(2)
to this case at this stage I do not consider it proper to
enlarge the accused on bail.
It is now well-neigh settled that benefit of the
proviso to Section 167(2) of the Code would endue to an
accused involved in the offences under NDPS Act as well,
(Vide Union of India vs. Thamisharasi and ors., 1995 4 SCC
190). Paragraph 14 of the said decision reads thus:
In our opinion, in order to exclude the application
of the proviso to sub-section (2) of Section 167 CrPC in
such cases an express provision indicating the contrary
intention was required or at least some provision from which
such a conclusion emerged by necessary implication. As
shown by us, there is no such provision in the NDPS Act and
the scheme of the Act indicates that the total period of
custody of the accused permissible during investigation is
to be found in Section 167 CrPC which is expressly applied.
The absence of any provision inconsistent therewith in this
Act is significant.
But here the position is slightly different because
appellant is not continuing in custody pursuant to any order
passed under Section 167(2) of the Code. Sub-section (2)
would apply only to an accused who was forwarded to a
magistrate as per sub-section (1) because further detention
of the accused can be made only if it is so authorised by
such magistrate. Proviso to sub-section (2) contains the
interdict that no magistrate shall authorise the detention
of the accused person in custody under this paragraph for a
total period exceeding ninety days, where the investigation
relates to an offence punishable with death, imprisonment
for life or imprisonment for a term of not less than ten
years. The proviso further mandates that on the expiry of
the said period of ninety days the accused person shall
be released on bail if he is prepared to and does furnish
bail. It is further provided that every person released on
bail under this sub-section shall be deemed to be so
released under the provisions of Chapter XXXIII for the
purposes of that Chapter.
Here the prayer for bail is opposed on the ground that
detention is without such authorisation. Can the benefit of
bail be denied on such a ground? Section 167(1) of the Code
is relevant in this context as it enjoins on the police
officer concerned a legal obligation to forward the arrested
accused to the nearest magistrate. That sub-section reads
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thus: Whenever any person is arrested and detained in
custody, and it appears that the investigation cannot be
completed within the period of twenty-four hours fixed by
section 57, and there are grounds for believing that the
accusation or information is well-founded, the officer in
charge of the police station or the police officer making
the investigation, if he is not below the rank of
sub-inspector, shall forthwith transmit to the nearest
Judicial Magistrate a copy of the entries in the diary
hereinafter prescribed relating to the case, and shall at
the same time forward the accused to such Magistrate.
The police officer who conducts investigation cannot
obviate the legal obligation to perform two requisites if he
knows that investigation cannot be completed within 24 hours
after arrest of the accused. One requisite is, to transmit
a copy of the case diary to the nearest judicial magistrate.
The other is, to forward the accused to such magistrate
simultaneously. The only exceptional ground on which the
police officer can avoid producing the arrested person
before such magistrate is when the officer concerned is
satisfied that there are no grounds for believing that the
information or accusation was well-founded. In such a case,
the accused must be released from custody to which he was
interred pursuant to the arrest.
In this context Section 57 of the Code is also
relevant and hence it is extracted below:
57. Person arrested not to be detained more than
twenty-four hours.- No police officer shall detain in
custody a person arrested without warrant for a longer
period than under all the circumstances of the case is
reasonable, and such period shall not, in the absence of a
special order of a Magistrate under section 167, exceed
twenty-four hours exclusive of the time necessary for the
journey from the place of arrest to the Magistrates Court.
If the police officer is forbidden from keeping an
arrested person beyond twenty four hours without order of a
magistrate, what should happen to the arrested person after
the said period it is a constitutional mandate that no
person shall be deprived of his liberty except in accordance
with the procedure established in law. Close to its heels
the constitution directs that the person arrested and
detained in custody shall be produced before the nearest
Magistrate within 24 hours of such arrest. The only time
permitted by Article 22 of the Constitution to be excluded
from the said period of 24 hours is the time necessary for
going from the place of arrest to the court of the
magistrate. Only under two contingencies can the said
direction be obviated. One is when the person arrested is
an enemy alien. Second is when the arrest is under any
law for preventive detention. In all other cases the
Constitution has prohibited peremptorily that no such
person shall be detained in custody beyond the said period
without the authority of a magistrate.
When the State of Madhya Pradesh, whose police made
the arrest of the appellant in connection with the MP case
on 7- 8-1998, admitted that after arrest he was not produced
before the nearest Magistrate within 24 hours, its
inevitable corollary is that detention made as a sequel to
the arrest would become unlawful beyond the said period of
24 hours.
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Of course the stand of the State of Madhya Pradesh is
that appellant continues to be under detention pursuant to
his arrest in the Rajasthans case. Excuses were advanced
by the respondent-State for their inability to produce the
accused before the nearest magistrate within the required
period. But no such excuse has been recognized by law.
Hence respondent cannot validly press for further detention
of the accused beyond 24 hours. That arrest has now become
otiose.
We therefore make it clear that as soon as the
appellant executes the bond to the satisfaction of the
Special Magistrate, Kota, in pursuance of the order of the
High Court of Rajasthan dated 16-10-1998 (cited supra) he
shall be released forthwith unless his detention is lawfully
required in any other case. We make it clear that nothing
stated in the judgment shall prejudice the powers of the
police to arrest the appellant in accordance with law, in
connection with any case.